Legal Practitioners Complaints Committee and Mijatovic - [2007] WASAT 111

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PRACTICE ACT 2003 (WA)

CITATION: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and MIJATOVIC [2007] WASAT 111

MEMBER: HON R VIOL (SUPPLEMENTARY DEPUTY PRESIDENT)
MR C EDMONDS SC (SENIOR SESSIONAL MEMBER)
MS B HOLLAND (SESSIONAL MEMBER)

HEARD: 17 AND 30 NOVEMBER 2006, 1 DECEMBER 2006. WRITTEN SUBMISSIONS RECEIVED FROM THE APPLICANT ON 20 DECEMBER 2006 AND FROM THE RESPONDENT ON 31 DECEMBER 2006

DELIVERED : 23 MAY 2007

FILE NO/S: VR 58 of 2006
VR 59 of 2006
VR 60 of 2006

BETWEEN: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Applicant
AND
TOMAS MIJATOVIC
Respondent

Catchwords:

Legal practitioner - Unprofessional conduct - Costs agreement - Fiduciary duties - Conflict of interests - Family law proceedings - Application of both Legal Practitioners Act 1893 and Family Law Rules 1984 as to costs - Unreasonable and unfair terms - Lump sum provision - Practitioner concealing terms and effect of agreement - Client directed where to sign - No explanation as to terms - No advice to obtain independent legal advice - No basis shown for lump sum - Briginshaw standard - Gross overcharging - Reliance on decision of Taxing officer - Challenge to decision of Taxing Officer - The D'Alessandro factors - Practitioner's justification for each item - No justification for amount charged - Proportionality between charges, and services necessary and provided - Charges during social occasions - Agency of client's son - Communication with court officer during proceedings - No notice or copy to other side

Legislation:

Family Court Act 1997 (WA), s 27, s 237, s 237(3)
Family Court of Western Australia Rules, r 9
Family Law Act 1975 (Cth), s 41, s 123
Family Law Rules 1984 (Cth), O 38, r 4, r 6, r 26, r 27, r 36, r 37, r 38, r 40, r 42
Family Law Rules 2004 (Cth), r 19.4, r 19.5, r 19.6, r 19.12, r 19(14)(4)(a), r 19(14)(4)(b), r 19.32, r 19.33, r 19.34
Interpretation Act 1984 (WA), s 37, Sch 4 Div 3
Legal Practice Act 2003 (WA), s 3, s 164(1)(f), s 180, s 185, s 185(1), s 187, s 250A
Legal Practitioners Act 1893 (WA), s 25(1), s 29A(1), s 29A(2), s 29A(3), s 29A(4), s 34, s 34A, s 59, s 65, s 65(2), s 65(3), s 66, s 66(A)
Professional Conduct Rules 1983 (WA), r 5.1, r 5.2, r 7.1, r 7.7, r 7.8, r 10.3, r 13.10(1), r 16A, r 16(1), r 16.4, r 16.5
State Administrative Tribunal Act 2004 (WA), Pt 3, Pt 4, s 87(2), s 167, s 140(4)

Result:

Legal Practitioner guilty on three counts of unprofessional conduct.

For corrigenda see last page

Category: B

Representation:

Counsel:

Applicant: Mr G H Murphy SC and Ms G Roberts
Respondent: Self-represented

Solicitors:

Applicant: Law Complaints Officer
Respondent: Self-represented

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Brown v Talbot & Olivier (1993) 9 WAR 70
Cerini v McLeods (A Firm) [2004] WASC 45
D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575
De Pardo v Legal Practitioners Complaints Committee [2003] WASCA 274
General Medical Council v Spackman [1943] AC 627
Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56
Legal Practice Board v Frichot [2006] WASC 230
Legal Practice Complaints Committee and Cullen [2005] WASAT 211
Legal Practitioners Complaints Committee and Benari [2005] WASAT 213
Legal Practitioners Complaints Committee and Penkin [2006]WASAT 62
Twigg & Co v Rutherford (1996) 20 Fam LR 862
Weiss v Barker Gosling (1993) 16 Fam LR 728
REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Legal Practitioners Complaints Committee has brought three charges of unprofessional conduct against the respondent legal practitioner with respect to professional services he provided to his client in the following circumstances.
The client separated from her husband in 1999, after a marriage of about 20 years. In April 2002, the client, with assistance from a friend, commenced property settlement proceedings in the Family Court of Western Australia for orders in relation to the distribution of the assets of the marriage. These comprised essentially the matrimonial home, some shares, a boat; and motor vehicles and assets and funds in the possession of the client and husband respectively. The proceedings were the subject of discussions between the practitioner and the client's son, who were good friends. In July 2002 the client learned that her husband had instructed solicitors. She then spoke to the practitioner who practiced in the area of family law. They entered into a written costs agreement providing for payment at hourly rates and rights of itemisation and taxation of costs.
The client was very concerned at the legal costs likely to be incurred. She often spoke to the practitioner about these. Her evidence, disputed by the practitioner, was that he said they would not be "that much". Also, in August 2002, the practitioner provided a notice that his costs to that date were $1000 and to trial were estimated at $4000 to $8000. These figures corresponded with the husband's solicitors' estimates showing a total of $9200 to the end of trial. In October 2002 and December 2002 the practitioner produced further costs notifications. The first notification, by some handwritten entries of the practitioner, provided that costs in the event of a settlement would be $22 000 and $50 000 if the matter went to trial. The second notification advised that costs were estimated at $22 000 ‑ $50 000. The client says she was not shown the October notification and signed the December notification without reading it or understanding its terms and effect.
The practitioner and client attended conciliation conferences in July 2002 and October 2002. Settlement of the proceedings was not reached. At the end of October 2002 the practitioner wrote to the husband's solicitors proposing there be an even division of the matrimonial property. The offer was essentially that the husband retain the house and boat, that the shares be divided between them, that they each retain their personal chattels and effects and that the husband pay $150 000. The husband's solicitors offered payment of $130 000 but otherwise accepted these terms. The practitioner on instructions proposed payment of $142 000. The husband's solicitors countered that the difference be split, the husband paying $136 000. In December 2002 the matter settled on that basis. Consent orders were signed.
In early February 2003 the practitioner called the client in to sign some documents. She signed where directed, without reading the documents and believing that these related to the settlement. Included in the papers was a second costs agreement prepared by the practitioner. Under this the client agreed to pay $22 000 for costs, disbursements and GST and waived her rights to itemisation, taxation and any claim against the practitioner. In late February 2003 she signed some further documents, including a trust account withdrawal authority giving effect to the second costs agreement. Again she did not read this document nor understand its effect and terms. She was given a cheque for $114 000.
The client was distressed and confused at not receiving the full settlement sum. She requested an itemised account. The practitioner failed to provide this. He subsequently sent her letters indicating he was completing the settlement of the consent orders and, on instructions from the client, her partner and her son, working on an "appeal" from the consent orders. The client responded in several letters that she had never given such instructions and that his engagement had concluded at the end of February 2003. The practitioner claims he did not receive this correspondence until some weeks after its posting.
Following the client's complaint to the Committee and further requests by it, the practitioner finally provided an itemised account in December 2003. This was for $23 250 including GST. It included substantial amounts for professional services including with respect to his discussions with the client's son, during a function at the client's son's apartment and at Miss Maud Restaurant and from the end of February to April 2003 in respect of effecting settlement and the "appeal". The client had the account assessed by a Registrar of the Family Court. The amount allowed was about $5500. In the course of that hearing the practitioner wrote a letter to the Registrar which was extremely critical of his conduct of the taxation. This was not provided to the client's solicitors until the practitioner was asked to do so by the Registrar. By the orders made, the Registrar referred some aspects of the practitioner's conduct to the Committee.
The Committee made three references to the Tribunal for findings that the practitioner was guilty of unprofessional conduct under the provisions of the legislation governing legal practitioners. The first was in essence that the practitioner had acted improperly in relation to the second costs agreement and the withdrawal authority and in failing to provide an itemised account. The second was that he had acted improperly in that he had grossly overcharged the client. The third was that he had improperly communicated with the Registrar.
On the first reference we have found that the practitioner did not advise, nor orally agree with, the client that he would charge a lump sum fee of $22 000, (the October 2002 notification of costs being created by the practitioner in early 2003 and the client not reading nor appreciating she was signing the December 2002 notification), that the terms of the second costs agreement were unfair and unreasonable, that he procured the execution of that agreement and the withdrawal authority without the client knowing what each document was, without giving her the opportunity to read the document and without explaining it to her. We have found the practitioner guilty of this complaint, including in relation to failing to provide an itemised account when requested.
On the second reference, having considered the Registrar's decision and the relevant factors as to what will constitute a reasonable cost, we have found that the Registrar's assessment of costs provided appropriate evidence as to a reasonable charge for the practitioner's services. This reveals the extent of the overcharge. We reject the practitioner's attack on the Registrar's decision. We have also upheld the Committee's claim that, independently of the Registrar's decision, having regard to the charges during the periods mentioned, the practitioner's bill represented a gross overcharge. In that context we have considered the practitioner's evidence and submissions concerning the reasonableness of all of his charges. We reject the practitioner's claims in that respect. We regard the practitioner's records as unsafe and unreliable. Some were created well after the events they purport to record and were made for the purposes of justifying his account. We have found the practitioner guilty of unprofessional conduct by gross overcharging.
On the third reference, we have found that there were no circumstances justifying the practitioner's conduct in writing to the Registrar and in the terms he did and without providing a copy to the other side. We have found the practitioner guilty of this charge.

Outline of these reasons

Given the length of these Reasons, it may be helpful to provide an outline by reference to the subject headings we have used:

The complaints and references – the relevant legislation

The applicant, the Legal Practitioners Complaints Committee (Committee) has, pursuant to s 180 of the Legal Practice Act2003 (WA), determined to refer three matters involving complaints of unprofessional conduct against the respondent (practitioner), to the State Administrative Tribunal. Pursuant to that determination, the Committee has by three applications each dated 31 March 2006, instituted professional disciplinary proceedings against the practitioner for hearing and determination by this Tribunal within its original jurisdiction pursuant to the provisions of Pt 4 of the State Administrative Tribunal Act 2004.
The first matter (VR 58 of 2006) alleged that the practitioner was guilty of unprofessional conduct from about July 2002 to December 2003 by failing to ensure that the client's interests were properly protected and advanced in relation to the client's liability for costs payable to the practitioner, and improperly and calculatedly advancing his own interests in respect of costs, in conflict with, and to the detriment of the client's interests (the Conflict Complaint). The Committee has sought a finding that the practitioner was guilty of unprofessional conduct pursuant to s 29A(1) of the Legal Practitioners Act 1893 (WA), consequential orders pursuant to s 29A(2) and s 29A(3) of that Act, and costs pursuant to s 29A(4) of that Act and s 87(2) of the State Administrative Tribunal Act 2004 (WA).
The second matter (VR 59 of 2006) alleged that the practitioner was guilty of unprofessional conduct in about 2003 by charging a grossly excessive fee for the performance of professional services for a client in property settlement proceedings commenced by the client in the Family Court of Australia [correctly, the Family Court of Western Australia] (the Overcharging Complaint). The Committee again sought a finding that the practitioner was guilty of unprofessional conduct pursuant to s 29A(1) of the Legal Practitioners Act 1893, consequential orders pursuant to s 29A(2) and s 29A(3) of that Act, and costs pursuant to s 29A(4) of that Act and s 87(2) of the State Administrative Tribunal Act 2004.
The third matter (VR 60 of 2006) alleged that the practitioner was guilty of unsatisfactory conduct by unprofessional conduct in May 2004 in communicating with a judicial officer in proceedings in which he was involved, in the period after the commencement of the hearing of the matter and prior to the continuation of the hearing on a subsequent day, on issues relevant to the proceedings and the evidence in and conduct of the proceedings, without the leave or request of the Court, without first notifying the other side that he proposed to make the communication and of its terms, and without forwarding a copy of the communication to the other side prior to, or around the same time that he sent it to the court (the Communication Complaint). The Committee sought a finding that the practitioner had been guilty of unsatisfactory conduct by unprofessional conduct pursuant to s 185(1) of the Legal Practice Act 2003, consequential orders pursuant to s 187 of that Act, and costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004.
The Legal Practitioners Act 1893 was in force during the period of conduct the subject of the first two references. The Legal Practice Act 2003 was in force during the period of conduct the subject of the third reference. Under the Legal Practitioners Act 1893 the Committee had power to refer the complaint to the Disciplinary Tribunal. That Tribunal had power to make a finding that a practitioner had been guilty of unprofessional conduct and to make a report of the matter to the Full Court of the Supreme Court or impose certain penalties and to deal with costs. The Legal Practitioners Act1893 was repealed, and the Legal Practice Act 2003 commenced, on 1 January 2004. From that date the Committee had power under that Act to refer complaints to the Disciplinary Tribunal to make a finding of unsatisfactory conduct by unprofessional conduct and make such a report or impose such penalties and to deal with costs. From 1 January 2005, upon the commencement of the State Administrative Tribunal Act 2004, the Committee had power under the Legal Practice Act2003 to refer such matters to this Tribunal and this Tribunal had jurisdiction to make findings that a practitioner was guilty of unsatisfactory conduct by unprofessional conduct, and make such report to the Supreme Court or impose such penalties and to deal with costs. (See in particular the amendments to s 185, s 180 and s 164(1)(f) of the Legal Practice Act2003. We note that s 167 of the State Administrative Tribunal Act 2004 does not appear to govern the position in relation to the operation of the previous legislation as it applies to matters which had initially been referred to, relevantly, the Disciplinary Tribunal. We do not understand that to have been the position here.)
The Legal Practice Act 2003, which (as noted) from 1 January 2005 provides for the Committee to refer matters to the State Administrative Tribunal, does not in terms deal with the position of a practitioner's conduct arising during the currency of the Legal Practitioners Act 1893 and whether in those circumstances the matter may be referred to the State Administrative Tribunal. The Legal Practice Act 2003 does, however, make reference to the operation of the Interpretation Act 1984 (WA) "as if the 2003 Act repealed that [1893] Act". (Sch 4 Div 3.) By s 37 of the Interpretation Act 1984 a repeal does not, unless the contrary intention appears, relevantly, affect any duty, obligation or liability which exists prior to the repeal or any penalty or forfeiture incurred or liable to be incurred in respect of an offence against the Act, or any investigation, legal proceedings or remedy in respect of such duty, obligation and liability; and any such investigation legal proceeding or remedy may be instituted continued or enforced and any such penalty may be imposed and enforced as if the repealing law had not been made.
The common law principle is that a statute changing the law is not to be understood as applying to facts or events which have already occurred, in such a way as to affect liabilities which the previous law had defined by reference to past events. However, the law regulating the manner in which liabilities are to be enforced is not within this presumption. Changes made to practice and procedure are applied to proceedings to enforce liabilities notwithstanding that before the law was changed the accrual of the liabilities was complete and rested on events that were in the past: Legal Practice Board v Frichot[2006] WASC 230 at [15] citing the relevant authorities.
Applying these principles, the position is with respect to the first two references that the practitioner's conduct is to be determined and any penalty imposed by reference to the provisions of the Legal Practitioners Act1893, and with respect to the third reference, by reference to the Legal Practice Act 2003. However, as regards the forum and the procedures in each case, "a contrary intention does appear" and these are now governed by the current legislation namely the Legal Practice Act 2003 and the State Administrative Tribunal Act 2004. That being so, as at 31 March 2006 the Committee had power to refer each of the matters to this Tribunal which has jurisdiction to hear and determine the matters in accordance with its procedures, but to make findings of guilt and make a report or impose penalties under the provisions respectively of the Legal Practitioner's Act 1893 (the first two references) and the Legal Practice Act2003 (the third reference): Legal Practice Board v Frichot[2006] WASC 230 and Legal Practice Complaints Committee and Cullen [2005] WASAT 211. (We mention that under s 140(4) of the State Administrative Tribunal Act 2004 Act, the Supplementary Deputy President hearing this matter has the status of a Deputy President for the purposes of s 250A of the Legal Practice Act 2003).
The central issue for determination is whether the practitioner is guilty of unprofessional conduct (first and second references), and unsatisfactory conduct by unprofessional conduct (third reference), respectively. The Legal Practice Act2003 by s 3 defines "unsatisfactory conduct" to include "unprofessional conduct". However, neither that Act nor the Legal Practitioner’s Act 1893, defines "unprofessional conduct". In this respect the Committee has in each matter relied upon the second limb of the essential notion of what constitutes unprofessional conduct explained in Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56 at 71‑72. That is, that the conduct in question was conduct that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.

Outline of principal facts and factual disputes

The same substratum of facts forms the background for each of the references. The Committee, in the Conflict Complaint and the Overcharging Complaint, relies upon many common facts and documents. The Committee tendered the same witness statements for both those references. As a consequence, the three references were heard together, the evidence of the witnesses being available in each of the matters to the extent they were relevant having regard to the parties' separate Statements of Issues Facts and Contentions.
The practitioner was born in 1970. He was admitted to the Supreme Court of Western Australia in 1993. Thereafter he worked as an employed solicitor in various law firms commencing sole practice in Perth in October 2000. His practice included family law matters.
In July 2002, the complainant (the client) was referred by her son, who was a close friend of the practitioner, to the practitioner. This was with a view to the practitioner acting for her in property settlement proceedings (the Family Court proceedings) instituted in the Family Court of Western Australia (the Family Court) against the client's husband (the husband). The client and the husband had married in 1979 and were then separated. As at July 2002 the Family Court proceedings were under way, the client with assistance from her female friend (the client's friend), having in April 2002 commenced the Family Court proceedings.
Although there is a dispute as to when the client's instructions to the practitioner actually commenced (and ended), on 25 July 2002 the practitioner and the client signed a written agreement entitled "Terms and conditions of engagement" (the first costs agreement). The first costs agreement provided for the practitioner's costs to be charged at the rate of $250 per hour and for the client's rights to itemisation and taxation of his costs. No complaint is made as to the circumstances of the execution and the terms of the first costs agreement.
For some time before and after 25 July 2002, there were discussions between the client's son and the practitioner in relation to the Family Court proceedings. In this respect the practitioner, at the time he provided his bill of costs in December 2003, claimed that the son was acting on behalf of the client from April 2002 in providing instructions to and receiving advice from, the practitioner. He has charged the client, and maintains that he was entitled to charge the client, in relation to receiving and acting on those instructions. However, the extent and nature of these discussions and the entitlement to charge in relation to them are in dispute.
There is agreement between the practitioner and the client that from the outset she constantly requested details of the costs being incurred by the client. The practitioner says he provided oral and written advice in relation to his costs. The client says that apart from a written advice in August 2002, she was told in effect not to worry and that the costs would not be "that much". The practitioner disputes he said this.
In August, and again in October and December 2002, the practitioner prepared a written notification of his costs to that time and estimates of his costs to various stages in the proceedings, including to the conclusion of the trial. There is a dispute as to the circumstances surrounding the client's receipt of the October notification and her signing of the December notification.
There is a dispute also as to the reasonableness of fees charged by the practitioner during the period from July 2002 to February 2003 when it is agreed that the practitioner was engaged. For instance, on 31 October 2002, there was a function (the October function) at the son's apartment and at Miss Maud Restaurant attended by the client, the client's male partner (the client's partner), the client's son, the practitioner and his partner, and other friends of the client's son. The practitioner claimed substantial costs for that day for what he claimed and confirmed in evidence, were "evidence gathering conferences". The client and the client's partner maintain that apart from the client giving some money on account of costs to the practitioner, there was no discussion of the Family Court proceedings on these occasions.
The practitioner, on behalf of the client, attended conferences at the Family Court on 25 July and 10 October 2002. Settlement negotiations took place on these occasions but were unsuccessful. At the end of October 2002, the practitioner commenced written settlement negotiations with the husband's solicitors. After a brief exchange of correspondence the matter was settled in December 2002. Consent orders reflecting the settlement were made by the Family Court on 9 January 2003. Pursuant to such orders, on about 6 February 2003 the husband paid the sum of $136 000 to the practitioner on behalf of the client. The practitioner paid this sum into his trust account.
Shortly prior to this, in early February 2003 the practitioner had prepared and the client had signed, a document entitled "Authority and Agreement" (the second costs agreement). The provisions of the second costs agreement included the client agreeing to:
(1) a deduction of $22 000 from the settlement proceeds in respect of the practitioner's costs, disbursements and GST;
(2) a deferral of any account for the practitioner's costs until July 2003;
(3) waiving any claim she had in respect of the balance of the amount received from the settlement;
(4) treating the balance of $114 000 payable to the client as a final settlement of any claim she might have against the practitioner; and
(5) waiving her rights to the itemisation and taxation of the practitioner's costs.
In his oral evidence the practitioner claimed that this document reflected a prior oral agreement agreeing his fees at $22 000 and that the document had been read by and explained to the client. The client disputed that there was any such prior agreement and said in evidence that her execution of the second costs agreement had been procured by the practitioner without her understanding the nature of the document or she having read it or without the practitioner having explained the document.
On 24 February 2003, the practitioner prepared and the client executed, again she says without her reading or having it read or explained, an "Account Withdrawal Authority" (the withdrawal authority) providing for the withdrawal from the practitioner's trust account of $22 000 in payment of the practitioner's costs, disbursements and GST. Near the end of this meeting the practitioner provided to the client a cheque drawn on his trust account in the sum of $114 000, that is, after deducting the sum of $22 000 for his costs, disbursements and GST.
Immediately following receipt of this sum and thereafter until April 2003, the client asked the practitioner to provide her with an itemised account of the practitioner's costs. The exact nature of these requests is disputed.
In March and April 2003, the practitioner says that, pursuant to instructions from the client and her son and her partner, he continued to implement the settlement and commenced working on an "appeal" from the consent orders to the Full Bench of the Family Court of Australia. The costs for such work were included in the itemised account ultimately provided. The client and her partner say no such instructions were ever given, that at the end of February 2003 the client had acknowledged his services were at an end and the client several times thereafter made clear, orally and in writing, that his engagement was terminated.
In March 2003, the client spoke to Legal Aid and subsequently the Law Society about the matter. On 5 May 2003, she made a formal complaint about the practitioner's conduct. The Committee raised these complaints in correspondence with the practitioner commencing on 14 May 2003. It also referred to the client's request for an itemised account and made several requests of the practitioner in this respect.
On about 3 July 2003, the practitioner provided a lump sum bill to the client based alternatively on his hourly rate under the first costs agreement, or under the second costs agreement, in the sum of $22 000 including GST. At the same time he transferred that sum from his trust account to his office account. The practitioner says, but the client denies, that he was entitled to do this pursuant to the second costs agreement and the withdrawal authority.
On about 22 December 2003, the practitioner sent an itemised account to the client showing costs incurred of $29 550 calculated at $250 per hour, but claiming costs in the sum of $23 250 including GST. In January 2004, the client by her then solicitors disputed the amount of costs claimed by the practitioner and sought an "assessment" of costs in the Family Court. (This appears substantially the same process as what in some State Supreme Courts, including of Western Australia, is described as a "taxation" of costs.)
The taxation took place before Registrar Moroni of the Family Court over six days in May 2004. Registrar Moroni assessed the account for the practitioner's services at $5490.10 inclusive of GST. That is, from the practitioner's account of $23 250 he taxed off $17 759. He ordered the practitioner pay the client's costs of the assessment, fixed at $8296.45. The Registrar also made several complaints to the Committee about the practitioner's conduct in relation to the costs charged.
The practitioner in accordance with the assessment and orders, paid the client the sum of $16 509.90 being the difference between $22 000 previously transferred to his general account and the assessed costs of $5490.10, together with the client's assessment costs of $8296.45. At the same time he notified the client that, for "commercial reasons", he did not intend to seek a review of the taxation.
After the first day of the taxation hearing before Registrar Moroni, the practitioner, uninvited, faxed a letter dated 12 May 2004 to the Registrar. A copy of this letter was first provided to the solicitors for the client at the hearing nearly three hours later and following a request from the Registrar that this be done. The letter to Registrar Moroni purported to be a record of the events of 10 May 2004. It was very critical of the Registrar's conduct of the taxation and included the suggestion that the Registrar had "prejudged the issues in the matter".

The principal issues

As concerns the Conflict Complaint, the Committee has provided particulars in its Statement of Issues Facts and Contentions. In effect it specifies the practitioner's conduct complained of as:
(1)Procuring the client's execution of:
(a)the second costs agreement; and
(b)the withdrawal authority:
(i)the terms of which were contrary to her interests and calculated to advance his own; and
(ii)in circumstances where the practitioner did not:
(A)bring to the client's attention and or concealed from her their terms and effect;
(B)advise her that it was contrary to her interests to sign; and
(C)insist that she should not sign until she had obtained independent legal advice.
(2)Failing to provide an itemised bill of costs in the periods:
(a)24 February to 2 July 2003;
(b)3 July to 22 December 2003.
The principal factual issue in the Conflict Complaint concerns the circumstances in which the second costs agreement and the withdrawal authority came to be executed. Specifically, whether as the practitioner claimed (in this respect during the hearing) the client had earlier been informed and agreed to his proposed lump sum fee of $22 000, and had voluntarily agreed and understood this and the terms of the second costs agreement and the withdrawal authority; or whether as the client alleges, there was never any discussion much less agreement as to a lump sum fee, nor as to fees in the order of $22 000, nor as to the other provisions of the second costs agreement and she signed the second costs agreement and subsequently the withdrawal authority without any appreciation of the nature of the documents and their terms. To the extent the Committee's factual claims are proved, the Tribunal will need to determine, having regard to a lawyer's statutory, fiduciary and professional duties, whether this constituted unprofessional conduct.
The second issue in relation to the Conflict Complaint is whether from February to December 2003 the client, directly or by the Committee, requested the practitioner to provide an itemised account and whether the practitioner's failure to provide such until December 2003 constituted unprofessional conduct.
The main factual issues in the Overcharging Complaint concern the scope, nature and extent of the work undertaken by the practitioner in relation to the Family Court proceedings and the reasonableness of the costs charged for such services. Important issues here are the correctness of Registrar Moroni's decision on taxation and the extent to which the Tribunal may rely upon it. Further, whether independently of this decision, the evidence shows that the amount charged was excessive. The practitioner maintains that notwithstanding Registrar Moroni's decision, the work he undertook in 2002 and early 2003 justified the lump sum fee charged and that the Registrar was wrong in coming to the decision he did. To the extent the costs charged are found to be "grossly excessive" the issue is whether they are so excessive as to constitute unprofessional conduct.
There is a much more confined issue in the Communication Complaint. This is whether, as the practitioner maintains, there was compliance with the relevant rules governing such communications or (putting it on behalf of the practitioner) there were particular circumstances justifying the practitioner writing directly to the Court in the terms he did, without invitation to do so and without prior notice to the other.

The witnesses called – some findings on credibility

It is apparent from the outline of facts given above that there is a substantial conflict of evidence between the practitioner and the client, and to a more limited extent between the practitioner and the client's partner and friend, on most of the important issues. The specific evidence concerning each of those issues is considered below. It has generally not been possible to reconcile the evidence on the basis of a misunderstanding between the practitioner and the client or a finding of some "middle position" or that one or other witness was mistaken. On the primary issues of the client's knowledge of her son instructing the practitioner on her behalf, the provision of cost estimates to the client, oral discussions and agreement on a lump sum fee of $22 000, the circumstances surrounding and the advice given at the time of the signing of the second costs agreement and the withdrawal authority, termination of the engagement and instructions to prepare an appeal, the acceptance of one witness's evidence necessarily involves the rejection of the other's evidence.
The Committee called three witnesses being the client, the male partner of the client (the client's partner) and a female friend of the client (the client's friend).

The client

The client was born in 1950 in Spain and came to Australia in 1979, unable to speak any English. She learned English following her arrival. She said in evidence that she can understand and speak English if it is spoken clearly and simply, but she still has difficulty reading documents written in English unless they are expressed simply. She had in the past assisted in an antenna business conducted by the husband, run a take away food business at the Wanneroo markets for several years and worked as a nursing assistant.
In her cross‑examination by the practitioner, it was put to her that she was fluent in English. Her initial answer was: "Well, whatever is coming in my mouth that's how ... I don't know". When the question was repeated she then said "Yep" and "Well you can hear me talking". A short time later she said she disagreed that she was fluent in English. (T:54, 55, 57, 1.11.06 – given the extensive oral evidence we have included references to the transcript of these proceedings). We mention that in his witness statement in the Overcharging Complaint the practitioner said of the client that "her memory and communication skills were poor". Our finding is that the client was clearly not fluent in speaking and reading English as was apparent from her evidence and the manner of giving it and as attested by the client's partner and the client's friend. We accept her evidence that she had difficulty in reading documents in English unless they were expressed simply.
There was a lengthy cross‑examination of the client by the practitioner with the express purpose of demonstrating also that she was an experienced business‑woman who would therefore understand the nature of a written costs agreement. In his supplementary oral evidence the practitioner said that he believed from working with her that she was an experienced business‑woman who had no difficulty in reading documents in English. (T:11, 7.11.06) It was put to her by the practitioner that she was familiar with commercial documents and financial matters. The client said initially that when she signed a document she "always had someone next to me explaining to me – what it was what". She said in relation to the purchase of the matrimonial home that she had signed the mortgage and transfer documents and some bank loan documents. She had filled in the Family Court documents with assistance from the client's friend. These disclosed that between 1995 and 1998 she had been a "full time working partner" in the antenna business. Further that they had acquired the take away food business in 1995 and she had worked in this until 2000. It was then put to her that running this food business involved financial records and that she was an experienced business‑woman. The client rejected this proposition. She said in relation to the take away food business that she sold German sausages in a bun "like hot dogs" from a caravan stall at weekends and that it was conducted on a cash basis. She said that she kept the accounts in the form of a book recording the cash in and out and provided this to a tax agent to prepare the income tax returns. She said that her husband had signed a lease or some document with the stall manager. She said the business ran at a loss and she had arranged an advertisement and sold the business on an oral contract for $3000.
In relation to her husband's antenna business, the client said she helped him physically by assisting him install antennas. When he was away in Europe for about a month she managed the business purchasing the antennas and physically installing them with help from her sister. She kept a book for the income and expenses. The business had a bank account with a cheque book, but she had never herself filled out a cheque. If a cheque came in she banked this and she also signed withdrawals with assistance from the "girls" at the bank.
She said she "currently" owned land together with her partner. It was not established whether this was acquired before or after 2002. She said she signed the contract of purchase, her partner helping her with the paperwork. She also signed a mortgage. It was put that she had no problem regarding signing contracts and incurring debt under them and she replied "Not if it is explained properly to me, no". She said that her partner and the bank officer had explained the mortgage. Asked if this extended to every single sentence she said; "He did explained a lot to me". (The cross‑examination on these subjects is at T:57‑78, 1.11.06.)

The client said that she had no prior experience in the Family Court and had no previous experience with solicitors. She said that she understood solicitors charged on an hourly rate and that engaging a solicitor in the property dispute would be "expensive". (T:80, 1.11.06) We accept this evidence.
In relation to this specific issue, having considered the practitioner's evidence, the client's evidence and that of her partner and friend, we find that the client had limited experience in conducting a business and that such experience as she did have would not qualify her to read and understand legal documents such as a costs agreement and an account withdrawal authority. We find that the client would not have been capable of reading and understanding the first costs agreement and the second costs agreement, and the withdrawal authority, without considerable assistance in the form of explanation of the contents of those documents.
Generally as regards the credibility of the client, we find as follows. The client's evidence was contained in a statement of evidence which was signed on 30 August 2006. Although her oral evidence seldom matched the clarity and precision of that document and she sometimes had difficulty expressing herself, there were no departures from the substance of her statement. Further, her evidence was consistent with her written complaint to the Committee dated 5 May 2003 (when the events were fresher in her memory). It was internally consistent and was (as we seek to show) consistent with the probabilities of the matter.
The cross‑examination of the client by the practitioner was lengthy, laboured and often aggressive. (One consequence of the practitioner acting for himself, notwithstanding earlier suggestions from the Tribunal at directions hearings that he engage independent counsel, was that over some days of the hearing the practitioner cross‑examined his former client on matters which had passed between them.) The client exhibited some distress at this conduct and at having to recount the events the subject of the complaints, some of which she clearly found painful. However, she was not shaken on any aspect of her evidence in chief and repeated and enlarged on much of what she had earlier set out in her witness statement.
In several respects the client's evidence was corroborated by the client's partner and by the client's friend. We have considered the nature of those relationships and the likelihood that by reason of them there would be a natural bias towards the partner and friend each supporting the client. Further, it was apparent during his evidence that the client's partner felt strongly about the conduct of the practitioner concerning the deduction of his fees of $22 000 and work said to have been undertaken in relation to the appeal. But even taking those matters into account we have no reason to doubt the substance of their supporting evidence. Certainly nothing emerged in their lengthy cross‑examinations to doubt the reliability of their evidence.
Having considered all of the evidence, we have come to the firm conclusion that the evidence given by the client was credible and reliable and supported by the two other witnesses in several important respects. For reasons which we detail further below, we accept her evidence on the principal issues. These include her reliance upon and trust in the practitioner, the absence of any intention or conduct that her son act on her behalf in instructing the practitioner, her concerns as to limiting the costs of his work and knowing the quantum of such costs, the receipt of the memorandum of costs dated 9 October 2002 and the signing of the costs disclosure statement of December 2002, the circumstances surrounding her signing of the second costs agreement and the withdrawal authority, her distress when she first learned that the practitioner had charged $22 000 for his work and her lack of any intention or instructions to institute any appeal in relation to the settlement. That is to say, with respect to these issues we find that the version of events put forward by the client is significantly more persuasive than that advanced by the practitioner.

The client's partner

The client's partner confirmed the client's evidence as to her limited ability to read long documents and some limitations she had in written and spoken English. He described the client as vulnerable and by nature a very trusting person.
The client's partner had very limited involvement in the proceedings concerning the property dispute until early in 2003. He gave important evidence concerning the client's reaction upon being told by the practitioner that he was deducting $22 000 for his costs. He gave evidence as to the client's, and his, immediate requests of the practitioner that he provide an itemised statement of account of his costs. He emphatically rejected the practitioner's claim that at about this time, in late February and March 2003, there were instructions given to the practitioner, including by him, and including at a conference with the practitioner on 31 March 2003, to prepare an appeal from the consent orders. The client's partner also gave evidence as to what occurred at the October function.
We take into account that in the course of his cross‑examination it was evident that the client's partner felt hostility toward the practitioner in relation to his conduct of the client's matter. Nevertheless we accept the client's partner's evidence on the matters on which he could contribute.

The client's friend

The client's friend is a receptionist and long time friend of the client. She had in the past worked with solicitors and assisted the client in initiating the Family Court proceedings. She provided some advice to the client concerning the need for, and costs of, engaging a solicitor.
Her evidence was of some importance as concerns the client's claims that the practitioner did not advise her as to the costs being incurred for the work undertaken, despite her repeated requests.
She attended the conference at the Family Court on 10 October 2002 and was emphatic that at this time the practitioner did not provide any cost notification documents to the client or to her.
The client's friend was an impressive witness and we accept her evidence.

The practitioner

The practitioner is 36 years of age. He was born in Yugoslavia and came to Perth when he was a young boy. He graduated from the Law School of Western Australia in 1991 and was admitted to the Supreme Court of Western Australia in 1993. He worked as an employed solicitor, much of this in small sized law firms, before commencing sole practice in October 2000.
The practitioner said that prior to the client's matter he had experience in family law matters, referring in his witness statement in the Overcharging Complaint to his "fourteen years of conducting family law court actions" and (inconsistently) in his responsive statement to his "eight years of practice in the Family Court to that time [2002]". He said in evidence he was familiar with the Family Law Act1975 (Cth) and Rules. The practitioner in his witness statement in the Overcharging Complaint said he had been involved in "many family law cases and have only lost one case of about 60 that I can remember". He there says also he had conducted in excess of 150 taxations of costs prior to this matter mainly for the successful party, although he conceded in cross‑examination none of these were in the Family Court. Elsewhere in his responsive witness statement in the Overcharging Complaint, the practitioner claims to have appeared as counsel in excess of 200 taxations in the State Supreme, District and Magistrate's Courts. We think the practitioner's claims of his experience in the Family Court, and in taxations, to be exaggerated, a matter going to our view of the practitioner's credibility.
The practitioner filed witness statements in each of the complaints shortly prior to the commencement of the hearing. On several critical subjects, as identified below, the oral evidence he gave departed significantly from these witness statements. The practitioner also filed Response Statements, Statements of Issues Facts and Contentions and Closing Submissions in the three complaints. The attitude evinced by these documents was that he had achieved a settlement providing a considerable sum of money for the client which she would not have achieved without his assistance. Moreover, his charges for doing so were reasonable and "proportionate" to the value of the matrimonial estate and what the client had received. For that he "ought to have been commended not chastised". Further, his position in relation to the first two complaints was in part that the client had signed the second costs agreement authorising the deduction of $22 000, agreed to a delay in his preparing an account, and otherwise waived her rights to an itemisation and taxation of costs, and therefore had no grounds for complaint.
The practitioner, in defending the first two matters, introduced into evidence a large volume of documentary material including voluminous file notes, notes of telephone conversations and timesheets relating to the work undertaken for the client (although not all of these were referred to in evidence and submissions). In the normal course these documents might have been a secure basis for making findings as to what work was undertaken by the practitioner, including in receiving instructions and giving advice to the client on various matters, and the time taken by him in doing so. After much careful and anxious consideration, acknowledging that we have in addition to considering the practitioner's admissions, relied upon inference and logic and our experience of how lawyers usually operate, and for the reasons explained in detail below, we have found these documents to be of little evidentiary value having regard to their content and the circumstances in which they were generated. With respect to a number of these documents or entries in them, we have found them to have been made a considerable time after they are dated and to purport to record matters which did not happen.
Under cross‑examination, the practitioner proved to be a most unsatisfactory witness. He repeatedly avoided giving a direct answer to a direct question and the Tribunal was required on numerous occasions to intervene to direct him to do so. Some of the answers he did give were incredible. On some occasions answers he gave initially were contradicted in later evidence. In important respects his evidence was not consistent with his recently filed witness statements. His evidence was also inconsistent with some of the established facts and with what we regard as the probabilities of the matter. The practitioner's claim to have been entitled to charge in respect of discussions with the client's son, at the October function and in respect of the "appeal", are glaring examples. Instances of each of these matters are identified below.
In determining the reliability of the practitioner's evidence we are conscious of the difficult position which he was in. He faced charges brought by his professional body which, if made out, would be expected to result in a significant penalty. The Committee had engaged Senior Counsel, Mr Murphy SC, to present its case and had called the client and also her partner and friend to give evidence against the practitioner. There was a taxation decision by Registrar Moroni which was adverse to his position on the Overcharging Complaint. The practitioner had determined to act for himself, which included making submissions, cross examining the Committee's witnesses, giving evidence in chief and then being subjected to lengthy cross‑examination. He had elected to call no witnesses in support of his defence of the charges. This was notwithstanding he might have been expected to call the client's son in support of the claim that he took instructions from him and as to services provided at the October function, and his secretarial staff (including his then partner and now his wife) as to his file notes and records and again as to what took place at the October function. He gave evidence of his own conduct in relation to matters which had taken place some four years earlier and in that respect he would be expected to put the most favourable interpretation on that conduct. He gave his witness statements following, and with the benefit of, the witness statements provided by the Committee. That it might be said that any difficulty arising from acting for himself was of his own making is, in this context, not to the point.
Moreover, we have been anxious to ensure that our expressed concerns of the practitioner's conduct of his defence (failure to keep to the times allocated, unresponsive "pleadings" and witness statements, inappropriate cross‑examination and so on) have not affected our view of the veracity of his evidence.
We have moreover been conscious of the very serious nature of the first two complaints. These involve allegations of dishonest conduct:
(1) in the Conflict Complaint, that the practitioner knowingly concealed the terms and effect of the second costs agreement and the withdrawal authority; and
(2) in the Overcharging Complaint in relation to the October function, that the practitioner knowingly and dishonestly charged for work at which no professional services were provided and kept up the pretence throughout the proceedings.
Further, although the Committee has not sought a finding of dishonesty in that respect (other than in respect of the October function), it was put to the practitioner on a number of occasions that the records he produced and relied upon were not made contemporaneously with the events they record but subsequently when the practitioner was called upon to produce an itemised bill of costs. Again, on the client's evidence and that of her partner, upon which the Committee relies, the practitioner effectively invented instructions to proceed with an appeal in order to demonstrate work to justify the costs claimed.

The Briginshaw standard

These allegations of dishonesty and impropriety and the improbability of a legal practitioner of some years' experience so conducting himself, and the extent to which the Committee relied on circumstantial evidence (particularly in relation to its challenge to the practitioner's records), focus attention on the appropriate standard of proof by which these matters must be established. As to that, the well known judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 sets out the principles. These may relevantly be summarised as follows:
(1)in civil cases, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal;
(2)this reasonable satisfaction may, not must, be based on a preponderance of probability (that is, the strict balance of probabilities may not in some circumstances be sufficient);
(3)when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found; not a mere mechanical comparison of probabilities independently of any belief in its reality;
(4)moreover, the reasonable satisfaction required is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved; the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal; and
(5)in such matters, reasonable satisfaction should not be produced by inexact proof, indefinite testimony, or indirect inferences; weight is to be given to the presumption of innocence and the expected exactness of proof.
The nature of the charges brought against the practitioner generally and the consequences for him if made out, as well as the specific allegations of dishonesty and impropriety mentioned, mean that we have sought reasonably clear and congent evidence in order to be reasonably satisfied they have been established. The need carefully to examine and review the extensive documentary evidence, the transcribed oral evidence and the parties' submissions having regard to these considerations, accounts for the length of these Reasons.
Where there has been a conflict between the evidence of the client and the practitioner on important matters, we have sought to identify the factors which have led us to accept the evidence of one over the other. This has included consideration of any corroborating evidence from the client's partner and the client's friend and of the existence of objective facts and probabilities. It has also included regard to the demeanour of the witness in respect of evidence given in relation to particular issues, but recognising the limitations in determining credibility on that basis, especially where the witness is of a different cultural background.
Generally our view, taking into account all the factors mentioned above and having regard to all of the evidence, is that where the evidence of the practitioner and the client is in conflict, we prefer the evidence of the client.

The Conflict Complaint

The legal framework

The complaint against the practitioner is that he was guilty of unprofessional conduct in July 2002 to December 2003 in that he failed to ensure that the client's interests were properly protected and advanced in relation to the client's liability for costs payable to the practitioner and improperly and calculatedly advanced his own interests in respect of costs in conflict with and to the detriment of the client's interests.
In support of that complaint the Committee referred to and made submissions as to the duties and responsibilities of a practitioner as to costs with respect to:
(1) the Legal Practitioners Act 1893;
(2) the Family Law Rules 1984 (Cth);
(3) a lawyer's duties as a fiduciary; and
(4) the Professional Conduct Rules 1983 (WA).
The issue is not whether the practitioner breached these specific duties and responsibilities per se but, having regard to these statutory, legal and professional obligations and the extent of any breach of them, the practitioner's conduct is, according to the relevant test, to be regarded as unprofessional conduct. Moreover, to the extent that the practitioner maintains that he acted in accordance with the Family Law Rules 1984 and or the Legal Practitioners Act 1893 relating to costs, that may constitute a defence to the claim of professional misconduct.
We mention also in this context that, as the Committee has recognised by the terms of the charge, the complaint in relation to the making of the second costs agreement and the giving of the withdrawal authority is not in itself one of the practitioner being in a position of conflict between his interests and those of his client. In a sense the negotiation and implementation of a costs agreement will necessarily involve a degree of conflict between the interests of the practitioner and of the client, for example in relation to a departure from the relevant scale of costs and the hourly rate struck. That is why the various rules of court seek to manage that situation. The complaint is as to the practitioner by his conduct improperly and calculatedly (knowingly and deliberately) advancing his interests in conflict with the client's interests.

Costs provisions in the Legal Practitioner's Act 1893

The Legal Practitioners Act1893 makes provisions concerning a practitioner's costs. Section 59 provides relevantly that a practitioner may make a written agreement with a client respecting the amount and manner of payment for fees including by a gross sum (lump sum), but provides that no such agreement shall exempt the practitioner for liability for negligence and that the agreement may be reviewed by the Supreme Court. Section 65, which is unaffected by s 59, provides by s 65(2) that where a lump sum bill, that is a bill not containing detailed charges, is served on the party charged, that party may within 30 days require the practitioner to serve a bill containing detailed items. By s 66, a party charged with an itemised bill of costs may within 30 days serve a notice requiring the bill to be taxed in the Supreme Court. By s 66(A), upon such taxation the taxing officer is to give effect to a s 59 agreement. By s 65(3) a bill of costs shall include notice of these rights of itemisation and taxation.

Even after all the evidence had been tendered and the Committee’s closing submissions provided to the practitioner, the practitioner by his closing submissions did not show any appreciation of his serious wrongdoing. (par [69], par [231] - par [244], par [457], par [484] - par [494]).
The practitioner’s conduct in these respects necessitated a lengthy hearing (seven days) and in consequence lengthy reasons from the Tribunal.
Although the practitioner had the legal right to require the Committee to prove every aspect of the allegations made against him, it does not follow that the Tribunal is precluded from taking these matters into consideration in relation to penalty and in determining whether he has accepted responsibility for his conduct and can confidently be expected to act differently in the future. In our view, disciplinary proceedings are not to be equated with ordinary civil proceedings between individuals; nor, with respect to Mr Lampropoulos’ submissions in that regard, with sentencing principles in criminal proceedings. The object of disciplinary proceedings is to ensure that the public may have confidence and trust in the legal profession and, ultimately, given the profession’s role in that respect, in the integrity of the legal system. In relation to penalty, that necessitates a consideration of the practitioner’s credibility and character and suitability to continue in practice.
In relation to considerations of procedural fairness and whether the matters the subject of the incidental findings were "alive" at the hearing and whether the practitioner had an opportunity to deal with them, we mention the following. In the case before the Tribunal there was a direct conflict of evidence on the principal issues between the client and her partner and her friend called by the Committee, and the practitioner. It was apparent that much of that conflict would only be resolved by the Tribunal accepting the evidence of either the Committee’s witnesses or of the practitioner and rejecting the other (par [47]). (Although that did not of itself necessitate a finding of dishonesty - Smith v NSW Bar Association). On a number of occasions throughout the hearing Senior Counsel for the Committee challenged the practitioner as to the veracity of his evidence, asking whether he had not just made his answer up, reminding him that he was on oath, and seeking an acknowledgement from him that he understood the serious nature of the allegations made. To the extent the practitioner sought to rely upon his records, Senior Counsel for the Committee cross-examined him as to whether these were in fact made after the dates recorded and were genuine records. For his part, the practitioner claimed the client’s evidence was untruthful and unreliable. In relation to the client’s claim of a part payment of his costs of $250, he said of her “She’s lying as usual” (T: 77, 30.11.06). (The client had earlier said that the practitioner was lying in denying she had made the payment).
Moreover, many of the findings made in relation to the practitioner’s conduct and credibility arose from defences he had raised and pursued rather than from allegations of the Committee. For example, his reliance upon the cost notification documents and the oral agreement as to costs, the claim that each item of cost charged was supported by his records, the claim that he had received instructions from the client’s son and in relation to an appeal, his submission and evidence that the client was fluent in English and a business woman, and so on. Clearly the Tribunal was required to make findings on these matters for the purposes of determining whether the charges were made out. It was careful with respect to the practitioner's evidence and records to identify allegations and make findings involving actual dishonesty (par [338]). Moreover, in relation to "incidental" findings such as the vulnerability of the client and the anguish caused to her by the practitioner’s conduct, these would seem to be relevant to the "ultimate finding of fact whether the practitioner’s conduct, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence".
For these reasons, we think it was reasonably "self evident" both that the Tribunal would make incidental findings including in relation to the practitioner’s evidence and records (as the Committee urged in its closing submissions, provided in advance of the practitioner’s closing submissions); and that such would or might be taken into account by this Tribunal on the subject of penalty. These matters also demonstrate that the practitioner had the opportunity to meet and deal with such allegations.
By reason of its views as to the fitness of the practitioner to practise, the Tribunal considered that he should be suspended from practice pending the consideration of the Supreme Court (full bench) but that he have 14 days to put his affairs in order before the suspension takes effect.

The practitioner’s personal circumstances

In his written submissions, Mr Lampropoulos for the practitioner drew attention to some aspects of the practitioner’s present professional and personal circumstances. As to the former, these include that he has been in practice for some 14 years and has not (relevantly) been the subject of any other finding of misconduct; that references from two clients attested to his effectiveness and cost efficiency in small debt recoveries; that his existing clients would be disadvantaged by his being struck off or suspended; that he has provided some voluntary legal advice services and been on several legal committees, and that he has been active in football administration and the Western Australian Serbian community.
We have considered each of these matters. However, in the light of the matters examined above, we are not convinced by them, or the undertakings offered, that the practitioner’s conduct can be regarded as isolated and unlikely ever to be repeated. We do not think these circumstances can be attributed much weight as against ensuring that members of the public are not subjected to unprofessional conduct of the type under consideration. We have, however, delayed the effect of the suspension order to give the practitioner some time to organise his professional affairs before the suspension pending the Supreme Court (full bench) consideration of this final penalty takes effect.
We mention that Mr Lampropoulos has, quite properly, indicated that there are some aspects of the Tribunal’s reasons for decision in [2007] WASAT 111 which are the subject of an appeal. It may be that this consideration affected the extent to which the practitioner could accept responsibility for his conduct and express remorse in relation to it. We would have thought, notwithstanding this, that there were aspects of his conduct in these complaints, whether or not the subject of appeal, which he might have acknowledged and expressed regret for. Ultimately however, the fact of an appeal is not something which can affect our determination.
As to his personal circumstances, the practitioner has said he is responsible for his wife and young family and an elderly parent. He has a substantial mortgage and no other qualifications or income producing skills.
It seems inevitable that the practitioner’s interim suspension and possible striking off will cause considerable financial and emotional hardship for the practitioner and his family. It is difficult not to feel a measure of sympathy for the practitioner in these circumstances. However, it seems to us that this is the inevitable outcome of his conduct for which he must take responsibility. In order to maintain the public’s confidence and faith in the legal profession, for ourselves, we do not think that the practitioner can be permitted to continue to practise. Ultimately, whether the practitioner's name should be struck off the roll is a matter for decision by the Supreme Court (full bench).
It has not been suggested that a penalty involving the imposition of conditions governing the practitioner’s method of practice would be sufficient; and for ourselves we do not think in the light of the findings outlined above that the imposition of such conditions would be an appropriate and effective penalty.

Costs

The practitioner’s submissions in relation to costs were directed to the quantum of the Committee’s costs and the time allowed for payment. Following some comments of the President, the parties were able to agree on suitable orders in that respect and that part of our order has been made by consent.

Orders

For these reasons, the Tribunal on 4 July 2007 made the orders above set out.

I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT