Legal Practitioners Conduct Board v Colton - [2012] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
LEGAL PRACTITIONERS CONDUCT BOARD v COLTON
[2012] SASC 118
Judgment of The Honourable Justice Stanley
16 July 2012
PROFESSIONS AND TRADES - LAWYERS - MISCONDUCT, UNFITNESS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS
Appeal by Legal Practitioners Conduct Board against Tribunal's findings of unprofessional conduct and unsatisfactory conduct – whether the Supreme Court is competent to hear an appeal of the Tribunal's findings as to guilt, where no finding as to disciplinary action has been made – whether the Tribunal erred in the implicit finding that the respondent was not guilty of unprofessional conduct by his failure to render a detailed bill of costs – whether the Tribunal erred in the implicit finding that the respondent was not guilty of unprofessional conduct by his failure to be frank with the appellant.
Held: The Supreme Court is competent to hear appeals on the Tribunal's findings as to guilt – a failure to render a detailed bill of costs does not, of itself, amount to unprofessional conduct – in light of the respondent's honest misunderstanding, the Tribunal correctly found the respondent not guilty of unprofessional conduct and guilty of unsatisfactory conduct – Misleading the appellant without a conscious intention to deceive does not amount to unprofessional conduct.
Appeal dismissed.
Legal Practitioners Act 1981 (SA) s 41, s 82, s 86, referred to.
Smith v NSW Bar Association (1992) 176 CLR 256, applied.
Law Society of South Australia v Jordan (1998) 198 LSJS 434, distinguished.
Director-General of Social Services v Chaney (1980) 47 FLR 80; Legal Practitioners Conduct Board v Viscariello [2012] SASC 92; Legal Practitioners Conduct Board v Lind (2011) 110 SASR 531; Legal Practitioners Conduct Board v Kerin (2006) 246 LSJS 371; Legal Practitioners Conduct Board v Jones (2009) 266 LSJS 296; Legal Practitioners Conduct Board v Vaezi (2009) 265 LSJS 97, considered.

LEGAL PRACTITIONERS CONDUCT BOARD v COLTON
[2012] SASC 118
STANLEY J:
Introduction

The Legal Practitioners Conduct Board (“the Board”) appeals, pursuant to s 86(1) of the Legal Practitioners Act 1981 (SA) (“the Act”), from a decision of the Legal Practitioners Disciplinary Tribunal (“the Tribunal”), which found:
·the practitioner guilty of unprofessional conduct in relation to six “charges” of unprofessional conduct; and
·the practitioner guilty of unsatisfactory conduct in relation to three “charges” of unprofessional conduct.
The Board seeks to appeal the Tribunal’s decision to find the respondent practitioner (“the practitioner”) guilty of unsatisfactory conduct only in relation to the three “charges” of unprofessional conduct.[1]
[1] Pursuant to s 82(8) it is open to the Tribunal to find a practitioner guilty of unsatisfactory conduct where it is not satisfied the practitioner is guilty of unprofessional conduct.
On appeal the Board challenges the implicit findings of the Tribunal that the practitioner was not guilty of unprofessional conduct in relation to these three “charges”.
I refer to “charges”. In fact the Board laid a single “charge” of unprofessional conduct against the practitioner. The charge consisted of nine separate allegations of unprofessional conduct. These were particularised. The Tribunal in its report treated the nine separate allegations as nine separate charges. In my view, this approach is wrong. Nevertheless, the practitioner has not appealed from the Tribunal’s decision on this basis. In Law Society of South Australia v Jordan[2] Doyle CJ said:[3]
The Tribunal is not a court dealing with charges brought by the State against an individual. While it hears charges presented to it, its function of deciding whether a person is fit to practice may at times mean that it can or should allow a procedure that would not be followed in criminal proceedings or in civil proceedings.
[2] (1998) 198 LSJS 434.
[3] (1998) 198 LSJS 434 at 465, Millhouse and Nyland JJ agreeing at 479 and 480.
In the absence of any complaint by the practitioner or for that matter the Board,[4] I feel constrained to determine the appeal solely on the grounds set out in the practitioner’s notice of appeal. I approach the determination of the appeal on the same basis as the Tribunal decided the proceedings before it, namely, that it was dealing with nine discrete charges. I am informed by Mr Cole, counsel for the Board, that the Board generally lays charges in this fashion and the Tribunal deals with those proceedings in the manner which has occurred here. I take this approach recognising the force of the point made by Doyle CJ in Jordan that there is a distinction to be drawn between the approach taken by a court hearing and determining criminal charges and an administrative tribunal undertaking disciplinary proceedings. Accordingly, I refer to the nine counts of unprofessional conduct alleged against the practitioner as charges.
[4] In the course of the hearing of the appeal the appellant was afforded the opportunity to apply to amend the grounds of appeal to raise the point but expressly declined to do so.
The practitioner was charged upon the complaint of the Board on 2 February 2010 pursuant to s 82(2) of the Act. The appeal concerns the charges numbered 3, 6 and 9. They are as follows:
3.The practitioner failed to render a detailed bill to his client Ms Cummins despite her clear written request for a bill in breach of s 41(3) of Act, until he provided a short form bill of costs to the Board in July 2008.
Particulars
3.1.   By letter dated 29 October 2007 Ms Cummins wrote to the practitioner and requested an itemised account. Her letter said in part:
“Please provide an itemised account showing all the fees and disbursements incurred on my behalf and the dollar amount charged for each item.
I am concerned because its been nearly four weeks since my matter settled and I still haven’t received a bill or anything from your office in writing.
Also, please provide a detailed trust statement showing all the transactions of payments and/or transfers made from my settlement money. In the meantime, I do not authorise you take that amount over from trust”.
3.2.   The practitioner responded to Ms Cummins by letter dated 13 November 2007 in which he said:
“I refer to your letter of 29^th October concerning settlement of your claim and seeking some details thereof. I enclose the trust account statement showing receipt of the funds which confirms my previous advice to you (and your apparent understanding) that the settlement was to the payment of $110,000.00 less Centrelink payment which in your case was $16,337.38 per the Centrelink Notice dated 18^th June 2007 to TAC (you would have received a copy of that notice). Balance due to you of $93,373.27 was received on 24^th September paid into our trust account, and disbursed from there as per the trust account statement.
We enclose a copy of the letter of advice to us from counsel Mr Geoff Britton setting out the terms of the offer and the increases from the previously filed offer of $65,000.00.
You will note that the offer was all in as we had repeatedly told you and included an allowance of $7,000.00 for party costs and, $8,000.00 for disbursements. The allowance for disbursements almost exactly covered the account of counsel Mr Britton ($5,775.00, $235.00 for our office expenses and incidentals, Professor Clarke’s report fee of just over $2,000.00). Although entitled to do so, we did not claim solicitor/client costs which could have increased the total legal costs by some 30% onto [sic] of the party costs.
No detailed account of party costs is provided with this letter as those costs were negotiated directly with TAC and have not been increased by us on a solicitor/client basis in delivery of the balance of the funds to you. We trust that above is a full and complete explanation for you. The writer clearly recalls going through the figures with you over the phone several times and your saying that you were “very happy with the result” and authorising it without hesitation.”
3.3.   In February 2008 Ms Cummins made complaint to the Board concerning the amount of fees charged by the practitioner and his failure to provide a detailed bill.
3.4.   In response to the complaint, in his letter to the Board dated 11 July 2008, the practitioner stated in part,
“We confirm that the trust monies were received for our costs for the sole reason that TAC did not draw a separate cheque payable to this firm for its agreed costs. We enclose short form bills of costs and confirm that we confined our claim for costs and disbursements to that negotiated with the other solicitors for party/party costs (except for a small excess on disbursements for Cummins) to try to assist our client. We enclose trust ledger statements.”
3.5.   In his further response to the Board in a letter dated 9 September 2009 the practitioner said in part:
“We refer to your recent correspondence expressing your “concern” that we have appropriated trust monies without authority from our clients. As we have explained in the past at some length this is not so. Engels and Cummins had a long session with the Senior Barrister Geoff Britton and agreed in princilel [sic] to settle their claims which were due to go to District Court trial the following week. We have previously given a copy of Mr Britton’s advice concerning same which was the basis of the settlement. Later that week and at the last possible moment before the matter proceeded to trial on the next Monday, the clients, following repeated requests for instructions, separately authorised the writer to settle on those terms. The terms agreed the party/party costs which Mr Britton and the writer had negotiated with Ms Joan Miller, Senior Consultant Solicitor with TAC Victoria.
There after payment of our party/party costs became an agreed TAC liability as was payment of hospital, surgical, medical, paramedical and psychology fees. There is nothing in the Conduct Rules stating that a practitioner must get separate authority for each for each [sic] separately items in writing for disbursements from settlement monies received in trust. It is not required for each and every medical disbursements and is not required for our agreed party/party costs after, same was authorised by the clients.
Cummins’ disbursements included the fees for Professor Richard Clark for consult and report fees with his psychology report on her. TAC regarded those as excessive and thereby Cummins incurred the liability to pay the balance of his fees after she had engaged him by way of consultation and two reports on her. We paid those fees accordingly without obtaining her expressed separate authorisation to do so as the authority was included in her authority to settle her claim and disburse the funds per the terms of settlement including medical and legal costs.”
…
6.The practitioner failed to render a detailed bill to his client Peter Engels despite Mr Engel’s clear written request for a bill, until he provided a short form bill of costs to the Board in July 2008.
Particulars
6.1.   By letter dated 30 October 2007 Mr Engels wrote to the practitioner and requested a final bill and trust account statement. His letter said in part:
“I request a bill in itemised form so I can have a chance to look at it. In the meantime, I can’t agree to authorise you to take over $32,000.00 from the monies withheld. I want sufficient costs information firstly, because its a lot of money. …
Anyway, I will await your final bill and trust account statement so I can check all transactions and payments made from the settlement funds held in trust.”
6.2.   The practitioner responded to Mr Engels by letter dated 13 November 2007 in which he said in part:
“I refer to your letter of 29^th October concerning settlement of your claim and seeking some details thereof. I enclose the trust account statement showing receipt of the funds which confirms my previous advice to you (and your apparent understanding) that the settlement was to be payment of $190,000.00 less Centrelink payment which in your case was $28,271.35 per the Centrelink Notice dated 18^th June 2007 to TAC (you would have received a copy of that notice). Balance due to you of $161,367.80 was received on 24^th September paid into our trust account, and disbursed from there as per the trust account statement. …
No detailed account of party/party costs is provided with this letter as those costs were negotiated directly with the TAC and have not been delivered by us on a solicitor/client basis. A substantial amount was allowed for disbursements and the payments from that figure have not exceeded it.”
6.3.   In February 2008 Mr Engels made complaint to the Board concerning the amount of fees charged by the practitioner and his failure to provide a detailed bill.
6.4.   In response to the complaint, in his letter to the Board dated 11 July 2008, the practitioner said in part,
“We confirm that the trust monies were received for our costs for the sole reason that TAC did not draw a separate cheque payable to this firm for its agreed costs. We enclose short form bills of costs and confirm that we confined our claim for costs and disbursements to that negotiated with the other solicitors for party/party costs (except for a small excess on disbursements for Cummins) to try to assist our client. We enclose trust ledger statements.”
6.5.   In his further response to the Board in a letter dated 8 December 2008 the practitioner said in part:
“As to the short form bill rendered: you asked for it and I provided it. The fact that I chose to accept party/party costs is not to do with the account.”
…
9.The practitioner failed to be frank with the Board in the course of its investigation considering the practitioner’s costs and billing.
Particulars
9.1.   The particulars set out in paragraph 8.1 to 8.14 are repeated.
9.2.   On or about 20 April 2009 Lesley Elsley made complaint to the Board, in part about the practitioner’s costs.
9.3.   The practitioner has responded to the complaint by letters to the Board dated:
5 May 2009
4 June 2009
24 July 2009
10 September 2009, and
19 October 2009.
9.4.   The practitioner has made statements in his letters to the Board that do not accurately reflect the truth of the situation. (The inaccurate statements are underlined).
9.5.   In his letter dated 5 May 2009 the practitioner said in part:
“Ms Elsley requested the writer to obtain extra time with the children as she was in Adelaide for a period of 6 weeks or so following and wanted extra time with the children during that period. We made an application under Form 2 to the Federal Magistrates Court and obtained such extra time at a hearing in late January fulfilling the client’s request. We charged for and were repaid for those services some $1,500.00.”
and later in the same letter:
“When the matter came on before the FM in early March he was not inclined to order further time due to the ongoing conflict between the husband and wife surrounding the wife’s contact time…
By that time we had rendered two further accounts to her. One was part paid in the sum of $500.00 leaving a balance which together with the second account means a total of $1,415.00 owing. The last account referred to an anticipated Court attendance on 1 April, which in fact went for the period of 4.00pm to 5.30pm.”
9.6.   In his letter dated 10 September 2009 the practitioner said in part:
“We have no objections to producing our file and do so. We are simply surprised at the nature and motivation of this complaint, not being obvious and requiring production of the file to be dealt with given that the:
(a)…
(b)The fact that she complained about our charges after paying about ¾ of them without complaint.
(c)The basis of those charges having been disclosed.
(d)…
9.7.   In his letter dated 19 October 2009 the practitioner said in part:
“There is no trust ledger card for Elsley the first payment was per quote of $1,500.00 given to Elsley and her partner on the first visit on 7 January, a very long attendance, followed by all perusals and drawing and engrossing of her affidavit, attending her checking, amending and signing affidavit on 11 January, attending Court on 14 January, prior to payment on 15 January. Thus the money was accounted for in the work done prior to payment, with the balance shown in the account of 5 March being for appearances 22 January, 2 January and 5 March, and a couple of letters.
9.8.   In his letter dated 13 November 2009 the practitioner said in part:
“We have charged this woman a total of $2,640.00 for legal cost being 10 hours work at the rate quoted accepted and paid by the client on and from 7^th January. … For this reason we did not receipt the cheque and we proceeded to acknowledge to the client that it had been paid and to credit the client for payment. As previously stated the amount of the cheque was covered by the costs, incurred to 15^th January.
Had the client or her partner complied at any point with our reasonable request for assistance, the cheque would have been receipted in a more normal manner. All later extra costs and invoices included re the $500.00 were issued appropriately and receipts given as previously explained.”
(Emphasis in original)
Paragraph 9.1 set out above refers to paragraphs 8.1 to 8.14 of the particulars of charge 8. Those particulars are:
8.1.On or about 7 January 2009 Lesley Elsley instructed the practitioner to act for her in relation to an urgent child contact matter in the Federal Magistrates Court (the child contact matter).
8.2.Ms Elsley terminated her instructions to the practitioner to act for her in the child contact matter on 1 April 2009.
8.3.On about 7 January 2009 Mark Badenoch, the husband of Lesley Elsley paid to the practitioner a cheque in the sum of $1,500.00 on account of legal costs in respect of the child contact matter (the first cheque).
8.4.No receipt for the first cheque was given by the practitioner to Ms Elsley or Mr Badenoch.
8.5.As at 7 January 2009 the practitioner had not rendered a bill for legal fees to Ms Elsley.
8.6.The practitioner did not deposit the first cheque into his trust account in breach of section 31(1) of the Act. The practitioner banked the first cheque into his firm or another account.
8.7.On or about 5 March 2009 the practitioner drew a bill for work done between January and March 2009 in the sum of $2,415.00 (including GST) which showed the payment of the first cheque and claimed a balance due of $915.00 (the first March bill).
8.8.The first March bill was not delivered to Ms Elsley.
8.9.On or about 31 March 2009 the practitioner drew a bill in identical terms to the first March bill (the second March bill).
8.10.The second March bill was not delivered to Ms Elsley.
8.11.On or about 31 March 2009 the practitioner drew a bill for work done between February and April 2009 in the sum of $535.00 (including GST) which showed a purported outstanding balance of $915.00 from the second March bill and claimed a new balance due of $1,450.00 (the third March bill).
8.12.The practitioner handed a copy of the third March bill to Ms Elsley on 1 April 2009 at which time Ms Elsley handed to the practitioner a cheque in the sum of $500.00 for costs and disbursements (the second cheque).
8.13.On 1 April 2009 the practitioner provided a receipt for the second cheque by handwritten endorsement on the bottom of the third March bill.
8.14.The practitioner banked the second cheque into his firm or another account.

Relevantly, the Board instituted the appeal before any decision by the Tribunal as to what, if any, disciplinary action should be taken against the practitioner pursuant to s 82(6).
Competency of the appeal
The practitioner challenged the competency of the appeal.
Section 86 provides for an appeal from a decision of the Tribunal. It provides:
86—Appeal
(1) Subject to subsection (2), a right of appeal to the Supreme Court lies against a decision of the Tribunal made in the exercise or purported exercise of powers or functions under this Act.
(2) An appeal must be instituted within one month of the date on which the appellant is notified of the decision unless the Supreme Court is satisfied that there is good reason to dispense with the requirement that the appeal should be so instituted.
(3) The Supreme Court may, on the hearing of an appeal exercise any one or more of the following powers, as the case requires:
(a)     affirm, vary, quash or reverse the decision subject to the appeal and administer any reprimand, or make any order, that should have been administered or made in the first instance;
(b)     remit the subject matter of the appeal to the Tribunal for further hearing or consideration or for rehearing;
(c)     make any further or other order as to costs or any other matter that the case requires.
The practitioner submitted that the right of appeal conferred by s 86(1) is confined to a decision which constitutes the final and ultimate determination of a charge brought pursuant to s 82 of the Act.
Section 82 provides:
82—Inquiries
(1) A charge may be laid under this section alleging unprofessional or unsatisfactory conduct—
(a)     on the part of any legal practitioner; or
(b)     on the part of any former legal practitioner who was at the time of the alleged unprofessional or unsatisfactory conduct a legal practitioner.
(2) A charge may be laid under this section by—
(a)     the Attorney-General; or
(b)     the Board; or
(c)     the Society; or
(d)     a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct.
(2a) A charge relating to conduct by a legal practitioner must be laid before the Tribunal within five years of the conduct unless the charge is laid by, or with the written consent of, the Attorney-General.
(2b) In any proceedings, an apparently genuine document purporting to be the written consent of the Attorney-General given under subsection (2a) will be accepted, in the absence of proof to the contrary, as proof of such consent.
(2c) A charge may be laid before the Tribunal despite the fact that criminal proceedings have been or are to be commenced in relation to a matter to which the charge relates.
(3) A charge laid under this section must be in the form prescribed by rules under this Division.
(4) Where a charge has been laid under this section, the Tribunal must, subject to subsection (5), inquire into the conduct of the legal practitioner or former legal practitioner to whom the charge relates.
(5) The Tribunal may summarily dismiss any charge that it considers frivolous or vexatious.
(6) If after conducting an inquiry under this section the Tribunal is satisfied—
(a)     that a legal practitioner is guilty of unprofessional or unsatisfactory conduct it may, subject to subsection (6a), exercise any one or more of the following powers:
(i) it may reprimand the legal practitioner;
(ib) it may make orders with respect to the examination of the legal practitioner's files and records by a person approved by the Tribunal (at the expense of the legal practitioner) at the intervals, and for the period, specified in the order;
(ii) it may order the legal practitioner to pay a fine not exceeding $10 000;
(iii) it may make an order imposing conditions on the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)—
(A) relating to the practitioner's legal practice (provided that, in the case of an order made without the consent of the practitioner, such conditions must not operate for a period exceeding 12 months); or
(B) requiring that the legal practitioner, within a specified time, complete further education or training, or receive counselling, of a specified type;
(iv) it may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order (not exceeding six months);
(v) it may recommend that disciplinary proceedings be commenced against the legal practitioner in the Supreme Court; or
(b)     that a former legal practitioner was, while he or she remained a legal practitioner, guilty of unprofessional conduct, it may order the former legal practitioner to pay a fine not exceeding $10 000; or
(c)     that a former legal practitioner was, while he or she remained a legal practitioner, guilty of unsatisfactory conduct, it may order the former legal practitioner to pay a fine not exceeding $5 000.
(6a) If a legal practitioner is found guilty only of unsatisfactory conduct, the Tribunal may not impose a fine or suspension on the practitioner or recommend that disciplinary proceedings be commenced against the practitioner in the Supreme Court.
(6b) A condition imposed on a practising certificate or interstate practising certificate pursuant to an order under this section may be varied or revoked at any time on application by the legal practitioner.
(7) After completing an inquiry under this section, the Tribunal must transmit the evidence taken by the Tribunal on the inquiry together with a memorandum of its findings to the Attorney-General, the Society and the Board.
(8) If, after conducting an inquiry into a charge alleging unprofessional conduct by a person who is a legal practitioner or former legal practitioner, the Tribunal—
(a)     is not satisfied that the person is guilty of unprofessional conduct; but
(b)     is satisfied that the person is guilty of unsatisfactory conduct, the Tribunal must find the person not guilty of unprofessional conduct, but may find the person guilty of unsatisfactory conduct.
The practitioner submitted that the relevant “decision” for the purpose of s 86 is a decision of the Tribunal to exercise the powers conferred pursuant to s 82(6) or to decline to exercise such powers. As the Tribunal has found the practitioner guilty of unprofessional conduct and unsatisfactory conduct but is yet to decide what, if any, disciplinary action to take pursuant to s 82(6), the practitioner submits that the Tribunal has not yet made a “decision” within the meaning of s 86(1) enlivening this Court’s jurisdiction to hear and determine an appeal pursuant to that provision.
It appears this point has not been decided previously.
The practitioner called in aid Director-General of Social Services v Chaney,[5] a judgment of the Full Court of the Federal Court of Australia, where Deane J, with whom Fisher J agreed, held that the provisions of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), which confer a right of appeal on a question of law, to the Federal Court “from any decision of the Tribunal” is confined to an appeal from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. The majority of the Full Court rejected the proposition that the reference to “any decision” in s 44 points to the conferral of a right of appeal on every ruling or adjudication, upon a question of law, forming part of the structure of the ultimate decision. The majority looked to the context of s 44 itself in concluding that it seemed unlikely that it was the legislative intention that any party to a proceeding should be entitled to disrupt its orderly hearing before the Tribunal by instituting an appeal, as of right, from any of the various “decisions”, involving a question of law, which the Tribunal might find itself called upon to make in the course of dealing with the proceeding before it and which might ultimately prove irrelevant to the final operative decision.[6]
[5] (1980) 47 FLR 80.
[6] (1980) 47 FLR 80 at 102.
Chaney emphasises that in construing provisions conferring a right of appeal, the width of the right is to be determined by considerations of the context and purpose of the particular provision in the statute which confers that right. This Court underlined this principle in Simpson Ltd v Arcipreste[7] where Duggan J observed that the character of any appeal must be determined by construing the provisions by which the right to appeal is conferred.[8]
[7] (1989) 53 SASR 9 at 16.
[8] Cox and Mullighan JJ agreeing at 9 and 23.
In my view, considerations of the particular context and purpose of the provisions conferring the right of appeal to this Court from “a decision” of the Tribunal leads to the conclusion that this appeal is competent.
There are many examples where courts have held that appeals are only against a final decision of a subordinate body unless there is a clear indication that a decision, other than a final decision, should itself attract a right of appeal before the final disposition of the proceedings.[9] The right of appeal conferred by s 86 falls into this latter category.
[9] Workers Rehabilitation and Compensation Corporation v Thuy Thi Vu (1989) 49 SASR 585 at 588.
In Legal Practitioners Conduct Board v Viscariello,[10] Blue J undertook an analysis of the statutory regime for professional discipline found in the Act. His Honour noted that where the Tribunal finds a practitioner guilty of unprofessional conduct and recommends the institution of disciplinary proceedings in this Court, there may be some doubt whether the practitioner can appeal against the finding of guilt, or the recommendation. In this context, his Honour referred to the history of s 86. He said:[11]
In Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126, King CJ and Olsson J (Prior J dissenting) held that, because the right of appeal was conferred against a “reprimand or order”, it did not extend to a dismissal on a finding of not guilty. Parliament responded in 1987 by substituting “decision” for “reprimand or order” and it would seem that a dismissal (either summarily under s 86(5) or after full inquiry under s 86(6)) is intended to be encompassed within the concept of a “decision”. In Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126, Prior J (dissenting) treated a finding of guilty or not guilty as a “decision” within the meaning of s 90(4) (contrast the approach of Olsson J at 140 and 142). The Act makes a distinction between “decision” and “findings” in s 89(5)(a) and (b)(ii) and s 84(7)(b) and refers to “findings” and “decision” in various sections. There does not appear to have been a subsequent case in which it has been questioned that a finding of guilty or not guilty is itself a “decision”. The Full Court has proceeded on the basis that a practitioner can appeal against a finding of guilt (or perhaps a recommendation) in at least three cases: Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149; Law Society of South Australia v Jordan; Jordan v Legal Practitioners Conduct Board (1998) 198 LSJS 434) and Condon v Legal Practitioners Conduct Board [2004] SASC 197; (2004) 234 LSJS 314.
[10] [2012] SASC 92.
[11] [2012] SASC 92 at footnote 16.
In my view, s 86(1), in its current form, does not confer a right of appeal from any decision made by the Tribunal which is an intermediate or subsidiary decision, whether as to substance or procedure, culminating in a finding that a practitioner is guilty or not guilty of a charge of unprofessional or unsatisfactory conduct under s 82. However, I consider that a finding by the Tribunal that a practitioner is guilty or not guilty of a charge of unprofessional or unsatisfactory conduct, is a “decision” within the meaning of s 86(1). The fact that a finding that a practitioner is guilty of unprofessional or unsatisfactory conduct must be a decision antecedent to a decision to take disciplinary action of the kind contemplated by s 82(6), does not lead to the conclusion that the only “decision” from which an appeal would lie under s 86(1) is a decision pursuant to s 82(6) to exercise any of the powers prescribed therein. The history of the enactment of s 86 in its current form referred to by Blue J in Viscariello points to a clear legislative intention that the Parliament intended by substituting “decision” for “reprimand or order” in s 86(1), that a finding by the Tribunal that a practitioner was guilty or not guilty of a charge of unprofessional or unsatisfactory conduct is intended to be a decision subject to the right of appeal.
Such a construction is supported by a consideration of the terms of s 82.
Where a charge has been laid against a practitioner or former practitioner alleging unprofessional or unsatisfactory conduct pursuant to s 82(1) the Tribunal must inquire into the conduct of the practitioner pursuant to s 82(4). Section 82(6) provides that if, after conducting an inquiry, the Tribunal is satisfied that the practitioner is guilty of unprofessional or unsatisfactory conduct it may exercise one or more of the disciplinary powers with which it is cloaked pursuant to that subsection. Section 82(7) provides that after completing an inquiry the Tribunal must transmit the evidence taken by the Tribunal on the inquiry together with a memorandum of its findings to the Attorney‑General, the Law Society and the Board. Section 82(8) provides that if, after conducting an inquiry into a charge of unprofessional conduct, the Tribunal is not satisfied that the person is guilty of unprofessional conduct but is guilty of unsatisfactory conduct, the Tribunal must find the person not guilty of unprofessional conduct but may find the person guilty of unsatisfactory conduct.
A consideration of the terms of s 82(6), (7) and (8) evidences the establishment of a statutory scheme by which the inquiry mandated by s 82(4) proceeds in two stages. The first stage requires the Tribunal to determine whether a practitioner is guilty of unprofessional or unsatisfactory conduct. The second stage involves the Tribunal determining what, if any, disciplinary action it should take in relation to a practitioner where the Tribunal is satisfied that the practitioner is guilty of unprofessional or unsatisfactory conduct. The terms of s 82(6), (7) and (8) are curious. By their terms s 82(6) and (8) plainly contemplate that the Tribunal will reach a decision as to whether it is satisfied that a practitioner is guilty of unprofessional or unsatisfactory conduct after conducting the inquiry contemplated by s 82(4) (emphasis added). Section 82(7) requires the Tribunal “after completing its inquiry” to transmit to the Attorney‑General, the Law Society and the Board the evidence taken by the Tribunal on the inquiry together with a memorandum of its findings. In my view, the memorandum of findings referred to therein encompasses both any finding against a practitioner of guilt of unprofessional or unsatisfactory conduct as well as any decision to exercise any of the disciplinary powers prescribed by s 82(6). It would follow that the inquiry contemplated by s 82(4) is only completed within the meaning of s 82(7) after the Tribunal has made any relevant decision to exercise the powers conferred by s 82(6). Yet s 82(6) and (8) contemplates that the exercise of those powers occurs only after the Tribunal has conducted an inquiry contemplated by s 82(4).
Whatever the difficulty posed by the language of these subsections it is clear enough that s 82 contemplates that there are two stages to the inquiry contemplated by s 82(4); first, a determination of guilt or otherwise of any charge of unprofessional or unsatisfactory conduct and, secondly, a determination of what disciplinary action, if any, should be taken where a finding of guilt has been made against a practitioner.
This analysis of the scheme of s 82 supports a construction of s 86 that favours the grant of a right of appeal from a decision of the Tribunal as to the guilt or otherwise of a practitioner charged with unprofessional or unsatisfactory conduct as well as a right of appeal from a decision of the Tribunal concerning any resulting disciplinary action.
The practitioner submitted that the terms of s 86(3) supported its contention that the only “decision” from which a right of appeal lies pursuant to s 86(1) is a decision finally disposing of the proceedings before the Tribunal. He pointed to the absence of any power in s 86(3) to make alternative or different findings. He further sought support from the former provisions of s 86(3)(a) which provided:
(a) affirm, vary, quash the reprimand or order appealed against, or substitute, or make any finding, reprimand or order that should have been made in the first instance;
The practitioner submitted that the deletion of any reference to “finding” by the 1987 amending Act indicated Parliament’s intention to confine a right of appeal to a final decision.
I do not accept this submission. Neither the language of s 86(3) as it currently exists nor the Parliament’s repeal of any power in this Court to substitute or make any finding that should have been made by the Tribunal in the first instance, leads to the conclusion that the Parliament did not intend to permit a right of appeal to lie from a finding that a practitioner is guilty or not guilty of unprofessional or unsatisfactory conduct. The power conferred on the Court pursuant to the current s 86(3) is consistent with the grant of a right of appeal against both a decision that a practitioner is guilty or not guilty of unprofessional or unsatisfactory conduct as well as a decision administering any disciplinary action following from that antecedent decision. On the other hand, the legislative history, the text and the context of the relevant provisions of the Act do evince an intention on the part of the Parliament to exclude from the right of appeal conferred by s 86(1), intermediate or subsidiary “findings” leading to those decisions.
I am reinforced in this view by a consideration of the terms of s 86(1) with its reference to a right of appeal from “a decision” of the Tribunal. “Decision” is a word of wide, non-technical[12] and indeterminate meaning.[13] In this context the appeal lies from “a decision”. The use of the indefinite article together with the protean nature of the term “decision” indicates a legislative intention that, in this context, the expression should have a wider meaning than “reprimand” or “order”. The expression may not be wide enough to embrace all rulings given by the Tribunal but I think it is wide enough to extend to the decision arrived at in this case. To my mind such a construction is consonant with the purpose of the section.
[12] Harrington v Harrington (1979) 22 SASR 449 at 450; Workers Rehabilitation Compensation Corporation v Thuy Thi Vu (1988) 49 SASR 585 at 588.
[13] Director-General of Social Services v Chaney (1980) 47 FLR 80 at 100.
It is convenient that a right of appeal exist from a finding that a practitioner is guilty or not of a charge of unprofessional or unsatisfactory conduct. If an appeal did not lie until the Tribunal had decided what, if any, disciplinary action to take against a practitioner pursuant to s 82(6), an appeal could be before the Court simultaneously with disciplinary proceedings brought by the Board on the recommendation of the Tribunal pursuant to s 82(6)(a)(v). This creates practical difficulties which would largely be avoided by the hearing of an appeal against the finding of unprofessional or unsatisfactory conduct before the Tribunal takes any decision as to disciplinary action. This is a further factor favouring the broader construction of the expression “a decision” in s 86(1), permitting an appeal to lie from a decision of the Tribunal that a practitioner is guilty or otherwise of a charge of unprofessional or unsatisfactory conduct.

For these reasons I am satisfied the appeal is competent. The appeal seeks to challenge decisions of the Tribunal that implicitly found the practitioner not guilty of an allegation of unprofessional conduct. Those decisions are decisions from which an appeal lies pursuant to s 86(1).
Accordingly, I turn to address the appeal.
The appeal
The Board complains that the Tribunal erred to conclude, on the facts as found in respect of counts 3, 6 and 9, that the practitioner was guilty of unprofessional conduct.
The Board submits that with respect to charges 3 and 6 the Tribunal had found that the practitioner had refused to provide a detailed bill of costs to his clients when requested, as alleged by the Board. It submits this constitutes a serious departure from the professional standards a practitioner is expected to uphold. The Board referred to Law Society of South Australia v Jordan[14] where this Court considered a practitioner’s duty to provide adequate information to a client of the fees charged for professional work. It submitted a breach of this duty constituted a substantial failure on the part of the practitioner to meet the standard of conduct observed by competent legal practitioners of good repute, thereby satisfying the definition of “unprofessional conduct” in s 5(1) of the Act.
[14] (1998) 198 LSJS 434 per Doyle CJ at 477.
In relation to charge 9 the Board complained that, the Tribunal having found various statements in letters from the practitioner to the Board were misleading as alleged by the Board, the Tribunal should have made a finding of unprofessional conduct. It submitted that a practitioner whose conduct is the subject of an inquiry by the Board has a duty to assist the Board in its inquiries.[15] Complying with these obligations is an essential part of proper professional conduct.[16] Again, the Board submitted that the finding by the Tribunal that the practitioner had misled the Board by reason of inaccurate statements by him contained in letters to the Board in response to its inquiries, constituted a recurrent failure by him to meet the standard of conduct observed by competent legal practitioners of good repute. This should have led to a finding of unprofessional conduct in accordance with the definition in s 5(1) of the Act. The Board referred to the reasons of White J in Legal Practitioners Conduct Board v Kerin[17] where his Honour observed that conduct which involves the misleading of the Board is unprofessional conduct of a serious kind.
[15] Law Society of South Australia v Jordan (1998) 198 LSJS 434 at 476.
[16] Legal Practitioners Conduct Board v Lind (2011) 110 SASR 531 at 534 [15].
[17] (2006) 246 LSJS 371 at 382 [45] per Layton J at [12 - [13].
Consideration
The appeal to this Court is in the nature of a re-hearing.[18] The Court will afford the findings of the Tribunal substantial weight. Ordinarily, an appellant is required to demonstrate error on a re-hearing.[19]
Charges 3 and 6
[18] Legal Practitioners Conduct Board v Jones (2009) 266 LSJS 296 per Layton J at [14] - [15].
[19] LegalPractitioners Conduct Board v Jones (2009) 266 LSJS 296.
The Tribunal found the practitioner was not guilty of unprofessional conduct in respect of charges 3 and 6 on the basis that there was no contravention of s 41(3) of the Act because the obligation to provide a detailed bill only arose if there had been a bill of costs rendered first.
Section 41 provides:
41—Bill of costs to be delivered
(1)     A person cannot bring an action for the recovery of legal costs or appropriate money in or towards satisfaction of a claim for legal costs unless a bill specifying the total amount of those costs, and describing the legal work to which the costs relate, has been delivered to the person liable to the costs either personally, or by post addressed to the person at the person's last known place of business or residence.
(2)     The person liable to legal costs may at any time within six months after delivery of a bill of costs under subsection (1) request the person claiming to be entitled to the costs to provide a statement showing in detail how the amount of the costs to which the bill relates is made up.
(3)     A person of whom a request is made under subsection (2) must comply with the request. Maximum penalty: $750.
(4)     Where the defendant to an action for the recovery of legal costs has made a request of the plaintiff under subsection (2), and the plaintiff has not complied with the request, the court must, at the request of the defendant, stay the action until the plaintiff has complied with the request.
The Tribunal found that in the absence of a bill being rendered, s 41(2) was not enlivened and so charges 3 and 6 were not made out. Nevertheless, the Tribunal found the failure to render a detailed bill when requested constituted unsatisfactory conduct at common law on the basis of a concession to that effect by the practitioner.
In my view, the Tribunal was correct in concluding that there had been no contravention of s 41(3) for the reasons it gave. However, the practitioner was under a duty to provide to his clients adequate information of the charges he has made. His failure to do so when requested constituted a breach of that duty. In this case the Tribunal found the practitioner’s failure to do so arose from ignorance rather than a wilful or reckless disregard of his professional obligations. He had negotiated party/party costs with the other side’s insurer, and was not charging his clients any solicitor/client costs in excess of the amount that he had negotiated by way of party/party costs. In the circumstances he believed, incorrectly, that he had no obligation to render a bill to his clients. Such ignorance of his professional obligations is surprising and lamentable but the Tribunal seems to have accepted that his failure to comply with his obligations resulted from an honest misunderstanding.[20] There is no proper basis for this Court to interfere with that approach.
[20] See [30] and [41] of the Tribunal’s reasons.
In my view, there is no reason to interfere with the Tribunal’s finding that the practitioner was guilty of unsatisfactory conduct and hence the implicit finding that he was not guilty of unprofessional conduct.
The Act relevantly defines “unprofessional conduct” to mean any conduct in the course of, or in connection with, practice by a legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute. “Unsatisfactory conduct” is defined to mean conduct in the course of, or in connection with, practice by a legal practitioner that is less serious than unprofessional conduct but involves a failure to meet the standard of conduct observed by competent legal practitioners of good repute. Given that the practitioner’s breach of his professional obligations arose from an honest misunderstanding, I am not only far from persuaded that the breach of his professional obligations constituted a substantial failure on the practitioner’s part to meet the standards of conduct observed by competent legal practitioners of good repute, on the contrary, I am satisfied that his conduct in breaching his professional obligations was less serious than unprofessional conduct. There is nothing in the reasons in Jordan which compels a contrary conclusion. In Jordan the practitioner was found guilty of unprofessional conduct by the Tribunal. That finding was upheld by the Court and an order made striking his name from the roll of practitioners. However, that was on the basis of a number of serious departures from the standard of conduct required of a legal practitioner. Some of them were serious in their nature and made more serious by the prolonged period over which the failure to observe the required standard occurred. Others were less serious. The Court’s conclusion in Jordan that his failure to render a detailed bill of costs to his client constituted a breach of his professional duty, did not lead to a finding that that breach per se justified a finding of unprofessional conduct. In any event, if I was deciding the issue at first instance, I would have come to the same ultimate conclusion as the Tribunal did here. The practitioner’s failure to render a detailed bill of costs to his client upon request constituted a breach of his professional obligations. This conduct is less serious than unprofessional conduct, having regard to all the circumstances.
The Tribunal erred, however, in concluding that the practitioner’s failure to render a detailed bill when requested constituted unsatisfactory conduct at common law. “Unsatisfactory conduct” is a statutory concept. It is not a concept derived from the common law. It may be constituted by the breach of a duty owed by a practitioner which duty arises from the common law but that is a different matter. “Unsatisfactory conduct” was inserted into the Act by Act No. 50 of 1998. The amendment commenced operation on 1 February 1999. Until that time, the concept of “unsatisfactory conduct” was unknown to the law relating to the supervision of legal practitioners pursuant to the Act or the Court’s inherent jurisdiction. The Tribunal should have found that the practitioner’s failure to render a detailed bill to its clients when requested constituted unsatisfactory conduct pursuant to the statutory definition in s 5(1) of the Act. However, this conclusion is not material to the outcome of the appeal.
Accordingly, I would dismiss the appeal in relation to the findings on charges 3 and 6.
Charge 9
The Tribunal found the following statements made by the practitioner in correspondence to the Board, in the course of it undertaking an inquiry into his conduct, were misleading:
·“We charged for and were paid for those services some $1,500” in a letter dated 5 May 2009, giving the wrong impression that a bill had been rendered and $1,500 paid in satisfaction of that bill. In fact a bill had not been rendered at that time;
·In the same letter the practitioner referred to “two further accounts being rendered” when there were only two accounts provided to the client;
·A statement in a letter dated 10 September 2009 that the practitioner had disclosed to the client the basis of his charges when no account had been rendered;
·A statement in a letter dated 19 October 2009 that the client made a payment of $1,500 on 15 January pursuant to a quote given on 7 January after the performance of specified work when in fact the payment was made on 7 January before any work had been undertaken. Further, there was a failure to disclose that he had not yet rendered an account to the client at the time the $1,500 was appropriated. This misleading statement was effectively repeated in a further letter to the Board of 13 November 2009.
The Tribunal came to the conclusion, with some hesitation, that the practitioner’s misleading of the Board did not amount to unprofessional conduct but did amount to unsatisfactory conduct.[21]
[21] Paragraph 105 of the Tribunal’s reasons.
As this Court said in Legal Practitioners Conduct Board v Lind:[22]
A practitioner whose conduct is the subject of an inquiry by the Legal Practitioners Board or the Legal Practitioners Tribunal must uphold the obligations of candour and frankness to the Board and Tribunal. A practitioner has a duty to assist any such inquiry. Attendance to these obligations is an essential part of proper professional conduct.
[22] (2011) 110 SASR 531 at 534 [15].
I have referred earlier to the proposition in Kerin that conduct which involves the misleading of the Board is unprofessional conduct of a serious kind.
Mr Ower, counsel for the practitioner, referred to the judgment in Legal Practitioners Conduct Board v Vaezi[23] where Nyland J found that statements made by a practitioner to the Board which were misleading or at least ambiguous constituted unsatisfactory conduct in circumstances where there was no intention on the part of the practitioner to deceive, nor any appreciation by the practitioner of the potential risk for the Board to be misled. He submitted that there was no finding by the Tribunal in this matter that the practitioner had sought deliberately to mislead the Board, or that the errors contained in the letters were conscious or deliberate attempts to mislead. He submitted that the Board’s finding that the statements found to be misleading amounted to unsatisfactory conduct indicates that the Tribunal must have accepted that the misleading statements were careless mistakes on the part of the practitioner.
[23] (2009) 265 LSJS 97.
It is true that the Tribunal did not make any express finding that the practitioner deliberately sought to mislead the Board. The highest the Tribunal’s findings go are that the practitioner failed to be frank with the Board in the course of its investigation.
In my view, a deliberate attempt to mislead the Board on the part of a practitioner would constitute unprofessional conduct. Yet in this matter it was not put to the practitioner that any of the communications alleged to constitute a failure on his part to be frank with the Board consisted of a deliberate attempt to mislead or deceive the Board. In the circumstances it was not open to the Tribunal to find that the practitioner had deliberately attempted to mislead or deceive the Board. It is unsurprising therefore that such a finding was not made.
In Smith v NSW Bar Association[24] in a joint judgment, Brennan, Dawson, Toohey and Gaudron JJ said:[25]
It is particularly important in disciplinary cases, where the honesty and candour of legal practitioners assume special significance, that the distinction between the rejection of a person’s evidence and a positive finding that he or she deliberately lied be observed.
[24] (1992) 176 CLR 256.
[25] (1992) 176 CLR 256 at 268.
In that matter, the High Court held that even if evidence before a court was sufficient to support a finding that a person had deliberately lied, and even if that finding could properly be taken into account in determining the result of the proceeding, considerations of procedural fairness required that the person against whom such a finding might be made is given an opportunity to be heard prior to any such finding.[26]
[26] (1992) 176 CLR 256 at 269.
In this matter, it not having been put to the practitioner that in making the statements to the Board, found by the Tribunal to be misleading, he had done so with the deliberate intention of deceiving the Board, no proper foundation has been established upon which I would be prepared to proceed to find that the practitioner was guilty of unprofessional conduct. It is a serious matter for a practitioner deliberately to mislead the Board. Where the practitioner misleads the Board without a conscious intention to deceive, obviously such conduct is less culpable. In my view, such conduct involves a failure to meet the standard of conduct observed by competent legal practitioners of good repute, but is conduct less serious than unprofessional conduct.
No error has been demonstrated on the part of the Tribunal and the approach it took to this matter.
Accordingly, I would dismiss the appeal in respect of charge 9.
Conclusion
The appeal is competent but I would dismiss it.
I will hear the parties as to costs.