LEGAL PROFESSION COMPLAINTS COMMITTEE and GOLDSMITH

[2022] WASAT 43

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: LEGAL PROFESSION ACT 2008

CITATION:   LEGAL PROFESSION COMPLAINTS COMMITTEE and GOLDSMITH [2022] WASAT 43

MEMBER:   JUSTICE J ALLANSON, SUPPLEMENTARY PRESIDENT

JUDGE H JACKSON, DEPUTY PRESIDENT

MR R POVEY, MEMBER

HEARD:   4 MARCH 2022, 8 MARCH 2022, 9 MARCH 2022, 10 MARCH 2022 AND 25 MARCH 2022

DELIVERED          :   23 MAY 2022

FILE NO/S:   VR 14 of 2020

BETWEEN:   LEGAL PROFESSION COMPLAINTS COMMITTEE

Applicant

AND

BARRIE GOLDSMITH

Respondent

Catchwords:

Vocational regulation - Legal practitioners - Allegations of professional misconduct - Allegation of failure to pay senior counsel's fees - Allegation of making a complaint without reasonable basis and as leverage in dispute as to fees - Allegation of making false statements in defence to claim for fees - Allegation of seeking counsel's engagement despite relationship lacking trust and confidence - Allegation of seeking withdrawal of complaint - Findings of professional misconduct - Finding of unsatisfactory professional conduct

Legislation:

Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 5(a), s 402, s 403, s 428(1), s 260, s 261, s 261(2), s 438, s 576(1), s 581, Pt 13
Legal Profession Conduct Rules 2010 (WA), r 4, r 26, r 26(2)
Rules of the Supreme Court 1971, O 30 r 5
State Administrative Tribunal Act 2004 (WA), s 32
Strata Titles Act 1985 (WA), s 43

Result:

The practitioner engaged in professional misconduct and unsatisfactory professional conduct

Category:    B

Representation:

Counsel:

Applicant	:	Mr P Yovich SC
Respondent	:	In Person

Solicitors:

Applicant	:	Legal Profession Complaints Committee
Respondent	:	Rostron Carlyle Rojas Lawyers

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

Aikman v The Owners of Strata Plan 48817-16 Dolphin Drive Mandurah [2016] WASC 380

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56

Legal Profession Complaints Committee and  Fidock[2011] WASAT 78

Legal Profession Complaints Committee v In de Braekt [2011] WASAT 1; (2011) 76 SR (WA) 336

Legal Profession Complaints Committee and Oud [2018] WASAT 119

Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228

Palmer v Dolman [2005] NSWCA 361

REASONS FOR DECISION OF THE TRIBUNAL:

Overview

1. On Saturday 29 October 2016, Mr Barrie Goldsmith, a solicitor, emailed and spoke by telephone with Mr Stephen Davies SC, the result of which was that Mr Davies was engaged to act for Ms Aikman in a hearing in the Supreme Court listed for the following Thursday, 3 November 2016.

2. On the following Monday, 31 October 2016, Mr Davies sent Mr Goldsmith a costs agreement after which there was some further email communication as to the rates Mr Davies would charge.

3. Mr Davies appeared at the hearing on 3 November 2016, which was continued on 9 November 2016, after which Mr Davies sent his bill.  Mr Davies sent several 'follow-up' emails to Mr Goldsmith in the following three months to early February 2017.

4. On 10 February 2017, in response to an email from Mr Davies, Mr Goldsmith wrote in terms which contended that Mr Davies' work had been inadequate and, also, said in effect that he would not pay Mr Davies' fees unless and until Ms Aikman obtained a favourable costs order in other, related, proceedings.

5. By email of the same date, Mr Davies then told Mr Goldsmith that unless his fees were paid by 'next Thursday' he would, amongst other things, lodge a complaint with the applicant, and take 'all necessary steps' to recover the fees.

6. The fees were not paid and Mr Davies lodged a complaint with the applicant on 8 March 2017 and commenced proceedings on 17 March 2017 in the Magistrates' Court to recover his fees.

7. On 18 March 2017, Mr Goldsmith filed a complaint against Mr Davies with the WA Bar Association and on 24 May 2017 he filed his defence to Mr Davies' claim in the Magistrates' Court.

8. Mr Goldsmith's defence repeated the contention that Mr Davies' work had been inadequate.  It also denied that Mr Davies was entitled to recover his fees because, it was alleged, he and Mr Davies had agreed during their 29 October 2016 telephone conversation that no payment would fall due unless and until either Ms Aikman paid the fees to Mr Goldsmith or Mr Goldsmith exercised his rights under a caveat granted by Ms Aikman over a property she owned.  The defence was the first time Mr Goldsmith had put that claim in writing.

9. The Magistrates' Court proceeding was resolved by consent at a pre-trial conference on 23 August 2017, with Mr Goldsmith agreeing to pay the fees in full in three instalments.  During the pre-trial conference, Mr Goldsmith said that he would not sign consent orders unless Mr Davies withdrew his complaint to the applicant about Mr Goldsmith.

10. A week prior to that date, Mr Goldsmith had emailed the solicitor acting for Mr Davies in the Magistrates' Court proceedings and asked whether Mr Davies would accept new instructions for Ms Aikman in related proceedings.

11. The applicant alleged five grounds of complaint against Mr Goldsmith.  They were, in effect, that he engaged in professional misconduct by:

    1.failing to pay Mr Davies' fees;

    2.lodging a complaint with the WA Bar Association without reasonable basis and solely in response to Mr Davies' complaint to the applicant and his commencement of the Magistrates' Court proceedings;

    3.filing a defence in the Magistrates' Court proceedings that he knew contained false and misleading statements;

    4.seeking to engage Mr Davies for further proceedings despite the ongoing dispute between them; and

    5.seeking the withdrawal of Mr Davies' complaint to the applicant at the pre-trial conference.

12. The Tribunal heard evidence from three witnesses, including Mr Davies and Mr Goldsmith, and received and considered the documents produced by each party.  On considering that evidence and the submissions of the parties, the Tribunal finds that Mr Goldsmith did engage in professional misconduct in relation to each of grounds 1, 2, 3 and 5 and finds that Mr Goldsmith's actions in relation to ground 4 amount to unsatisfactory professional conduct.

Introduction

1. The applicant, the Legal Profession Complaints Committee, referred this matter to the State Administrative Tribunal, under s 428(1) of the Legal Profession Act 2008 (WA) (LPAct), alleging that the respondent practitioner, Mr Goldsmith, had engaged in professional misconduct.  

2. The applicant thus engages the statutory scheme in Pt 13 of the LP Act for dealing with complaints and discipline.

3. In these reasons, unless stated otherwise, references to legislation are to the LP Act.

4. The parties have, in some documents and correspondence, used the abbreviations LPCC for the Legal Profession Complaints Committee, and WABA for the Western Australian Bar Association and those abbreviations will be adopted below. 

The Grounds of the Application

1. The matter has been referred on five grounds which allege:

   Ground 1

   That the practitioner BARRIE GOLDSMITH (practitioner) between on or about 21 December 2016 and on or about 31 August 2017 in the course of acting for Ms Susan Aikman (client) in Supreme Court of Western Australia proceedings CIV 2582 of 2016 (strata proceedings) engaged in professional misconduct, within the meaning of sections 403 and 438 of the Legal Profession Act 2008 (WA) (LPAct), in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct approved and observed by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that, and in circumstances where:

   a)on 29 October 2016 the practitioner engaged Mr Stephen Davies SC (Mr Davies) to act as senior counsel for the client in the strata proceedings;

   b)on 31 October 2016 Mr Davies provided the practitioner with an offer to enter a costs agreement (costs agreement), the terms of which provided, relevantly:

   i."Your firm will be liable for payment of all bills even if your firm has not received funds from its client to pay the bill" (clause 9);

   ii."Payment of each bill is due within 30 days" (clause 10);

   iii."This offer may be accepted in writing or by conduct namely by continuing to instruct me after the receipt of this letter" (clause 12);

   c)thereafter, and on the practitioner's instructions, Mr Davies prepared for and attended hearings in the strata proceedings on 3 and 9 November 2016;

   d)on 21 November 2016 Mr Davies provided the practitioner with an invoice for his fees in the sum of $23,100 inclusive of GST (Fees),

   the practitioner failed to pay any or all of the Fees, which conduct was in breach of clauses 9 and 10 of the costs agreement and the practitioner's professional obligations pursuant to rule 26 of the Legal Profession Conduct Rules 2010 (WA).

   Ground 2

   That the practitioner between on or about 7 April 2017 and on or about 9 May 2017 engaged in professional misconduct, within the meaning of sections 403 and 438 of the LP Act, in that his conduct fell short by a substantial degree of the standard of professional conduct approved and observed by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that he:

   1.made and maintained a complaint to the Western Australian Bar Association (WABA) against Mr Davies (WABA complaint), without any reasonable basis and solely in response to:

   1.1a complaint made by Mr Davies to the applicant (LPCC) against the practitioner (as particularised in (b) below) (LPCC complaint);

   1.2proceedings commenced in the Magistrates Court by Mr Davies against the practitioner for payment of the Fees (as particularised in (c) below) (MC proceedings);

   2.by email to Mr S, who had been engaged as junior counsel for the client in the strata proceedings, on 20 April 2017, offered to withdraw the WABA complaint if Mr Davies agreed to withdraw the LPCC complaint and the MC proceedings,

   in circumstances where:

   a)by email to Mr Davies on 10 February 2017, and in response to an email from Mr Davies the same day, the practitioner stated that if Mr Davies made a complaint to the LPCC regarding the practitioner's non-payment of the Fees, the practitioner "will be left with no alternative other than to lodge a formal complaint with WABA" about both Mr Davies and Mr S;

   b)on 8 March 2017 Mr Davies made the LPCC complaint regarding the practitioner's non-payment of the Fees and his email of 10 February 2017;

   c)on or about 17 March 2017 Mr Davies caused to be filed in the Perth Registry of the Magistrates Court a Form 3 general procedure claim against the practitioner for payment of the Fees, thereby commencing the MC proceedings;

   d)on 7 April 2017 the practitioner made the WABA complaint, which related to Mr Davies' expertise and conduct of the strata proceedings;

   e)by letter dated 9 May 2017, the President of WABA informed the practitioner that the President considered that the conduct the subject of the WABA complaint was not within the range of matters about which a complaint could be made to the WABA Disciplinary Committee and, accordingly, no further action would be taken in relation to the WABA complaint;

   f)on or about 17 July 2017, and while the MC proceedings were still on foot, the practitioner sought to engage Mr Davies to act for the client in a new matter (as particularised in Ground 4).

   Ground 3

   That the practitioner on or about 24 May 2017 engaged in professional misconduct, within the meaning of sections 403 and 438 of the LP Act, in that his conduct fell short by a substantial degree of the standard of professional conduct approved and observed by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that he prepared and filed, alternatively caused to be prepared and filed, in the MC proceedings a Form 21 statement of defence (Form 21) which relevantly stated that:

   1.it was an express term of the retainer between the practitioner and Mr Davies that any bills rendered by Mr Davies would be payable by the practitioner upon the exercise by the practitioner of his rights under a caveat registered against the title to a property owned by the client (alleged term; Caveat);

   2.the alleged term was orally agreed to by Mr Davies in the course of a telephone discussion with the practitioner on 29 October 2019 (sic 2016) (discussion);

   3.the alleged term was not, but ought to have been, included in the costs agreement;

   4.Mr Davies was not entitled to payment of the Fees because as at the commencement of the MC proceedings the practitioner had not exercised his rights under the Caveat,

   which statements were false and misleading in material respects, as, in truth, at no time during the discussion, or subsequent to the discussion and prior to the completion of the retainer by Mr Davies, did:

   (a)the practitioner raise the alleged term with Mr Davies; or

   (b)Mr Davies agree to the alleged term,

   and the practitioner knew the statements were false and misleading in material respects and intended that the Magistrates Court rely on and be misled by the statements, alternatively the practitioner was recklessly indifferent as to whether the statements were false and misleading in material respects and as to whether the Magistrates Court would be misled by the statements.

   Ground 4

   That the practitioner on or about 17 July 2017 engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act, in that his conduct fell short by a substantial degree of the standard of professional conduct approved and observed by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that, and in circumstances where he had made and maintained the WABA complaint the MC proceedings were still on foot, and in the Form 21 he alleged that, relevantly, Mr Davies had made misleading and deceptive representations as to his experience, he sought to engage Mr Davies to act for the client in a new matter.

   Ground 5

   That the practitioner between on or about 21 and 23 August 2017 engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act, in that his conduct fell short by a substantial degree of the standard of professional conduct approved and observed by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that:

   1.in the course of a pre-trial conference (PTC) in the MC proceedings before a Registrar, and in circumstances where terms of settlement of the MC proceedings had been agreed by the parties, the practitioner stated that he would not sign a Form 49 memorandum of consent orders unless it included an additional term of settlement that Mr Davies would withdraw the LPCC complaint;

   2.following the PTC, by email to Mr Davies' solicitor in the MC proceedings (which email attached the Form 49 signed by the practitioner), the practitioner requested that Mr Davies withdraw the LPCC complaint.

2. The applicant lodged a statement of facts and contentions, and Mr Goldsmith lodged a response (later amended), to which the applicant lodged a reply.

Professional misconduct

1. Professional misconduct is defined in the LP Act as follows:

   (1)For the purposes of this Act —

   professional misconduct includes —

   (a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

   (b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

   (2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.[1]

   [1] LP Act, s 403.

2. The LP Act departed from the terms of its predecessor, the Legal Practice Act 2003 (WA) (2003 Act), by distinguishing between unsatisfactory professional conduct[2] and professional misconduct. Previously, under the 2003 Act, behaviour which fell short of relevant standards was described as 'unsatisfactory conduct', which was defined to include unprofessional conduct on the part of the legal practitioner, whether occurring before or after admission. The term 'unprofessional conduct' is not used in the LP Act.

   [2] LP Act, s 402.

3. The definition of professional misconduct in s 403 of the LP Act now includes conduct that would not previously have been regarded as 'unprofessional conduct' under the 2003 Act. But the legislative intention appears to have been to expand the scope of behaviour open to sanction, not to restrict it. The legislature did not apparently intend to exclude conduct which previously would have been characterised as 'unprofessional conduct', as that term was understood in this State.

4. In Western Australia, the meaning of unprofessional conduct was considered in Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115, (1999) 21 WAR 56 (Kyle) at 71 - 72 where Parker J said:

   … The notion of unprofessional conduct first found its place in s 20 of the Act when it was enacted in 1893. This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a Practitioner of the Supreme Court [1927] SASR 58; see for example In re a Practitioner, unreported; FCt SCt of WA (Wallace, Brinsden and Smith JJ); Library No 4989; 18 July 1983. It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or 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. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to "professional conduct".[3]

The Sources of Evidence

[3] See also Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228 at [12].

1. The applicant called two witnesses:  Stephen Michael Davies SC, a barrister practising at the Western Australian Bar, and Jonathon Peter Cook, solicitor, who acted for Mr Davies in proceedings against Mr Goldsmith in the Magistrate's Court.   Each witness provided a witness statement.

2. Mr Davies attached a large volume of documents to his witness statement, in effect the whole of his file for the proceedings in which he was briefed by Mr Goldsmith, and the emails between them in 2016 and 2017.  The applicant also relied on a book of documents, some of which duplicated the documents provided by Mr Davies.

1. Mr Goldsmith gave evidence, and provided  a witness statement and a supplementary statement.  He also tendered three volumes of documents.

2. Mr Davies and Mr Goldsmith gave oral evidence, in chief, about their conversation on 29 October 2016 ­ a conversation central to the allegations against Mr Goldsmith and on which their accounts differed.  Otherwise, the witness statements stood as evidence in­chief.

The Principal Factual Disputes

1. Much of the evidence was documentary and, for that reason, largely uncontroversial.  The primary areas of factual dispute were:

   (1)what was said or agreed in the conversation between Mr Goldsmith and Mr Davies on 29 October 2016;

   (2)what did Mr Goldsmith believe about what had been agreed;

   (3)did Mr Goldsmith believe the substance of the complaints that he made against Mr Davies; and

   (4)did Mr Goldsmith make those complaints solely in response to the complaint by Mr Davies and the proceedings to recover fees.

Standard of Proof

1. A preliminary point may be made.  Mr Goldsmith contended strongly that the Tribunal should apply the standard of proof explained in authorities such as Briginshaw v Briginshaw.[4] 

   [4] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw).

2. The Tribunal is an administrative tribunal.  It is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply.[5]

   [5] State Administrative Tribunal Act 2004 (WA), s 32.

3. The procedure in disciplinary proceedings under Pt 13 of the Legal Profession Act 2008 is, in substance, adversarial.  The allegations against Mr Goldsmith are serious.   It is appropriate to apply rules relating to the standard of proof that would apply to the proof of such matters in civil proceedings.  To adapt the Briginshaw principles to the present matter, the Tribunal must have regard to the nature and consequence of facts sought to be established, the seriousness of the allegations made against Mr Goldsmith, the inherent unlikelihood of an experienced practitioner behaving in the manner alleged, and the gravity of the consequences that might flow from a finding of professional misconduct.[6] 

   [6] Briginshaw, pages 362-363.

4. While the evidence in this case includes the direct testimony of Mr Davies and Mr Goldsmith, the applicant's case relies substantially on inferences which it says are to be drawn, in particular from the conduct of Mr Goldsmith.  In Palmer v Dolman, Ipp JA set out principles that have become well established in determining, in civil proceedings, whether an inference of fraud or other serious misconduct may be drawn from circumstantial evidence. [7]  Adapting those principles to the present matter:

   (1)The Tribunal must consider the weight which is to be given to the united force of all the circumstances put together.

   (2)The standard of proof is to be applied at the final stage of the reasoning process.

   (3)The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful.

   (4)Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved.

   [7] Palmer v Dolman [2005] NSWCA 361 at [41].

5. In this case, the Briginshaw principles should be applied in determining whether, in all of the circumstances, the Tribunal should draw the inferences for which the applicant contends and which would lead to findings of misconduct.

Background

1. Mr Goldsmith is an Australian legal practitioner within the meaning of section 5(a) of the LP Act. He was admitted to legal practice in New South Wales in 1982, and, from 1984 until 2021 practiced as the principal of a firm. At times relevant to this application, Mr Goldsmith was practising as Goldsmiths Lawyers which operated from offices in each of Perth, Brisbane, Melbourne and Sydney.

2. In or about August 2016 the practitioner was instructed by Ms Aikman in relation to a proposed claim against a strata company and others in respect of a strata property situated at Dolphin Drive, Mandurah.  Ms Aikman was the proprietor of a lot in the strata scheme. 

3. The practitioner already acted for Ms Aikman in defamation proceedings in the Supreme Court of Western Australia in which she was the defendant.  The defamation proceedings had been commenced on 9 July 2015 by the corporate manager of the strata company and two other proprietors in their capacity as a director and an employee of the strata manager.

4. The defamation proceedings were listed for a 5 day trial commencing on 23 November 2016.

5. On 9 September 2016, Ms Aikman commenced proceedings in the Supreme Court (the strata proceedings) against five defendants:  the strata company (first defendant), the members of the council of the strata company (second defendants), the plaintiffs in the defamation proceedings against her (third and fourth defendants), and the solicitors acting for the plaintiffs in the defamation proceedings (fifth defendants). 

6. The strata proceedings were commenced by originating motion.

7. On 13 October 2016, Pritchard J (the case manager for the action) ordered that the strata proceedings proceed on pleadings as if commenced by writ.   A statement of claim was filed on 18 October 2016.  It had been amended twice by 27 October 2016.[8] 

   [8] See Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah [2016] WASC 380 (Reasons) at [19].

8. Ms Aikman's concern in the strata proceedings was that, as a result of resolutions passed in 2015 and 2016, the funds of the first defendant (which included contributions levied from her as a proprietor) had been used by the strata company to fund the defamation proceedings brought against her by the third and fourth defendants.[9]  Ms Aikman sought orders for the monies paid by the first to fourth defendants to the fifth defendants to be repaid to the first defendant; and an order restraining the first and second defendants from paying or authorising any monies to be paid in connection with or for the purposes of the defamation claim from any fund held by the first defendant.

   [9] Reasons at [22].

9. Ms Aikman brought an interlocutory application by chamber summons dated 26 October 2016.[10] 

   [10] Witness statement of Stephen Michael Davies dated 20 November 2020, Attachment SMD 1 (SMD 1), pages 36-38.  We note that the parties agreed in the statement of material facts and the response that the application was made before 13 October 2016.  The discrepancy does not appear to be material and it is not necessary to resolve it.

10. At a directions hearing on 27 October 2016, Pritchard J listed the summons for hearing at a special appointment on 3 November 2016 and made orders for the filing of responsive affidavits and submissions.[11]

    [11] SMD 1, page 320.

11. On 28 October 2016, pursuant to O 30 r 5 of the Rules of the Supreme Court 1971, Mr Goldsmith served notices to produce documents on the solicitors for the first to fourth defendants,[12] and on the fifth defendant.[13]  In substance, the notice called on the defendants to produce documents concerning the engagement of the fifth defendant to attend the 2015 Annual General Meeting (AGM) of the first defendant, the retainer of the fifth defendant to act in the defamation proceedings, and documents (including invoices) relating to the payment of the fifth defendant.

The Briefing of Mr Davies

[12] SMD 1, pages 458­463. 

[13] SMD 1, pages 464­467.

1. In his evidence in chief at the hearing, Mr Goldsmith said that he spoke to Ms Aikman, advised her that counsel was needed, and gave her the option of junior counsel or senior counsel.  Ms Aikman expressed a preference for senior counsel 'against a backdrop of her financial ­ of her having explained to me her financial situation and my being fully aware of it'.[14]  This evidence is not consistent with his later complaint to WABA where he stated that he only briefed senior counsel when left with no practical alternative, and where '[it] had not been my intention, or my instructions, to retain Senior Counsel'.[15]  It is one of many inconsistencies in his evidence.

   [14] ts 176, 8 March 2022.

   [15] Applicant's Book of Documents, page 156.

2. On 29 October 2016, a Saturday, Mr Goldsmith approached Mr Davies and asked for his availability to appear at the hearing listed for two hours on the afternoon of 3 November 2016.[16]  The approach was by email which was sent at 5.10 am, Western Standard Time (WST).[17]  Mr Goldsmith had initially approached Martin Cuerden SC and had been referred by Mr Cuerden to Mr Davies.

   [16] All of the emails sent by Mr Goldsmith on 29 October 2016 were received by Mr Davies in the morning (WST) of that day. 

   [17] Mr Goldsmith was in Sydney.  The time difference between Perth and Sydney was then 3 hours.  In these reasons, where it is necessary to refer to the time of an email, we will refer to the time it was sent or received in Perth.

3. Mr Davies and Mr Goldsmith gave different accounts of the sequence of events that morning, and of the conversation which took place between them.

The Sequence of Events

1. Mr Davies' evidence was that he received an email from Mr Goldsmith, which said that he had been referred to Mr Davies by another barrister and that he told Mr Goldsmith, by reply email, that he was available on the relevant day, asked some preliminary questions regarding the state of preparation, and suggested Mr Goldsmith ring him.[18]  Mr Davies' email was sent at 8:08 am.

   [18] ts 51­52, 4 March 2022; SMD 1, page 3.

2. Mr Goldsmith testified that he and Mr Davies spoke only after he had sent Mr Davies further emails containing documents relevant to the application.  Although Mr Davies did not appear certain in his recollection, he believed the documents were sent only after he and Mr Goldsmith had spoken.[19] 

   [19] ts 53, 4 March 2022; SMD 1, page 6.

3. Mr Goldsmith was adamant that, before he spoke to Mr Davies, on the basis of the email from Mr Davies advising that he was available, he decided that the easiest thing to do was send Mr Davies the 'core documents' for him to read for himself before they spoke.  

4. Mr Goldsmith gave this account of the conversation:

   I phoned him, and I said to him – I can't verify this, but, naturally, I would have said, "I assumed that you've got the documents I sent you," but I acknowledge that I haven't said that in my statement. But those are the words I would naturally have used. I then said to him, "Stephen, I've had [junior counsel] acting. I am very unhappy with what [junior counsel] has prepared. We have a strong case that proprietors' funds are being used to fund the defamation action. We must stop this. Stephen, I really need a barrister who is experienced in fiduciary duty claims and similar. This is a claim based in equity, and I really need an experienced barrister." Mr Davies then said, straight to the point, "Who is going to pay me?" I said, "Stephen, I do not have funds. I have a caveat over Ms Aikman's property. She is trying to sell assets, and I am to get paid as soon as she disposes of her assets and realises funds or, at the latest, if I exercise my rights under the caveat." And I said something like, "That is the deal." Mr Davies said something along the lines of, "Oh." He was extremely brief, and my assessment then and now was that he was very much a man in a rush.[20]

   [20] ts 177­178, 8 March 2022.

5. Mr Goldsmith's evidence about the sequence of events is inconsistent with the response he initially filed in the Tribunal, in which he stated that he telephoned Mr Davies following the receipt of the email (timed at 8:08 am) and provided Mr Davies with a summary of the matter that was listed for 3 November 2016.  The response further stated that, in that conversation, Mr Goldsmith advised Mr Davies that he would email to him copies of the relevant court documents.[21]  The response did not refer to any later telephone conversation after the documents had been sent.

   [21] Substituted Response to Application filed on 7 February 2020, filed pursuant to Order made on 16 June 2020, paras 63-64.

6. Mr Goldsmith filed an amended response on 8 March 2022 in which he contended that the telephone conversation with Mr Davies was after he had sent him copies of the relevant court documents.  His testimony at the hearing was consistent with the amended response.

7. Mr Goldsmith provided to Mr Davies, by email, relevant documents including the pleadings, the chamber summons, and an affidavit sworn by Ms Aikman in September 2016.  The email was received by Mr Davies about 90 minutes after the first email, at 9.38 am WST.[22]  The several documents combined came to approximately 300 pages.

   [22] SMD 1, pages 6-7.

8. At about the same time, Mr Goldsmith sent a further email with a copy of the associate's record of proceedings on 27 October 2016.[23]

   [23] SMD 1, pages 318-321.

9. Approximately four minutes later, at 9.42 am, Mr Goldsmith sent another email with a second affidavit of Ms Aikman, and his submissions regarding expedition.[24]  Ms Aikman's affidavit and attachments were more than 130 pages.

   [24] SMD 1, page 322.

10. There is no doubt that the emails were sent.  The only dispute is whether that was before or after the conversation in which fees were discussed.  

11. In our opinion, it is less likely that such a volume of documents would be sent to counsel simply on his saying that he was available, without any discussion about whether he would accept the brief.  Sending more than four hundred pages by email, with little time for counsel to read and analyse the material, does not accord with common sense.  Mr Davies had asked about the state of preparation in his email of 8.08 am (WST), but had not asked for all material to be sent to him. 

12. For these reasons we are of the view that those emails were sent after Mr Davies and Mr Goldsmith discussed the matter.  The content of that discussion is also the subject of disagreement.

The Content of the Discussion About Fees

1. Mr Davies was not sure how long they spoke, but said the conversation  could have been 30 to 45 minutes, perhaps longer.  He gave his account of that part of the conversation that dealt with the arrangements for his fees, attempting to avoid matters that might be the subject of legal professional privilege held by Ms Aikman. [25]

   [25] ts 53, 4 March 2022.

2. Mr Davies' evidence continued.

   I want to ask you in general terms, was there a discussion about the amount of work that the brief would require?---There was.

   Were you told or given to understand how many days in court the matter would require, or was listed for?---Yes.

   And what were you told?---Well, what happened was (indistinct) a phone call, Mr Goldsmith gave like a full sort of rundown of the background of the matter. I mean, Mr Goldsmith talked – he sort of talked and talked, talked about the whole background of the whole thing, the defamation proceedings, and so forth. I already knew that the matter was listed for a hearing, I think it was a day, which I suppose I would have thought was half a day. There wasn't any discussion as to, if you like, how long the work would (indistinct) that nature. The real question that we were discussing – the issue that was being talked about to the extent of that issue was, was the thing ready? Was it prepared? Because he had brought the application, it was on foot. So my question was really, is it all ready, is it ready to go?

   …

   And did you say anything to Mr Goldsmith about that in connection with either your capacity to do it or the fees that you – or your estimate of fees?---I didn't make an estimate of fees in the telephone call.

   Okay?---I said, all right, I said in effect that I could – I could rearrange – it became apparent that there was going to be a fair bit of work ahead. And I said, all right, well, I suppose I can arrange things so I can do that, so I can take the brief.

   All right. Now, coming then to the question of fees, what if any discussion about that subject was there?---Well, the reason this – the discussion about fees came in a context, and the reason it came up was because after Mr Goldsmith had told me all about the background to the matter, the defamation matter, and then also told me about this application being brought, I made some remarks about – I made some remarks about the wisdom, or the strategic wisdom of the application.[26]

   …

   At that point, I said, well – I said, "Have you got money in trust? Who's going to pay for this?" And it was – that's the context in which I raise it.

   Okay?---Because I say, "Okay. You think this is very important. Who's going to pay for it?" And – then there was (indistinct) he said something like, "I don't have money in trust. The client is paying me some small instalments towards the defamation action. I don't know – I can't remember exactly (indistinct) said, but what was certainly said – when he said to me – when it was made clear to me that he didn't have money in trust, the client really couldn't afford the action, I said, "Who's going to pay for it?" And he said, "I will pay for it myself".

   Now, was there further conversation about the issue of your fees?---Not after that. As soon as he said that, I – he must think it's important.

   All right.

   And was there any discussion in the telephone call about your rates?---I believe there would have been discussion about me saying I would send a cost agreement. But – because I always use the cost agreement. And when I – when it – this was the first time I had dealt with Mr Goldsmith, so I certainly would have said there will be a cost agreement coming, which will have my terms. So it will have the term.[27]

   …

   Do you have an actual recollection in this conversation, where you mentioned the cost agreement for a cost agreement?---I do not have a recollection of mentioning the cost agreement, but the conversation – yes. I don't recall, but it would have happened after the question of costs came up. So it would have been after – when we're closing that (indistinct) I've paid myself and there would have been a – it would have been my practice to say, "All right. Well, I will send the cost agreement".

   All right. And did you send a cost agreement?---I did on Monday morning, I believe. I told Lorraine Healey, who was then my secretary, to send to Mr Goldsmith a standard form cost agreement, save that I reduced the fees. I say I reduced the fees I would normally charge.[28]

   [26] ts 56, 4 March 2022.

   [27] ts 58, 4 March 2022.

   [28] ts 59, 4 March 2022.

3. In cross­examination, Mr Davies said that he did not definitely recall any discussion about sending a costs agreement, but said that he believed he would have said that he would do so because it was his practice.  He agreed that there was no discussion about his rates, or estimated fees.[29] 

   [29] ts 115­116, 4 March 2022.

4. He was also challenged on his evidence that Mr Goldsmith would agree to pay, without any indication of the amount likely to be charged.  He replied:

   I'm just saying what happened in the phone call. And – and what happened in the phone call … was the context in which that issue came up was me saying in effect, "Hey, this is satellite litigation. I don't think it's likely to achieve what you think it's going to achieve. Haven't you – haven't you got bigger fish to fry?" And you said, "No, this is so important that we do this because, you know, it will stop [the fifth defendants] doing this, that and the other," and I had said to you, "I don't think it's going to have that effect," but you said, "It's so important." I said, "Okay". I said, "Okay, look" – well, I said, "All right. You're saying it's so important." I said, "Okay. Has the client got funds?" because my instinct was that the client would – would not have funds being an individual person embroiled in this defamation issue. I said, "Has the client got funds?", and you said, no. So I said, "Okay. Well, who's going to pay for it?", and you said, "I will pay for it myself," or implicitly, "It's so important that I will pay for it myself," and I thought to myself, "Fine; you know what you're doing. If it's that important and you – that's your view. I'm new to the case. You're the guy on the ground. Fine; all right." I thought to myself, "Gee, if it's that important if he's prepared to do that, well, then, okay, let's press on."

   … the question of costs came immediately after – the issue of who's going to pay for it came immediately after I had given you that advice, or strategic observations that it was satellite litigation. I didn't think that – I thought you had bigger fish to fry, and I didn't think your client could afford it. That's what I was saying.[30]

   [30] ts 115­116, 8 March 2022.

1. Mr Goldsmith's evidence as to the content of his discussion with Mr Davies is set out at paragraph [50] above. In addition, he testified that, when he spoke to Mr Davies, he had recently agreed with Ms Aikman and counsel who was appearing in the defamation trial that payment of fees would be secured by a caveat. He said that, when he spoke to Mr Davies, 'this caveat issue was front and centre of my mind'.[31] 

   [31] ts 176, 8 March 2022.  See also ts 17­19, 10 March 2022.

2. Mr Goldsmith was positive that he would never blindly agree to pay fees himself, without an estimate or a quote as to costs.  He described Mr Davies' evidence of the conversation as 'untruthful' and 'ridiculous'.[32]  He complained that Mr Davies was purporting to make him personally liable for his fees and said:

   My version of the conversation disagrees with that. Subsequently, on 31 October the documentation from Mr Davies purports to make me liable and my evidence I've given is that that – those documents at 31 October are arguably post-contractual terms sought to be unilaterally introduced.[33]

   [32] ts 178, 8 March 2022.

   [33] ts 28, 10 March 2022.

3. Despite that evidence, however, Mr Goldsmith did not, in fact, dispute that he agreed he would be personally liable for counsel's fees.  His dispute with Mr Davies was as to timing.  In his telling of it, he did not agree to be immediately liable.  He said:

   My agreement with Mr Davies on 29 October is that – was I will pay you but I will not be able to pay you until Ms Aikman has realised some of her assets or I have exercised my rights. That did not include any statement to – any statement that he would not be paid – excuse me – unless I was paid. …It was a timing issue rather than a sort of denial of entitlement.

   …

   The effect of the conversation was, "I will pay you, Stephen," therefore denoting my commitment to personally paying him, "But I will not be able to pay you until one of those events occurs." [34]

   [34] ts 34­35 and 37, 10 March 2022.

4. We will return, later in these reasons, to whether Mr Davies' account of the conversation should be accepted, having regard to the challenges to the evidence of each witness, and, in particular, the documents that later passed between Mr Davies and Mr Goldsmith.

The Notices to Produce

1. Irrespective of whether the conversation between Mr Goldsmith and Mr Davies occurred before or after the emails sent around 9.38 am (WST), it is agreed that at 11:37 am (WST), after the conversation had occurred, Mr Goldsmith forwarded the notice to produce he had served on the first to fourth defendants on 28 October 2016.[35] 

   [35] SMD 1, pages 458-462.  From the comments of Pritchard J in her later judgment, I infer that there had not yet been discovery in the action.

2. The notice relied on O 30 r 5(3), pursuant to which a party may serve on another party 'a notice requiring him to produce at the trial or hearing the documents specified in the notice'. The notice did not, in fact, specify particular documents but, rather, it sought production of 'documents concerning or relating to' matters including the engagement to attend at the first defendant's 2015 AGM and the retainer of the fifth defendants in the defamation proceedings; invoices, memorandum of costs and disbursements, accounts and accompanying documents relating to work done by the fifth defendant, including in relation to the defamation proceedings; payment by any of the defendants of the fifth defendant's invoices; and any minutes, resolutions, decisions, notes of other documents authorising or relating to the payment.

3. On 30 October 2016, Mr Goldsmith forwarded the notice to produce that he had served on the fifth defendant.[36]  The notice was to similar effect to that served on the other defendants and in equally broad terms.

   [36] SMD 1, pages 463­467.

4. Mr Goldsmith said that he told Mr Davies that the documents sought by the notices were very important documents.[37]  He told the Tribunal that the notices to produce were 'absolutely critical'.  It will be necessary to return to the notices and their significance in due course.

The Costs Agreement

[37] ts 178, 8 March 2022.

1. By letter dated 31 October 2016, sent by email that day, Mr Davies provided an offer to enter into a costs agreement and retainer on terms that included:

   1.My retainer will be by Goldsmiths Lawyers.

   …

   4.I may render a bill upon completion of particular instructions, at the end of each calendar month and/or after the conclusion of any hearing.

   …

   9.Your firm will be liable for payment of all bills even if your firm has not received funds from its client to pay the bill.

   10.Payment of each bill is due within 30 days.

   11.I may charge interest at the rate prescribed… if a bill is unpaid for 30 days after your firm was given the bill…

   12.This offer may be accepted in writing or by conduct namely by continuing to instruct me after the receipt of this letter.[38]

   [38] Book of Documents, pages 137-138.

2. At the same time, by a separate letter, Mr Davies provided initial disclosure for the purposes of s 261 of the LP Act. Section 261(2) required Mr Davies, as a law practice retained or to be retained by Goldsmith Lawyers (another law practice) to disclose to Goldsmith Lawyers the information necessary for Goldsmith Lawyers to meet its disclosure obligations to Ms Aikman.

3. Mr Goldsmith forwarded the costs agreement to his client and requested her approval to sign it.[39]  He advised Mr Davies he had done so, and further advised that he had existing authority to agree to rates to $6000 per day, a rate less than that proposed by Mr Davies, and asked whether Mr Davies would be prepared to accept the brief on the basis of:

   1.A daily fee of $6000 + GST + an hourly rate of $600 + GST; and

   2.if we are successful, then I will endeavour to recover your fees at the rates set out in the attached?[40]

   [39] ts 34, 10 March 2022.

   [40] Book of Documents, page 132.

4. Mr Davies replied, acknowledging that Mr Goldsmith said his client had costs constraints, and offering to reduce his rates to $750 plus GST and $7,500 plus GST per day.  He proposed that he would charge for work actually done, and not charge the day rate for the day of the hearing.[41]  Mr Goldsmith replied, 'Yes please, and thanks'.[42]

   [41] Book of Documents, page 131.

   [42] Book of Documents, page 131.

5. None of the emails on 31 October 2016 referred to any agreement for the deferral of Mr Davies' fees, or any arrangement based on Ms Aikman charging a property to Mr Goldsmith as security for fees. 

The Interlocutory Application

1. The claim brought by Ms Aikman, as set out in the Further Amended Statement of Claim filed 26 October 2016, and sent to Mr Davies, alleged:

   (1)that the fifth defendant had provided legal advice and assistance to the other defendants in connection with the defamation proceedings and other defamation matters, and the 2015 Annual General Meeting;

   (2)breaches of fiduciary duties, in particular by failing to disclose information as to the use of proprietor contributions for the benefit of the third and fourth defendants, and the use of proprietor contributions for the benefit of those defendants;

   (3)that the payment of legal costs and expenses from proprietor funds was ultra vires, because they had been made in breach of the first defendant's powers and duties conferred by the Strata Titles Act 1985 (WA);

   (4)that the fifth defendants had a conflict of interest or potential conflict of interest in attending the Annual General Meeting and enacting and continuing to receive payment of its legal costs and expenses;

   (5)the plaintiff had suffered and would continue to suffer loss and damage by reason of those matters and other causes of action pleaded.

2. In substance, the chamber summons sought three orders: that the hearing of the strata proceedings be expedited, with the intention that it be determined before the trial of the defamation proceedings; that all monies paid to the fifth defendant by the other defendants be repaid or paid into a joint account in the names of the solicitors for the parties within two working days; and an order restraining the first to fourth defendants from making any further payments. 

3. Further emails were exchanged as preparation continued.[43] In particular, on 1 November 2016 (at 12:49 pm WST) Mr Davies asked Mr Goldsmith to issue a request pursuant to s 43 of the Strata Titles Act 1985 (WA) for the strata company to produce invoices and other documents.[44]  It does not appear that this was done.

   [43] SMD 1, pages 525-528, 528-529, 531 and 538-540.

   [44] SMD 1, page 551.  The Act has since been substantially amended.

4. The first to fourth defendants filed two affidavits by their solicitor, Mr Getta.  The fifth defendant also filed an affidavit of a solicitor employed by them, Ms Taylor.[45]

   [45] Reasons at [5]-[6].

5. On 1 November 2016, Mr Goldsmith forwarded the first affidavit of Mr Getta, noting the admission in it that costs were paid by 'the Strata Plan',[46] and the affidavit of Ms Taylor.[47]

   [46] SMD 1, page 664.

   [47] SMD 1, page 961.

6. Relevantly, in his affidavit of 1 November 2016, Mr Getta deposed that the second defendant (the strata company) was satisfied that it was obliged to indemnify the third defendant (the corporate manager of the strata company) in the defamation proceedings and provided evidence as to the costs incurred to date and anticipated costs of those proceedings, and included a table of invoices issued by the fifth defendant and redacted copies of the invoices.[48]

   [48] SMD 1, pages 669­945.

7. In her affidavit of 1 November 2016, Ms Taylor included a copy of an offer to enter into a costs agreement between the fifth defendant and the third defendant, and copies of accounts issued and remittances received by the fifth defendant.  Ms Taylor further deposed that the fifth defendant had not issued any accounts to, or received any remittance advices from, any party to the proceedings other than those annexed.[49]

   [49] Applicant's Book of Documents, pages 285-322.

8. On 2 November 2016, Mr Goldsmith forwarded the submissions filed on behalf of the first to fourth defendants.  Relevantly, the defendants submitted that the second defendants (the strata company) had resolved that it (the strata company) would indemnify the third and fourth defendants (the corporate manager and its director and employee) in the defamation action against the plaintiff.[50]

   [50] SMD 1, page 973 at para 12.

9. On 2 November 2016, Mr Goldsmith also forwarded to Mr Davies two letters that he had written to the solicitors for the defendants regarding the affidavits filed in the proceedings. 

10. In his letter to the fifth defendant, Mr Goldsmith referred to the documents that had been attached to the affidavit of Ms Taylor and wrote:

    …our client requires you to produce, tomorrow, a copy of your firm's itemised time listing recording any time spent and costs charged for any such attendance, and any work associated with that attendance…. Should you fail to produce your listing tomorrow, we shall bring this matter to the attention of her Honour, unless you confirm to us, in the meantime, that your firm did not charge for your time in attending the AGM.[51]

    [51] Exhibit 7.

11. The letter to the solicitors for the other defendants referred to the discrepancy in the invoices that had been exhibited to the affidavits of Mr Getta and Ms Taylor.[52]

    [52] Exhibit 8.

12. Also on 2 November 2016, Mr Goldsmith forwarded the submissions filed on behalf of the fifth defendant.[53]

    [53] SMD 1, page 977.

13. In a later email that day, Mr Goldsmith instructed Mr Davies to make clear to the Court that the plaintiff would not pursue expedition of the trial if interim orders were made.[54]

    [54] SMD 1, page 990.

14. Early on the morning of 3 November 2016 (in an email received in Perth at 4:10 am), Mr Goldsmith forwarded comments on the submissions that had been prepared for the hearing that day.  In further comments, Mr Goldsmith referred to the retainer agreement and invoices that had been filed by the fifth defendant, and said 'They have excluded their activity listings (up to you if you want to call upon them) but it is clear that they were charging no doubt from about the middle of May'.[55]

    [55] SMD 1, pages 999-1000.

15. It is not in dispute that Mr Davies did not call on the notices to produce at the hearing, did not advise Mr Goldsmith before the hearing that he would not or seek his instructions in that regard, and did not tell him after the hearing that he had not called on them.

16. The application was not completed on 3 November 2016.  Following the hearing, Mr Davies sent an updated estimate of costs, updating the time estimate to 22 hours.[56]

    [56] Book of Documents, page 130.  Although expressed as an estimate, it is apparent that Mr Davies was recording time spent.

17. The second day of hearing was on 9 November 2016.  At the conclusion of the hearing, Pritchard J dismissed the application for an expedited trial, and reserved on the injunction application.[57]

    [57] Reasons at [2].

18. Mr Davies provided some further advice on 10 November 2016.  It is material to the present proceedings only to the extent that it touched further on questions of fiduciary duty that had been raised in court the day before, and included a proposed letter to the solicitors for the first to fourth defendants.  Mr Goldsmith advised that he did not propose to send it.[58]

    [58] SMD 1, page 1053.

19. On 10 November 2016, Mr Davies advised Mr Goldsmith that the time spent the previous day was six hours and he updated his 'estimate' to 28 hours.  Mr Davies further asked whether Mr Goldsmith wanted him to appear on the delivery of the decision, and if not 'I will send you a fee note now'.[59] 

The Decision of Pritchard J

[59] Book of Documents, page 129.

1. On 19 November 2016, Pritchard J published comprehensive reasons for dismissing both applications.  In her reasons, Pritchard J set out the orders sought by Ms Aikman.[60]  While the substance of the relief remained unchanged, the proposed orders were noticeably more comprehensive than those in the chamber summons. 

   [60] Reasons at [51].

2. In summary, her Honour found that the strength of Ms Aikman's case overall was 'merely reasonable' and her claims of breach of fiduciary duty were weak.

3. On the claim for repayment of money already paid, her Honour found that Ms Aikman had not demonstrated she would suffer irreparable harm or prejudice if interlocutory relief were not granted or that damages would not be an adequate alternative remedy.  Her Honour further commented that the grant of injunctive relief would have the effect of giving Ms Aikman the final relief she sought without the defendants having had the opportunity to advance a defence at trial.[61]

   [61] Reasons at [184].

4. On the claim for an injunction to restrain the strata company from paying any further legal fees, Pritchard J characterised the claim that the payment was beyond power as 'reasonably strong' but not strong enough to warrant the grant of an injunction when the balance of convenience factors weighed against the grant of relief.[62]

   [62] Reasons at [185].

5. A significant consideration against the grant of interlocutory relief arose from her Honour's finding regarding delay.  Her Honour found that the evidence strongly supported the conclusion that Ms Aikman knew, or should have known, that the legal fees were to be paid from strata company funds from as early as 2015, but did not commence her action until September 2016.  Her Honour further found that it was within Ms Aikman's power[63] to have required the strata company to provide her with information and to permit her to inspect the books of account or other records of the first defendant bearing on any payment to the fifth defendant to confirm the true position, but had failed to do so.[64]

   [63] Strata Titles Act 1985 (WA), s 43.

   [64] Reasons at [159] and [181].

6. Because of the prominence given by Mr Goldsmith to the issue of notices to produce, it is relevant that Pritchard J observed:

   20. There is no dispute that the legal fees incurred by the third and fourth defendants for the legal services performed by the fifth defendants in the defamation proceedings (the Legal Fees) have been paid out of the funds of the first defendant.  …

   21. There also does not appear to be any dispute that at the annual general meeting of the first defendant on 4 June 2015 (the 2015 AGM) it was resolved that there should be included in the budget for the first defendant's operations for the following year an allocation of $25,000 for 'Admin - Legal and Debt Collection Fees' (the 2015 Resolution). It does not appear to be in dispute that an identical resolution for expenditure in the following year (the 2016 Resolution) was passed at the annual general meeting of the first defendant on 16 June 2016 (the 2016 AGM).

7. In discussing Ms Aikman's delay in seeking interlocutory relief, her Honour commented that while there was evidence that Ms Aikman's solicitor had asked the first and fifth defendants to provide copies of the invoices from the fifth defendant, there was no evidence as to when that request was made and it did not appear to have been a request made in the exercise of Ms Aikman's statutory right of inspection.[65] 

   [65] Reasons at [182].

8. Her Honour observed that, while Ms Aikman initially sought 'first and foremost' the order for an expedited trial, that application was only faintly pressed and the injunction was the primary relief sought.[66]  Her Honour further observed that the expedition sought required a timetable that was a 'practical impossibility'.[67]

Mr Davies Requests Payment

[66] Reasons at [187].

[67] Reasons at [201] and [203].

1. On 21 November 2016, by his personal assistant, Mr Davies provided an invoice for his fees in the sum of $23,100 inclusive of GST.[68]  Mr Goldsmith did not respond.

   [68] Book of Documents, pages 125-128.

2. On 24 November 2016, Mr Goldsmith emailed regarding an issue raised by Mr Davies about submissions made at the hearing.  He did not refer to Mr Davies' invoice.[69]  

   [69] SMD 1, page 1105.

3. On 21 December 2016, by his personal assistant, Mr Davies provided a statement of fees owing with a copy of the original invoice.[70]  Mr Goldsmith did not respond.

   [70] Book of Documents, pages 123-124.

4. On 25 January 2017, by his personal assistant, Mr Davies sent an email reminder that fees remained outstanding and that the costs agreement required payment within 30 days of the fee note being issued.[71]  Mr Goldsmith did not respond.

   [71] Book of Documents, page 121.

5. On 6 February 2017, Mr Davies sent an email, saying:

   I would be grateful if you could pay my outstanding fee note.  My secretary tells me she has followed up a couple of times but it is still outstanding.[72]

   [72] Book of Documents, page 120.

6. Mr Goldsmith did not respond.

7. On 8 February 2017, Mr Davies sent a further email, referring to the lack of response from Mr Goldsmith, and saying:

   I am sorry to trouble you again, but I have a tax bill to pay and I need to get outstanding fees in.

   Could you please I (sic) confirm that the fee note will now be paid.[73]

The February 2017 Emails

[73] Book of Documents, page 119.

1. On 9 February 2017, Mr Goldsmith replied to both Mr Davies, and to the junior counsel in the action.  Relevantly, Mr Goldsmith said:

   … the dismissal of the application for interlocutory relief has caused enormous problems for the plaintiff and has caused enormous complications in the relationship between the plaintiff and myself. In saying that we "lost the unlosable", I have "been around" long enough to know that, in a two horse race, there is only one winner, and to acknowledge that both my client and I have appreciated that, ultimately, we were at the discretion of the Judge.

   Having said that, both my client and I have enormous concerns about the presentation of the case by both of you on her behalf. I will endeavour to minimise my comments because, realistically, I see no particular benefit in lengthy or protracted correspondence between us.[74]

   [74] Book of Documents, pages 115­116.

1. Those comments about presentation of the case were made having commented upon Mr Davies' written submissions before they were filed, without having been present at the hearing, without the benefit of transcript, and without having spoken to either Mr Davies or junior counsel about what had occurred at the hearing.

2. Mr Goldsmith then made a series of blunt allegations regarding the expertise of junior counsel and contended that the work of Mr Davies 'did not reach the level expected of senior counsel who professed expertise in matters of equity'.  He continued:

   I am conscious of the fee notes that you have both rendered.  They have been forwarded to my client and, needless to say, she was alarmed.

   The hearing of the defamation case was concluded and judgment has been reserved. In the meantime, directions have been made in the case against the Strata Company, including a direction as to the filing of the material in relation to the costs of the interlocutory application. Put bluntly, it is absolutely essential that my client avoid an order that she pay the cost of that application and I will be submitting, strongly I hope, that costs should either be reserved to trial or should be costs in the cause.

   Assuming that we win the defamation trial, then I am hopeful that we will be able to reach a settlement of the proceedings against the Strata Company. If I can avoid an order for costs being made against my client, hopefully any settlement will involve an order that the defendants, or some of them, pay my client's costs. At that time, hopefully, we will be able to recover your fees. Until that time, I am simply not in a position to do anything about your fees and I can assure you that my client is incredibly disturbed by what happened.

   …

   I trust that you will recognise the position in which I find myself. Further correspondence will, put simply, not produce any different position or response to what I have written above.[75]

   [75] Book of Documents, pages 116-117.

3. In his evidence, Mr Goldsmith said that when he wrote the email he was agitated and provoked by what he perceived as Mr Davies resiling from their agreement for deferred payment of fees.[76]  The email does not, however, refer to an agreement to defer fees, or to any security held by Mr Goldsmith, but only to Mr Goldsmith's hope that fees may be recovered on settlement of the action.  

   [76] ts 72, 10 March 2022.

4. On 10 February 2017, Mr Davies responded.  Relevantly, he said:

   On 29 October 2016 in our first telephone conversation in relation to this matter (a Saturday) I asked you whether you had funds from the client for my fees.

   You said you did not have funds in trust, that the client had limited resources, and was paying you a nominal amount in instalments towards the cost of the defamation proceedings.

   I then asked you who would pay my fees. Your reply was: "I will pay them myself".

   In the event that my outstanding fees are not paid in full by next Thursday:

   (1)The necessary steps will be taken to recover the fees from you.

   (2)I will draw the conclusion that you do not intend to honour your professional obligation to pay my fees, and I will lodge a complaint of professional misconduct against you with the LPCC.

   (3)In accordance with that conclusion, I will cause the WABA, in accordance with its practice, to circulate your name to members of the WABA as a practitioner who has not met his obligations to counsel.

   As to the content of your email, it has been sometime since I have seen a piece of correspondence so full of falsehood and inconsistency.  And that was not correspondence written by a legal practitioner.[77]

Mr Goldsmith's Email of 10 February 2017

[77] Book of Documents, pages 114-115.

1. On 10 February 2017, Mr Goldsmith replied.  Although in his email of the same date Mr Davies had both given his account of the conversation of 29 October 2016, and given notice that he intended to take steps to recover the fees, Mr Goldsmith still did not refer to any agreement with Mr Davies, or to the security he now says that he held.  He wrote:

   You must do as you must, as we all must.

   Your invoice will not be paid by Thursday.  If you make a complaint against me, then I will be left with no alternative other than to lodge a formal complaint with WABA about both you and [junior counsel].

   I have advised you that I am conscious of your outstanding fees. I will do as much as I can, and as quickly as I can. However, the delay in delivery of the judgment in the defamation case is delaying any pro­active movement in the case against the Strata Company.[78]

   [78] Book of Documents, page 114.

2. On 13 February 2017, Mr Davies gave notice that interest would be charged.[79]

   [79] Book of Documents, page 113.

3. On 14 February 2017, Mr Goldsmith replied, including:

   …it is clear that we are both going to spend some significant time in pursuing our respective complaints and responding to the complaint of the other. No doubt, it will also take some time for decisions to be made by the relevant body.

   May I propose that you hold­off for a period of one month. Whilst I have no factual basis for expressing this, I am (quietly) hopeful that the judgment in the defamation matter will be delivered within that time. If it is, then hopefully progress can be made in all respects with the claim against the Strata Company, including in relation to outstanding fees and costs.[80]

   [80] Book of Documents, page 111.

4. On 24 February 2017, Mr Davies replied that he regarded the email of 10 February 2017 and that of 14 February 2017 'as a threat to make a complaint against me that you know to be baseless in order (1) to deter me from making a complaint against you to the LPCC and (2) to deter me from taking steps to recover fees die (sic) to me from you'.  Mr Davies continued:

   I am going to give you an opportunity to withdraw that threat and to state unequivocally that you have no complaint about me of any type in any way arising from the matter.

   If you wish to avail yourself of that opportunity please do so by 4 pm WST on Monday 27 February 2017.[81]

Mr Goldsmith's Email of 27 February 2017

[81] Applicant's Book of Documents, page 110.

1. On 27 February 2017, Mr Goldsmith replied:

   My correspondence does not contain threats. It contain (sic) statements of my intentions but whether or not I implement those intentions depends upon your decisions.

   Your conduct and, even more so, the conduct of [S] are matters of considerable concern. Having said that, I do not particularly want to spend endless hours in responding to a complaint by you against me or in pursuing a complaint against you (and [S]). I have been around long enough to know that those exercises will likely just take up a huge amounts of time and, in reality, not produce any real benefit for either of us.

   I have simply asked, even proposed, that you adopt a practical, sensible and commercial approach. It is a matter for you if you wish to. Personally, I prefer to spend my time and my energy in fighting "the real enemy". On that front, I am currently spending hours in preparing written submissions in opposition to the applications for costs made by the defendants. The task is a detailed and lengthy one. For your information, in their written submissions, the 1^st - 4^th defendants make a submission that clearly supports the concern (one of them) that the client and I have about your performance.[82]

   [82] Applicant's Book of Documents, page 109.

2. On 8 March 2017, Mr Davies made a written complaint to the LPCC regarding the failure of Mr Goldsmith to pay his fees and the email of 10 February 2017.  The LPCC wrote to Mr Goldsmith regarding that complaint on 13 March 2017.[83]

   [83] Applicant's Book of Documents, pages 140­141.

3. On 17 March 2017, Mr Davies commenced proceedings to recover the fees in the Magistrates Court of Western Australia.

Mr Goldsmith's Complaint to the Bar Association

1. On 18 March 2017, Mr Goldsmith wrote to both Mr Davies and junior counsel, advising that he was 'in the course of finalising complaints about both of [them] to WABA'.  He 'invite(d)' them to answer whether they had called on the two notices to produce at the hearing before Pritchard J, apparently to avoid the cost of transcript of the hearing.[84]

   [84] SMD 1, page 1167.

2. On 21 March 2017, junior counsel answered that invitation and advised by email that the notices to produce had not been called upon.[85]  It was not, therefore, until after Mr Goldsmith decided to pursue his complaint that he became aware that the notices had not been called upon at the hearing.

   [85] Respondent's Book of Documents, page 46.

3. On 22 March 2017, Mr Goldsmith wrote to junior counsel, copied to Mr Davies:

   I have now finished my 5 paged letter of complaint, about both you + Stephen, to WABA + it will be sent today.

   On a personal level, I very much regret the need to do this but Stephen has both sued me and made a complaint about me to the LPCC and, in reality, I am left with no alternative.[86]

   [86] SMD 1, page 1170.

4. Mr Goldsmith's complaint to WABA was made by letter dated 7 April 2017.[87]  It set out four complaints against Mr Davies.  The first was a 'general complaint' that Mr Goldsmith had 'serious reservations' about Mr Davies' professed experience and skills in matters of equity.  The three specific complaints were:  Mr Davies made submissions that went beyond the pleaded case and failed to ensure that further amendments  were made to the statement of claim to fully plead the case before the interlocutory hearing; that he failed to call on the notices to produce at the hearing which related to documents Mr Goldsmith contended were highly relevant to the hearing; and that his conduct in sending the email of 10 February 2017 was intimidatory in asserting that he could influence WABA and cause it to circulate his name in the manner Mr Davies had suggested.

   [87] Applicant's Book of Documents, page 155.

5. Mr Goldsmith further wrote:  'Mr Davies SC has not been paid for the reasons referred to in this letter, and for other reasons that will be canvassed elsewhere'.  He wrote that he would withdraw the general complaint if Mr Davies could demonstrate, through reported judgments, that he had experience in equity and was not, in fact, 'Common Law Counsel'.  He complained that by representing equity as an area of practice, Mr Davies was 'suggesting detailed, almost extensive, experience and skills in that area'. [88]

   [88] Applicant's Book of Documents, page 158.

6. On 19 April 2017, junior counsel wrote to Mr Goldsmith and said that he would take steps to tax his bill.[89]  Mr Goldsmith responded by email on 20 April 2017, including:

   If you want to take steps to tax your bill, then I anticipate that proceedings will be commenced against you for having engaged in misleading and deceptive conduct, and similar (if that is what you want, so be it). I am not going to be bullied by you, or by Stephen. I have responsibilities.

   I have made abundantly clear that I do wish to try and resolve, sensibly, your claims for fees and that commitment remains on my part.

   I am, upon a without prejudice basis, willing to withdraw my complaint against you to WABA, and withdraw the complaint against Stephen, if he will withdraw his complaint against me, and withdraw the Magistrate Court proceedings that he has commenced against me, so that matters can then be addressed commercially and sensibly.[90]

   [89] Applicant's Book of Documents, page 149.

   [90] Applicant's Book of Documents, page 148.

7. On 9 May 2017, the WABA President advised Mr Goldsmith that the conduct he had complained of was not within the range of matters about which a complaint could be made to WABA's Disciplinary Committee under its' Constitution.[91] 

   [91] Applicant's Book of Documents, pages 153-154.

8. On 15 May 2017, Mr Goldsmith replied, querying the response to his complaint.  His letter is expressed in terms which suggest that the complaint is on behalf of Ms Aikman.  It is significant for two reasons:  First, Mr Goldsmith maintained his complaints against Mr Davies, including that he had misrepresented his skills and experience; second, Mr Goldsmith makes no complaint that Mr Davies was demanding payment of his fees in a manner that was contrary to an agreement to defer them.[92]

The email of 12 May 2017

[92] Respondent's Book of Documents, pages 86-89.

1. On 12 May 2017, Mr Goldsmith wrote again to junior counsel, copied to Mr Davies.  He wrote that he found the response from the WABA to be 'wholly inadequate and unsatisfactory'.  He continued:

   You and Stephen should be aware that my client has previously raised with me her wish to refer all relevant matters to the media …[including] so far as you and Stephen are concerned, your relevant experience in equity matters and your failure to call upon the very important notices to produce at the hearing.

   Put mildly, I doubt very much that the response from the WABA will discourage my client from taking that course of action, that she has already contemplated. [93]

   [93] SMD 1, pages 1171-1172.

2. Mr Goldsmith then referred to the position of Ms Aikman, and to his intention to give her notice that, 'absent a substantial payment', he would commence proceedings to recover costs and disbursements.  He offered the opportunity for both counsel to comment before he gave Ms Aikman notice, concluding 'I do wish you to be aware of what I am doing, proposing to do and possible adverse consequences'.

3. Again, in this email, Mr Goldsmith did not mention the caveat or any agreement to defer payment.

The proceedings in the Magistrates Court

1. Mr Davies had commenced proceedings on 17 March 2017.  Mr Goldsmith filed his statement of defence in the Magistrates Court proceeding on 24 May 2017.  In that statement, for the first time, Mr Goldsmith asserted that his contract with Mr Davies included express terms or conditions, contained in a telephone conversation of 29 October 2016.  Mr Goldsmith pleaded:

   The defendant would be liable for payment of the bill rendered by the claimant [Mr Davies] because he had registered a caveat against the title to a properly owned by Susan Aikman, the defendant's client, and with Ms Aikman's consent, and for whom legal services were to be provided by the claimant, such that the defendant had a form of security for payment of the claimant's fees and the defendant's own costs.

   The bills rendered by the claimant would be payable, if Ms Aikman did not pay them sooner, upon the exercise by the defendant of his rights specifically pursuant to the registration of the caveat.[94]

   [94] Applicant's Book of Documents, page 203.

2. Mr Goldsmith pleaded that the costs agreement omitted to include the express terms when it should properly have done so.[95]

   [95] Applicant's Book of Documents, page 203.

3. Mr Goldsmith further pleaded allegations of negligence in the conduct of the interlocutory proceedings, and breaches of consumer law relating to Mr Davies' representations that he had considerable experience in matters of equity.

4. The defamation proceedings against Ms Aikman were dismissed on 12 June 2017.

5. On 17 July 2017, Mr Goldsmith wrote to Mr Davies, through Mr Cook, regarding possible proceedings to be brought by Ms Aikman against the Strata Manager and others.  He asked whether Mr Davies would be willing to act for Ms Aikman in the new matter.[96]

   [96] Book of Documents, pages 170-172.

6. On 2 August 2017, Mr Cook replied on behalf of Mr Davies, refusing the instructions.[97]

   [97] Book of Documents, pages 174­175.

7. The proceedings in the Magistrates Court went to a pre-trial conference on 21 August 2017.  Mr Cook and Mr Davies attended the conference in person.  Mr Goldsmith attended by telephone.[98]

   [98] Witness statement of Jonathon Peter Cook dated 22 September 2020 (Cook witness statement), para 21.

8. It is not in dispute that an agreement was reached at the pre-trial conference for Mr Goldsmith to pay Mr Davies' fees in three instalments.  In the event that the instalments were paid, the parties would take steps to file orders to dismiss the proceedings with no order as to costs.

9. At that point Mr Davies left the conference, while the registrar prepared the consent orders.  Mr Davies authorised Mr Cook to sign the orders on his behalf.[99]

   [99] Cook witness statement, para 27.

10. Mr Goldsmith also terminated his phone call to the conference at this point. 

11. While there is some dispute as to whether there had been agreement reached at this point, which merely needed to be formalised, or whether no agreement had been reached at this point at all,[100] it is uncontentious that when the registrar rang Mr Goldmsith back about the orders, Mr Goldsmith said that he was not prepared to sign them without an additional term that Mr Davies withdraw his complaint to the LPCC about Mr Goldsmith's conduct.  That was the first time that the possibility of such a term had been raised.

    [100] See, for example, Mr Goldsmith's cross­examination of Mr Cook, ts 33­36, 4 March 2022.

12. Although Mr Goldsmith had insisted that he would not sign the orders without that term, on 23 August 2017 he emailed signed consent orders.[101]  In that email he requested that Mr Davies withdraw his complaint, but it was not a condition of the agreement.

    [101] Cook witness statement, para 40; Applicant's Book of Documents, page 193.

13. It is not in dispute that, having signed the consent orders on 23 August 2017, Mr Goldsmith complied with them and paid the three instalments that had been agreed.

Ground 1 - failure to pay fees of counsel

1. Ground 1 is based on the allegation that Mr Goldsmith failed to pay any or all of Mr Davies' fees, 'which conduct was in breach of clauses 9 and 10 of the costs agreement'.

2. The applicant contends that the agreement between Mr Davies and Mr Goldsmith arose on Mr Goldsmith continuing to instruct Mr Davies and thereby accepting the terms of the costs agreement, and perhaps on his agreeing Mr Davies' proposed rate.  The failure to pay in accordance with the costs agreement was a breach, unless its terms had been modified by an oral agreement.

3. There is no doubt that Mr Goldsmith did not pay Mr Davies' fees in accordance with the terms of the costs agreement, and only paid following proceedings in the Magistrates Court. 

4. That does not, however, determine the result on the first ground.  There is a substantial factual dispute about when Mr Davies' fees were due and payable.  Mr Goldsmith contends that the costs agreement of 31 October 2016 must be read with what he says was an earlier oral agreement reached on 29 October 2016 in which he says Mr Davies agreed that his fees would only be payable upon Ms Aikman paying him, which would require Ms Aikman to release some of her assets or Mr Goldsmith exercising his rights under a caveat. 

5. The determination of that dispute turns on what was said in the conversation between Mr Goldsmith and Mr Davies on 29 October 2016.  

6. The Tribunal is not only concerned with what, objectively, the parties agreed.  In the context of these proceedings, the Tribunal must also consider whether it has been shown that Mr Goldsmith did not believe that an agreement had been made in the terms he described.  His subjective belief is relevant to whether his subsequent reliance on his conversation with Mr Davies would defeat a finding that his behaviour was professional misconduct of the kind alleged.

7. In both cases, that is, in both the objective and subjective case, the differing accounts of Mr Davies and Mr Goldsmith may be assessed against the objectively established facts, including their later conduct, the emails sent between them, and the inherent probabilities of each account.

8. In both his cross-examination of Mr Davies and in his submissions, Mr Goldsmith strongly challenged the credibility of Mr Davies and it is true that there were areas in which Mr Davies recollection of the conversation on 29 October 2016 was not certain - for example, he could not recall saying that he would send a costs agreement, although it was his normal practice to do so.  But, when all of the circumstances are considered, the Tribunal does not doubt that his evidence was truthful.  There are several reasons for reaching that conclusion.

1. There is no provision made, as far as we can see, for the continued use of the name 'Legal Profession Complaints Committee' on and from 1 July 2022; from that date the Committee has been known as the Legal Services and Complaints Committee.

2. Accordingly, in our view it is appropriate (and indeed, necessary) to make an order by which the applicant's name is amended to the Legal Services and Complaints Committee.

3. Nonetheless, we have referred to the applicant as the Committee (as shorthand for the Legal Profession Complaints Committee) in the preceding discussion because all references to it are in the context of matters that occurred prior to 1 July 2022.  Equally, in the following discussion, we refer to the applicant as the Committee when we refer to its actions pre 1 July 2022 but we refer to the LSCC in the context of the submissions made as to penalty and costs as they were made after 1 July 2022.

The position of the parties as to penalty, costs and compensation

The applicant

1. The LSCC submitted that, given the close factual relationship of the grounds, the Tribunal should consider a global penalty for the five matters of complaint.

2. It submitted that the dishonest evidence given by Mr Goldsmith at the hearing in the Tribunal can be relied upon to inform its determination of penalty as he was on notice of the Committee's intention to rely on such findings since at least January 2021.  The LSCC also submitted that that dishonesty, as well as other aspects of his conduct of the hearing demonstrated the failure of Mr Goldsmith to appreciate the impropriety of his conduct.

3. The LSCC also referred to Mr Goldsmith's disciplinary history.  At the time of the Tribunal hearing, Mr Goldsmith had described his record as unblemished.[172]  He has, however, been the subject of disciplinary action in New South Wales as follows:

   1)In 1998, Mr Goldsmith was reprimanded for unsatisfactory professional conduct, between May 1995 and March 1996, by receiving and holding money in his general account before on-payment to a third party.  There was no allegation of dishonesty. 

   2)In November 2020, Mr Goldsmith was reprimanded for unsatisfactory professional conduct in failing in his duty to the court.  The substance of the allegation was that, in 2014, Mr Goldsmith represented to the court that his client was ready to proceed to trial when he was aware she was not.  The Professional Standards Committee found that Mr Goldsmith's conduct was discourteous to the court, likely to be prejudicial to the administration of justice, and to bring the profession into disrepute.

   [172] Affidavit of Barrie Goldsmith, sworn 2 November 2020, para 7; see also ts 4, 3 February 2021 (Directions Hearing).

4. The LSCC did not submit that Mr Goldsmith's prior disciplinary history aggravated his conduct.  Rather, it submitted that it precluded him from claiming the mitigating benefit of an unblemished record.

5. The LSCC submitted that the findings of the Tribunal as to Mr Goldsmith's dishonesty in relation to ground 3, on its own, are sufficient to show that Mr Goldsmith lacks the character and trustworthiness necessary to discharge his responsibilities as a legal practitioner. It submits that that conclusion is 'irresistible' when the other findings of the Tribunal are also considered. It submitted that the Tribunal should make an order under s 440(a) of the LP Act recommending that Mr Goldsmith's name be removed from the roll in the two States in which he is admitted to practice, being New South Wales and Victoria.

The practitioner's submissions

1. Mr Goldsmith lodged a statement on penalty, in which he said that he fully understood the seriousness of the findings against him, describing the finding on ground three as 'devastating' and stating that he has 'taken on board' each of the findings and 'also every criticism made against' him to ensure that he will not repeat them.[173]  He said that the matter was an isolated incident.  He repeated undertakings previously provided that, if conduct the subject of grounds 2 and 4 was found to be unacceptable, he would not again engage in such conduct.

   [173] Statement of Barrie Goldsmith on Penalty dated 1 August 2022 (Statement on Penalty), para 5.

2. Mr Goldsmith referred to his litigation work throughout the country, including in specialised areas of law, and the disadvantage that would be suffered by his clients should he not be permitted to continue practice.

3. Mr Goldsmith admitted the previous disciplinary findings, and that he had incorrectly stated that no adverse finding had been made against him and apologised for doing so.

4. Mr Goldsmith also filed submissions made on his behalf by counsel.

5. Mr Goldsmith submitted, through counsel, that the object of personal deterrence was met by the conduct of the hearing and the findings made against him.  He further submitted that the published findings would send a clear message as to the seriousness with which the conduct was regarded, and that publication would meet the objects of general deterrence.  A costs order would also have a deterrent effect.

6. Mr Goldsmith submitted that not all instances of deliberately misleading conduct would necessarily result in an order striking the practitioner's name from the roll.[174]

   [174] Legal Profession Complaints Committee v Love [2014] WASC 389 at [18]; Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [60].

7. He submitted, in effect, that the conduct the subject of findings had occurred about five years ago and that there was no evidence that he had engaged in similar conduct since.  He also disputed the Committee's submission that he lacked insight and remorse, relying on his expressions of shame in his statement referred to above and to the undertakings offered.

8. He also submitted that the finding that he had misled the court by the defence he filed in the Magistrates Court was mitigated by the circumstances that he filed a defence in his personal capacity, and not as a solicitor for a client; that he did not provide any sworn evidence in support of his defence; and that he, in effect, withdrew any reliance on the defence when he agreed to settle the matter.  He submitted that the court was misled, if at all, for a short time.

9. Mr Goldsmith submitted that he is not to be punished for exercising his right to take the matter to a hearing and defending the disciplinary charges.  He further submitted that his conduct did not affect the interests of any client, and mainly affected a more senior legal practitioner rather than a vulnerable client.

10. Finally, Mr Goldsmith referred to his personal circumstances, including his age, and to the disadvantage that would be suffered by his clients should his name be removed from the roll.  He submitted that the protection of the public may be achieved, at least in part, by the Tribunal making it clear that certain conduct is not acceptable.  The Tribunal can achieve, he said, any necessary degree of community protection by means of a sanction less than removal of his name from the roll.

Relevant legal principles as to penalty

1. Section 438(2) of the LP Act provides that the Tribunal may, if it is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, either make and transmit a report to the Full Bench of the Supreme Court or make any one or more of the orders specified in sections 439, 440 and 441.[175]

   [175] The corresponding provision of the Uniform Law is found in s 302(1), which provides:

2. The principles to be applied in determining the appropriate disciplinary sanctions are well established and were set out by the Court of Appeal in Khosav Legal Profession Complaints Committee:[176]

   [176] Khosav Legal Profession Complaints Committee [2017] WASCA 192 at [187]-[195].

   a)the purpose of a disciplinary proceeding against a legal practitioner is the protection of the public by the maintenance of proper standards within the profession rather than the punishment of the practitioner;

   b)the protection of the public includes both general deterrence of other practitioners who may be tempted to engage in the conduct and personal deterrence;

   c)where the conclusion is reached that the practitioner is presently unfit to practise and the choice is between suspension and striking off, the Tribunal must consider that the practitioner will again be fit to practise after the proposed suspension period comes to an end before a term of suspension can be ordered.  This is because, when a period of suspension is concluded, the practitioner's name will be on the roll of practitioners and the practitioner will be able to resume practice;

   d)suspension is a serious form of discipline which is usually imposed where a practitioner has been found to have engaged in an act of unprofessional conduct, but who, in the opinion of the Tribunal will be a fit and proper person to practise law after the suspension period is ended.  In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations reflecting, to a significant degree, upon the practitioner's fitness to practise;

   e)striking off is likely to be the appropriate response when the circumstances of the conduct amounting to the current unfitness to practise demonstrate that the practitioner lacks the character and trustworthiness necessary to discharge the responsibility of legal practice;

   f)a failure to appreciate the impropriety of the practitioner's conduct may support a finding that the practitioner is unfit to practise.  The failure to appreciate the impropriety increases the risk of a recurrence of the improper conduct; and

   g)the Tribunal is to determine the appropriate penalty, including fitness to practice, at the time of the hearing rather than at the time of the conduct.

Determination as to penalty

1. The findings against Mr Goldsmith are undoubtedly serious.  

2. The Tribunal takes into account that Mr Goldsmith has had a long career in the law.  While he has been reprimanded twice, he has not previously been found to have behaved dishonestly, or to have engaged in conduct that warranted more than a reprimand.

3. Although those previous matters resulted in a reprimand only, the Tribunal is concerned that Mr Goldsmith referred to his good record on more than one occasion:

   1)In an affidavit made 2 November 2020 he said that his record was 'unblemished'.  The decision of Professional Standards Committee of the Law Society of New South Wales is dated 26 November 2020.  But the letter notifying Mr Goldsmith of the decision refers to correspondence in October 2020, including a letter sent to the parties on 8 October 2020 which attached the Professional Standards Committee's reasons for its preliminary view that Mr Goldsmith had engaged in unsatisfactory conduct.  Mr Goldsmith must have been aware those matters were pending.

   2)Accepting that Mr Goldsmith may have forgotten the disciplinary findings in 1999, he was advised of them by email dated 2 February 2021, before this matter was heard.  Mr Goldsmith did not correct his earlier statement regarding his unblemished record, but compounded it at an interlocutory hearing on 3 February 2021, when he referred to his 'wonderful record after some 40 years'.[177]

   [177] ts 4, 3 February 2021.

4. Those statements are not part of the complaint against Mr Goldsmith and we do not consider them in that way.  But the lack of candour in his statements to the Tribunal diminishes the force of his arguments regarding his good record.

5. It is not, in our opinion, a mitigating factor that the misleading of the court, the subject of ground 3, was in Mr Goldsmith's personal capacity and not acting as a solicitor for a client.  The most serious element of the findings regarding ground 3 is that it suggests a lack of integrity and that Mr Goldsmith cannot be trusted to deal fairly within the system in which he practises.[178]  The reflection on his integrity and trustworthiness is not lessened by the fact that his conduct was as a litigant.

   [178] See Legal Profession Complaints Committee v Love [2014] WASC 389, at [18].

6. The Tribunal accepts that Mr Goldsmith did not provide sworn evidence and did not persist in the defence in the Magistrates Court after the pre-trial conference.  But he relied on the statement of defence between 24 May 2017 when it was filed, and the pre-trial conference on 21 August 2017.  Mr Goldsmith, in fact, relied on the substance of what he had pleaded in his defence in the proceedings in this Tribunal. 

7. The Tribunal also does not accept that it is in any way mitigating that Mr Goldsmith's conduct did not affect the interests of a vulnerable client but, rather, affected a senior legal practitioner.  That distinction has no relevance to the integrity of his conduct.  And it is wrong to seek to diminish the importance of allegations which reflected on the personal and professional reputation of another practitioner.

8. There is no question of Mr Goldsmith being punished for taking this matter to a hearing.  The LSCC's position is that Mr Goldsmith's conduct of his case does not show any change in circumstances from the time of the misconduct that might affect the assessment of fitness in his favour.  The LSCC also submits that Mr Goldsmith cannot receive the mitigating benefit of cooperation.  Those submissions are consistent with principle and should be accepted.

9. It is also necessary to comment on whether Mr Goldsmith has shown appreciation of the impropriety of his conduct.  There are several statements in his Statement on Penalty in which Mr Goldsmith, in our view, expresses such appreciation and, also, remorse for it.

10. Most significantly, Mr Goldsmith says he is 'devastated by these findings because [he] appreciate[s] the gravity of a legal practitioner acting dishonestly in any form at all'.[179]  He says that he does not 'intend, if [he is] allowed to continue practising, to ever engage in a dispute with a Barrister over fees'[180] and seeks to 'assure the Tribunal' that he has ''taken on board'' not only every finding made against [him] but also every criticism made against [him] to ensure that, if [he is] allowed to continue practising, [he] will never repeat them'.[181]

    [179] Statement on Penalty, para 9.

    [180] Statement on Penalty, para 10.

    [181] Statement on Penalty, para 5.

11. Implicit in these statements is, in our view, a recognition of wrongdoing and remorse which, together with his age and record, is sufficient to avoid the consequence which those statements acknowledge as a real possibility – a recommendation to have his name removed from the roll of practitioners.

12. Such statements appear to us to be in contrast with Mr Goldsmith's previous insistence, up to and including the hearing, that he had reached an agreement with senior counsel as to the payment of counsel's fees. The Tribunal found that no such agreement was reached, and that Mr Goldsmith knew that was the case.

13. Mr Goldsmith's Statement on Penalty says that he persisted in his position because it was his honestly held belief. On its own that statement might be said to be at odds with findings of insight and remorse and the LSCC's submissions in reply contend that Mr Goldsmith is seeking to both 'simultaneously say he accepts the Tribunal's findings … and assert that they should not have been made'.[182]

    [182] Applicant's submissions in reply on penalty and costs dated 8 August 2022 (Applicant's Reply Submissions), para 16.

14. But Mr Goldsmith's statement is immediately followed by a sentence in which he accepts that the Tribunal has rejected his evidence and accepts that the finding that he was dishonest is a 'very serious finding, which [he] take[s] extremely seriously'. The statement must also be read in the context of the Statement as a whole, some pertinent aspects of which have been quoted above. Read as a whole, we are satisfied that the Statement on Penalty expresses Mr Goldsmith's insight and remorse.

15. Having regard to all of the above matters, the circumstances of the present matter are too serious for a reprimand or a fine.  In our opinion, both personal and general deterrence, and the protection of the public, require a stronger sanction. 

16. However, having regard to the practitioner's age, record, insight and remorse, we are not satisfied that Mr Goldsmith is permanently or indefinitely unfit to practice.

17. Mr Goldsmith is at the end of a long career.  He has practised for many years without a previous finding of dishonesty.  Equally, the conduct the subject of these proceedings occurred several years ago and, while he has maintained a position through to the hearing which we found to be dishonest, no other complaint has been made against him in the meantime.

18. Also significant is the insight and remorse contained in Mr Goldsmith's Statement on Penalty which is described in some detail above.

19. That Statement contains passages in which Mr Goldsmith acknowledges, correctly, that the findings made may be sufficient for the Tribunal to recommend to the Full Court that his name be removed from the roll of practitioners.

20. Such an outcome has been avoided.  We are satisfied that, at the termination of a period of suspension, he will be fit to resume practice and, accordingly, a period of suspension is sufficient to meet the seriousness of the conduct. 

21. The appropriate penalty, in our opinion, is suspension for a period of twelve months, as a global penalty on all grounds.  As foreshadowed in paragraph 38 above, we will hear from the parties as to the appropriate nature of the orders necessary to give effect to that finding.

Costs

1. The applicant seeks an order that the practitioner pay the applicant's costs of the proceeding.

2. The award of costs is in the discretion of the Tribunal.  The starting point in the application for costs is that, unless otherwise ordered, parties bear their own costs.[183] 

   [183] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 87.

3. Where a regulatory body is successful in bringing a complaint of misconduct which justifies disciplinary action by the Tribunal, however, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body.[184] 

   [184] Young v Legal Profession Complaints Committee [2022] WASCA 52 [261].

4. This is an appropriate case to make an award of costs.  Mr Goldsmith does not argue otherwise.  Nor does he question the rates at which senior counsel and junior counsel for the Committee charged for the work they performed.

5. He does, however, dispute the extent to which he should be ordered to pay the applicant's costs. In effect, therefore, there is a dispute between the parties as to the quantum of any order of costs.

6. Mr Goldsmith raises several matters in that regard which are attended to in some detail below. We have taken such an approach in order to allow us to fix the costs payable.

7. The purpose of fixing costs is to avoid expense and delay.  In fixing costs, a court or tribunal does not subject the costs to the detailed scrutiny often applied in taxation of costs, but applies a 'broader brush' than would be applied on taxation.  The power to award a fixed sum should only be exercised where the Tribunal considers it can determine the amount of the costs fairly and reasonably with an assessment process. [185]

   [185] Brookvista Pty Ltd v Meloni [2009] WASCA 180 [26] and [27].

8. The LSCC's initial submissions on costs[186] sought an order for costs fixed in the figure of $117,904.60 comprising:

   a)Senior Counsel's fees of $99,930.60 (being less than the $123,646.60 actually invoiced);

   b)Junior counsel's fees of $17,424.00 (being less than the $32,452.20 actually invoiced); and

   c)The filing fee of $550.

   [186] Applicant's submissions on penalty and costs dated 18 July 2022.

9. The first matter relied upon by Mr Goldsmith was that there had been a calculation error and that the fees of Senior Counsel claimed actually added up to $95,079.60.[187]

   [187] Respondent's Submissions on Costs dated 1 August 2022.

1. Secondly, Mr Goldsmith submitted that the LSCC was not entitled to recover from him as costs that part of counsel's fees constituting GST.[188]

   [188] Merringtons Pty Ltd v Luxottica Retail Australia Pty Ltd [2006] VSC 525.

2. In its Submissions in reply on penalty and costs, the LSCC accepted both submissions as correct and therefore the correct figure claimed in relation to Mr Yovich SC is $86,436[189] and, in relation to Ms Coci, $15,840.

   [189] Applicant's Reply Submissions, paras 31 and 51.

3. Thirdly, Mr Goldsmith resisted paying any of Ms Coci's fees.

4. As noted above, Ms Coci invoiced the Committee a total of $32,452.20 of which only $17,424 was claimed (prior to the correction for GST). The 'gap' was the time taken by her engaging with Mr Davies SC and drafting his witness statement.

5. Mr Goldsmith's complaint as to the work done by Ms Coci for which the LSCC now seeks recompense (that is work other than in relation to Mr Davies' statement) is that, effectively, it was not necessary for junior counsel to be briefed and that Mr Merrick (a senior lawyer employed by the Committee at the time) could have done the work instead.

6. There is more than one reason to reject that submission but the most powerful is that Ms Coci was engaged almost immediately after Mr Goldsmith had made a complaint to the Committee (later dismissed as unreasonable) about Mr Merrick's conduct in which he challenged Mr Merrick's honesty and integrity.

7. We agree with the LSCC that, in such circumstances, it is unreasonable for Mr Goldsmith to contend that Mr Merrick could have done the work rather than Ms Coci.  In our view the decision to brief the work to external counsel was an appropriate response to Mr Goldsmith's complaint.

8. There is no other challenge to the sums claimed in respect of Ms Coci's work and we find them reasonable in any event.

9. Fourthly, Mr Goldsmith resisted paying any of Mr Yovich's fees incurred in dealing with Ms Coci.[190]  Those costs include Mr Yovich's time spent working with Ms Coci in both her preparation of the witness statements of Mr Cook and Mr Davies SC as well as in relation to the Reply, which Ms Coci worked on.

   [190] Respondent's Submissions on Costs, paras 3-5.

10. We accept the LSCC's submission that it is reasonable for senior counsel to communicate with and review and settle the work of junior counsel. Having accepted that it was appropriate for it to recover the Committee's reasonable costs of briefing Ms Coci, we also find that it is appropriate for it to recover its reasonable costs of Mr Yovich SC in his dealings with Ms Coci.

11. Further, we note that the LSCC only seeks costs in relation to some of the work done by Mr Yovich SC in relation to the witness statement of Mr Davies SC - five of the approximately twelve hours charged in his Invoice 00515 of 5 October 2020 and all of the 1 hour charged in invoice 00518 of 23 October 2020.[191]  Six hours is still a large amount of time spent by senior counsel in relation to a single witness statement where it has been drafted by competent junior counsel.  Nonetheless, we don't think it is so unreasonable as to warrant a discount.

    [191] Applicant's Reply Submissions, Schedule, final paragraph re:  Invoice No 1.

12. Mr Goldsmith does not otherwise complain that the time spent by Mr Yovich SC in his dealings with Ms Coci was unreasonable and, in fact, accepted that, had she not been engaged, Mr Yovich SC would have incurred additional costs of an unknown quantum.[192]

    [192] Respondent's Submissions on Costs, Annexure B, para 5.

13. For these reasons we reject the submission that Mr Goldsmith should not be liable to the LSCC for Mr Yovich's fees incurred in dealing with Ms Coci.

14. Fifthly, Mr Goldsmith submits that Mr Yovich's invoices disclose that some of the work for which the Committee now seeks recompense was done by Mr Yovich SC in relation to matters 'that do not form part of the charges against him', including work done in addressing Mr Goldsmith's complaints against Mr Davies SC and the associated judicial review application and work described as 'other matters' in Mr Yovich's invoices.[193]

    [193] Respondent's Submissions on Costs, para 8.

15. Mr Goldsmith's complaints in this regard are based on itemized invoices which were provided to him by the Committee under cover of an email dated 22 July 2022.  That email explained that it attached 'itemised and reissued' invoices.[194]

    [194] See also, Respondent's Submissions on Costs, Annexure B, para 6.

16. Invoice 00515 was originally issued, without itemisation, on 5 October 2020.  It summarises Mr Yovich's fees as follows:

Date	Task and time taken	Amount
26.8-2.10.20	Work on particulars of interest ground, preparing for and attending Directions Hearing on 1.9.20, correspondence with Committee, work on witness statements (26.6 but say 24 hours at $490/hour + GST)	$11,760*
1-2.10.20	Preparing for and attending Directions hearing on 2.10.20 (2.5 hours at $490/hour + GST)	$1,225*

* Not including GST

Plus GST:$1,298.50

TOTAL: $14,283.50

1. Reissued on 21 July 2022, Invoice 00515 summarises Mr Yovich's fees as follows:

Date	Task and time taken	Amount
26.8-2.10.20	Work on particulars of interest ground, preparing for and attending Directions Hearing on 1.9.20, correspondence with Committee, work on witness statements (26.6 but say 24 hours at $490/hour + GST)	$11,760*
26.8-17.9.20	Consideration of matters connected with Mr Goldsmith's complaints against Mr Davies (1.7 but say 1.5 hours at $490/hour + GST)	$735*
1-2.10.20	Preparing for and attending Directions hearing on 2.10.20 (2.5 hours at $490/hour + GST)	$1,225*

* Not including GST

Plus GST:$1,372

TOTAL: $15,092

1. It is not clear why Mr Yovich SC included the work related to Mr Goldsmith's complaints against Mr Davies SC in the reissued invoice. However, what appears to be the case is that the disputed costs were not included in the original invoice and were therefore not part of the LSCC's original claim for costs.

2. It is also said that other small amounts the subject of challenge are 'subsumed in the 2.6 hours of work not claimed as part of the 'but say' aspect of the invoice.

3. The 'other matters' referred to by Mr Goldsmith appear to be time spent by Mr Yovich SC on 20 August 2020 (0.4 hours) and 7 October 2020 (0.2 hours).  In addition, Mr Goldsmith objects to time spent by Mr Yovich SC in relation to potential evidence from the Magistrates' Court registrar who oversaw the conference following which Mr Goldsmith settled his dispute with Mr Davies SC.  Each of the time entries is for 0.1 hour.  Work in respect of potential witnesses may still be included in the costs of preparation notwithstanding the decision is (later) made that the witness is not required.

4. Sixthly, Mr Goldsmith submits that he should not have to pay the LSCC's costs in relation to four specified interlocutory hearings - on 23 October 2020, 6 November 2020, 9 December 2020, and 3 February 2021 - at which costs were reserved.  

5. The directions hearing on 23 October 2020 was in connection with an application by Mr Goldsmith for discovery. 

6. The Tribunal made directions and also heard and determined an application to extend the time for the Committee to file its statements of evidence.  Mr Goldsmith sought a guillotine order, preventing the applicant from relying on any witness statements served after 30 October 2020.  The Deputy President declined to make that order.  Orders were made extending the time for the filing of witness statements, including the statement of Mr Goldsmith.  Mr Goldsmith submits that each party should be ordered to pay its own costs of and incidental to that hearing.

7. In the course of the hearing, the Deputy President said:

   This directions hearing was called by me and there was a need to adjust the programming orders.  No orders have been made in relation to anything else.  The programming orders are part and parcel of the proceedings and it seems to me that the costs of the directions hearing today should be costs in the cause.  Costs in the proceedings.[195]

   [195] ts 24, 23 October 2020.

8. Mr Goldsmith pressed for an order that each party bear its own costs.  Each party then, however, agreed to the order for costs to be reserved.  The Deputy President's preliminary opinion was, in our opinion, correct.  The costs of that hearing should be the LSCC's as the successful party.

9. The hearings on 6 November and 9 December 2020 were both on the application of Mr Goldsmith.

10. On 6 November 2020, Mr Goldsmith sought orders that the proceedings be dismissed or struck out for the failure by the Committee to file and serve its witness statements and an indexed and paginated bundle of the documents on which it proposed to rely.

11. The Deputy President made an order extending time for the filing of the Committee's primary witness statement (that of Mr Davies SC) to 20 November 2020, with an order that otherwise grounds 1 and 3 of the application be struck out for want of prosecution.  The Deputy President noted that the hearing had been listed at the Tribunal's instance to address programming of the hearing.  His Honour further noted, however, that the Committee was in default and required the extension of time.

12. In our opinion, the proper exercise of the Tribunal's discretion would be to make no order as to the costs of the hearing on 6 November 2020. 

13. While Mr Goldsmith did not then obtain an order that the proceedings be struck out, the Committee was then in default of orders.  The Deputy President, appropriately, made a springing order in relation to the filing of witness statements - although in terms more limited than that sought.  In our view it would not be appropriate for Mr Goldsmith to bear the costs of that application.

14. The hearing on 9 December 2020 was on Mr Goldsmith's complaint that the witness statements served on him contained a lot of material which, Mr Goldsmith believed, the Committee did not intend to rely on.  He complained also about the bundle of documents, and in particular the way in which it was indexed and ordered.  He sought orders that the proceedings be dismissed or struck out or alternatively, grounds 1 and 3 of the application be struck out.

15. The Deputy President gave detailed reasons for the orders that he made.  In substance, his Honour did not accept that the Committee had failed to comply with an order or direction of the Tribunal.[196]  His Honour was also not satisfied that Mr Goldsmith had been occasioned any unnecessary disadvantage in the conduct of the proceedings generally or in the manner of compliance with the particular orders.[197] 

    [196] ts 32-33, 9 December 2020.

    [197] ts 37, 9 December 2020.

16. In our view it is appropriate for Mr Goldsmith to pay the LSCC's costs for this hearing because such costs are part of the expense which the Committee incurred by reason of the proceedings. 

17. The hearing of 3 February 2021 was on Mr Goldsmith's application to vacate the trial dates, then set for 15 to 18 February 2021, due to border closures.  The Committee had advised the Tribunal that it was available for alternative hearing dates in April 2021 and would consent to an adjournment to those dates.  Those dates were not, however, available to the Tribunal.[198] 

    [198] ts 28, 3 February 2021.

18. The substantial question was whether the hearing needed to be adjourned to enable Mr Goldsmith to attend in person.  Mr Goldsmith insisted on being present for the hearing and opposed any orders for the hearing to be by video.  The Deputy President decided, on balance, that it was in the interests of justice to vacate the hearing date with the hearing relisted to take place in late July or August 2021 on dates convenient to the parties.  Orders were made to that effect.

19. Notwithstanding that Mr Goldsmith 'succeeded' in persuading the Deputy President to vacate the hearing dates, we are of the view that it is appropriate for Mr Goldsmith to pay the costs of this hearing, again on the basis that the costs of the hearing were part of the expense which the Committee incurred by reason of the proceedings. 

20. Finally, Mr Goldsmith claims that certain amounts invoiced by Mr Yovich SC are either 'unnecessary' (in that the task did not require senior counsel) or 'excessive' (in that he says too much time was spent on the task). There is some strength to those complaints and, while the sums are small in the scheme of the total claim (together, the total amount of time spent on the items in question is 1.6 hours), we would reduce the amount claimed by an hour - $490.

21. It is significant that Mr Goldsmith otherwise does not complain that the costs incurred by Mr Yovich SC are unreasonable or excessive.

22. Accordingly, we are of the view that, save for the costs of the hearing of 6 November 2020 and the sum of $490 (being that described immediately above), Mr Goldsmith should pay the LSCC its costs as adjusted for the calculation error and the omission of the GST component.

23. By our calculation, that sum is $100,806 being $102,276 (being the sum of $86,436 - Mr Yovich SC and $15,840 -Ms Cocci) minus $1,470 (being two hours incurred by Mr Yovich SC on 23 October 2020 in preparation for the directions hearing on 6 November 2020 and a further hour for 'unnecessary' and 'excessive' work).

24. Finally, the LSCC also seeks its costs ($4,949) in relation to Mr Yovich's work in preparing submissions in reply as to penalty and costs. The LSCC's submissions in reply were helpful in our understanding of several issues and we are minded to allow the claim. That brings the total of the costs to be paid by Mr Goldsmith to the LSCC to $105,755.

Mr Goldsmith's claim for compensation

1. Section 87(3) of the SAT Act provides, as part of the provisions regarding costs in a proceeding of the Tribunal:

   The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.

2. In his Submissions on Costs Mr Goldsmith included a claim for an order, pursuant to s 87(3), that the LSCC pay him an amount to compensate him for the loss and inconvenience he suffered, resulting from the four interlocutory hearings on 23 October 2020, 6 November 2020, 9 December 2020, and 3 February 2021.  

3. The general rule is that a self‑represented litigant may not obtain any recompense for the value of his or her time spent in litigation.  That general rule is no longer subject to an exception where the litigant happens to be a legal practitioner.

4. Mr Goldsmith does not directly claim legal costs but makes his claim as one for compensation. 

5. Mr Goldsmith submits that he spent a total of 25.7 hours in connection with those applications and hearings.  He claims compensation for that loss and inconvenience at a rate of $490 an hour; a rate he says is below his charge out rate at the time, and a fair estimate of the amount he could have earned but for the need to prepare for and attend those applications and hearings.

6. The award of costs is in the discretion of the Tribunal. The general rule in litigation that a court will generally order that a successful party recover their costs. Having regard to s 87 of the SAT Act, that general rule cannot guide the exercise of the Tribunal's discretion. Even where that rule applies, it is subject to exceptions, including where the conduct of a party has resulted in costs being unnecessarily or unreasonably incurred.

7. As noted above, on each occasion, costs were reserved and we have determined that, but for the hearing of 6 November 2020, Mr Goldsmith should pay the Committee's costs.

8. On the basis of that finding, it is not appropriate, in our opinion, that an order for compensation be made in favour of Mr Goldsmith for what are, in substance, his costs incidental to the hearings.

9. For the above reasons, we make the following orders.

Orders

The Tribunal orders:

1.The name of the applicant is amended to the Legal Services and Complaints Committee.

2.The respondent practitioner is to pay the applicant the sum of $105,755 within 30 days or such longer period as may be agreed between the parties.

3.The matter is listed for directions on 6 December 2022 to timetable the matter for submissions addressing the matter raised at paragraphs [30] and [82] of these Reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

TB
Associate to the Honourable Justice Allanson

11 NOVEMBER 2022

If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following[.]