Legal Services Commissioner v Bechara - [2009] NSWADT 145

CITATION: Legal Services Commissioner v Bechara [2009] NSWADT 145

DIVISION: Legal Services Division

PARTIES:
APPLICANT
Legal Services Commissioner
RESPONDENT
Maria Bechara

FILE NUMBER: 062023

HEARING DATES: 26 February, 2009, 27 February 2009, 2 April 2009, 3 June 2009

DATE OF DECISION:
18 June 2009

BEFORE: Haylen W - J (Deputy President); Barnes M - Judicial Member; O'Neill A - Non-Judicial Member

CATCHWORDS: Professional misconduct - deliberate charging of grossly excessive costs - failure to apportion costs of joint hearing involving three clients

CASES CITED: Bechara v Kobeissi [2005] NSW SC 192
Briginshaw v Briginshaw (1938) 60 CLR 336)
Brown v West (1990) 169 CLR 195
Carter v Newcastle Wallsend Coal Co (1909) 9 SR(NSW) 474
Council of the Queensland Law Society Inc v Roche [2004] 2
Wd R 574 re de Jersey CJ.
D'Alessandro v Legal Practitioners Complaints Committee [1995] 15 WAR 198 at 211 per Ipp J
Law Society of the Australian Capital Territory v Lardner [1998] ACTSC 24 at [120]
Legal Services Commissioner v Galitsky[2008] NSWADT 48
Legal Services Commissioner v Maria Bechara [2008] NSWADT 215)
Leon Nikoliadis v Legal Services Commissioner [2007] NSWCA 130
Malouf v Jazairy (2003) NSW SC 762
Mercantile Mutual Life Insurance Co Ltd & anor v Australian Securities Commission and ors (1992-3) 112 ALR 563)
Moore v Attorney-General (Irish Free State) [1935] AC 484
Murray v Legal Services Commissioner (1999) 46 NSW LR 224
New South Wales Bar Association v Meakes [2006] NSWCA 340
R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487
R v Moore; Ex parte Graham (1977) 138 CLR 164
Re: Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) 136
Veghelyi v The Law Society of New South Wales(1989) 17 NSWLR 669

REPRESENTATION:
APPLICANT
C Champion, barrister
RESPONDENT
P Neil, SC P Doyle Gray, barrister

ORDERS: 1.That conduct amounts to professional misconduct and the Tribunal so finds
2.The matter shall be listed again at a convenient time to consider the appropriate orders to be made.

1 The Respondent practitioner, Ms Maria Bechara, was admitted as a solicitor in December 1991 and was an employed solicitor between May 1992 and November 1994. In November 1994 she commenced practice as a sole practitioner having a general practice but mainly focusing on workers' compensation and common law personal injury cases.

2 Between March and April 2000 there was contact between members of the Hussein family and Ms Bechara's firm ultimately leading to Ms Bechara accepting instructions to commence personal injury actions on behalf of three members of the Hussein family. Mohamed Hussein was aged 72 at the time of taking instructions and claimed that, on 11 September 1997, he had fallen at the Punchbowl rented family home and was injured. His wife, Toufika Hussein, was aged 74 at the time of giving instructions and said that, on 20 August 1997, she also fell at the Punchbowl home and injured herself. Mrs Hala Hussein was Mr Mohamed and Mrs Toufika Hussein's daughter-in-law and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWADT 145
Decision Date: 18 June 2009

CaseChat Overview and Summary

The Legal Services Commissioner filed proceedings in the Legal Services Tribunal against Bechara, a practicing lawyer, alleging professional misconduct. The primary issue in dispute was the deliberate charging of grossly excessive costs to three separate clients and the failure to apportion the costs of a joint hearing that involved these clients. The Tribunal was tasked with determining whether Bechara's conduct amounted to professional misconduct under the Legal Profession Act 2004.

The Tribunal considered whether Bechara's actions constituted professional misconduct, specifically focusing on the deliberate charging of excessive costs and the failure to apportion costs in a joint hearing. The Tribunal examined the relevant legal standards and principles governing professional conduct for legal practitioners in Australia, including the duties of honesty, integrity, and transparency in dealings with clients. The Tribunal also considered the implications of Bechara's conduct on the administration of justice and the public's confidence in the legal profession.

After careful consideration of the evidence and arguments presented, the Tribunal found that Bechara's conduct amounted to professional misconduct. The Tribunal concluded that Bechara's deliberate charging of excessive costs and failure to apportion costs in the joint hearing demonstrated a lack of honesty, integrity, and transparency, which are fundamental to the legal profession. The Tribunal held that Bechara's actions had the potential to undermine public confidence in the legal system and warranted a finding of professional misconduct. The matter was adjourned to a later date to consider the appropriate orders to be made against Bechara.

The Tribunal ordered that Bechara's conduct amounted to professional misconduct and listed the matter for a later date to consider the appropriate orders to be made against Bechara. The Tribunal's findings and conclusions in this matter serve as a reminder of the high standards of professional conduct expected of legal practitioners in Australia. The outcome of this case underscores the importance of honesty, integrity, and transparency in the legal profession and the potential consequences for practitioners who fail to uphold these values.

Orders

Orders of the court

1.That conduct amounts to professional misconduct and the Tribunal so finds 2.The matter shall be listed again at a convenient time to consider the appropriate orders to be made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Bechara [2009] NSWADT 145
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT Maria Bechara
FILE NUMBER:	062023
HEARING DATES:	26 February, 2009, 27 February 2009, 2 April 2009, 3 June 2009
DATE OF DECISION:	18 June 2009
BEFORE:	Haylen W - J (Deputy President); Barnes M - Judicial Member; O'Neill A - Non-Judicial Member
CATCHWORDS:	Professional misconduct - deliberate charging of grossly excessive costs - failure to apportion costs of joint hearing involving three clients
CASES CITED:	Bechara v Kobeissi [2005] NSW SC 192 Briginshaw v Briginshaw (1938) 60 CLR 336) Brown v West (1990) 169 CLR 195 Carter v Newcastle Wallsend Coal Co (1909) 9 SR(NSW) 474 Council of the Queensland Law Society Inc v Roche [2004] 2 Wd R 574 re de Jersey CJ. D'Alessandro v Legal Practitioners Complaints Committee [1995] 15 WAR 198 at 211 per Ipp J Law Society of the Australian Capital Territory v Lardner [1998] ACTSC 24 at [120] Legal Services Commissioner v Galitsky[2008] NSWADT 48 Legal Services Commissioner v Maria Bechara [2008] NSWADT 215) Leon Nikoliadis v Legal Services Commissioner [2007] NSWCA 130 Malouf v Jazairy (2003) NSW SC 762 Mercantile Mutual Life Insurance Co Ltd & anor v Australian Securities Commission and ors (1992-3) 112 ALR 563) Moore v Attorney-General (Irish Free State) [1935] AC 484 Murray v Legal Services Commissioner (1999) 46 NSW LR 224 New South Wales Bar Association v Meakes [2006] NSWCA 340 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487 R v Moore; Ex parte Graham (1977) 138 CLR 164 Re: Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) 136 Veghelyi v The Law Society of New South Wales(1989) 17 NSWLR 669
REPRESENTATION:	APPLICANT C Champion, barrister RESPONDENT P Neil, SC P Doyle Gray, barrister
ORDERS:	1.That conduct amounts to professional misconduct and the Tribunal so finds 2.The matter shall be listed again at a convenient time to consider the appropriate orders to be made.