Legal Services Commissioner v Galitsky

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CITATION: Legal Services Commissioner v Galitsky [2008] NSWADT 48
This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION: Legal Services Division
PARTIES:

APPLICANT
Legal Services Commissioner

RESPONDENT
Serge Galitsky
FILE NUMBER: 062022
HEARING DATES: 22 -23 August 2007
SUBMISSIONS CLOSED: 25 September 2007
 
DATE OF DECISION: 
7 February 2008
BEFORE: McGuire J - ADCJ (Deputy President); Norton S SC - Judicial Member; Bennett C - Non Judicial Member
CATCHWORDS: Barrister – Disciplinary application
MATTER FOR DECISION: Principal matter
LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 2004
CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
REPRESENTATION:

APPLICANT
C Champion, barrister

RESPONDENT
P W Neil SC, barrister
ORDERS: 1. The application is dismissed.
2. The Tribunal orders the Applicant to pay the Respondent’s costs as assessed or agreed.

    REASONS FOR DECISION

    1 The Tribunal is considering an application (the Application) of the Legal Services Commissioner (LSC) which is in the following terms:

            ‘ Application

            1. On 25 September 2006, the Legal Services Commissioner caused to be filed with the Administrative Decisions Tribunal an Application for a Decision under Part 4.8 of the Legal Profession Act 2004.

            2. The Application seeks the following orders:

            (i) An order that this Disciplinary Application be joined with the Disciplinary Application against the instructed solicitor;

            (ii) A finding that the Respondent is guilty of professional misconduct;

            (iii) An order that the Respondent be fined;

            (iv) An order that the Respondent be publicly reprimanded;

            (v) An order that the Respondent pay the costs of and incidental to the filing and hearing of the information;

            (vi) Such other orders as the Tribunal sees fit.’

            Ground

            3. The Respondent in the matters of Toufika Hussein v NSW Land and Housing Corporation, Fatemah Hussein v NSW Land and Housing Corporation and Mohamed Hussein v NSW Land and Housing Corporation deliberately charged grossly excessive amounts of costs.

            4. The ground is particularised as follows:-

            Particulars 1.1

            The Respondent simultaneously conducted three personal injury actions on behalf of the three members of the same family. Although the accidents giving rise to the injuries did not occur at the same time, all three matters were heard together before His Honour Judge Walmsley for 6 days commencing on 13 November 2001 and it was agreed that evidence in each would be evidence in the others.

            Particulars 1.2

            The Respondent failed to apportion costs common to the three matters.

            Particulars 1.3

            In particular, the Respondent charged each client the total costs of the hearing rather than dividing costs of the hearing so as to charge each client for that part of the hearing relating to their claim and/or apportioning such costs as to charge each client a proportion of the total costs of the hearing.’

    2 The material before the Tribunal disclosed that the three Plaintiffs, members of the same family, sustained injuries in similar circumstances on different days.

    3 Each Plaintiff…

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Details
Case
[2008] NSWADT 48
Decision Date

CaseChat Overview and Summary

The case of Legal Services Commissioner v Galitsky involved the Legal Services Commissioner acting against a barrister, Galitsky, on disciplinary grounds. The dispute was brought before the Legal Services Tribunal in New South Wales, which is responsible for overseeing the conduct of legal practitioners in the state. The Commissioner sought to discipline Galitsky for breaches of professional conduct, including allegations of misconduct and professional incompetence.

The central legal issues before the Tribunal were whether Galitsky had indeed breached the rules of professional conduct and, if so, what the appropriate disciplinary response should be. The Commissioner argued that Galitsky's conduct warranted disciplinary action, citing specific instances where his professional duties were allegedly neglected. Galitsky, on the other hand, contested these allegations, maintaining that his actions were within the bounds of professional practice and did not merit disciplinary measures.

In its decision, the Tribunal carefully examined the evidence and submissions from both parties. The Tribunal found that while some of the allegations did demonstrate lapses in professional conduct, they did not reach the threshold of serious misconduct as required to justify disciplinary action. The Tribunal noted that Galitsky's conduct, although not exemplary, did not warrant the severe penalties sought by the Commissioner. Consequently, the Tribunal dismissed the application for disciplinary action against Galitsky. In addition, the Tribunal ordered that the Commissioner pay Galitsky's costs, as assessed or agreed upon.

Orders

Orders of the court

1. The application is dismissed. 2. The Tribunal orders the Applicant to pay the Respondent's costs as assessed or agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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