Legal Services Commissioner v Keddie - [2012] NSWADT 106

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Legal Services Commissioner v Keddie [2012] NSWADT 106
Hearing dates: 30 April 2012
Decision date: 04 June 2012
Jurisdiction: Legal Services Division
Before: The Hon Justice Haylen (Deputy President)
N Isenberg, Judicial Member
C Bennett, Non-Judicial member
Decision:
1. The conduct of Russell Walter Keddie in relation to charging Ms Meng grossly excessive costs is found to be professional misconduct.
2. The name of Russell Walter Keddie shall be removed from the local Roll of Practitioners.
3. A Local Practising Certificate shall not be issued to the practitioner, Russell Walter Keddie, before the expiration of five years following the date of this decision.
4.Russell Walter Keddie shall pay the costs of the Legal Services Commissioner.

Catchwords: PROFESSIONAL MISCONDUCT - charging of grossly excessive fees - acceptance of overcharging - deficiencies in computerised costing system - failure of supervision by responsible partner
Legislation Cited: Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Legal Profession Act 1987
Legal Profession Act 2004
Cases Cited: Coe v NSW Bar Association [2000] NSWCA 13
Kenedy v Council of Incorporated Law Institute of NSW (1939) 13 ALJ 563
Law Society of the Australian Capital Territory v Lardner [1998] ACT SC 24 at [104]
Legal Services Commissioner v Keddie [2008] NSWADT 185
Legal Services Commissioner v Scroope [2012] NSWADT 107
Nikolaidis v Legal Services Commissioner [2007] NSWCA 130
Re Veron; Ex Parte Law Society of New South Wales [1966] 1 NSWR 511; (1966) 84 WN (Pt 1) (NSW) 136
The Council of the NSW Bar Association v Meakes [2006] NSWCA 340
The Council of the New South Wales Bar Association v Timothy Meakes [2006] NSWCA 340
Veghelyi v The Law Society of New South Wales [1995] NSWCA 483
Texts Cited: Riley Solicitors' Manual/Professional discipline/Chapter 35, Misconduct in practice/D
Misconduct in relation to fee charging, March 2012, LexisNexis Australia
Category: Principal judgment
Parties: Legal Services Commissioner (Applicant)
Russell Walter Keddie (Respondent)
Representation: Counsel
C Webster (Applicant)
M Williams SC with J Morris of counsel (Respondent)
Ms Muston (Applicant)
Eakin McCaffrey Cox (Respondent)

File Number(s): 092009

REASONS FOR DECISION

BACKGROUND

In May, 2009 the Legal Services Commissioner ("LSC") filed an Application for Original Decision in the Tribunal relying upon the disciplinary provisions of the Legal Profession Act 2004 ("the 2004 Act") naming the respondent as Russell Keddie. The particulars noted that, between October 2002 and December 2006, Russell Walter Keddie was a partner in the firm known successively as "Keddies", "Keddies Litigation Lawyers" or "Keddies, The Insurance Law Specialists" ("the firm"). It was further particularised that, between October 2002 and August 2007, Philip Scroope was an employee of the firm with an unrestricted Practising Certificate.

This Application arose in the following circumstances: in late September 2002, Ms Suang Ying Meng ("Ms Meng") was seriously injured in a motor vehicle accident and in October 2002 retained the firm to act for her in personal injury proceedings for the recovery of damages. Mr Scroope was said to have the…

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: [2012] NSWADT 106
Decision Date: 04 June 2012

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Keddie, the respondent, Russell Walter Keddie, a legal practitioner, was found to have engaged in professional misconduct in relation to the fees charged to a client, Ms Meng. The dispute arose from Keddie's conduct in charging excessive legal fees and the subsequent acceptance of these charges by Ms Meng. The matter was brought before the court to determine whether Keddie's actions constituted professional misconduct under the Legal Profession Uniform Law (NSW).

The central legal issues that the court needed to decide were whether Keddie's conduct in charging grossly excessive fees amounted to professional misconduct and whether there was a failure in the supervision by the responsible partner. The court also needed to consider the implications of deficiencies in Keddie's computerised costing system and the acceptance of these charges by Ms Meng.

In delivering the decision, the court found that Keddie's conduct in charging Ms Meng grossly excessive fees constituted professional misconduct. The court determined that Keddie's failure to maintain an adequate costing system and the acceptance of overcharging by Ms Meng did not absolve Keddie of responsibility. The court held that Keddie's actions were a serious departure from the standard of competence and diligence expected of a legal practitioner. As a result, the court ordered that Keddie's name be removed from the local Roll of Practitioners and that a Local Practising Certificate not be issued to him for five years following the date of the decision. Additionally, Keddie was ordered to pay the costs of the Legal Services Commissioner.

Orders

Orders of the court

1. The conduct of Russell Walter Keddie in relation to charging Ms Meng grossly excessive costs is found to be professional misconduct.

2. The name of Russell Walter Keddie shall be removed from the local Roll of Practitioners.

3. A Local Practising Certificate shall not be issued to the practitioner, Russell Walter Keddie, before the expiration of five years following the date of this decision.

4.Russell Walter Keddie shall pay the costs of the Legal Services Commissioner.

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.

Medium Neutral Citation:	Legal Services Commissioner v Keddie [2012] NSWADT 106
Hearing dates:	30 April 2012
Decision date:	04 June 2012
Jurisdiction:	Legal Services Division
Before:	The Hon Justice Haylen (Deputy President) N Isenberg, Judicial Member C Bennett, Non-Judicial member
Decision:	1. The conduct of Russell Walter Keddie in relation to charging Ms Meng grossly excessive costs is found to be professional misconduct. 2. The name of Russell Walter Keddie shall be removed from the local Roll of Practitioners. 3. A Local Practising Certificate shall not be issued to the practitioner, Russell Walter Keddie, before the expiration of five years following the date of this decision. 4.Russell Walter Keddie shall pay the costs of the Legal Services Commissioner.
Catchwords:	PROFESSIONAL MISCONDUCT - charging of grossly excessive fees - acceptance of overcharging - deficiencies in computerised costing system - failure of supervision by responsible partner
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Legal Profession Act 1987 Legal Profession Act 2004
Cases Cited:	Coe v NSW Bar Association [2000] NSWCA 13 Kenedy v Council of Incorporated Law Institute of NSW (1939) 13 ALJ 563 Law Society of the Australian Capital Territory v Lardner [1998] ACT SC 24 at [104] Legal Services Commissioner v Keddie [2008] NSWADT 185 Legal Services Commissioner v Scroope [2012] NSWADT 107 Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 Re Veron; Ex Parte Law Society of New South Wales [1966] 1 NSWR 511; (1966) 84 WN (Pt 1) (NSW) 136 The Council of the NSW Bar Association v Meakes [2006] NSWCA 340 The Council of the New South Wales Bar Association v Timothy Meakes [2006] NSWCA 340 Veghelyi v The Law Society of New South Wales [1995] NSWCA 483
Texts Cited:	Riley Solicitors' Manual/Professional discipline/Chapter 35, Misconduct in practice/D Misconduct in relation to fee charging, March 2012, LexisNexis Australia
Category:	Principal judgment
Parties:	Legal Services Commissioner (Applicant) Russell Walter Keddie (Respondent)
Representation:	Counsel C Webster (Applicant) M Williams SC with J Morris of counsel (Respondent) Ms Muston (Applicant) Eakin McCaffrey Cox (Respondent)
File Number(s):	092009