Legal Services Commissioner v Keddie
[2011] NSWADT 114
•01 June 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Legal Services Commissioner v Keddie & ors [2011] NSWADT 114 Hearing dates: 19 May 2011 Decision date: 01 June 2011 Jurisdiction: Legal Services Division Before: Haylen J - Deputy President Decision: 1. The Application for Original Decision in the matters of Keddie, Roulstone and Scroope will be joined for the purposes of a joint hearing of the Applications.
2. The evidence in each matter will be evidence in all matters subject to any further objection raised pursuant to the provisions of s 136 of the Evidence Act.
3. The Applications will be listed for report and further directions on 7 September 2011
Catchwords: JOINDER - s 554 LPA - jurisdiction - whether evidence in each matter be evidence in all matters joined - relevant considerations - substantial commonality of fact, law and transaction Legislation Cited: Administrative Decisions Tribunal Act 1977 s 40(1) s 67(1) s 67(4) s 73 s 73(1)
Civil Procedure Act 2010
Evidence Act 1995 s 136
Legal Profession Act 2004 s 554
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005 Pt 6 r 9 Pt 28 r 5Cases Cited: A Goninan & Co v Atlas Steels [2003] NSWSC 956.
Ghose v CX Reinsurance Company Ltd and ors [2010] NSWSC 110Category: Interlocutory applications Parties: Legal Services Commissioner (Applicant)
Russell Keddie (Respondent in 092009)
Philip Scroope (Respondent in 092010)
Scott Roulstone (Respondent in 092012)Representation: C Webster (Applicant)
J Morris with F Maghami (Respondent in 092009)
T Lynch (Respondent in 092010)
R Tassell (Respondent in 092012)
L Muston (Applicant)
Eakin McCaffrey Cox (Respondent in 092009)
T Williams (Solicitor) (Respondent in 092010)
Verekers Lawyers (Respondent in 092012)
File Number(s): 092009; 092010; 092012
REASONS FOR DECISION
The Legal Services Commissioner ("LSC") has brought disciplinary proceedings in the Tribunal against Messrs Keddie, Scroope and Roulstone, in substance, alleging gross over charging and over servicing in relation to a particular client of the firm known as Keddies Lawyers. Mr Keddie was the managing partner of the firm and Mr Roulstone was, at all relevant times, a partner. Mr Scroope was, at all relevant times, a senior solicitor employed by the firm.
The Application for Original Decision in each matter is in substantially identical terms with "common particulars" running to some 24 pages concerning: the background to the alleged overcharging; the cost agreement entered with the client, (Ms Meng), regarding her personal injuries claim; the settlement, receipt of settlement funds and the bill of costs in the matter; the withdrawal of instructions; the details of an itemised bill; a deed and repayments made to Ms Meng; particulars as to excessive charges; details of charges for work not performed; details of unsubstantiated and excessive disbursements; details of charges for matters properly considered office overheads; duplicated charges; particulars of over servicing; and, details regarding alleged misrepresentation of costs. In all three matters, the LSC sought orders that the respondent was guilty of either professional misconduct or unsatisfactory professional conduct in relation to the particularised grounds and also sought orders that the respondent's name be removed from the roll of practitioners or in the alternative, that each respondent be publicly reprimanded or fined. In relation to Mr Keddie and Mr Roulstone only, there was a further ground of failure to supervise the work done and charged with respect to Ms Meng's matter. Her personal injuries matter was ultimately settled for in excess of $3.5 m and Mr Scroope provided an itemised bill containing charges totalling just under $930,000.
In the preparation of the case before the Tribunal the LSC has retained an expert witness, Ms Kerri-Ann Rosati and the respondents have jointly retained an expert witness, Mr Gordon Salier. Both experts have prepared reports that have been filed in the Tribunal. The experts have also prepared a joint report noting that they had been asked to perform different tasks.
The LSC has filed an Application in each matter seeking an order that the three matters be joined and that the evidence in each Disciplinary Application be evidence in each of the other Disciplinary Applications. That Application was said to be made pursuant to the provisions of s 554 of the Legal Profession Act 2004 ("the LPA").
In written submissions filed in the Tribunal in support of the Application for Joinder, the LSC listed a number of matters that were said to be uncontentious arising from the affidavits filed in each disciplinary proceeding. No respondent took issue with that description. Those matters, at least for the purpose of these joinder proceedings, are as follows:
(a) Messrs Keddie and Roulstone ("the Principals") held unrestricted practising certificates;
(b) between October 2002 and 31 December 2006 each of the principals were partners in the firm known successively as "Keddies", "Keddies Litigation Lawyers" or "Keddies the Insurance Law Specialists" (collectively "the Firm");
(c) from 1 January 2007 each of the Principals were legal practitioner directors (as defined in Pt 2.6 LPA Incorporated Legal Practices and Multi Partnerships )of the Incorporated Legal Practice known as "Keddies Insurance Law Specialists Pty Ltd" ;
(d) between October 2002 and August 2007, Mr Scroope was a Senior Associate employed by the firm as a personal injury accredited specialist holding a restricted practising certificate;
(e) Ms Meng was injured in a motor vehicle accident on 29 September 2002 and in October 2002 retained the firm to act for her in personal injury proceedings for the recovery of damages;
(f) Mr Roulstone took Ms Meng's initial instructions when she was in hospital in Adelaide and discussed with her entering into a costs agreement with the firm;
(g) Mr Scroope had day-to-day conduct of Ms Meng's matter;
(h) Ms Meng entered into a costs agreement with the firm dated 7 March 2003;
(i) Ms Meng's matter settled on 13 December 2005 for $3.525 m;
(j) on 21 December 2005, Mr Scroop handed to Ms Sui Sheng Lee on behalf of Ms Meng a reconciliation statement in relation to the settlement monies and a detailed narrative bill dated 21 December 2005 ("the narrative bill");
(k) the narrative bill contained charges totalling $819,694.77;
(l) the narrative bill did not identify the amounts charged, by rate or time spent, for the individual items of work set out;
In response to these interlocutory Applications a question was raised as to the jurisdiction of the Tribunal to join the Applications for Original Decision in disciplinary proceedings brought pursuant to the provisions of the LPA. In addition, the respondents raised objections to the utility of joinder and opposed any order that the evidence in each proceeding be evidence in all proceedings.
It is convenient to initially deal with the jurisdictional issue. The issue raised primarily concerned the interaction between s 554 of the LPA and s 67 and s 73 of the Administrative Decisions Tribunal Act 1977 ("the ADT Act).
Section 554 of the LPA provides as follows:
The Tribunal may, subject to its rules and the rules of procedural fairness, order the joinder of more than one disciplinary application against the same or different Australian legal practitioners.
Sections 67(1) and (4) of the ADT Act provides as follows:
67 Parties to proceedings before the Tribunal
(1) The parties to proceedings before the Tribunal for an original decision are:
(a) any person who, being entitled to do so, has duly applied to the Tribunal for an original decision , and
(a1) if an order or other decision is sought from the Tribunal in respect of a person (other than the applicant)-the person in respect of whom the order or other decision is sought, and
...
(c) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and
(d) any person specified by or under any enactment as a party to the proceedings.
67(4) The Tribunal may, by order, make a person who is not a party to proceedings (other than proceedings on an internal appeal) a party to the proceedings if the Tribunal considers that the person ought to have been joined as a party or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings.
Section 73(1) of the ADT Act provides as follows:
The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
It should be noted at the outset that the issue of jurisdiction was not raised by way of direct challenge but, rather, involved submissions going to the interaction between the LPA provision and the ADT Act provision and the potential scope of both provisions. The argument proceeded on the basis of the LSC needing to indicate which statutory provision was relied upon and whether or not that nominated provision permitted joinder in the sense of joining another party to existing proceedings. Counsel for the LSC relied upon the joinder provision found in s 554 of the LPA and disavowed any intention of needing to rely upon s 67(4) of the ADT Act, although it was submitted that the joinder order sought in the Applications before the Tribunal could be accommodated by that provision.
Counsel for Mr Keddie submitted that the two provisions provided an "equivalent power" regarding joinder but it was not clear that s 554 of the LPA conferred power on the Tribunal to order a joint hearing or to make an order that evidence in one matter be evidence in all matters joined. It was submitted that there was a clear tension between use of the word "joinder" in the LPA and its use in the accepted legal sense concerning the addition of a party to an application or cause of action already commenced.
The word "joinder" in s 554 did not appear to be used in the same sense as that word was used in Pt 6 r 19 of the Uniform Civil Procedure Rules 2005 ("UCPR") concerning joinder of a party to an originating Application. It was submitted that the provision of s 554 and the use of the word "joinder" did not have the same meaning as "consolidation" as dealt with in Pt 28 r 5 of the UCPR. Submissions for the LSC seemed to use the words interchangeably as if they had the same meaning in circumstances where the ADT Act provided no specific power to order the hearing of separate disciplinary applications against separate individuals at the same time although it was conceded that such power may exist inferentially through the application of s 67, s 70 and s 73 of the ADT Act .
It was further submitted that, as the Tribunal was not a court as defined by the Evidence Act 1995, there was no residual power conferred upon the Tribunal relating to this issue of jurisdiction. It was accepted that the Civil Procedure Act 2010 and the UCPR did not apply to the Tribunal.
Put shortly, counsel for Mr Keddie raised the issue of whether the Tribunal had power to order that the three disciplinary applications be joined/or heard together and whether there was power to order that evidence in each matter be evidence in all matters.
Counsel for Mr Scroope accepted that the Tribunal had jurisdiction to join the proceedings with the other disciplinary proceedings but submitted that the Tribunal could not make the consequential order that evidence in each matter would be evidence in all other matters so joined. Counsel for Mr Roulstone generally supported the submissions made on behalf of Mr Keddie and Mr Scroope. A further respondent, Mr Barakat, was originally the subject of the same joinder application made by the LSC and in written submissions did not oppose joinder in the interests of efficient case management but objected to the evidence in each matter being evidence in all other matters. This submission did not require any further elaboration in view of the fact that, at the commencement of proceedings concerning the joinder application, counsel for the LSC announced that a formal application would be made to the Tribunal to withdraw the disciplinary proceedings against Mr Barakat.
The question of jurisdiction having arisen, it is appropriate for the Tribunal to initially consider the relationship between s 554 of the LPA and s 67(4) of the ADT Act. The current provision of s 67(4) of the ADT Act was introduced by way of amendment in 1998. A statutory review of the Tribunal had considered a number of submissions raising concerns about the existing narrow provision for joinder. Prior to the amendment, the Act did not allow for a party to proceedings to apply for the joinder of a new party but permitted the Tribunal, on its own motion or on the application of a non-party, to order that the non-party be joined in the proceedings. A party could not apply for a non-party to be joined to the proceedings. In the Second Reading Speech introducing the provision that is now s 67(4) of the ADT Act the Attorney General stated that the sub-section would be amended to give the Tribunal a broader power to join a person as a party to the proceedings, if necessary.
Section 67(1) appears to contemplate that, where there is an Application for Original Decision, another person who is not a party to that proceeding may be made a party to that proceeding by the Tribunal to the extent permitted by sub-section (4). By sub-section (4) the Tribunal, may make a non-party to the proceedings a party to those proceedings if the Tribunal considers that the person ought to have been joined as a party or as a person whose joinder was necessary to determine all matters in dispute in the proceedings.
Section 67(4) appears, therefore, to proceed on the basis of adding a non-party to existing proceedings if certain requirements are met. The provision does not appear to encompass the various forms of joinder dealt with under the previous rules of the Supreme Court and now dealt with by the UCPR .
Section 554 of the LPA permits the Tribunal, subject to its rules and the rules of procedural fairness, to order the joinder of more than one disciplinary application against the same or different Australian legal practitioners. It was common ground that there were no Rules of the Tribunal dealing with joinder. For present purposes the section encompasses the joinder of more than one disciplinary application against different Australian legal practitioners. Under this provision where there are a number of disciplinary applications against the same legal practitioner, the Tribunal may also join those matters for the purposes of hearing so long as to do so would not breach the rules of procedural fairness.
The provisions of s 554 of the LPA therefore appear to be broader than the provisions of s 67(4) of the ADT Act, although dealing with a similar procedure. The question of any tension or conflict between the two provisions is, in any event, resolved by reference to s 40(1) of the ADT Act, which is in the following terms:
When enactment taken to make contrary provisions to this Act
(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).
(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provisions of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.
(3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.
(4) Relevant enactment means an enactment under which the Tribunal has jurisdiction:
(a) to make an original decision, or
(b) to review a reviewable decision
(c) or that otherwise deals with the jurisdiction of Tribunal.
In the view of the Tribunal, even if it was found that s 554 of the LPA made contrary provision to s 67(4) of the ADT Act , s 40(1) would give effect to that contrary provision, the LPA being clearly a relevant enactment for the purposes of the section. In addition, it might be said that s 67(4) is a general provision dealing with the procedure in the Administrative Decisions Tribunal whereas s 554 of the LPA is a special provision dealing with disciplinary proceedings in the Legal Services Division expressly provided by the legislature.
Section 67(4) of the ADT Act can be seen, therefore, as dealing with the joinder of parties and the making of an order whereby non-parties are joined as parties to existing proceedings before the Tribunal. Section 554 deals with the issue of concurrence and consolidation whereby a number of disciplinary applications against the same practitioner may be joined and heard together and extends to the situation where there may be joinder of more than one disciplinary application against different legal practitioners. Neither the provisions of s 554 nor the rules provide any guidance as to the manner in which the discretion to join such matters should be exercised. It should be accepted, however, that some utility is required to be demonstrated in having the matters consolidated or joined for the purposes of hearing, for example, because there is sufficient commonality of issues or evidence or that the matters may arise out of the same or related circumstances.
That construction of s 554 of the LPA is supported by the context in which it appears. In disciplinary matters under the LPA, proceedings are brought against an individual where the claim is that the conduct of the legal practitioner is either unsatisfactory professional conduct or professional misconduct. The very nature of those proceedings suggests that it is unlikely that other practitioners would be joined as a party to existing proceedings against a legal practitioner. It might well be that there are common circumstances that raise questions of unsatisfactory professional conduct or professional misconduct against a number of practitioners and while there may be convenience in hearing those matters together, it is not easy to identify circumstances where a legal practitioner would be added as a party to the disciplinary proceedings taken against another legal practitioner. The LPA seems to contemplate disciplinary action against an individual legal practitioner. In that context s 554 talks about joining disciplinary applications and not persons or parties while s 67(4) deals with persons and joining persons as a party to existing proceedings.
In light of the above discussion the Tribunal is of the view that there is jurisdiction, pursuant to the provisions of s 554 of the LPA to join the three disciplinary applications for the purpose of hearing them at the same time. This conclusion leads the Tribunal to then consider whether it is appropriate for these matters to be joined in the sense referred to above and be heard at the same time and whether the evidence in each matter be evidence in all matters.
It is of some assistance in dealing with the arguments before the Tribunal to return to the consolidation provisions previously available under the Supreme Court Rules 1970 and now available under the UCPR in very similar terms. Part 28, r 5 of the UCPR provides as follows:
[r 28.5] Consolidation etc of proceedings (cf SCR Part 31, rule 7; DCR Part 12, rule 7)
28.5 If several proceedings are pending in the court and it appears to the court:
(a) that they involve a common question , or
(b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or
(c) that for some other reason it is desirable to make n order under this rule,
the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.
The Notes to Pt 28, r 4 appearing in Ritchies Uniform Civil Procedure (LexisNexus Butterworths Service) refer to the breadth and flexibility of the rule, especially having regard to r 5(c). It is suggested that the principle purposes for such an order is to minimise costs and delay in the determination of the proceedings, an approach reinforced by s 56 of the Uniform Civil Procedure Act . There was no bar to consolidating proceedings that had completely different parties.
The history of the rule and the modern approach to its breadth and flexibility was canvassed by Austin J in A Goninan & Co v Atlas Steels [2003] NSWSC 956. In the course of that discussion his Honour referred to the rule being applied and the discretion exercised by reference to the circumstances of each case. At [28] Austen J noted that an order for consolidation, by the terms of the rule, was different from an order that the proceedings be tried at the same time or immediately after one another or that one be stayed until determination of another. In the past, the word "consolidation" had sometimes been used in a looser sense to encompass those kinds of orders but in its "proper sense", an order for consolidation was an order "combining actions so that they thereafter proceed as one." At [39] his Honour accepted that, under consolidation, the court did not create a new proceeding but only merged existing proceedings. Having regard to the width of language used in s 554 of the LPA that section appears to embrace the notion of consolidation both in its proper sense and in its loose sense: the Section appears to broadly reflect the approach of Pt 28, r 5 of the UCPR.
Austen J further discussed the operation of Pt 28 r 5 of the UCPR in Ghose v CX Reinsurance Company Ltd and ors [2010] NSWSC 110. In discussing the operation of the rule and similar rules, especially operating in the Federal Court, his Honour stated:
25 While the form of wording is slightly different, r 28.5 is relevantly in the same terms as Order 29.5 of the Federal Court Rules 1979 (Cth), and authorities as to the exercise of the discretion under that rule are also of assistance. Counsel for the Insurers have assembled what seem to me to be quite comprehensive submissions, which trace through the case law as to the principles that govern the Court's exercise of the power to order consolidation or joint trial of proceedings under those rules.
...
26 In my view a useful description of the correct judicial approach to an application under r 28.5 was given by Wolff J (as he then was) in Cousins v Cousins (1948) 51 WALR 57, at 60:
"In my opinion, consolidation is desirable and should be allowed where, as here, the issues are substantially the same, and the evidence is to all intents and purposes identical. I would, however, hesitate to lay down any inflexible rule. Consolidation is intended to save time and expense, as well as to avoid the awkward consequences of contrary findings on the same set of facts. Because it cannot be shown to have been done before in a like instance, it does not follow that the course of procedure which was ordered is not a proper one."
(See also Bishop v Bridgelands Securities (1990) 25 FCR 311, at 314 per Willcox J; Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129 at 134 per Hill J; Muller v Human Rights and Equal Opportunity Commission (Federal Court of Australia, 17 July 1997, unreported, Moore J); Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Limited [2007] FCA 943, at [25] per Jacobson J; Dean v Phung [2009] NSWSC 201, at [21] per Hall J.)
27 Although his Lordship speaks of consolidation, in my view the same principles apply where the application is for a joint hearing. His Lordship's observations make it clear that the Court's essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings). A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of litigation if the proceedings remain separate. A pragmatic approach involves the Court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to the Court. I was referred to s 56(1) of the Civil Procedure Act 2005 (NSW), but in my view the articulation of the overriding objective of facilitating the just, quick and cheap resolution of the real dispute between the parties simply confirms the approach to be taken to such matters as consolidation or joint hearing of proceedings.
28 Modern courts do not confine the power to order consolidation or joint hearing to cases where there several actions have been brought which could have been joined in a single writ: see, for example, Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129, at 134 per Hill J; Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Limited [2007] FCA 943, at [25] per Jacobson J. It is not necessary that the parties in the separate proceedings be the same parties: Horwood v British Statesman Publishing Co Ltd [1929] WN 38 (where two persons who claimed to have been defamed by the same New Statesman article brought separate proceedings for libel, which were then consolidated). The fact that a plaintiff in one set of proceedings is a defendant in another does not preclude an order for consolidation or, a fortiori , joint hearing: A Goninan & Co Ltd v Atlas Steel (Aust) Pty Ltd [2003] NSWSC 956, at [36]-[37].
Keeping in mind the particular operation of the LPA and the special nature of disciplinary proceedings taken against an individual legal practitioner, the Tribunal concludes that the "joinder" application made by the LSC pursuant to the provisions of s 554 of the LPA is, in substance, an application that the matters be heard at the same time rather than being an application that the matters be merged into the one proceeding. Section 554 may have a wider operation but determination of its outer limits is unnecessary in resolving the issues arising in the present Application.
As s 554 of the LPA is not framed in the precise terms of Pt 28, r 5 of the UCPR but uses the general term of "joinder", the Tribunal, in assessing each case, will need to weigh the factors for and against an order that the matters be heard together: as recognised in Ghose , this is essentially a pragmatic exercise. Many of the considerations relevant to joining a party may be of relevance in such an exercise: is there prejudice to any party and what is the nature and extent of that prejudice?; is there sufficient commonality of law, fact or transaction arising in the matters to be heard together?; would the joint hearing of the different matters be most conducive to the just resolution of the dispute having regard to the desirability of limiting the costs and delay of litigation? In this discussion it should be recognised that, in issues arising as to joinder of parties and causes of action, it has not been necessary for each cause of action to involve all of the same transactions nor has there been any requirement that there be an identicality of issues, so long as there was sufficient commonality in relation to law, fact or transaction: it mattered not that one defendant was not affected by the whole of the relief sought.
In submissions for Mr Keddie, it was noted that he had admitted that he was guilty of professional misconduct in failing to properly or adequately supervise the billing of Ms Meng's proceedings and also admitted that Ms Meng was overcharged by reason of errors and duplications in the bill. He had given an undertaking to repay Ms Meng any amount that the Tribunal considered was charged over and above an amount that was fair and reasonable, together with interest. The parties were well advanced on an Agreed Statement of Facts and that documents would be put forward in the disciplinary proceedings under the provisions of s 191 of the Evidence Act . That approach would result in the agreed facts in the disciplinary proceedings regarding Mr Keddie binding those parties and would prevent them being disputed in those proceedings. It was accepted that Mr Keddie may give evidence in the proceedings but it was submitted that it would not be necessary for a broad ranging factual inquiry as the admissions made by Mr Keddie proved the complaint. That did not necessarily apply to other respondents who were denying either unsatisfactory professional conduct or professional misconduct.
Mr Keddie did not accept that the complaint against him arose out of the same transactions or series of transactions relating to the other two respondents. He accepted that the conduct arose from the same contract with Ms Meng but noted the following: acts or omissions of each respondent concerned conduct spanning a two or three year period; the culpability of each respondent involved a wide range of disparate factors that may not be a common issue with other co-respondents; the interests of each respondent may not be the same having regard to the fact that they had taken different positions in response to the complaint with Mr Keddie accepting that he was guilty of professional misconduct in relation to supervision of the file and the billing of Ms Meng.
Two further matters were raised. Firstly, that there was a real danger, should an order be made that evidence in each matter be evidence in all matters, where a concession by one party would be taken as a concession made by other parties and the actions of one respondent such as Mr Keddie might be thereby imputed to others. A further point was that a fully contested hearing was likely to take a number of days or weeks whereas Mr Keddie's proceedings, if heard alone, would be likely to be dealt with in one day. Thus, Mr Keddie would be potentially involved in the expense of a much longer hearing, possibly lasting weeks. Counsel for Mr Keddie did not explain why a number of these points were being raised in his case when they were mainly relevant to the cases concerning the other respondents.
In assessing the weight of these issues the Tribunal commences with the recognition that that there is a very large degree of commonality between the claims made by the LSC against the three respondents. The particulars supplied are in substantially identical terms although each respondent had a different role within the firm: Mr Keddie was the managing partner; Mr Roulstone was a partner and Mr Scroope was an employed senior solicitor who had the day-to-day handling of the file. In all applications the allegation is of unsatisfactory professional conduct or professional misconduct arising from overcharging, over-servicing and duplication of costs that were not justified: those costs arose in relation to the same file and the same client. The parties have engaged experts and their evidence will be sought to be tendered in all matters - a strong indication of the commonality of issues. The significance of these matters is not adequately recognised, if at all, in the submissions made on behalf of Mr Keddie. In relation to Mr Keddie and Mr Roulstone, there is an additional breach alleged concerning their supervision of the file and Mr Scroope but that issue alone is of little real significance to the issue of joinder as considered in [37] below.
As to the issue of prejudice to other respondents by Mr Keddie's admission that he is guilty of professional misconduct by failing to adequately supervise Ms Meng's file, that concession, by itself, does not necessarily prejudicially affect the case of the other respondents or lead to adverse inferences being drawn against them. The Tribunal is not to be treated as a jury and is capable of making the necessary distinctions where concessions are made by one respondent but not accepted by other respondents or proved against them. It is undoubtedly the case, however, that Mr Keddie's evidence and possibly any cross-examination of Mr Keddie would be likely to be relied upon in the proceedings concerning the other respondents. If separate proceedings were held for each respondent, this evidence and the experts' evidence would have to be given on three occasions with the possibility that different aspects of the evidence might arise in the later cases and may not be available, although relevant, in the earlier cases. As recognised in Ghose, a joint hearing avoids the awkward consequences of contrary findings on the same facts. Ultimately, there may be no saving in costs to Mr Keddie if separate hearings were conducted for each matter yet he became involved, in any event, in each of the subsequent cases.
While it may be accepted that the three respondents had a different status within the firm, that difference is of slight impact in relation to the efficacy of a joint hearing. The status and role of each respondent can be kept firmly in mind and without confusion having regard to the evidence that ultimately is accepted as to their involvement in the costing claimed in relation to Ms Meng's file. There well may be issues as to whether there was a policy adopted by the firm in relation to billing and how that policy was applied. That is the type of issue that may arise in cross-examination and where the convenience and costs savings of having that evidence heard in proceedings concerning all respondents would be high.
It should be mentioned at this juncture that, in Mr Keddie's case, a number of particulars were rejected or not accepted as examples of over servicing or overcharging. During argument, when the Tribunal suggested that those matters might result in Mr Keddie having a higher level of involvement in the proceedings than his submissions suggested, it was submitted by counsel on his behalf that, in an overall sense, Mr Keddie accepted that there was overcharging and over-servicing and that he had failed to properly supervise the file and was thereby guilty of professional misconduct. It was not anticipated, therefore, that much would turn on the particulars alleged by the LSC because, whatever the result, Mr Keddie had undertaken to repay the amount found by the Tribunal to constitute overcharging and over servicing. The point remains, however, that to the extent that Mr Keddie wishes to be heard in relation to any particulars about overcharging and over servicing that might reduce his liability for repayment to Ms Meng, the potential remains for him to play a larger role in the proceedings. A favourable finding on such matters is likely to be relevant to the other Applications.
Weighing all of these issues raised by Mr Keddie, the Tribunal concludes that there is not such a degree of prejudice to Mr Keddie as to reject joinder or to warrant a separate hearing. Indeed, if he was granted a separate hearing it seems inevitable that he would become involved in the remaining proceedings because of his role as managing partner and his acceptance of his professional misconduct in relation to Ms Meng's file.
Counsel for Mr Scroope accepted that there was jurisdiction to make an order joining the proceedings concerning the three respondents but denied that it was within jurisdiction or appropriate to make an order that the evidence in each proceeding be evidence in all other proceedings.
The submissions for Mr Scroope focused on the requirement of s 554 requiring that any joinder be subject to the rules of procedural fairness. It was submitted that Mr Scroope's circumstances were so different that a joint hearing in which the evidence in each matter would be evidence in all matters would be such as to deny him procedural fairness. It was suggested that the approach of the LSC did not distinguish Mr Scroope from the law practice of which he was an employee and paid insufficient regard to the fact that, unlike Mr Keddie and Mr Roulstone, no question of lack of supervision arose in his case. It was denied that there was, in a relevant sense, conduct arising out of the same transaction or involving a common question, namely, that the bill was grossly excessive.
It was submitted that "the real basis" for the application was that the Commissioner wished to rely upon the evidence of Ms Rosati , as a costs expert, but that did not establish a single transaction or a common question. The LSC relied upon common particulars but they were not determinative of the issue of commonality.
Mr Scroope's submissions noted that, under s 301 and s 331 of the LPA , legal costs were the entitlement and responsibility of a law practice and that costs agreements were made between clients and the law practice, being Mr Keddie and Mr Roulstone in this particular case (LPA s 301, 325). Complaints and disciplinary actions could not be brought against a law practice but only against a legal practitioner. A complaint and disciplinary action under the LPA must impugn conduct to the practitioner to whom it relates as unsatisfactory professional conduct or professional misconduct. It followed that a practitioner could not be vicariously guilty of either unsatisfactory professional conduct or professional misconduct, that is, to be exposed to professional censure by the conduct of another practitioner. Mr Scroope's signature on the narrative bill, relied upon by the LSC, was one signed "on behalf of" of the Keddies' practice and was not signed for himself. Given all of these matters, Mr Scroope's case is, nevertheless, intertwined with the allegations in the other Applications. Joinder will not adversely affect his capacity to have these matters considered by the Tribunal: indeed, joinder may enhance his capacity to demonstrate the difference in his role compared with the partner respondents.
It was submitted that the conduct of overcharging, for the purposes of disciplinary proceedings, could not be that of an employee of a law practice because only a law practice could charge. Further, the relationship of an employee of the law practice to charging and billing a client was fundamentally different from that of those who conducted the law practice making the charges and rendering a bill. An employee was constrained to obey the directions of his employer in recording of times etc. This fundamental difference was recognised by the LSC particularising the failure of Mr Keddie and Mr Roulstone to supervise Mr Scroope in relation to Ms Meng's bill and those similar particulars regarding supervision not being pursued against Mr Scroope. Despite this difference, if the evidence in each matter was evidence in all matters, it would lead to Mr Scroope having to answer or address evidence about the conduct of persons other than himself, being partners or other practitioners and non-practitioners of the practice.
There was a "very real issue" asserted about the extent to which any of Ms Rosati's reports could be admitted against Mr Scroope as distinct from Mr Keddie and Mr Roulstone as the partners of the law practice rendering the narrative bill. If there was a differential admission of Ms Rosati's reports as between Mr Scroope and the other respondents then there was likely to be no case management advantage in a joint hearing. The extent to which Mr Scroope would rely upon Mr Salier's evidence would be a consequence of the extent to which Ms Rosati's reports were admitted against him. Having regard to these matters, Mr Scroope's liability to professional censure did not arise out of the same transaction: Mr Scroope was not a common party with the other partners and there was no common question of law or fact in issue in the proceedings. No efficiency would be achieved by the joinder of the proceedings nor would joinder promote the just, quick and cheap resolution of the disciplinary action against Mr Scroope.
Much of what has been said by the Tribunal in relation to Mr Keddie and Mr Roulstone also applies to Mr Scroope. All respondents are resisting allegations of unsatisfactory professional conduct or professional misconduct arising from the level of charging claimed against Ms Meng. The difference in status between the respondents is something able to be understood and kept in mind during joint proceedings and does not impose prejudice of such a nature as to warrant separate proceedings. Indeed, much that was put on behalf of Mr Scroope suggests that, even if all the evidence was admitted in his case that related to Mr Keddie and Mr Roulstone, Mr Scroope's position as an employee would effectively absolve him from an adverse disciplinary finding. It seems to follow that he would rely upon their evidence as to their role as managing partner and partner respectively in relation to Ms Meng's file to make out his own case, namely, that the partners had responsibility for the charge out rates and that as an employee, he merely followed their directions.
The submission that Mr Scroope would be denied procedural fairness was not clearly articulated but seemed to inferentially arise from the above matters. In a joint hearing, Mr Scroope would be fully heard and would have the opportunity of dealing with any evidence given by Mr Keddie and/or Mr Roulstone that may be adverse to his interests, if that occasion arose. As indicated earlier in this Decision, any concession made by Mr Keddie or Mr Roulstone about their conduct would not, automatically or without more, have immediate adverse implications for Mr Scroope.
Overall, the differences between the cases and the status of the respondents raises no particular difficulty nor issue of procedural fairness such as would warrant rejection of the joinder application and the conduct of separate hearings. On a consideration of the material currently filed, the Tribunal is satisfied that there is a very significant level of commonality of fact and transaction as to warrant the joinder of the applications for the purposes of hearing the three matters. A joint hearing will not require new or amended pleadings nor assigning a different status to a respondent: it will not involve the merger of cases. There is a distinct likelihood that there will be overall savings to the Tribunal and the parties in disposing of these matters in the most appropriate and speedy manner. That objective is likely to be substantially frustrated by separate hearings where the evidence of the experts, even where contested, will be common to all matters and where two of the parties are likely to rely upon the evidence of Mr Keddie and his admission of being guilty of professional misconduct in the supervision of the file. In conducting matters so intertwined as these, the resources of the Tribunal have to be considered: there is the possibility that separate trials, where adverse findings are made by one Tribunal, may lead to applications for that Tribunal, so constituted, to step aside from involvement in following proceedings. The constitution of the Tribunal by different members in each case, while not impossible, could place strains on the Tribunal's resources and would be likely to lead to considerable delay in the subsequent Applications being heard.
The submission that the proposed expert evidence to be called by the LSC might be challenged and either not entered as evidence against Mr Scroope or only partially entered as evidence against him, does not alter the Tribunal's view as to the appropriateness of joinder. The Tribunal is well placed to remove from its consideration any evidence that is admitted against other respondents but not admitted against Mr Scroope. Ultimately, this submission was put without any detail and raises no more than the mere possibility of such a situation occurring. In those circumstances it is difficult to accord the submission any significant weight.
As earlier indicated the thrust of these submissions for Mr Keddie and Mr Scroope were supported by Mr Roulstone but Mr Roulstone raised no further issues.
In the course of argument it became apparent to the Tribunal that much of the concern agitated by the respondents was based upon the possibility that some of these issues might arise rather than an assertion that all of the difficulties identified would arise. Work is still proceeding upon an Agreed Statement of Facts and the completion of that task may allay some of those concerns expressed in submissions on this joinder application. It was because of the nature of these submissions that the Tribunal raised with the respondents the availability of s 136 of the Evidence Act as a protection for any respondent should the evidence called raise a danger that the particular use of the evidence might be unfairly prejudicial to a party or misleading or confusing. Although that suggestion was not embraced with any enthusiasm by the respondents, it does appear to the Tribunal to address the potential concerns of the respondents. The Tribunal will therefore make an order that the evidence in each matter will be evidence in all matters subject to any further objection raised by a respondent pursuant to s 136 of the Evidence Act.
The Tribunal has approached s 554 of the LPA in much the same way as an application under Pt 28 r 3 of the UCPR. It appears that, in consolidated proceedings or a joint hearing, evidence in each matter is evidence in all matters. If there be any doubt that s 554 of the LPA travels that far, s 73(1) of the ADT Act is available to make such an order.
ORDERS
Having regard to the above matters, the Tribunal makes the following orders:
1. The Application for Original Decision in the matters of Keddie, Roulstone and Scroope will be joined for the purposes of a joint hearing of the Applications.
2. The evidence in each matter will be evidence in all matters subject to any further objection raised pursuant to the provisions of s 136 of the Evidence Act.
3. The Applications will be listed for report and further directions on 7 September 2011.
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Decision last updated: 01 June 2011
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