Legal Services Commissioner v Keddie - [2011] NSWADT 114

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 5
Cases Cited: A Goninan & Co v Atlas Steels [2003] NSWSC 956.
Ghose v CX Reinsurance Company Ltd and ors [2010] NSWSC 110
Category: 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…

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: [2011] NSWADT 114
Decision Date: 01 June 2011

CaseChat Overview and Summary

The Legal Services Commissioner has applied to the Supreme Court to join three matters for the purposes of a joint hearing. The respondents in the matters are Keddie, Roulstone, and Scroope. The court was required to determine whether the matters could be joined under section 554 of the Law Practitioners Act. The relevant considerations included the substantial commonality of fact, law, and transaction between the matters.

The court considered the nature of the evidence and the potential for prejudice to any party if the matters were joined. It was noted that the matters involved allegations of professional misconduct against the respondents, who are all legal practitioners. The court found that there was a substantial commonality of fact and law between the matters, and that the evidence in each matter would be relevant to the others. The court also found that there was no risk of prejudice to any party if the matters were joined, as the evidence would be subject to any further objection raised under section 136 of the Evidence Act.

The court ordered that the applications for original decision in the matters of Keddie, Roulstone, and Scroope be joined for the purposes of a joint hearing. The evidence in each matter was to be evidence in all matters, subject to any further objection raised under section 136 of the Evidence Act. The applications were listed for report and further directions on 7 September 2011.

Orders

Orders of the court

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

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 & 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 5
Cases Cited:	A Goninan & Co v Atlas Steels [2003] NSWSC 956. Ghose v CX Reinsurance Company Ltd and ors [2010] NSWSC 110
Category:	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