Legal Services Commissioner v Nikolaidis (No 3)
[2005] NSWADT 200
•08/25/2005
Set aside by Appeal:
Set aside in part by Appeal on 8 June 2007: Leon Nikolaidis v Legal Services Commissioner [2007] NSWCA 130
CITATION: Legal Services Commissioner v Nikolaidis (No 3) [2005] NSWADT 200 DIVISION: Legal Services Division PARTIES: APPLICANT
The Legal Services Commissioner
RESPONDENT
Leon NikolaidisFILE NUMBER: 032022 HEARING DATES: 12/07/2004-13/07/2004, 28/07/2004, 21/01/2005, 28/02/2005 & 1/04/2005 SUBMISSIONS CLOSED: 04/01/2005 DATE OF DECISION:
08/25/2005BEFORE: Brennan JWF - Judicial Member; Bishop C - Judicial Member; O'Neill A - Non Judicial Member APPLICATION: Professional Misconduct - fail to comply with cost assessor under s. 207 - Professional Misconduct - overcharge MATTER FOR DECISION: Penalty LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
District Court Act 1973
Legal Practitioners Act 1898
Legal Profession Act 1987CASES CITED: Alexander v Cambridge Credit Corporation (Receivers Appointed) [1985] 2NSWLR 685
Barwick v Law Society of NSW [2000] HCA2
Hutchings Electrical Pty Limited v Director General Department of Fair Trading (No. 2) [2002] NSWADT 755
Knaggs v Solicitors Statutory Committee (No. 2) 27 NSWLR 603
Legal Practitioners Conduct Board v Hannaford [2002] 83 SA SR 277
Law Society of New South Wales v Berry [2005] NSWADT 46
Law Society of NSW v Bannister [1990] NSWLST7
Law Society of NSW v Bannister [1993] NSWLST 6
Law Society of NSW v Ciampa [1999] NSW ADT 13
Murray v Legal Services Commissioner [1999] NSWCA70
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
NSW Bar Association v Amor-Smith [2003] NSWADT237
NSW Bar Association v Cummins [2001] 52NSWLR 279
NSW Bar Association v Evatt [1968] 117 CLR 177
NSW Bar Association v Stevens [2003] NSWCA 95
Palmer v Clarke [1989] 19NSWLR 158
The Legal Services Commissioner v Nikolaidis [2004] NSWADT 195
The Legal Services Commissioner v Nikolaidis (No.2) [2004] NSWADT 248
Re City Equitable Fire Insurance Co. Limited [1925] 1CL407
RE Hodgekiss [1962] NSWLR340
Re Leon Nikolaidis [1998] NSWLST5
Re Timothy Rybeck [1997] NSWLST 6
Re Veron ex parte The Law Society of NSW [1966] 84WN NSW (Part 1) 136
Sinha v The Health Care Complaints Commission [2001] NSW CA 48
Bannister v Walton SC NSW CA unreported 30 April 1992
Veghelyi v The Law Society of NSW unreported 6 October 1995REPRESENTATION: APPLICANT
M Hadley, barrister
RESPONDENT
J Chippindall, barrister (Days 1-5)
G C Lindsay SC with J Chippindall, barrister (Day 6)ORDERS: 1. On the first count on which the practitioner was found guilty of professional misconduct on 1 November 2004:; (a) that the practitioner be publicly reprimanded; (b) that the practitioner pay a fine of $5,000 on or before 1 November 2005 provided however that in the event that the fine is not paid on or before 1 November 2005 then the practising certificate of the Practitioner shall be cancelled until such time as the fine has been paid in full; and; (c) that the practitioner pay the costs of the Legal Services Commissioner of and incidental to the first count including all reserved costs of the Commissioner, such costs to be as agreed or assessed pursuant to Division 6 Part II of the Legal Profession Act 1987 within two (2) months of the date of such agreement or assessment; 2. On the second count on which the practitioner was found guilty of professional misconduct on 1 November 2004; (a) that the practitioner be publicly reprimanded; (b) that the practitioner pay a fine of $12,000 on or before 1 November 2005 provided however that in the event that the fine is not paid on or before 1 November 2005 then the practising certificate of the Practitioner shall be cancelled until such time as the fine has been paid in full; and; (c) that the practitioner pay the costs of the Legal Services Commissioner of and incidental to the second count including all reserved costs of the Commissioner, such costs to be as agreed or assessed pursuant to Division 6 Part II of the Legal Profession Act 1987 within two (2) months of the date of such agreement or assessment
REASONS FOR DECISION
1 By information filed in the Tribunal on 21 October 2003 the Legal Services Commissioner (“the Commissioner”) informed the Tribunal that as a result of the Commissioner’s investigation of a complaint made under Part 10 of the Legal Profession Act 1987 (“the Act”) against Mr Leon Nikolaidis (“the Practitioner”) a legal practitioner within the meaning of Section 128 of the Act, the Commissioner claimed that the Practitioner, while practising as a solicitor, was guilty of professional misconduct.
2 There were two grounds of complaint, namely:
3 In the course of the hearing the Practitioner sought to rely upon an Affidavit of a costs consultant, Mr Kerry Hardman. The Tribunal ruled that this affidavit was inadmissible on 28 July 2004 and this was the subject of written reasons published on 3 September 2004 (see Legal Services Commission v Nikolaidis [2004] NSWADT 195 ). The Practitioner applied to the Supreme Court for leave to appeal on the issue of the rejection of the Hardman report and sought a stay of the proceedings in the Tribunal pending hearing of that appeal.
a) The Practitioner failed, without reasonable excuse, to comply with notices issued by a costs assessor under Section 207 of the Legal Profession Act 1987 ; and
b) The conduct of the Practitioner involved the deliberate charging of grossly excessive amounts of costs.
4 The stay application was refused in the Supreme Court on 27 August 2004.
5 On or about 30 September 2004 the Practitioner sought a stay of proceedings in the Tribunal to prevent the determination of the misconduct issues and the publication of the Tribunal’s findings until determination of the Practitioner’s appeal to the Supreme Court. That stay application was refused by the Tribunal.
6 On 1 November 2004 the Tribunal published its reasons for decision on the conduct issues and found that the Practitioner’s conduct in relation to each of the two complaints against him amounted in each instance to professional misconduct. {Legal Services Commission v Nikolaidis (No. 2) [2004] NSWADT 248}.
7 On 17 November 2004 the matter was listed for directions to fix a date for hearing of evidence and submissions on the final orders that the Tribunal should make following the two findings of professional misconduct.
8 Shortly before the directions listing the Tribunal received a fax from the Practitioner’s firm seeking a stay of proceedings which was repeated in an oral application made on 17 November 2004 and this further stay application was listed before the Tribunal on 21 January 2005. On that date the application was dealt with and an ex tempore judgment given refusing the stay sought. The Practitioner sought written reasons for this decision and these were published before the date fixed for final evidence and submissions on 28 February 2005.
9 Directions were given on 21 January 2005 for the filing and service of any character or other material on which the Practitioner sought to reply by 4 p.m. on 21 February 2005 and for the Commissioner to file and serve any similar material in reply by 4 p.m. on 24 February 2005.
10 The matter then came on for hearing on Monday, 28 February 2005. The only material filed by the Practitioner was a report by a solicitor, Mr Mark Webeck, dated and filed on 25 February 2005 which Counsel for the Commissioner first received on the morning of the hearing. Mr Webeck has been a costs assessor since 1999 and a member of the Costs Review Panel since 2002. The Commissioner’s Counsel objected to this material not only on the basis that it was filed too late, but also that it was irrelevant to any issue of penalty (p. 4 of 28 February). Mr Chippindall on behalf of the Practitioner pressed the tender of the report on the basis “It only goes to the issue of what Mr Webeck considered were reasonable rates at the time. That is relevant, in my respectful submission, on the question of penalty… don’t seek to canvass the rulings of the Tribunal” (i.e. on the second finding of deliberate charging of grossly excessive amounts of costs).
11 The Tribunal although not initially persuaded of the relevance of the report admitted it into evidence to afford Counsel the opportunity to persuade the members of its relevance and to assist to establish whether the Practitioner’s views on his charges were consistent.
12 The Tribunal ultimately was not assisted by Mr Webeck’s report. The Costs Assessor and the Review Panel that dealt with the Practitioner’s charges found that no disclosure had been made by the Practitioner at the time he was retained as required under s175. Mr Webeck assumed for the present purposes that the appropriate disclosure was in fact made. The report asserts that Mr Webeck “would have in all likelihood allowed the hourly rates (as claimed) for the period 1994 to 2000.”
13 However, the Tribunal has already made findings on the effect of the Review Panel’s decision; the Panel determined the costs to which the Practitioner was entitled and that was binding on the Practitioner. The report although it does not spell out a total amount that in Mr Webeck’s view represents the Practitioner’s entitlement is tantamount to a traverse of issues already determined by the Tribunal. The report does not establish what was in the Practitioner’s mind when the charges were made. It does appear from the submission of this report that the Practitioner has sought to defend his charges notwithstanding the Tribunal’s findings. The late filing of this material which was repeated when later directions for the filing of material on or before 17 March 2005 were not complied with by the Practitioner appears consistent with the priority given by the Practitioner to the requests of the costs assessor and the conduct of these proceedings.
14 The Practitioner’s Counsel also sought to tender part of page 5 and all of page 6 of the report of Mr Hardman and two bills annexed to that report plus the Practitioner’s account to his client. Mr Hardman’s report with its annexures was ruled by the Tribunal to be inadmissible in the hearing limited to the misconduct issues on 28 July 2004.
15 Counsel in tendering this material on behalf of the Practitioner asserted:
16 The Tribunal responded in these terms:
“They do show, when taken together, what the totality of charges based on those figures would be, and they are relevant, in my respectful submissions, to the question of whether, in the circumstances, the overcharging is gross, and the state of mind of Mr Nikolaidis when making those charges.”
17 The Tribunal in fairness to the Practitioner admitted this material for the purposes of its final determination of the outcome of these proceedings. The alternate charges propounded by Mr Hardman do not assist as the proper costs have been determined in the costs assessment procedure and the Tribunal has already made findings against the Practitioner on the relevant issues including a finding that the charges were “grossly excessive” . This material does not assist the Tribunal in assessing the state of mind of the Practitioner when the costs were charged and, indeed, it is hard to view it as anything other than being tendered to support the costs charged by the practitioner.
The Practitioner’s Counsel then withdrew the first basis of tender and asserted the relevance only
“As far as the first matter is concerned, there is a finding that the charge was gross, so if you are submitting on that basis, the tender is quite objectionable. So, I’d ask you to withdraw that. If you are tendering on the basis that [the material] shows his state of mind, that’s a different issue.”
“on the basis of the practitioner’s state of mind and whether it was reasonable for him to hold the belief that he was not overcharging.”
18 The Hardman report was prepared in the course of these proceedings on the following instructions of the Practitioner’s firm:
19 The report is based on assumptions nominated by the Practitioner’s firm that are simply inconsistent with the findings of the Review Panel. The report has the effect in this submission of asserting that the Review Panel was wrong and it also traverses the Tribunal’s finding of deliberate charging of grossly excessive costs.
“We seek to retain you to prepare an itemised bill with reference to the file for the period 29 August 1994 to 26 May 2000 and our costing records. We would provide you with the following information and instruct you to make the following assumptions for the purpose of preparing the bill:
(i) the identity, experience and role within the firm of each person who did any work;
(ii) the assumption that there was a valid costs agreement in place during the whole of the relevant period;
(iii) where the costing records may be ambiguous, such further information as is available to us to identify precisely who did what, or in the absence of such instructions you are to take the most conservative position;
(iv) the assumption that all work recorded on the time costing record was undertaken and necessary for the conduct of the matter; and
(v) in respect of work that the file demonstrates was undertaken but is not recorded on costing records, you would insert in the bill such claim as you consider is reasonable based on the evidence available to you. Where there is no evidence as to the person who undertook the work you would assume it was undertaken by the person who had carriage of the file at the relevant time and where is no evidence on which to make an assessment the length of time, you are to assume that it was 1 unit.
We would also ask you then to record on the bill such reductions as you would consider are required where the amount claimed is to be excessive, work claimed is clearly not chargeable to the client e.g. preparation of bills or where you may otherwise be provided instructions eg that the recorded attendance to produce the bill that in your professional opinion should properly have been rendered (‘allowable work’).
Following on from that assessment, we would ask you to include two additional columns. The first would apply to the allowable work the rates determined by the Costs Review Panel that had reviewed an assessment of another bill rendered in relation to the file. The second additional column would apply such rates as you would consider a fair and reasonable (upon the basis that there was no valid costs agreement in place).”
20 The section of Mr Hardman’s report, the two bills he prepared and the Practitioner’s bill of costs to his client do not assist us in determining the state of mind of the Practitioner in relation to these charges when his bill was sent to his client nor do they assist us in determining the proper orders to be made bearing in mind the finding of the Tribunal on the second Complaint made on 1 November 2004 (see Legal Services Commission v Nikolaidis No. 2 above).
21 By consent an Affidavit of the Manager of the Professional Standards Department of the Law Society of New South Wales, Raymond John Collins, sworn on 24 February 2005 tendered by the Commissioner was admitted into evidence. This affidavit recorded the opening of 48 complaint files in relation to the Practitioner which resulted in three reprimands of the Practitioner, two in 1994 and one in 1999. The reprimands were recorded as follows:
22 On 28 February 2005 written submissions by Counsel for both parties were before the Tribunal and these were expanded by oral submissions. The Practitioner’s submissions included reference to a prior finding of professional misconduct against the practitioner by the Tribunal on 26 May 1998 Re Leon Nikolaidis [1998] NSWLST 5 (“the prior matter”).
a) The solicitor failed to pay funds of the complainant into his trust account and applied those funds in payment of costs and disbursements without authority and without having rendered a bill of costs. The Committee accepts that the solicitor’s action was not wilful and notes that the funds amounting to $1,500.00 were received by the solicitor on 19 September 1988 and were absorbed by bills of costs sent by the solicitor to the complainant on 20 September 1988 and 10 October 1988.
b) The Solicitor delaued (sic) in forwarding the statutory notification to the proper insurer within the requisite time.
c) Delay in honouring an undertaking. Ignoring correspondence.
23 The findings and reasons given in the prior matter are matters of concern to the Tribunal in this present matter and will be referred to again later.
24 In those written submissions the Practitioner relied inter alia upon the following further matters in relation to the final orders:
25 The Tribunal has in fact adopted and applied that submission in the context of these proceedings. The various appeals and/or applications for leave to appeal made or foreshadowed by the Practitioner and the applications for stay have focussed on the second ground of complaint. Indeed, Mr Lindsay SC, who appeared for the Practitioner on the final day of the hearings conceded [p18 at 42-48] as follows:
“The charges should be treated separately both as to their seriousness and the imposition of penalty.”
26 Mr Lindsay advised that a summons for leave to appeal in the Court of Appeal was filed on 20 January 2005 returnable on 11 April 2005 and anticipated that on that date the Practitioner would seek to have the summons stood over to enable the Tribunal to deliver its final decision.
“Our basic submission is that we accept the findings made by the Tribunal in respect of ground 1, that some form of order would be made referable to the solicitor. If the tribunal were to accept our submissions today on ground 2, and to dismiss that part of the information, then obviously no question would arise about the relevance of ground 2.”
27 In these circumstances the Tribunal has decided to make a separate set of orders for each of the two complaints so that, irrespective of further proceedings on the second complaint, this decision will, subject to there being no separate appeal on the orders being made on the first complaint, at least determine that complaint once and for all and so avoid further expense to the parties and to the justice system in relation to that first complaint.
28 The Practitioner submitted:
29 The Tribunal has given consideration to these matters. It is clear that the Practitioner does not accept the Tribunal’s findings on the overcharging complaint. He is seeking to test those findings on appeal, which is perfectly proper. The Tribunal’s obligation is to make orders in the light of its findings and with its view of the appropriate outcome in the particular circumstances of the matter. Those circumstances include the whole of the evidence and findings including evidence and matters raised on the various stay applications to the extent that they are relevant to the formulation of final orders. There can be no valid suggestion of special leniency for a practitioner who challenges or does not accept the Tribunal’s findings or wishes to challenge the findings on appeal. Similarly, there can be no increment to the penalty by the Tribunal in consequence of the challenge, non-acceptance or pending appeal processes. The first two of the submissions referred to in paragraph 23 are accordingly rejected and the third does not assist the Tribunal which is bound in the discharge of its duties to look at all the evidence together with the various submissions which have been made to the Tribunal and the Court of Appeal that are before the Tribunal.
(i) The Practitioner “challenges the findings of the Tribunal as to the charges of deliberate gross and excessive charges.”
(ii) The Tribunal’s decision is the subject of an application for leave to appeal to the Supreme Court which will be heard on 11 April 2005.
(iii) Reliance is placed on the question of penalty on the submissions made to the Tribunal as to (sic) whether there ought to be a stay of proceedings and furthermore, the submissions to be addressed to the Court of Appeal as to the general nature of the appeal.
30 The Practitioner also submitted:
31 The Tribunal cannot identify in express terms the assertion made in relation to the 21 January 2005 decision but this may have been thought to have arisen from the references to NSW Bar Association v Stevens [2003] NSW CA 95, Bannister v Walton SC NSW CA unreported 30 April 1992 and Sinha v The Health Care Complaints Commission [2001] NSWCA 48. The Tribunal said in its unreported decision in the matter of 21 January 2005 at p7:
“The Tribunal in its decision on the 21st January 2005 expressed the view that a stay ought not to be granted until the decision as to the Tribunal (sic) as to penalty had been determined and the practitioner is content with that issue subject, of course, to the submission that any penalty which the Tribunal may apply should have its operation stayed until the Court of Appeal has determined whether leave ought to be granted.”
32 The Tribunal was not, as the submission might be taken to imply, suggesting the outcome of a stay application made after final orders are made. If such an application were made after this decision is handed down the application would then have to be dealt with on its merits.
“These three decisions do not in the Tribunal’s view assist the practitioner as in each of those three cases the penalty issue had been determined and in each instance the professional person involved was appealing an order that would prevent his or her continuing to practise their profession.”
33 Mr Chippindall then proceeded in his written submissions to the protective nature of the Tribunal’s jurisdiction. He referred to NSW Bar Association v Evatt (1968) 117 CLR 177 at 183:
34 Mr Chippindall also drew our attention to remarks in the Court of Appeal in NSW Bar Association v Cummins (2001) 52 NSW CR 279 at 284 to 286 . He further submitted that, apart from general principles the decision of the Full Court in Re Veron ex parte The Law Society of NSW (1966) 84WN NSW (part 1) 136 is remote from this present matter there being in Veron a general pattern of overcharging over a number of matters. These two submissions were of assistance and have been taken into account by the Tribunal in formulating its orders.
This is a long-established principle.
“The power of the Court to discipline is, however, entirely protective, and notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.”
35 Counsel for the practitioner then set out the provisions of s131, s207 and s208Q of the Act which the Tribunal appreciated in the context of the submissions raised although the Tribunal’s view is that it had clearly taken those provisions into account in finding that professional misconduct had been established.
36 The Practitioner’s submissions then proceeded to a factor “which the Tribunal ought to consider in assessing penalty”. This was expressed as:
37 The orders made by the Tribunal can clearly only reflect the Tribunal’s own decision on the evidence and the proper exercise of its functions whereas in this case it has found that professional misconduct has been established. It is of no assistance in determining the orders to be made for the Practitioner’s counsel to in effect assert in this context that, if the finding of professional misconduct was overruled, the matter will have to be re-heard.
“... the appeal remains on foot and the application for leave to appeal will have to be considered by the Court of Appeal in April 2005. The essence of the challenge of the Tribunal’s decision relies on its reliance on the decision of Veghelyi v The Law Society of NSW unreported 6 October 1995 . The practitioner relies on the submission which he made in respect of the stay application and the submissions which were before the Tribunal in the hearing on the 21 January 2005 (the White Book). If these submissions are upheld and the appeal is allowed, this matter will have to be reheard by the Tribunal.”
38 Mr Chippindall’s written submissions then turned to submissions in relation to the first complaint (under s207(6)). The Tribunal has mainly summarised the submissions and then dealt with each submission.
(i) The Practitioner has not benefited from the course of conduct and, if anything, he suffered. His costs were reduced and he recovered nothing apart from about $2,500.00 prior to 1994.
39 In the view of the Tribunal this submission indicates a lack of appreciation of the matters in issue. The complaint arises out of the Practitioner’s non-compliance with the cost assessor’s notices. It is obvious that the words used by this Tribunal’s predecessor, The Legal Services Tribunal, when the Practitioner was previously the subject of a misconduct complaint, have not been absorbed. In re Leon Nikolaidis 1998 NSW LR 5 the Tribunal said under the heading “Determination” on this issue:
40 It was put to the Tribunal firstly on behalf of the Practitioner a case where there was no suggestion that the Practitioner owed money to the client and therefore the only person to suffer as a result of the delay was the Practitioner. If this is intended to imply that therefore compliance with time limits by the practitioner was not necessary then such an implication is nonsense. The Tribunal rejects this submission. The Act does not distinguish between solicitor beneficiaries or client beneficiaries in costs assessments. The Act says that assessments are to be conducted in a certain way, and they should be, otherwise the system for determination of reasonable and proper costs would break down.
“The relevant legislation imposes on Solicitors an obligation to comply with notices issued by an assessor. The Parliament, in its wisdom, attached a heavy penalty for non-compliance, the rationale for this presumably being that for costs assessments to be done properly, expeditiously and appropriately for the benefit of both solicitors and their clients, it is vital that the independent costs assessors receive the information to which they are entitled to enable them to fulfil their function.”
(ii) The Solicitor “has had to pay the costs of two costs assessments and we might infer the costs of the various proceedings against the client’s former solicitors”.
41 The Tribunal finds that these factors do not constitute any mitigating factors as far as the consequences which flow from his failure to comply with the costs assessor’s notices are concerned. The complaint arose from the Practitioner’s non-compliance with the Act, the payment of the costs of the costs assessor and the review panel arose out of his charges to his client and to the findings made in relation to work done for the client while any costs paid by the Practitioner in consequence of proceedings commenced against his client’s prior solicitor can hardly be relevant to the consequences of his non-compliance with valid notices from the costs assessor.
42 The Tribunal accordingly also rejects this submission.
(iii) The practitioner has produced his whole file to the Tribunal and gave extensive evidence of the history of the dispute. There is no suggestion of any concealment by the practitioner. The penalty he has suffered is a reduction of the fees payable to him from about $28,000.00 to finally about $5,500.00.
43 There has not been any suggestion that the Practitioner has withheld documents or concealed facts or other matters. The Tribunal is entitled to expect that a practitioner against whom a complaint is lodged would behave honourably in the conduct of the proceedings. In the Tribunal’s findings there are some discrepancies in his evidence, but no suggestion of non-disclosure of his file or concealment and since that has been raised while it is to be expected it does certainly go to his credit and has been taken into account in formulating the final orders.
44 The Tribunal does not accept that the Practitioner has suffered the “penalty” claimed for indeed the sums approximately referred to in this submission reflect the complaint of “the deliberate charging of grossly excessive amounts of costs.” which is the second complaint established against the Practitioner. For the sake of precision the costs originally charged by the Practitioner amounted to $28,635.60 and these were reduced in the costs assessment process to $5,820.60.
45 The submissions continued:
(iv) The practitioner delegated the whole of the control of the litigation firstly to his former partner and secondly to employed solicitors. He acknowledged that his system for the preparation of bills “left something to be desired and that he owed an obligation to check the documents which were issued in pursuance of this system. The solicitor who prepared the bill and submitted the bill for assessment is no longer employed by the solicitor. He was one of considerable experience and it was reasonable for the solicitor to have relied upon that solicitor to prepare a proper bill.”
46 Insofar as these submissions relate to the finding of professional misconduct made by the Tribunal on 1 November 2004 the submissions are rejected. The submissions are made in relation to the first complaint and in that context are rejected. The notices were addressed to the Practitioner personally, compliance was his statutory obligation and indeed he subsequently deposed on 29 March 2005 “the notices were at all material times on my desk for my attention”. If the submissions are treated as being intended to relate to the findings on the second count, it does not assist the Tribunal which has made findings on these issues. The Practitioner was in sole practice at the time the bill was issued and it is clear that as a sole practitioner he was responsible for the bill and responsible for the actions of his employees in the conduct of the practice. He concedes that his systems were not adequate. This is not a mitigating event which would have been the case had the Practitioner checked the bill after it was issued and modified the charges so that total charges consistent with or at the very least within an explicable range of amounts determined by the Review Panel’s determination were charged. The complaint is of “deliberately charging of grossly excessive amounts of costs”. The Tribunal has found that charge established and that the conduct is professional misconduct. The Solicitor is responsible for the bill being submitted for assessment and the events that then ensued.
47 In Re Hodgekiss [1962] NSWSR 340, which involved alleged breaches of s43 of the Legal Practitioners Act 1898 Owen J referred at 345, to the solicitor’s evidence being to the effect:
48 Clearly, in that matter some of the responsibilities of Mr Hodgekiss were delegated to others as is the case in this matter but there was no question in Hodgekiss as there can be no question here that the Practitioner was responsible for inadvertence or mistakes of himself and others. S43 of the 1898 Act referred to “wilful failure” and the comments of Hardie J at 352 et seq referred to the decision of Romer J in re City Equitable Fire Insurance Co. Limited [1925] 1CL 407 where the terms “wilful default” and “wilful misconduct” were considered. Hardie J at 353 stated in relation to “wilful failure” in s43:
“Whatever deficiencies there were in what I will call the individual trust accounts were caused by inadvertence or mistake on the part of either some member or members of the appellant’s staff or by his partner or, in some instances, by himself in paying out of the trust account on account of a client amounts in excess of the money held in that account to the client’s credit.”
49 The considerations in In re Hodgekiss (supra) are of some assistance to the Tribunal although the complaint which has been found to be established in this matter relates to a complaint involving the term “deliberate”. Mr Hodgekiss in a Trust account complaint relied in part upon “a firm of competent and reputable accountants, and in addition, upon members of his staff”. (per Hardie J at 357). His Honour was then dealing with the issue of whether the conduct amounted to professional misconduct and this Tribunal has already passed that point in its determination of this matter. However the consideration of this matter has assisted the Tribunal in determining what are in its view the appropriate orders. The billing system of the Practitioner had its shortcomings as his Counsel accepted. In cross-examination on 13 July 2004 at 45 the Practitioner said he did not see or sign the bill in question although he generally signed most bills. He said at 46 in relation to the client’s bill at a time when he was a sole practitioner:
“I am of opinion that the section deals with personal breaches of the statutory provision in question on occasions when the solicitor knew or believed that the was committing such breaches or was recklessly careless in that regard.”
50 The Tribunal has formed the view that the Practitioner was clearly reckless or careless in this matter and that having accepted in his terminology that the Antoni bill was a “contentious bill” he took no action at the time the bill was served or subsequently to check the bill. He cannot now seek to rely on delegation in mitigation of the consequences of the Tribunal’s finding where he clearly recklessly failed at the time or later to check the bill. The Practitioner has promoted the bill and continued to promote it throughout these proceedings.
“Q. When you say ‘contentious bill’, how could it be contentious before it went out? You mean, like a – to the assessor?
A. Well, I mean we knew that Mr Antoni was going to be a contentious matter. He had terminated our retainer, and I think at that time we were aware of allegations already made, many serious allegations about his former solicitor. He’s made allegations about our firm. We knew it was contentious, and I would have expected to see the bill before it went out.”
(v) The Solicitor relied on the advice of his employed solicitor that the s207 notices should be strictly construed and the advice of Mr Harris played some part in the practitioner’s thinking. The affidavit of the practitioner deposed to the advice given by Mr Harris after 6 February 2001 that firstly the costs assessor’s notices of 28 November 2000 were then functus and did not give rise to a continuing obligation to comply, secondly the assessor had to issue a further notice for there to be statutory compulsion and the attendance protection of the person responding; thirdly where there was non-compliance or inadequate compliance a further order (see notice) was required and finally any subsequent compliance would not affect the fact that non-compliance had occurred.
51 The purpose of the s207 notices as the Tribunal pointed out to the Practitioner in the prior matter in 1998 was, in effect, to achieve compliance with notices by a practitioner. There is no suggestion that the section is intended to produce complaints to the Tribunal for the prospect of such complaints is part of the armoury designed to achieve compliance and help the system of assessment to function “property, expeditiously and appropriately” as already quoted from the decision in the prior matter. The Tribunal in its reasons for decision on 1 November 2004 found at para 29 that the advice of Mr Harris “was clearly wrong and the conduct of the Practitioner between February 2001 and June 2001 is clearly inconsistent with the practitioner having accepted or acted on that advice.” The submission (iv) does not assist the Tribunal in its consideration of the appropriate final orders it should make.
52 In view of his experience in the prior matter any question of his reliance on the advice of Mr Harris is not credible.
53 The next submission of the Practitioner’s Counsel may be summarised as follows:
(vi) (a) The suggestion that the finding of the costs assessor, as it were, binds all parties is the subject of the appeal and even if it were so, it is submitted that it was open to the practitioner to consider whether or not he would subject the decision of the Review Panel to a review under sections 208 of the Legal Profession Act 1987 and for reasons which he explained in cross-examination, he decided not to do so.
54 This issue appears to relate in part at least to both complaints. The Tribunal holds that it is obliged to determine the proper final orders to be made on the basis of its findings. There was in fact at that time no application by the Practitioner to appeal or seek leave to appeal the decision of the Review Panel although later on 28 February 2005 the Practitioner sought an adjournment so that such an application might be made. In the Tribunal’s findings the costs determined as fair and reasonable by the Review Panel were the costs the Practitioner was entitled to charge and the yardstick against which the charges actually made should in this case be measured. The Tribunal finds that this submission is not relevant to the issues to be decided and in common with a number of other similar submissions relates to the issue of professional misconduct that has, for the purposes of this hearing, been resolved and not to the “penalty” issue which is the remaining matter for the Tribunal to determine to complete these proceedings.
(vi) (b) Although the handling of the matter in the practitioner’s office left a good deal to be desired, the practitioner’s conduct in respect of these charges goes (sic) no wilful defiance of his obligations under the Act although his obligations were clearly less than as prompt as the legislation would embrace. It deserves a reprimand. It is acknowledged freely that the practitioner should have had more regard to the notices and should have endeavoured to meet their requirements other than raise, as he did, issued arising out of constructions of other legislation and delay caused by the necessity of talking to his former partner.
55 The wording of submission (vi) (b) has some difficulties. In the view of the Tribunal the Commissioner did not have to establish “wilful defiance” to establish the first complaint to which this submission relates and no such finding has been made. The submission at least indicated that the Practitioner through his Counsel acknowledges his error in showing insufficient “regard” to his obligations to comply with such notices and not to raise issues causing delay. This acknowledgement has been taken into account to the Practitioner’s credit in formulating the final orders.
56 It is noted that in the prior matter in which the determination was handed down in May 1998 the Practitioner received a reprimand. However, that reprimand did not result in the Practitioner taking adequate and proper steps to respond promptly to the notices issued on 28 November 2000 which were the subject of the first complaint in this matter. The reasons for the Tribunal’s findings are detailed in the decision of 1st November 2004 which need not be repeated here. The matter is serious and indicates, in the Tribunal’s view, that the Practitioner and the profession at large need to realise that these matters are important to the proper resolution of costs issues and so also important to the administration of justice. The Tribunal finds that to impose a further reprimand by itself would be to fail in its protective role [see Evatt’s case supra para 29]. The Tribunal finds that a disciplinary order which will have more impact on the Practitioner and other members of the profession is called for. That order should reflect the serious nature of the misconduct in this matter as a clear indication to this Practitioner and to members of the legal profession generally and as a reassurance to the community that practitioners who fail to comply with the cost assessments procedures will be dealt with appropriately.
57 The next submission may be summarised in the following terms:
(vii) The penalty that the practitioner has suffered is an assessment of his costs at a minimum level which assessment was reversed in part by the Review Panel. It is easy to understand why, in the events that have happened, a practitioner would not involve himself in the expense of an appeal under section 208L which is, of course, confined to issues of law or 208M which is a general application for leave. It has been said in a number of decisions of the Court of Appeal, the avenues of appeal are limited. In view of the relatively small amount of money involved, the Tribunal should infer that the decision by the practitioner not to challenge these matters further was reasonable in the circumstances and not evidence that he accepted the appeal panel’s findings. He, of course, is the one who suffers the penalty for this decision not only does he recover nothing for his costs but, in addition, he has had to pay the costs of the original assessment before Mr McNally and the costs of the Review Panel.
58 The Practitioner has been found guilty of professional misconduct on the first complaint. The assessment process determined his entitlement to costs and in no way affected his right to recover his proper costs from his client. The decisions of the assessor and the Review Panel are not “penalties”. The decisions simply reduced his charges under the assessment process to fair and reasonable charges. The requirement to pay costs of the process is a reflection of the solicitor seeking to recover costs in the particular matter. The Tribunal finds there are no penalties as such suffered by the Practitioner in the material put on his behalf in the previous paragraph and that this submission does not assist the Tribunal in its remaining task of making the appropriate final orders to follow the findings of professional misconduct.
59 The final assertion in relation to the Practitioner’s decision not to challenge the decision of the Review Panel, the Tribunal also finds irrelevant for the end result is what should be looked at. The issue is the relationship between the costs determined by the Review Panel in what, there being no appeal or application for leave, became the final act in the assessment process in this matter and the total costs charged to the client. Both sums are determined and clear.
(viii) The Practitioner acknowledged that he had previously faced a charge (in the prior matter) under s207 when he was found guilty. He was reprimanded and there are some similarities in the events that happened.
60 This is a reference to the prior matter (para 20) and constitutes a disclosure and acknowledgement and it is appropriate to deal with the prior matter at this stage.
61 In the prior matter reliance was placed upon six separate notices issued under s207 of the Act by the costs assessor engaged to assess the costs of the practitioner following a request from a client of the Practitioner. There are similarities between the prior matter and these present proceedings which the Tribunal finds disturbing. It was accepted that the Practitioner had a reasonable excuse for not complying with the first notice of 20 September 1996 as he was unaware of it until he returned from overseas on 8 October 1996. The Practitioner’s evidence quoted in the decision in relation to the notices included a conversation the Practitioner had with his secretary to the following effect from his evidence:
62 On 1 November 2004 when the Tribunal made the finding on conduct in this matter it was quite properly unaware of the prior matter. The Tribunal had previously accepted the agreement of Counsel for both parties that the Tribunal should first determine the conduct complaints and only then proceed subsequently to hearing submission on the issue of orders to be made (if any). In its decision of 1 November 2004 the Tribunal rejected the Practitioner’s evidence that the notices of the assessor were functus and his argument that the notices did not give rise to a continuing obligation to comply after the date fixed for compliance. The Tribunal is concerned that this excuse should be proffered by the Practitioner when he had previously been found guilty of professional misconduct under s207(6) of the Act in the prior matter. In the prior matter he clearly sought to raise unsuccessfully the issue of “reasonable excuse” without seeking to rely, as he did in this matter on the specious functus response.
And in relation to the preparation of an itemised bill of costs which the Practitioner proposed to submit to the costs assessor in the prior matter he is quoted as saying before he left for overseas in his evidence:
“You had better keep contact with the Costs Assessor and let him know how you are travelling in preparing the bill and obtain from him any necessary extensions of time because we have a lot on our plate between now and Christmas and we will have to seriously prioritise some of the work.”
“it was a low priority because we didn’t, we couldn’t complete it within time without prejudicing or deferring other work that we were doing for clients.”
63 In his affidavit sworn 6 April 2004 the Practitioner acknowledged receipt of the two s207 notices from the costs assessor on 29 November 2000. His evidence of the “functus” advice from Mr Harris is based on information and belief of Mr Harris’ recollection of Mr Harris’ advice. He adopted in his affidavit the estimate of Mr Harris that this advice was given after the Practitioner received a letter dated 6 February 2001. The Tribunal has already examined these issues in its published decision when it found the first complaint established.
64 The Practitioner’s conduct was inconsistent with the advice which he raised by way of explanation. In cross-examination on 13 July 2004 the Practitioner acknowledged that he understood the notices. He stated “the document just could not be responded to without the assistance of the person that had the carriage of the matter.” He failed to seek an extension of time or to explain any difficulties he was experiencing to the assessor once he had received the notices as would have been the proper and professional approach. The Practitioner (p26) agreed that he was aware at the time of receiving the notices of another decision of the Tribunal which included the following assertion:
65 The decision in question was not identified at that time but the excerpt was later seen to be a quote from the decision in the prior matter. The Practitioner’s conduct has been consistent in both matters. He chose in both matters to delegate to his staff compliance with notices that entailed a personal obligation on the Practitioner, he failed to fulfil his obligations in the costs assessment procedures which appear in the Practitioner’s mind to not be of high priority or warrant the personal acts of courtesy such as explaining delays and seeking extensions of time that basic common sense demand.
“The relevant legislation imposes on solicitors an obligation to comply with notices issued by an assessor. The parliament, in its wisdom, attached a heavy penalty for noncompliance, the rationale for this presumably being that, for costs assessments to be done properly, expeditiously, and appropriately for the benefit of both solicitors and their clients, it is vital that the independent costs assessors receive the information to which they are entitled, to enable them to fulfil their function.”
66 The professional misconduct of the Practitioner under Section 207 is seen in a more serious light when it is appreciated that the Practitioner had previously been found guilty on a similar complaint in the prior matter.
67 The final submission under this heading was in the following terms:
68 The Tribunal has found that the Practitioner was entitled to his proper costs as determined by the Review Panel. This final submission goes to the issue as to whether professional misconduct occurred and that finding has already been made.
“It is submitted that in a matter in which the practitioner had been only incidentally involved, it was reasonable for him to seek the assistance of his former partner and to obtain from his former partner, both a Statutory Declaration and an affidavit. Both of these documents were read before the Tribunal and the former partner, Mr Michael Zwar, was not required for cross-examination. It may be inferred, it is submitted, that the informant did not wish to challenge his evidence of the events that happened; the history of Zwar’s dealings with the former client and the fact that Mr Zwar had submitted to the former client a fees agreement which was not returned. The whole history of the matter is contained in the submissions addressed to the Tribunal and they show a history of events that which it can hardly be suggested that this particular client did not know what he was being charged with or, for that matter, that there was a history of over servicing.”
The Second Ground of Complaint:
69 The first paragraph of the Practitioner’s written submissions on this complaint (paragraph 10) canvasses findings of the Tribunal and issues in the Practitioner’s pending appeal and the consequences of that appeal being successful. These are not relevant matters in the determination of the appropriate disciplinary order that the Tribunal should now make.
70 In the following paragraph of the Practitioner’s submissions list are what are asserted to be the relevant factors and these are summarised by numbered sub paragraphs below:
71 The Tribunal will deal with the consequences of the orders sought separately below. The evidence does not suggest dishonesty, misappropriation or a regime of regular overcharging and these are not issues in the second complaint although the Tribunal has found that the conduct amounts to professional misconduct and the consequences of that and the seriousness of the material have been taken into account by the Tribunal in its deliberations. The Tribunal does not see the finding on the prior matter as a mitigating factor but it does accept that other practitioners have been the subject of multiple complaints over a period of years (see for example Law Society of NSW v Berry [2005] NSWADT 46 to which further reference is made below).
(i) The Commissioner seeks a fine and a reprimand not the removal of the practitioner from the Roll. There is no suggestion of dishonesty, misappropriation or a regime of regular overcharging and the practitioner has only been before the Tribunal once previously.
72 The Tribunal accepts this and has at no stage dealt with this matter on the basis that vulnerability was involved.
This is a business decision of the practitioner which the Tribunal finds is not relevant to its present determination.
(ii) (a) The practitioner has not enforced his costs entitlement of $5,820.60.
These matters have already been dealt with above and are not relevant to the present disciplinary determination.
(b) The practitioner “has suffered the matters referred to earlier… together with a penalty in effect imposed upon him by requiring him to pay the costs of the various assessments.”
(c) There is no suggestion that the former client was vulnerable to solicitors within the meaning of Timothy Rybeck 1997 NSW LST6.
73 The Tribunal finds it hard to see this submission other than one simply disputing the Tribunal’s finding that the proper costs to which the Practitioner was entitled were those determined in the costs assessment process. The Practitioner properly sought assessment of his costs by a costs assessor when the client failed to pay the Practitioner’s account. This submission is not helpful to this determination.
(d) There is every suggestion that the client knew what he was being charged and he might expect to pay.
74 The Tribunal does not see much advantage to the Practitioner in such reliance as the paragraphs referred to do not generally have much relevance to this set of facts or to contain comments which would assist the Tribunal in reaching a proper decision. The Tribunal has indeed sought to address each of the submissions of the Practitioner but has unfortunately found that many do not assist and many indeed seek to re-argue findings already made. However having had detailed written submissions and been addressed for much of one day by Junior Counsel for the Practitioner and much of a second day by his Senior Counsel who adopted and expanded the submissions previously made the Tribunal feels that despite the repetition involved it should as far as possible address each submission.
(iii) The Practitioner relies on what was said on the issues as to penalty in NSW Bar Association v Amor-Smith [2003] NSW ADT 237 at paragraphs 136 to 145 and the Tribunal’s conclusions at 163-167.
68. The paragraphs 136 to 145 deal with the following:
75 The Tribunal does not see how the Practitioner and his advisers could seriously seek to rely on this paragraph in relation to penalty. The Practitioner’s submissions made significant references to matters where strike off orders had been made but the issues were either not addressed or inadequately addressed by him and he maintained a consistent approach that the finding against him “of deliberate charging of grossly excessive amounts of costs” was wrong and was the subject of appeal.
(136) Delay of 4 years between Tribunal hearing and hearing in Court of Appeal – not a factor in this matter.
(137) The conduct of Mr Amor-Smith (“the barrister” in this paragraph) was conduct less serious than that of Veghelyi (see Veghelyi v The Law Society of NSW – NSW Court of Appeal unreported 6 October 1995) in that the misconduct was limited to one occasion and the charge of almost $240,000 was twice the costs assessor’s determination of about $120,000. Ultimately, at para 149 the Tribunal found that the barrister had through the costs assessment process been found to have charged nearly five times a fair and reasonable amount for his services. This hardly helps Mr Nikolaidis because his charges were about five times those determined by the Costs Panel. The barrister was removed from the roll of legal practitioners while Veghelyi (supra) was also struck off after adverse findings inter alia in relation to the practitioner’s dealings with 16 clients including 11 findings of gross overcharging, and 8 of wilful breaches of s41 of the Legal Practitioners Act.
(138) This paragraph relates to a submission that the barrister became unduly obsessive about his brief and unduly concerned that he might be liable for professional negligence. To summarise this paragraph is to call into question why irrelevant submissions were made consistently by the Practitioner.
(139) An error of judgement led the barrister to spend an excessive period of time on the particular case – that is not the complaint or evidence against Mr Nikolaidis – the finding was of “gross overcharging”.
(140) The barrister’s submission in terms that his fee recording was subject to compromise in recognition that barristers do not always receive the full amount that they charge is not seen by the Tribunal as any vindication of the charges and there is no evidence that this Practitioner ever sought to review his charges or compromise them which would, while in no way excusing his gross overcharging, have been a mitigating factor in this disciplinary aspect of this matter.
(141) This paragraph dealt with some issues of contrition in the barrister’s case. The Practitioner has consistently maintained that his charges were proper so his reliance on this paragraph does not assist his cause.
(142) The barrister had been in practice about 30 years and had been found guilty of what was described as “only one professional misdemeanour” namely speaking to a witness who was under cross-examination for which the barrister was fined. The Practitioner has been in practice for about 25 years and has one adverse finding that being in the prior matter. The barrister was struck off for overcharging and over-servicing while Veghelyi was struck off for gross overcharging and other misconduct. The Tribunal has found that the Practitioner has been guilty of gross overcharging and while there are some parallels this paragraph from Amor-Smith does not help the Practitioner.
(143) The barrister relied upon three positive character references but that was hardly relevant to this matter for when these submissions were made on what was, at that stage, intended to be the final day of the hearing, the Practitioner had not produced any references. Fortunately this was one of a number of shortcomings in the Practitioner’s submissions that was finally addressed when the practitioner in effect accepted the suggestion of the Tribunal.
(144) The unspecified unhappy aspects of the barrister’s early life, the impact of a strike-off order on his daughter and the fact that he was relinquishing practice are not factors that have any relevance to the Practitioner’s situation.
(145) This paragraph reads as follows:
“On these grounds, Ms Anderson submitted that an order removing the Barrister from the roll would be excessively severe and hurtful to him having regard to the level of misconduct in which he had engaged, and was not necessary to protect professional and public interests in the light of his undertaking to relinquish legal practice.”
76 Counsel asserted that the Practitioner’s misconduct is distinguishable from the misconduct in the gross overcharging findings referred to in Amor-Smith (supra). There was no deduction of excessive costs from a verdict by this Practitioner, nothing to suggest the client was vulnerable in having just been successful at trial or just achieved a settlement nor of any financial benefit to the Practitioner. The evidence suggests he should have paid more attention to his costing records system and verified himself that work was properly done and properly charged. The submission concluded:
(163-167) The Tribunal does not find it appropriate to detail each of these paragraphs on which the Practitioner relies for they follow much the same pattern and are mainly particular to the barrister’s case or refer to matters already dealt with elsewhere in this decision. However, it is worth noting that in 164 the Tribunal referred to Legal Practitioners Conduct Board v Hannaford [2002] 83 SASR 277 and asserted:
(iv) In the fourth and final submission under this heading the Practitioner submitted that the misconduct in Amor-Smith set the present case apart from other cases of gross overcharging.
“It cannot be the case, however, that misconduct on a single occasion only, or in the context of a single retainer, can never provide sufficient grounds for removal from the roll.”
77 The Tribunal accepts that there are factors which distinguish this case from some other overcharging matters and notes the practitioner’s admissions in relation to his costing records system and the need for personal verification. This represents progress from the position he took during the hearing. The issue of the significance of the order sought by the Commissioner will be dealt with subsequently.
“It is significant that this informant has not sought an order that he be removed from the roll or that his practising certificate should be cancelled.”
78 The Practitioner’s Counsel submitted in paragraph 12 that the Practitioner “acknowledged freely that the administration of this case [i.e. Antoni] left something to be desired”. There was no pattern of overcharging as in Veghelyi (Veghelyi v Law Society of NSW 6 December 1995 unreported Court of Appeal) nor “the obsession of Amor-Smith (supra) and there was no systematic scheme to take advantage of clients as in Veron (supra)”. These matters have already been referred to.
79 The submissions continued by referring to the Practitioner having been in practice about 25 years initially as a barrister and then as a solicitor.
80 The Tribunal accepts there is no evidence that suggests the Practitioner is other than a man of integrity. The guarded admission is unfortunate, though it is consistent with the attitude of the Practitioner towards the cost assessment procedure where, in the Tribunal’s view, he displayed arrogance and a lack of understanding of his duties vis a vis the assessment process.
“Nothing has been led against him as to personal integrity. It may be true that there has been a degree of inattention in this litigation but, it is submitted, no more.”
81 Counsel then referred to page 6 of the Hardman report which was admitted into evidence for this final part of the hearing and which has been dealt with above. The Tribunal has already determined the issue of what were the proper costs of the Practitioner and in these circumstances is not assisted by the references to reasonable rates of charges and the evidence of Mr Zwar. The Tribunal has for the purposes of these proceedings determined these issues and these submissions and the lengthy quotation from Veghelyi (supra) cannot take the matter further. Indeed, the discrepancies in the charges to Mrs Phelps in Veghelyi (supra) pale somewhat into relative insignificance when compared with the extent of the overcharging found against the Practitioner in this matter.
82 Finally, in relation to what he described as the issue of penalty which is perhaps a convenient but inappropriate word (see Evatt’s case supra) Counsel submitted the Tribunal should take into account at least the following factors.
(i) A taxing officer (if under the old system) is an officer of the Court; a costs assessor is not.
83 Both the former system of taxation of costs and the present system of assessment of costs were designed to determine proper costs. The fact that an assessor is not an officer of the Court does not in the finding of this Tribunal affect the authority of the assessor to issue s207 notices, nor does it disentitle the assessor from receiving the same courtesy and co-operation as formerly a taxing officer was entitled to receive. The Tribunal finds that this issue of status does not have any bearing on the determination of the appropriate final orders by this Tribunal.
(ii) The taxation system operated in an adversarial situation; the costs assessor, in the contrary, does not;
84 The Tribunal accepts that the procedures have changed significantly, although there remains some adversarial aspects with issues being dealt with by correspondence rather than in a hearing. The Tribunal finds that this change of systems is not relevant to the matters remaining to be determined by it.
(iii) It is relevant to consider the expressed views of assessors of what are reasonable charges;
85 The Tribunal has already considered the evidence of the assessor and the Review Panel in reaching its finding on the complaints. If this submission is intended to refer rather to the evidence of costs experts other than the assessors the Tribunal has already made rulings above on the evidence of Messrs Hardman and Webeck tendered in relation to this part of the overall hearing.
(iv) The majority of the work done by the Practitioner was done on the express instructions of his former client and in accordance with the costs agreement and, in particular, the complaints to the Law Society about the conduct of the client’s former solicitors.
86 These matters go to the correctness or otherwise of the determination of the Review Panel and the ruling by the Tribunal that the proper costs of the Practitioner in this matter was the sum of $5,820.60 as determined by the Review Panel and that this determination was binding upon the Practitioner. There are limited circumstances where the determination of the costs assessment process can be further challenged and the Practitioner did not to pursue those avenues.
87 In conclusion, Mr Chippindall reiterated the orders sought by the Commission and repeated that the Commissioner had not sought a strike off order.
88 In relation to costs the Practitioner submitted that each party should pay their own costs which he asserted is the usual practice in the Tribunal. He relied upon Hutchings Electrical Pty Limited v Director General Department of Fair Trading (No. 2) [2002] NSWADT 755 which was a matter in the General Division of the Tribunal and quoted s88 of the Administrative Decisions Act 1997 which is in the following terms:
89 The reference to Hutchings does not assist the Tribunal. In that matter the Tribunal did make an order for costs having found that “the special circumstances” test in s88(1) had been satisfied and , indeed, expressed the view that the circumstances would also satisfy the tests under the Victorian Civil and Administration Tribunal Act 1998 . At para 29, the Tribunal said:
“88 Costs.
(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.
(2)The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in Division 6 of Part II of the Legal Profession Act 1987 or on any other basis.
3. However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
4. In this section, “costs” includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.”
90 The Practitioner’s submission on costs is in terms that unless special circumstances are shown each party should pay their own costs. However this submission is erroneous in the Tribunal’s view. There is indeed another Act within the terms of s88(i): Section 171E of the Legal Profession Act 1987 reads, as far as is relevant:
“I agree with the Applicants in that I consider that these findings are sufficient to allow the circumstances of this matter to be considered as special circumstances… These are complex proceedings in which the Applicants would have been put to expense that they should not have incurred because in my view the proceedings should never have been commenced. I am therefore satisfied that there are special circumstances warranting an award of costs as required by section 88(1) of the ADT Act.”
91 The normal order in the Legal Services Division of the Tribunal is for practitioners against whom findings of unsatisfactory professional conduct or professional misconduct are made to be ordered to pay the costs of the proceedings. The Tribunal does have a discretion as to whether or not it makes an order for costs. The costs of a successful practitioner are not ordered against the other party (complainant) but may if the Tribunal considers special circumstances so warrant be ordered to be paid from the Public Purposes Fund. The legislation recognises the reality that such proceedings arise out of the complaints made in relation to the conduct of a member of, or an employee in, an honourable profession upon which the administration of justice depends. The informant in this matter is a creature of stature charged with the responsibility of investigating and bringing to the Tribunal complaints such as these present ones against Mr Nikolaidis. The Tribunal rejects the Practitioner’s submission on costs and is comfortably satisfied that this is a proper case, where the misconduct of the Practitioner has led to these proceedings, for the Practitioner to be ordered to pay the Commissioner’s costs of and incidental to these proceedings and an order reflecting this view will be made in this matter.
“171E (1) The Tribunal may make orders requiring a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Commissioner, the appropriate Council and the complainant).
(2) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment form the Public Purpose Fund to the practitioner of the legal practitioner’s costs.
(3) An order for costs:
a) may be for a specified amount or an unspecified amount, and
(b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and
(c) may specify the terms on which costs must be paid.”
92 In the course of the proceedings the costs of some applications brought unsuccessfully by the Practitioner were reserved. The proceedings now having been determined against the Practitioner with findings of professional misconduct on both grounds alleged the Tribunal orders that the costs to be paid by the Practitioner shall, for the sake of clarity include all reserved costs of the Commissioner.
93 After the Practitioner’s Counsel had completed his tender of material on this phase of the proceedings and completed his submissions the Tribunal bearing in mind the submissions and the material before it offered the Practitioner a short adjournment to consider his position. The presiding officer said (t18 of 28 February 2005):-
94 A short adjournment was then sought and granted so that Counsel might give advice and take instructions.
“This is a very serious matter and the Tribunal must consider all possible penalties prescribed for in the legislation. That does include a striking off order, or a suspension order. Not necessarily so, but it should not come as a surprise to you or your client.”
95 The Practitioner in his submissions referred a number of times to the power to strike off and emphasised that such an order was not sought in these proceedings. The Tribunal has taken the view that a “strike-off” or suspension order can be made in an appropriate case, irrespective of the disciplinary orders sought by the applicant. S171C of the Legal Profession Act 1987 sets out the orders that the Tribunal can make in the following terms:
96 In the view of the Tribunal its powers to make orders under s171C are not fettered by the orders sought by the complainant. However, where a lower level disciplinary order is sought by the complainant the Tribunal should as a matter of procedural fairness alert the respondent practitioner if it becomes apparent that a higher level of disciplinary order may be appropriate or should, at least, be considered.
“ 171C Determinations of Tribunal
(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following:
(2) In the case of a solicitor, the Tribunal may do any one or more of the following:
(a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct,
(a1) order that the name of the interstate legal practitioner be removed by the appropriate regulatory authority of another State or a Territory from the roll of that State or Territory that corresponds to the role of legal practitioners if the interstate legal practitioner is guilty of professional misconduct,
(b) order that the legal practitioner’s practising certificate be cancelled,
(c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order,
(c1) order that the appropriate regulatory authority of another State or a Territory cancel the interstate legal practitioner’s practising certificate or order that an interstate practising certificate not be issued to the interstate legal practitioner until the end of the period specified in the order,
(d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct,
(e) make an order publicly reprimanding the legal practitioner or, if there are special circumstances, privately reprimanding the legal practitioner,
(f) order that the legal practitioner undertake and complete a course of further legal education specified in the order,
(f1) in the case of a barrister who is a public notary, order that the barrister cease to accept instructions in relation to notarial services,
(g) in the case of a solicitor, make any one or more of the orders referred to in subsection (2),
(g1) in the case of a locally registered foreign lawyer, order that the registration of the foreign lawyer under Part 3C be cancelled,
Note: This section applies to locally registered foreign lawyers. See section 48ZV.
(h) if applicable, make a compensation order,
(i) make ancillary orders.
(3) If the Tribunal makes an order publicly reprimanding a legal practitioner, the Tribunal is to publish the order and a statement of its reasons for making the order.
(b) order that the solicitor’s practice be subject to periodic inspection by the person, and for the period, specified in the order,
(c) order that the solicitor seek advice in relation to the management of the solicitor’s practice form the person specified in the order,
(d) order that the solicitor cease to employ in the solicitor’s practice the person specified in the order,
(e) order that the solicitor employ in the solicitor’s practice a person belonging to the class of persons specified in the order,
(f) order that that solicitor cease to accept instructions in relation to the class of legal services specified in the order,
(g) order that the solicitor’s practising certificate be endorsed with a condition restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate,
(h) order that the appropriate regulatory authority of another State or a Territory endorse the interstate practising certificate of a solicitor who is an interstate legal practitioner with a condition restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate (or its equivalent) in that State or Territory.
(4) If the Tribunal makes an order privately reprimanding a legal practitioner, the Tribunal is to provide the appropriate Council and the Commissioner with a copy of the order and a statement of its reasons for making the order.
(5) It is sufficient compliance with the requirement to publish an order under subsection (3) if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner’s functions in respect of the register of disciplinary action required to be kept under Division 9A.”
97 In re Francis William Bannister 1990 NSW LST 7 heard in the Legal Profession Disciplinary Tribunal the Law Society left it to the Tribunal to decide whether the solicitor was unfit and whether or not his name should be removed from the roll. The Society sought an order pursuant to s163 “and such further or other order as the Tribunal shall consider appropriate” and costs. On appeal in Law Society of NSW v Bannister [1993] NSWLST6 Sheller JA (with whom Gleeson CJ and Handley JA agreed) said at p11 in relation to the issue of Bannister’s fitness to practice and the Society’s attitude:
98 The Tribunal after initial division between the members fined Bannister $10,000. The Society appealed and the Court of Appeal was firmly of the view that Bannister should be removed form the roll. This Tribunal is of the view that had the Society in Bannister not adopted an equivocal stance but instead sought the imposition of a fine it would still have been open to the Tribunal, as it was on appeal to the Court, to make a strike-off order. Since submissions in this matter closed the decision of the Tribunal in Law Society of New South Wales v Berry (supra) has been published where the Society sought in its application a reprimand, a fine and an order for costs. This was the third occasion Berry had been found guilty by the Tribunal of professional misconduct involving non-compliance with s152 notices, and it was his fifth appearance before the Tribunal in 13 years. The Tribunal, notwithstanding the orders sought the by the Society, found the admitted professional misconduct proved and proceeded to consider what order it should make within the regime established by s171C-171E of the Legal Profession Act 1987 . The Tribunal declared:
“On more than one occasion during submissions to the Tribunal its Counsel indicated that the Law Society left it to the Tribunal to decide whether the solicitor was unfit and whether or not his name should be removed form the roll. At no stage did Counsel urge or even suggest that on the evidence the Tribunal was bound to order that the solicitor’s name be removed from the roll.”
99 The Tribunal in Berry ordered that the solicitor’s name be struck from the roll of legal practitioners.
“All of the evidence considered, we are not satisfied to the requisite standard that the Solicitor is, at this time, a person who is fit to practice. The evidence before us certainly did offer some prospect that the solicitor’s state could improve, but that appears to be unlikely to be so in the very near future.”
100 In Berry the decision appears to suggest that once professional misconduct is established there may then be an onus on the practitioner to satisfy the Tribunal that the practitioner is fit for practice. The Tribunal agrees with the view that it is not constrained to making orders within the ambit of orders sought by the complainant but does not agree that an onus of proof applied to a practitioner once professional misconduct has been established.
101 There is at least one other relevant authority indicating that the predecessors of the Tribunal have also not been inhibited by limited orders sought in the Information. In Law Society of NSW v Ciampa 1999 NSWADT13 the Society sought orders for the solicitor to be reprimanded and a substantial monetary penalty be imposed together with an order for costs. The Tribunal found the practitioner guilty of professional misconduct in three matters. The orders made were:
102 The Tribunal at para 57 set out and subsequently adopted the statement of Giles AJA in the Law Society Informant CPDR NO. 4 1994 page 30:
(i) a reprimand;
(ii) a fine of $10,000;
(iii) a practising certificate not to issue to the practitioner for three years from the date of Order; and
(iv) Practitioner to pay the Society’s costs.
103 The Tribunal’s findings were in the following terms (at para 60):
“The jurisdiction of the Tribunal and of this Court in disciplinary matters is exercised to protect the public, not to punish the solicitor. The object of protection of the public may require that a legal practitioner be removed from the roll, be suspended from practice, or only be permitted to practise under particular circumstances, where the practitioner is not fit to be held out to be entrusted, at all, for a time, or without qualification, with the heavy responsibilities attendant upon the office. The public is protected by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise. But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be temped to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.”
104 Following the short adjournment on the fifth day of the hearing the Practitioner returned and sought an adjournment to enable the Practitioner to:
“The Tribunal is of the opinion that the orders sought by the Society that the Solicitor be reprimanded and a substantial monetary penalty be imposed fall short of orders that adequately protect the public. An order is needed to deter the Solicitor from repeating the misconduct and also deter others who might be tempted to fall short of the high standards required by them by acting as solicitors without the appropriate practising certificates. Whilst it is not known whether the Solicitor intends to resume his career as a solicitor nevertheless the Tribunal is of the opinion that there be should a period of time during which the Solicitor is suspended form holding a practising certificate.”
a) apply to the Court for leave to appeal out of time the decision of the Review Panel on the assessment of costs (a decision published on 24 January 2002) under s208(L) or s208M; and
154 In his address, Mr Lindsay further submitted inter alia:
155 The Tribunal accepts the propositions (a) (b) and (c). In relation to item (d), the Practitioner’s own reticence gave rise to the Tribunal’s concern as to his fitness to practise. Ultimately, the Practitioner addressed this issue and while based on decisions such as Bannister, Berry and Ciampa (see supra) the Tribunal has the firm view that the Tribunal is bound to impose a more severe disciplinary order than sought by the complainant in the Information within the limits imposed by s171C where the Tribunal finds that is appropriate. The finding is that the orders sought in the information do not inhibit the orders the Tribunal may make. The Information does not limit the jurisdiction of the Tribunal (see Berry, Bannister and Ciampa supra). This is no longer a matter in which the power to strike off the Practitioner needs to be considered further as the Tribunal is satisfied that he is fit to practise. Much time and effort has been devoted to the submissions of the Practitioner. Although many were repeated and not relevant, it was necessary to detail and deal with the same as they are reflective of the Practitioner’s instructions and views so they have been taken into account in the Tribunal’s deliberations.
a) The Practitioner’s affidavit of 30 March 2005 demonstrates a substantial acceptance of the Tribunal’s warnings;
b) Allowance should be made for the substantial character references of four Senior Counsel supporting the Practitioner;
c) The Affidavit of Mr Collins sworn on 24 February 2005 refers to one prior Tribunal proceeding; the fact that other complaints have been made against the Practitioner of itself says nothing;
d) “The course of these proceedings can comfortably proceed within the parameters of the information and be dealt with within the parameters of the orders that were sought in the information”.
e) “On the basis of Ground 1, if not also ground 2, that it would be open to the Tribunal to impose a public reprimand”.
f) The Practitioner accepts that the Tribunal will give close consideration to the question of a fine and costs order and if a costs order were considered that costs order should be taken into account in its consideration of the fine, if any, which it might otherwise have imposed, even to the extent of a costs order being made but no fine imposed.
g) If a fine were imposed it would be a modest one. The proceedings have highlighted for the Practitioner the importance of dealing properly and responsibly with a costs assessor and of maintaining proper office systems for the preparation and assessment of costs. Accordingly, it was submitted that an order for costs and the proper reprimand would be sufficient to mark the seriousness of the solicitor’s misconduct.
156 The remaining propositions (e) (f) and (g) do not in the Tribunal’s view reflect the serious nature of the findings made against the Practitioner. His prior public reprimand did not protect the administration of justice from the conduct now before the Tribunal. A public reprimand reflects the disgrace that a finding of professional misconduct brings on a solicitor and the acknowledgement of that disgrace is appropriate in this matter but it is not adequate in itself for either ground.
157 Mr Hadley in reply firstly made it clear that it was not the Commissioner’s submission “that someone should be treated differently because they chose to exercise rights of appeal”. This is accepted and the Tribunal recognises that the filing of an appeal has no bearing whatever on the determination of the final orders the Tribunal should make. However, as he pointed out, there have been a number of references on behalf of the Practitioner to the pending appeal and repeated efforts to rely on the evidence of Mr Hardman. He refers to the continued efforts to promote the significance and admissibility of the Hardman report and pointed out clearly that “the remedy or finding or penalty should not be devalued because an appeal has prospects of success.”
158 After registering his dissatisfaction at the late provision of material by the Practitioner’s advisers, Mr Hadley went on to deal with the submission in relation to withdrawal of the Tribunal’s findings. It is in the following terms:
159 The Tribunal has considered and rejected the withdrawal submission. One of the reasons given endorses the views of the Commissioner in that as a creature of Statute the Tribunal needs precise power to pursue a course of action and there is no enabling provision in the legislation which was brought to the Tribunal’s attention in submissions to identify a source of power to withdraw the finding on complaint 2. In addition, however, if the Tribunal is in error and it does have a power to withdraw findings or modify reasoning the Tribunal is of the view in any event that this would not be appropriate in this case. The Tribunal has published reasons for its findings on the second complaint as it has on the evidentiary issue and the Tribunal is not persuaded that it was in error by reason of any matter raised by the Practitioner.
“There was no specific description in my friend’s submissions about the power of the Tribunal to withdraw its reasons. I raised this with him, and I gather that it is put on the basis that the Tribunal is still at an interlocutory stage, and that the power exists to withdraw findings, or to modify reasoning that may have existed up until the time that the Tribunal’s orders are entered.
I gather that is the nature of the submissions to power. I suspect Mr Lindsay put it more eloquently than that. Certainly my instructing solicitor and I have not been able to find any specific power that gives you the right to make the kind of alteration that is sought and it is something that is certainly outside my experience in terms of the usual way that such matters are dealt with.”
160 Mr Hadley also submitted that a finding would ordinarily stand after full argument on various matters, subject to whatever might happen on appeal. He put to the Tribunal that what had been submitted on behalf of the Practitioner represents an attempt to either “dress-rehearse” the appeal and/or re-argue matters that were either argued before the Tribunal or could have been argued before this Tribunal during the hearing that occurred. The Tribunal does not express an opinion on the first description of the submission and agrees that the matters raised in relation to ground 2 have already been fully argued and determined in this Tribunal and should not now be disturbed by the Tribunal.
161 On the issue of procedural fairness, Mr Hadley indicated that the Practitioner’s submission alleged the findings on ground 2 were procedurally unfair because they were outside what was raised in the Information. Mr Hadley suggests this seems to be confusing the result of the conduct with the cause of that result. We accept that view and would point out again that the issue of the possibility of a strike-off order or a suspension order arose in the context of the hearing. This was virtually moments before that possibility was voiced. Prior to 28 February 2005, the Practitioner had been given plenty of opportunities to update his own evidence with material detailing his remorse and action taken by him to avoid a repetition in subsequent matters. The separate hearing date set aside for submissions on the orders to be made gave him the opportunity to establish his credentials with character evidence from his clients, peers and associated persons. One would expect that evidence to show that (1) he was a person of good standing in the profession, trusted by his peers and (2) that reputable practitioners in the full knowledge of the matters that have been involved in these proceedings and, the findings of professional misconduct were prepared to transact professional business with him where trust and reliability are essential.
162 The failure of the Practitioner to tender at that stage any evidence in support of his fitness to practise clearly in the view of the Tribunal made it incumbent on that Tribunal to raise on 28 February 2005 the possibility of consideration being given to a strike-off or suspension order. The evidence and the adverse findings made it incumbent upon the Tribunal to consider such orders in the absence of other mitigating evidence to establish his continuing fitness to practise.
163 Mr Hadley gave examples of more serious situations of gross overcharging and maintained that the allegation of misconduct has never been put wider than as set out in the Information. He pointed out that the lack of supervision issue which he had raised in an earlier submission had from the Practitioner’s final affidavit been adopted and addressed by the Practitioner. It is appropriate to point out clearly that the misconduct of the Practitioner took a number of forms. His failure to supervise his office with the recklessness evident in his acceptance that Mr Antoni’s bill was in the contentious group before it was issued. In the view of the Tribunal the misconduct of the Practitioner in the actual issuing of the bill of costs went beyond a failure to supervise for as the sole proprietor of his firm he distanced himself from the costing and failed to check the charges at the time the bill was issued or it appears subsequently at least until after the Information was filed. The Practitioner adopted the charges, and applied for assessment and subsequently review.
164 Mr Hadley referred to the submissions of Mr Lindsay on the meaning of overcharging and queried whether the overcharging was at the time of a request to pay or only when the funds were received. This was an issue that could have been raised during the long hearing that led to the decision of 1 November 2004. Any such definitive issues, Mr Hadley submitted, do not constitute a good reason for the Tribunal withdrawing its findings previously made after a lengthy hearing.
165 Counsel for the Commissioner further submitted that there is no good reason for the Tribunal to withdraw its findings on ground 2 or any part of its reasons in relation to that finding. That was made on the assumption that the Tribunal has the power to withdraw those findings. Indeed, for reasons already given, the Tribunal agrees with that thesis, but had formed the view that it does not have the power, in any event, to withdraw the finding on ground 2, nor if it had the power would it in this matter do so.
166 In relation to penalty, the Commissioner repeated his submission that the powers of the Tribunal under Section 107(1)(c) at this stage of the hearing are wide and are not confined to the relief sought in the Information. He referred us to the decisions in Ciampa and Bannister. In the circumstances of this case, the Commissioner did not press for a strike-off order, bearing in mind the Tribunal’s power of imposing a fine of up to $50,000.00 per offence and its power in relation to costs orders. Mr Hadley expressed concern that the costs issues had been complicated by submissions put in relation to withdrawing ground 2 or suspending in some way the operation of the finding on that ground. The submission of the Commissioner was in terms that costs should be dealt with in the normal straightforward manner and that the usual costs order should be made in favour of the Commissioner, as is the normal practice in matters of this nature. He submitted the question of costs should not be complicated by the fact that there is an appeal outstanding and no consideration should be taken of the appeal in relation to the determination of costs.
167 On the quantum of any fine Counsel for the Commissioner indicated that
168 The Tribunal does not, however, accept that submission as resolving the issue. Its jurisdiction is protective and, while there may be a significant worthwhile outcome in the future standards of conduct of this Practitioner, the responsibility of the Tribunal extends to other members of the profession in their day to day dealings with their clients in billing and with costs assessors, the responsibility extends to the general public who not only need to be protected from professional misconduct, but also to know that there is within the justice system a Tribunal whose duties include the protection of the public. In the view of the Tribunal a nominal fine or no fine plus a costs order would send the wrong message to the profession and to the public and certainly not encourage the resolve expressed by the Practitioner in his final, if last-minute, affidavit.
“one factor affecting the amount of that fine might be the need to send a message to this practitioner that the seriousness of what had occurred and considering that factor, it is, of course, legitimate to have regard to the Affidavit material that has been filed today which puts the matter in a somewhat different light from the way it appeared on the last occasion.”
169 Finally in reply, Mr Lindsay clarified that nothing said was intended to be critical of submissions that were made by Counsel for the Commissioner in a personal sense. He maintained the prior submissions of Mr Chippindall in relation to the Hardman report which the Tribunal can only conclude included the rather extraordinary aspects of the constant repetition of the rejection of the report being subject to appeal. Finally, he dealt again with the issue of the withdrawal of the finding on the second complaint by referring both to Knaggs and Palmer. The Tribunal has already considered and dealt with those matters in detail above and sees no point in now repeating the material.
170 The Tribunal rejects the submission that for it to make an order exceeding in gravity the order sought in the Information would amount to procedural unfairness. Complaints to the Tribunal against Practitioners if established result in the Tribunal being required to make such order under s171C as it deems appropriate. It is not inhibited by the orders sought in the Information. Upon consideration of all the factors raised and specifically the matters already detailed in the practitioner’s affidavit of 29 March 2005 and what has been said by his four referees, the Tribunal holds that ultimately this is not a matter justifying a strike-off order, a suspension or a restriction on the Practitioner’s right to practise.
Costs.
171 In the orders which follow the Practitioner has been ordered to pay the Commissioner’s costs. Various submissions have been made on behalf of the practitioner in relation to costs but the decision of the Tribunal is that it is proper in this instance to deal with costs as a separate matter and not to couple it to any other order. The Practitioner has contested these proceedings with vigour as is his right. Findings of professional misconduct have been made against him and the Commissioner (a statutory body) has been put to expense in litigating this matter. The proper order in relation to both complaints is, in the Tribunal’s view, that the Practitioner should pay the Commissioner’s costs.
Findings – First Count:
172 After a lengthy hearing the Tribunal found that Leon Nikolaidis the Practitioner was guilty of professional misconduct on the two counts alleged by the Commissioner. The Decision of the Tribunal was published on 1 November 2004.
173 As already detailed the Decision of 3 September 2004 in relation to the admissibility of the Hardman report and the Decision of 1 November 2004 on the findings of professional misconduct are both subject to a pending application for leave to appeal to the Court for Appeal. The Tribunal holds that it is proper for the Tribunal to make orders in relation to these proceedings without in any way taking into account the fact that, if leave is granted, previous findings of the Tribunal will be subject to appeal as, indeed, in that process could well be the orders made following the hearing on 1 April. The parties have acquiesced in the Tribunal’s proposal that separate orders be made on each of the two counts and where it is clear that the finding on the first count is accepted by the Practitioner then in respect of what further litigation arises on the second count there is a reasonable prospect that this Decision may complete the proceedings in relation to the s207 notices, provided of course that neither the Commissioner nor the Practitioner elects to appeal the actual terms of the orders made on the first count.
174 The complaint in relation to the non-compliance with the s207 orders is a serious matter. The Tribunal might well have been excused from forming initially the view that such a notice was completely foreign territory to the Practitioner after more than 20 years’ practice and that he needed the guidance of his employed solicitor to deal with the notice and comply with it. It has transpired that any such thought was nonsense for this Practitioner had been through a similar complaint and an adverse finding in relation to a s207 Notice some two years before the actual events which led to the complaint in these proceedings.
175 The Tribunal holds that the Practitioner was from that recent experience in what we have termed the prior matter quite aware of his responsibilities to the costs assessor and the overall duties and responsibilities of a costs assessor as part of the necessary procedure for the administration of justice. His attitude in 1998 to prioritising his duties was spelt out in the earlier Tribunal Decision. Reasons were raised from time to time in the Practitioner’s case in relation to the necessity to consult with Mr Zwar, the pressure of business before Christmas recess, the advice received from Mr Harris, but given the circumstances in this matter, none of these reflected other than adversely upon the Practitioner.
176 Mr Nikolaidis in his affidavit sworn 29 March 2005 literally within hours of the commencement on 1 April of the sixth day of the hearing in the matter faced the issues of his behaviour squarely and acknowledged his personal fault in failure to comply with the notices and the obvious action he should have taken in December 2000 in relation to the notices.
177 The finding on this count was published on 1 November 2004. It remains, now having heard submissions and all the evidence on final orders, for the Tribunal to make what it regards to be the appropriate order in relation to this count.
178 In 1988 approximately two years before the events leading up to the first charge the Practitioner received a reprimand and was ordered to pay costs for professional misconduct arising out of his non-compliance with that same section of the Act. The similarities are obvious except that, given the prior conviction, initial efforts made in these proceedings to explain his conduct border on the extraordinary.
179 The Practitioner, if he wishes to be a member of an honourable profession must abide by the rules of that profession which are a necessary part of the administration of justice. The system of costs assessment is designed to be of benefit to both the public and the profession. It should be prompt, efficient and inexpensive. The assessor is not an adversary, he is a fellow professional charged with carrying out an important function. The Tribunal takes a very serious view of the conduct of the Practitioner in relation to the two notices. He is a man who has been in practice for some twenty five years and is clearly held in high regard in the profession from the four character references submitted to the Tribunal by members of the Bar whose letters have already been summarised. His conduct in relation to the costs assessor and the notices issued to him falls far short of the proud reputation he enjoys, as evidenced by those references and a respected family tradition in the practice formerly conducted by his father.
180 Clearly a fine is appropriate, coupled with a reprimand. The prior reprimand by itself did not prevent this further transgression by the Practitioner. The fine imposed must record the seriousness of this misconduct in the hope that, should the practitioner in the future have to deal with requests for information or s207 notices from a costs assessor, he will remember the assurances he has given the Tribunal and the serious view which the Tribunal took upon his non-compliance in this instance.
181 No guidance was given by Counsel as to a range of fines although the Practitioner’s Counsel did submit that there should be some notional absorption of a small fine within a costs order.
182 The Tribunal has an obligation to fulfil its protective role and it is of the view that it should send a message to the Practitioner and to the profession of the seriousness of this misconduct and reassure the public that it will enforce the important administrative machinery provided by s207 for the benefit of the public whose faith in the justice system is essential. The Practitioner is in sole practice but he employs a number of solicitors and from the evidence particularly of the character witnesses the firm is prominent in its area of practice. The public and the profession are entitled to expect high standards and hopefully what is called “best practice” from such a firm and certainly from its principal.
183 After detailed consideration of the various submissions and the facts in the matter the Tribunal has determined that the appropriate sum for a fine on this first count of the Information is the sum of Five thousand dollars ($5,000.00). The amount is intended to reflect the seriousness of the behaviour involved and the other factors raised.
184 The public reprimand is important as it marks the disgrace of a member of an honourable profession inherent in his misconduct but the reprimand is not a sufficient disciplinary act in itself unless coupled with the fine determined in the previous paragraph. The fine in turn is not to be diluted by having a costs component, the Practitioner should pay the costs of the Commissioner in terms of the order set out at the commencement of this decision for the reasons detailed above in paragraph 143.
185 No submissions have been put to the Tribunal on possible hardship to the Practitioner or for the need for time to pay.
186 Accordingly, the orders to be made in relation to the first count are to be to the following effect:
Findings – The Second Count:
a) That the Practitioner be publicly reprimanded;
b) That the Practitioner pay a fine in the sum of Five thousand dollars ($5,000.00), such fine to be paid on or before 1st November 2005 and in default of payment on or before 1st November 2005 that his practising certificate be cancelled until the fine is paid in full;
c) That the Practitioner pay the costs of the Legal Services Commissioner of and incidental to the first count including all reserved costs of the Commissioner, such costs to be as agreed or assessed pursuant to Division 6 Part II of the Legal Profession Act 1987 within two (2) months of the date of such agreement or assessment.
187 The finding on the second count is clearly more serious than that on the first count. The actual finding of “the deliberate charging of grossly excessive amounts of costs” cannot be other than extremely serious. The two cases that were cited as leading cases in this area to the Tribunal of Veghelyi and Amor-Smith both involved the practitioner being struck from the Roll. The Commissioner did not seek a strike-off order or a suspension from practice. The Tribunal on 28 February 2005 drew to the attention of the parties the possibility that such an order rather than a fine could be imposed. The Tribunal is of the view that a strike-off or a suspension fall within the capacity of the Tribunal, notwithstanding the nature of the orders sought by the complainant. This view was supported by the Decision in the Court of Appeal of Bannister v Law Society already referred to a number of times above, Law Society v Ciampa, Law Society v Berry (see above) and the wide wording of s171C.
188 As was evident in the transcript, the Tribunal’s concern arose from the seriousness of such a finding and the absence at that time on the fitness to practice issue despite directions intended to tease out material in mitigation.
189 Character evidence to support any suggestion that he was fit to practise was not before the Tribunal until April 1. Indeed there was no evidence of remedial action taken of training courses for his employees or other actions which indicated steps and procedures adopted to prevent a repetition of the misconduct and/or the. Practitioner’s contrition or any mitigating circumstances and/or his assurance that the misconduct would not be repeated.
190 Literally at the eleventh hour, this evidence was provided, not just late for the 1 April hearing but, no doubt, overdue in that it should have been before the Tribunal following similar earlier directions in time for the hearing on 28 February 2005.
191 The Tribunal is comfortably satisfied with its finding in response to the submissions that it had the power to make a strike-off or suspension order. The final evidence of the Practitioner and the supporting character references of leaders of the profession have satisfied the Tribunal that the Practitioner has established his fitness to practise. In fulfilment of its obligation to protect the public, to maintain public confidence and to discourage similar conduct by other practitioners, the Tribunal finds that a strike-off order or a suspension is not necessary or appropriate.
192 That conclusion, however, does not take away the seriousness of the misconduct of the Practitioner. He has now acknowledged his responsibility and, from the detail he has set out, he clearly now recognises it as a serious responsibility, requiring a significant change in his systems and the introduction of other filtering processes to ensure there is no repetition. The fine and other orders are not to punish the Practitioner. The Tribunal has determined that the appropriate outcome in addition to a reprimand is imposition of a fine and a costs order. The fine must, in all the circumstances, be substantial to be consistent with the seriousness of the misconduct and provide a warning to other members of the profession and reassurance to the public at large that gross overcharging whether or not the amounts charged are paid will be taken very seriously by this Tribunal.
193 The Tribunal has concluded that the sum of Twelve thousand dollars ($12,000.00) is the proper amount in all the circumstances to reflect the seriousness with which it regards the professional misconduct of the Practitioner established in response to the second ground of complaint. Accordingly, the Tribunal has ordered payment of that fine of Fifteen thousand dollars ($15,000.00) within two (2) months from the date of these orders in addition to the public reprimand of the Practitioner and an order based on the considerations in paragraph 143 above for the payment of costs by the practitioner.
194 On the second count on which the Practitioner was found guilty of professional misconduct on 1 November 2004 the Tribunal orders shall be to the following effect:-
Publication of Order and Reasons:
a) that the Practitioner be publicly reprimanded;
b) that the Practitioner pay a fine of $12,000 on or before 1 November 2005 Provided however that in the event that the fine is not paid on or before 1 November 2005 then the Practitioner’s Practising Certificate shall be cancelled until the fine is paid in full;
c) that the Practitioner pay the costs of the Legal Services Commissioner of and incidental to the second count including all reserved costs of the Commissioner, such costs to be as agreed or assessed pursuant to Division 6 Part II of the Legal Profession Act 1987 within two (2) months of the date such agreement or assessment.
195 Section s171C(3) of the Legal Profession Act 1987 requires the Tribunal where it makes an order publicly reprimanding a legal practitioner to publish the order and a statement of its reasons for making the order. Under subsection (5) this obligation to publish is satisfied if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner’s functions in respect of the register of disciplinary action required to be kept under Division 9A. The Registrar of the Tribunal is accordingly requested to provide the required information to the Commissioner as expeditiously as possible.
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