Legal Services Commissioner v Slipper - [2019] QCAT 146

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Slipper [2019] QCAT 146

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant)

v

ROBIN JOHN SLIPPER

(respondent)

APPLICATION NO/S:

OCR 110-14

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 June 2019

HEARING DATE:

22-23 August 2018

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

Assisted by:
Ms Megan Mahon
Dr Margaret Steinberg AM

ORDERS:

1. Within 7 days of the publication of these reasons to the parties, either party may give notice to the other party and the Tribunal of its intention to make further submissions about the orders to be made.

2. If a party gives such notice, that party is to file and serve its submissions within 14 days of the publication of these reasons; and the other party may file and serve submissions in reply within 21 days of the publication of these reasons.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent is charged with acting in 4 estate matters where there was a conflict between his personal interest and the interest of the estate and its sole or sole residual beneficiary – where the respondent is charged with acting in a matter where there was a conflict between his personal interest and the interest of his client – where the respondent is charged with charging excessive legal costs to 6 clients – where the respondent is charged with charging legal costs to which he was not entitled on 5 occasions – where the respondent is charged with purporting to increase the costs to which he claimed to be entitled following a request for an itemised bill – where the respondent is charged with appropriating funds to which he was not entitled – where the respondent is charged with conduct falling short of the standard of competence and diligence a member of the public is entitled to expect of a legal practitioner or which is a substantial failure to reach or keep a reasonable standard of competence and diligence – whether the above charges made out – whether the respondent’s conduct in respect of each charge is characterised as unsatisfactory professional conduct or professional misconduct

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673

Bray v Ford [1896] AC 44
Brookfield & Anor v Davey Products Pty Ltd [1997] FCA 1462
Brown v Talbot & Olivier (1993) 9 WAR 70
Chick & Anor v Grosfeld (no 3) [2012] NSWSC 1536
Clark Boyce v Mouat [1994] 1 AC 428
Council of the Queensland Law Society v Roche [2003] QCA 469; [2004] 2 Qd R 574
D’Alessandro & D’Angelo (A Firm) v Bouloudas (1994) WASC 227; (1994) 10 WAR 191
D’Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
Dore (as executor of the will of W H B Chenhall dec’d) [2006] QCA 494
Equuscorp Pty Ltd v Wilmoth Field Warne (No 4) [2006] VSC 28

Harrison v Tew [1989] QB 307

In re Hollole [1945] VLR 295
In re Nickson [1916] VLR 274
In re Orwell’s Trusts [1982] 1 WLR 1337
In re Weall, Andrews v Weall (1889) 42 Ch D 674
Law Society of ACT v Roche [2002] ACTSC 104; (2002) 171 FLR 138
Law Society of NSW v Foreman (1994) 34 NSWLR 408; [1994] NSWCA 69
Legal Profession Complaints Committee vO’Halloran [2011] WASAT 95
Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249; [2006] QCA 145
Legal Services Commissioner v Bone [2013] QCAT 550
Legal Services Commissioner v Podmore [2006] LPT 5
Legal Services Commissioner v Urban [2013] QCAT 521
Maguire & Tansey v Makaronis (1997) 188 CLR 449; [1997] HCA 23
O’Brien & Anor v Smith & Anor [2012] QSC 166
Re Craig (1952) 52 SR (NSW) 265
Re Veron; Ex parte Law Society (NSW) [1966] 1 NSWR 511; (1966) 84 WN (Pt 1) (NSW) 136
Robinson v Pett [1734] EngR 54; (1734) 3 P Wms 24; 924 ER 1049, 1050
Saffron v Cowley & Anor; Estate of Saffron [2012] NSWSC 1108
Southern Law Society v Westbrook (1910) 10 CLR 609; [1910] HCA 31
Speight v Gaunt (1883) 22 Ch D 727; (1883) 9 App Cas 1
Stott v Milne (1884) 25 Ch D 710
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Turner v Hancock (1882) 20 Ch D 303
Veghelyi v The Law Society of New South Wales [1995] NSWCA 483
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Wintle v Nye [1959] 1 WLR 284

Legal Profession Act 2007 (Qld), s 3, s 24, s 111, s 112, s 113, s 117, s 120, s 122, s 125, s 248, s 237, s 255, s 456, s 656C

Queensland Civil and Administrative Tribunal Act 2009, s 28, s 323

Trusts Act 1973 (Qld), s 5, s 19, s 101

APPEARANCES & REPRESENTATION:

Applicant:

G R Rice QC instructed by Legal Services Commission

Respondent:

B T Cohen, solicitor, of Bartley Cohen

REASONS FOR DECISION

These proceedings were commenced by application filed on 19 May 2014, which set out 15 charges. The applicant filed an application on 8 October 2015, to amend the application by adding charges 16 to 18 (which will be referred to as the Saunderson charges). The matter has been conducted on the basis that the application was amended to include these three charges, as identified in that application. The respondent has filed a response in which he has admitted many of the facts alleged against him. He declined in his response to deal with the Saunderson charges, claiming privilege against self-incrimination.
The Commissioner has alleged that Robin John Slipper, the respondent, is guilty of professional misconduct and/or unsatisfactory professional conduct (‘conduct allegations’) and has sought disciplinary orders pursuant to s 456 of the Legal Profession Act 2007 (Qld) (‘LP Act’).
Overview of charges
The charges relate to eight client matters. Five of these were estate matters (Jacobs, Coughlan, Munt, Trill and Saunderson); two were family law matters (Tonge and Heginbotham); and one (Tully) was a matter in which the respondent held enduring powers of attorney (EPOAs). In relation to the Saunderson (charges 16 to 18), it is alleged that the respondent was incompetent in relation to the drafting and execution of a will; and that he subsequently transferred from an estate bank account the sum of $1,040,000, to his own bank account, when he had no entitlement to do so. In all of the other matters there are allegations relating to fees charged by the respondent’s law practice; and in Tully and the estate matters other than Saunderson, there are allegations that the respondent was in a position of conflict of interest.
Some common matters in response
The fees referred to in the discipline application include amounts sometimes described as “uplift fees”, which will be referred to as the conditional agreement uplift; charges for postage, photocopying, telephone, facsimile etc (referred to in these reasons as the sundries uplift); and charges sometimes referred to as a charge for care and consideration, but, in the language of the costs agreement, referred to as the care and conduct uplift. The respondent has, in a number of cases, admitted that he was not entitled to charge the conditional agreement uplift; and that the amount of the sundries uplift, the care and conduct uplift, or the amount charged generally, was excessive.
The respondent’s response alleged that he has made the following repayments (for convenience, the amount billed is included):-

Matter

Amount invoiced

Amount repaid

Repayment date

Jacobs

$27,427.59

$16,464.73

2 June 2014

Coughlan

$26,405.73

$15,297.34

31 March 2015

Munt

$23,576.60

$14,855.87

31 March 2015

Trill

$5,950

$2,425.58

15 April 2015

Tully

$61,793.45

$35,926.14

31 March 2015

Tonge

(Not in evidence)

$2,498.25

13 September 2013

Heginbotham

$10,373.22

$2,468.62

13 November 2014

In addition, the respondent alleged that he has in most cases paid interest on these amounts, and in one case (Jacobs) an amount for legal fees.
The making of these repayments was the subject of evidence by way of hearsay in an affidavit of Rachel Su-Jing Liang. Neither Ms Liang, nor the respondent who was the source of the evidence, were cross-examined; nor has any submission been made about the failure to do so.
On the evidence in Ms Liang’s affidavit, the respondent transferred money into estate accounts, but the money was transferred to the relevant beneficiary somewhat later. The applicant accepted that the evidence demonstrated that the repayments were made, but submitted that, beyond the admissions made in the response, there was no acknowledgement of overcharging; nor was there evidence of remorse for or insight into the respondent’s conduct. That submission should be accepted. As the applicant pointed out, the respondent has contested these proceedings. Many of the allegations have been contested unsuccessfully, and at times without any real basis for doing so. The respondent has given no evidence as to his reasons for making the repayments. It is a curious feature of the repayments that each is described as a repayment of an amount said to have been overcharged by the respondent. As will become apparent, between 6 and 21 July 2014, the Queensland Law Society carried out an investigation of the law practice’s trust account. Two of the repayments were made before the investigation. The only conclusion that can be drawn is that the repayments were responsive to a complaint of some kind, and that they were generally made under the shadow of an investigation. It is possible that the repayments were also the result of the application (filed in its original form on 19 May 2014), but there is no evidence as to the date when it was served, or that the respondent had any earlier knowledge of its contents. The repayments do not provide any basis for taking a more favourable view of the respondent’s conduct which is the subject of the charges than would otherwise be the case.
The respondent has alleged that, for all of the allegations of overcharging, any excessive charging was the result of his flawed understanding of the legal practice’s entitlement to render accounts including the excessive charges. There is no evidence of this, and the Tribunal finds that it is not made out. Given some of the instances of overcharging which have been established, there would be some difficulty in accepting evidence in support of the allegation.
In each of the cases where a conflict is alleged, the respondent has denied that he allowed his personal interest to conflict with the relevant client interest. Comment was made in oral submissions on behalf of the respondent about the accuracy of the expression “conflict of interest”, but no objection was taken to the use of this expression in the charges; and it is the language used in the Legal Profession Act 2007 (Qld) (LP Act),[1] and was the language used by de Jersey CJ in Legal Services Commissioner v Podmore.[2] It is apparent that, in the present case, it carries with it the notion that the respondent was under a duty to act in the interest of the client-beneficiary. It is unnecessary to consider this expression further.
[1]See for example s 122 of the LP Act.
[2][2006] LPT 5 at [83].
The significance of the ILP
The respondent was a sole practitioner from 1 July 2004, until 31 March 2008. From 1 April 2008, the practice was conducted by Slipper Lawyers, an incorporated legal practice (ILP). The respondent was its sole legal practitioner director.
A corporation is an ILP if it engages in legal practice in this State.[3] It may also provide other services and conduct other businesses.[4] An ILP is an exception to the general prohibition on persons who are not Australian legal practitioners engaging in legal practice in this State;[5] and it is not required to hold a practising certificate.[6] It is, however, required to have at least one legal practitioner director,[7] that is, a director who is an Australian legal practitioner holding a practising certificate entitling the practitioner to practise as a principal.[8] A legal practitioner director of an ILP is, for the purposes of the LP Act, responsible for the management of the legal services provided by the ILP; and must ensure that appropriate management systems are implemented and kept to enable the provision of legal services by the ILP under the professional obligations of Australian legal practitioners and other obligations imposed by the LP Act. If it ought to be reasonably apparent to a legal practitioner director that the provision of legal services by the practice will result in breaches of the professional obligations of an Australian legal practitioner or other obligations imposed under the Act, the director must take all reasonable action to ensure that the breaches do not happen.[9] Professional obligations are defined to include obligations in connection with conflicts of interest, duties to clients, and ethical rules.[10] An Australian legal practitioner who provides legal services for an ILP in the capacity of an officer (including a director[11]) is not excused from compliance with the professional obligations, or the obligations under any law, of an Australian legal practitioner;[12] and the professional obligations of an Australian legal practitioner apply as if (where there is only one legal practitioner director) the practice were a sole practitioner, and the employees of the practice were the employees of that director.[13] Further, for the application of any law or the legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who is a legal practitioner director of an ILP, the interests of the ILP are taken to be the interests of the practitioner.[14] Finally, legal profession rules which apply to an Australian legal practitioner, apply to a legal practitioner director of an ILP, unless the rules otherwise provide.[15]
[3]See s 111 of the LP Act.
[4]See s 112 of the LP Act.
[5]See s 24 of the LP Act.
[6]See s 113(3) of the LP Act.
[7]See s 117 of the LP Act.
[8]See the definition in s 110 of the LP Act.
[9]See s 117 of the LP Act.
[10]See the definition in s 110 of the LP Act.
[11]See the definition in s 110 of the LP Act, together with the definition in s 9 of the Corporations Act 2001 (Cth).
[12]See s 120 of the LP Act.
[13]See s 120 of the LP Act.
[14]See s 122 of the LP Act.
[15]See s 125 of the LP Act.
It is inconceivable that the references in the LP Act to conflicts of interest were intended to be read in a narrow, technical sense, as references to conflicts of interest with interest. They are plainly intended to include a conflict of interest and duty, and a conflict of duty and duty. The expression “conflicts of interest” is commonly used in this sense; and it would be inconsistent with the general tenor of the Act, and its purpose of providing for the regulation of legal practice for the protection of “consumers of the services of the legal profession”[16] to think otherwise.
[16]See s 3 of the LP Act.
It is apparent from the overview of the provisions of the LP Act set out earlier, that the interposition of an ILP is not intended to affect the obligations relating to conflicts of interest and duties, and the other ethical obligations, to which a practitioner would otherwise be subject. The respondent remained subject to those duties, notwithstanding that the practice was conducted by an ILP. The case has been conducted on that basis.
Jacobs – the background
The following facts are established by the Statement of Agreed Facts (SOAF). Adrian Jacobs died on 26 February 2012, without a will. He was divorced from Marlene Evans. Their son, Je, was then under 18 years of age, and lived with Ms Evans, his legal guardian. Je was the only person entitled to the estate of Mr Jacobs. On about 3 March 2012, Ms Evans approached the respondent about the estate. On 5 March 2012, the respondent entered into a costs agreement with Slipper Lawyers. On 6 June 2012, the respondent applied for letters of administration for the estate. The estate was finalised by November 2012, save that funds had to be held for Je until his 18^th birthday in 2014. On 30 November 2012, the respondent, on behalf of Slipper Lawyers, rendered a bill “to the estate” for $27,427.59, including GST and disbursements. On 21 December 2012, the respondent authorised payment of the bill from funds held in trust for the estate.
There can be no doubt that the respondent (most likely as agent for Slipper Lawyers) was approached by Ms Evans, in his capacity as a lawyer, to act in the interests of Je in relation to the administration of the estate, and that he agreed to do so. All of his subsequent conduct in relation to the estate stems from this. There has been no suggestion that his conduct when representing the estate, or as its administrator, is not properly the subject of the discipline application.
The respondent commenced to act with a view to being appointed the administrator of the estate by no later than 5 March 2012. There is no suggestion that anyone other than the respondent had any involvement in the conduct of the matter during the period of administration.[17] For a consideration of the charges there is no relevant distinction between the position of the respondent and the position of Slipper Lawyers.[18]
[17]The tax invoice reflects the involvement of a paralegal for work which might be performed by a secretary.
[18]See also s 122 of the LP Act.
A perusal of the costs agreement reveals the following:-
(a)The work was described as, “Estate of the Late Adrian Jacobs”;
(b)The practice would charge its time spent on the basis of six-minute units; with “each unit or part thereof” to be charged for at one-tenth of the applicable hourly rate;
(c)The respondent’s hourly charge-out rate was $350 (plus sundries, outlays and GST);
(d)The hourly charge-out rate for the paralegal was $160 (plus sundries, outlays and GST);
(e)The practice reserved the right to charge an amount that it considered reasonable for the solicitor’s care and conduct, being 15% of professional fees; matters relevant to such a charge included the complexity of the matter; the difficulty and novelty of any question raised; the importance of the matter; the skill, labour, specialised knowledge and responsibility of the solicitor; the number and importance of documents prepared or perused; and research and consideration of questions of law and fact.
(f)The agreement being a “proposed conditional costs agreement”, the practice would charge a conditional agreement uplift of 25% on professional fees (excluding professional fees paid during the course of the matter, one warrant for the uplift fee being the “non-payment of upfront fees”);
(g)A further 15% of professional fees would be charged for photocopying, telephone, facsimile, postage and other sundry expenses;
(h)Fees and costs referred to in the agreement were exclusive of GST;
(i)Fees were estimated at between $7,500 and $12,500, plus sundries, outlays and GST;
(j)The estimate did not include the conditional agreement uplift;[19]
(k)A number of specified factors might affect the accuracy of the fee estimate;[20]
(l)No fee was required in advance[21] (in a case where an advance was payable, the relevant clause stated that the conditional agreement uplift would be charged if the fees were not paid in advance);
(m)Accounts were payable within 7 days of issue, and would thereafter accrue interest;
(n)The client had been informed that he should seek independent advice in relation to the costs agreement;
(o)Accounts were to be on an interim basis or on finalisation of the matter, at the discretion of the practice;
(p)A Disclosure Notice pursuant to s 308 of the LP Act was attached to the costs agreement, receipt of which was acknowledged both by the respondent’s signature on the notice and in the costs agreement.
[19]See cll 5.8 and 5.11 of the costs agreement.
[20]See cl 7.
[21]See cl 9.2 and Item 7 of the Schedule.
Jacobs – Allegations and contentions

Filed with the discipline application was a document entitled “DETAILS OF APPLICATION”. For convenience it will be referred to as the application. It alleged that the respondent acted in this matter where there was a conflict between his personal interest, and the interest of the estate and its sole beneficiary. Its particulars included the following:
1.13 The respondent allowed his personal interest in obtaining fees from the estate to conflict with the interests of the estate of which he was the administrator and trustee, and the interests of the sole beneficiary whom he owed fiduciary obligations (namely, the interests of the estate and Je in minimising costs to the estate and maximising the value of the estate for Je) by:
a.Giving advice to Marlene that there was “no way” that the court entertain her being the administrator of the estate, and that he should be appointed as administrator instead;
b.Entering into a costs agreement with the law practice of which he was the sole legal practitioner director;
c. Entering into a costs agreement which allowed charging at hourly rates in excess of the rates allowed under the Supreme Court scale, plus specified uplifts, and a lump sum for obtaining letters of administration, without either obtaining the informed consent of Marlene (as Je’s guardian), or disclosing to her the likely total legal costs of the matter;
d. Consenting to the imposition of charges against the estate by the law practice without the informed consent of of [sic] Marlene (as Je’s guardian); and
e. Rendering the bill of 30 November 2012; approving that bill for payment; and authorising payment of it from estate funds.
Paragraph 1.13a was not relied upon. Paragraph 1.13b relates to the conduct of the respondent as in some way representing the estate. Paragraph 1.13c could refer to the conduct of the respondent acting in the same capacity, or as the solicitor with the conduct of the matter on behalf of the ILP. Paragraph 1.13d refers to the conduct of the respondent as either the administrator of the estate, or at least as its representative. Paragraph 1.13e includes acts of the respondent in both capacities. No point was taken about the form of these allegations.
The application also contained the following allegations:
2.2   By the bill of 30 November 2012, the respondent, on behalf of the law practice, rendered costs to the estate.
2.3   The costs so rendered were excessive in all the circumstances.
2.4   The costs and outlays rendered to the estate were in the total amount (to the date of the bill) of $27,427.59 including GST.
2.5   The bill included the following charges:
a.A “lump sum” of $5,000 plus GST ($5,500 in total) for obtaining letters of administration;
b.An “uplift fee” of $3,917 plus GST ($4,308.70 in total);
c.A fee of $2,350.20 plus GST ($2,585.22 in total) for “postage, photocopying, telephone, facsimile, etc”; and
d.A fee of $2,350.20 plus GST ($2,585.22 in total) for “care and consideration”.
2.6   The fair and reasonable value of the respondent’s work in connection with the state to the date of the bill was approximately $10,962.86.
2.7   In the premises the costs rendered by the respondent, and authorised by him for payment, were excessive.
In his response, the respondent denied that he allowed his personal interest to conflict with the interests of the estate or Je. He admitted that the practice was not entitled to charge the conditional agreement uplift; and that the amounts charged for the sundries uplift and the care and conduct uplift were excessive. He alleged that the fees otherwise rendered in accordance with the costs agreement were fair and reasonable, and not excessive.
The applicant’s written submissions contended that, in both his capacities, the respondent was under a duty to limit the extent to which the estate was exposed to diminution, and to avoid conflict with his own interests. The respondent was under a duty to disclose the proposed charges, either under s 308 or the general law. In making the excessive charges without disclosure to, or the informed consent of, “the beneficiary”, the respondent had allowed his interests to conflict with those of the beneficiary. In context, this submission must be referring to disclosure to Ms Evans, as the legal guardian of the beneficiary, and the obtaining of her consent.
Orally, Mr Rice QC, who represented the applicant, adopted by way of submission paragraphs 52 to 61 of the report of Mr Reardon, which include the following (reformulated and summarised):-
(a)As personal representative, the respondent owed a duty to Je to ensure that the estate was exposed to no more by way of charges and fees than may be necessary, proper and reasonable;
(b)A solicitor owes fiduciary obligations to the client; and the solicitor may not prefer his or her own interests to those of the client;
(c)A personal representative owes fiduciary obligations to the ultimate beneficiary of the estate; and the personal representative may not prefer his or her own interests to those of the beneficiary;
(d)A person who is a fiduciary must not enter into engagements in which the fiduciary has or can have a personal interest conflicting with the interests of the person to whom the fiduciary obligations are owed;
(e)A trustee’s fiduciary duty of care is underlain by an obligation to avoid situations of conflict or where there is a real possibility of conflict between the interests of the trustee and those of the beneficiaries of the trust;
(f)A solicitor acting in an estate matter is under a duty to the beneficiary of the estate to conduct the work efficiently and with that degree of financial economy which is consistent with performing the work with competence and diligence;
(g)A solicitor acting in an estate matter must not allow the beneficiary’s interest in having the work undertaken with reasonable economy to conflict with the solicitor’s interest in increasing the firm’s revenue;
(h)A personal representative who is a professional person may not directly charge to the estate professional fees for work done as personal representative; but the commission (fixed by the Court) may take into account the fact that a personal representative would be entitled to engage a professional person at the estate’s expense;
(i)Where a trustee arranges to be remunerated in what would be a breach of fiduciary obligations to the beneficiaries, the arrangement may be carried out with the informed consent of the beneficiaries, if they are sui juris and capable of consenting; in the present case, Je’s consent could be given through his guardian;
(j)For the respondent to discharge his fiduciary obligation to Je, he had to make disclosure in accordance with s 308 of the LP Act, and there is no evidence that this occurred.
The written submissions for the applicant pointed out that there was no provision in the costs agreement for a lump sum fee. The estimate of fees ranged from $8,000 to $12,000. The applicant relied on Mr Reardon’s report to submit that the care and conduct uplift was not properly chargeable; the work did not justify a conditional agreement uplift; the sundries charge was not a genuine estimate of likely costs; the costs agreement did not provide for a lump sum for obtaining letters of administration, and the amount charged was greatly in excess of the amount chargeable in accordance with the costs agreement; there were a variety of other objectionable and excessive charges; and there were serious concerns about the respondent’s billing practices. Based on that evidence, it was submitted that the uplifts, in a bill with time charging, and the other matters dealt with by Mr Reardon, made the bill grossly excessive; and made the charging “of a disgraceful kind”. Even if not all of the criticisms made by Mr Reardon were accepted, the Tribunal could be satisfied that there was rapacious overcharging by the respondent.
The applicant’s written submissions also referred to the facts and decisions in a number of cases relating to overcharging as a form of misconduct. They were Re Veron,[22] Law Society of ACT v Roche,[23] Legal Services Commissioner v Urban,[24] and Council of the Queensland Law Society v Roche.[25]
[22][1966] 1 NSWR 511.
[23][2002] ACTSC 104; (2002) 171 FLR 138.
[24][2013] QCAT 521.
[25][2004] 2 Qd R 574; [2003] QCA 469.
In his oral submissions, Mr Rice submitted that Mr Reardon approached the question by considering what was a reasonable range of costs for the services provided, consistently with s 341 of the LP Act. He submitted that the disparity between what was charged and what would be reasonable informs the question whether there has been misconduct by the respondent. He referred to Mr Reardon’s opinion that the matter was not complex, and that a reasonable fee would be in the range of $8,000 to $12,000.[26] He also referred to the passages in the report expressing an opinion that a care and conduct component was not appropriate in a case like the present one.[27] He referred to Mr Reardon’s evidence that the conditional agreement uplift was in this case charged for a matter that was not speculative; and viewed as an interest charge, it was well in excess of what is permitted by the LP Act.[28] He referred to Mr Reardon’s evidence about the sundries uplift.[29] He also referred to Mr Reardon’s evidence that the costs agreement did not allow for a lump sum charge for obtaining letters of administration, though a sum of $5,000 was charged in the tax invoice.[30] With uplifts, the amount charged was in fact $7,000. Based on the practice’s time records for work done in relation to obtaining the grant (only one item of which was charged for separately in the tax invoice), and using the respondent’s hourly rate, the fee should have been $1,031 (plus a disbursement of $99.18, not charged for as such).[31] He referred to Mr Reardon’s evidence that amounts had been charged for research, file review, and administrative tasks, for which professional fees could not properly be charged. There was one instance of twice billing for the same work. Mr Reardon also regarded a number of other charges as excessive.[32] Mr Rice stressed the relative simplicity of obtaining letters of administration or a grant of probate in the matters the subject of the charges. He submitted that on any view the amount charged was more than double what it ought to have been.
[26]Reardon paras 32-42.
[27]Reardon paras 62-87.
[28]Reardon paras 88-95.
[29]Reardon paras 96-99.
[30]Reardon paras 133-135.
[31]Reardon para 138.
[32]See Reardon paras 100-131.
The respondent’s written submissions contended, with respect to paragraph 1.13b of the application, that there is no conflict of interest or breach of fiduciary duty in the respondent entering into the costs agreement with the legal practice of which he was the sole legal practitioner director. Similar conduct has occurred for many years. There is no authority to the contrary.[33] The submissions contended, with respect to paragraph 1.13c of the application, that there was no breach of any ethical obligation in entering into a costs agreement with rates above the Supreme Court scale; that there is no legal or ethical principle which limits a solicitor in circumstances like these to entering into a costs agreement which charges fees according to the scale; that there was no direct evidence that informed consent was not obtained, or that disclosure was not made; and that a failure to make a costs disclosure under s 308 of the LP Act was not a breach of fiduciary duty. With respect to paragraph 1.13d it was contended that this depended on the absence of informed consent, which was not proven; and that there was no authority for the proposition that the respondent required the informed consent of Ms Evans to the fees charged by the practice, nor for the proposition that a failure to provide a copy of the costs agreement to Ms Evans was a breach of fiduciary duty. With respect to paragraph 1.13e it was contended that this could only be made out if the other allegations in paragraph 1.13 were established.
[33]See Transcript 22 August 2018 (T 1) pp 68-69.
In his oral submissions, Mr Cohen referred to LSC v Bone[34] where the practitioner had purported to enter into a costs agreement with himself, which was thus of no effect,[35] but the Tribunal observed that this course was recommended in a text on administration practice in Queensland. He also pointed out that in this case the agreement was between the respondent and the ILP. He submitted that there can be no conflict of interest arising from the fact that the respondent had entered into a costs agreement with Slipper Lawyers.
[34][2013] QCAT 550 at [69]-[70].
[35]The difficulty identified in that case, where the practitioner purported to enter into a costs agreement with himself, does not arise in this case, Slipper Lawyers being an incorporated practice. The question is also discussed by James Edelmann (prior to any of his Honour’s appointments) in a paper, Understanding the “Self-dealing Rule” in Equity given on 15 May 2013, and published on the website of the Supreme Court of Western Australia.
Mr Cohen took exception to a submission that the lump sum, the conditional agreement uplift, the sundries uplift, and the care and conduct uplift were not authorised, on the basis that this was not alleged in the discipline application. He submitted that the fact a practitioner charged amounts which were not authorised did not make the bill excessive. He submitted, by reference to the judgment of Mahoney JA in Veghelyi v The Law Society of New South Wales[36] that misconduct is only established where the charges are so far beyond what is reasonable as to be grossly disproportionate. This should be proven by a comparison between particular items of work done, and the charges made for it. The fact that charges were made in accordance with a costs agreement is a significant factor in determining whether there has been gross overcharging, even if the costs agreement permitted high charges to be made. Mr Reardon’s approach was said to be totally misconceived. Mr Reardon approached the matter by considering what charges would be allowed on an indemnity costs assessment. None of the bases for his assessment (documents and time records) were in evidence. Mr Cohen objected to paragraphs 22 to 27 of the report as unproven, except to the extent they appear in the SOAF. The inclusion of matters of law in Mr Reardon’s report meant that it was of no value. Mr Reardon’s identification in paragraph 28 of matters he considered in determining whether the charges were reasonable was erroneous. Mr Reardon was wrong to say that a key factor in determining whether a fee is reasonable “is informed by the extent to which the law firm has, or has not” complied with its disclosure obligation under s 308 of the LP Act. Mr Cohen’s objections to Mr Reardon’s report were to be (and were) detailed in a schedule (the schedule was dated 4 September 2018, and included Mr Rice’s responses). Mr Cohen submitted that the blank form of invoice which appears at p 13 of the costs agreement bundle, along with clause 10 of the costs agreement, authorised the charge of a lump sum. He also referred to s 330 of the LP Act. Notwithstanding its appearance, the charge for obtaining letters of administration was not charged as a fixed fee. He referred to an objection that Mr Reardon had not qualified himself as an experienced expert in this State.
[36][1995] NSWCA 483.
In his oral reply Mr Rice again referred to the discussion of authorities in Mr Reardon’s report;[37] and to a passage from the judgment of Higgins J in Southern Law Society v Westbrook[38] to the effect that a solicitor who drew a will under which he took benefits, and who acted for other beneficiaries under the will who supported its validity in a probate action, and who was also the solicitor for the executors, had a duty to communicate to the beneficiaries all material facts by which they might direct their actions. He also submitted, with respect to paragraph 1.13b of the application, that the mere fact that a solicitor acting as an executor enters into a costs agreement with an incorporated legal practice of which he is the sole director, does not give rise to a conflict of interest. The conflict arose because the agreement contained provisions for unusual and excessive charges, without informing the beneficiary; and because he also proceeded to make and pay those charges without informing the beneficiary.
[37]At paragraphs 52-60.
[38](1910) 10 CLR 609, 627.
Jacobs – Legal context
To give proper consideration to the allegations in the discipline application and the submissions of the parties, it is necessary to identify the relationships and duties which resulted from the facts set out earlier in these reasons.
It seems highly likely that, by accepting her instructions, a contractual relationship was created between the respondent, on behalf of the ILP, and Ms Evans; and that the ILP then also became subject to obligations in tort towards her. The ILP may then have also become subject to contractual and tortious obligations owed to Je. For the purpose of the discipline application, it is not necessary to discuss these matters further.
It is, however, clear, that the ILP undertook to act in the interests of the estate generally, and in particular in Je’s interest; and as the sole legal practitioner director, and the legal practitioner with the conduct of the matter, the respondent also undertook to do so. The respondent thereby became subject to fiduciary duties owed to Je, and in particular became subject to obligations relating to conflicts of interest, among which were the obligation to avoid a conflict between his duty to act in the interests of Je, and his own interests, including the interests of the ILP.
It is an agreed fact between the parties that on 5 March 2012, the respondent entered into a costs agreement with Slipper Lawyers. He signed the costs agreement, as or on behalf of the “client”. The client is not otherwise identified. It is extremely unlikely that he entered into the agreement as client, purely on his own account, on the basis that he personally would bear the ultimate liability for the costs. There would have been no real point in the costs agreement; and it is inconsistent with his later conduct in having the tax invoice paid with estate funds. It is likely that he entered into the agreement as the person expecting to be appointed as administrator of the estate. He was thus personally liable on the agreement, but no doubt intended to rely on an administrator’s right of indemnity for expenses incurred in the administration of the estate, which could be expected to extend to the costs of obtaining letters of administration. It has not been suggested that he entered into the agreement in any other capacity (for example as the agent for Ms Evans), and that would be inconsistent with his causing the fees to be paid with the funds of the estate.
If the respondent was purporting to act on behalf of the estate when he entered into the costs agreement, or at least entered into the costs agreement with the intention that he would ultimately cause the estate to pay the costs, there is no reason to think that his duties were less than those of a duly appointed personal representative. It has been said that the obligations of personal representatives are “quite as compelling as trustees’ obligations. There is property and there are persons entitled to it, namely the creditors of the deceased and those entitled to benefit under the will or the intestacy”.[39] The respondent owed a duty to the estate, and ultimately to Je, to act in their interests. He was, accordingly, subject to fiduciary obligations when acting as the administrator of the estate, and, in the Tribunal’s view, when entering into the costs agreement, with the intention that as administrator he would apply assets of the estate to meet the obligations which resulted from it.
[39]Lee’s Manual at [9.20].

The courts have traditionally been tender about the circumstances in which a fiduciary might receive remuneration for acting in that capacity, or might otherwise profit from it. A useful starting point is the statement of Lord Talbot LC in Robinson v Pett.[40] It was said in a passage from Re Craig,[41] relied upon in Mr Reardon’s report, to be the primary rule. His Lordship said:
It is an established rule that a trustee, executor or administrator, shall have no allowance for his care and trouble: the reason of which seems to be, for that on these pretences if allowed, the trust estate might be loaded, and rendered of little value.
[40][1734] EngR 54; 24 ER 1049, 1050; (1734) 3 P Wms 249, 251; cited in Ford & Lee, The Law of Trusts loose-leaf service Thomson Reuters [13.610]. The authors cite Wickham v King (1879) 1 QLJ 13, 14-15, as being to similar effect.
[41](1952) 52 SR (NSW) 265, 267-268; the passage itself was included in a citation from Saffron v Cowley & Anor; Estate of Saffron [2012] NSWSC 1108.
In Bray v Ford,[42] Lord Herschell said:
It is an inflexible rule of a court of equity that a person in a fiduciary position…is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict…It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is a danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect.
[42][1896] AC 44, 51,
In In re Orwell’s Trusts,[43] Vinelott J made the following statements:-
It is trite law that an executor or trustee is in general entitled to no allowance for his care and trouble. The rule applies to fees charged by a professional man for work done in his professional capacity.
The general rule which precludes a trustee from charging for his services extends to any firm of which he is a partner.
[43][1982] 1 WLR 1337, 1340, 1341; cited in Ford & Lee Principles of the Law of Trusts (loose-leaf, Thomson Lawbook) [13.610].
With reference to what was said in Robinson v Pett,[44] the authors of Ford & Lee state:[45]
This rule is conceived as part of a rule that a trustee may not allow a conflict of interest and duty…Under this rule a solicitor appointed as executor and trustee cannot charge for his work undertaken whether contentious or uncontentious, or employ and pay his own firm to act; although he or she may employ a partner to act but cannot participate in profits: Clark v Carlon (1861) 30 LJ Ch 639; Re Doody [1893] 1 Ch 129.
[44][1734] Eng R 54; 24 ER 1049, 1050; (1734) 3 P Wms 249.
[45]Ford & Lee, The Law of Trusts, loose-leaf service Thomson Reuters at [13-610].
In the present circumstances it is also relevant to consider the personal representative’s right to be indemnified, out of the estate, for the engagement of an agent in relation to its administration. The question was considered by Kekewich J in In re Weall.[46] The headnote records that trustees under a will employed a solicitor to collect the rents, and allowed him to deduct from the rents certain costs. The tenant for life brought an action against the trustees, alleging that some of the costs were chargeable against corpus and not against income, and that other of the costs had been unnecessarily incurred. With regard to the right to engage agents, and to be indemnified for their remuneration, his Lordship said:[47]
Consider for a moment the position of that special agent called a trustee as regards the employment of sub-agents. He certainly has the right to appoint them, if and so far as the work of the trust reasonably requires; for instance, he may appoint a broker to make or realize investments, or a solicitor to do legal business, and the power of employment involves that of remuneration at the cost of the trust estate. The limit of the power of employment is, as is pointed out in the well-known case of Speight v Gaunt,[48] reasonableness, and whether there happens to be a standard to which appeal can be made by taxation or otherwise or not, reasonableness must also, I think, be the limit of the power of remuneration. A trustee is bound to exercise discretion in his choice of agents…It does not, however, follow that he can intrust his agents with any duties which they are willing to undertake, or pay them or agree to pay them any remuneration which they see fit to demand. The trustee must consider these matters for himself, and the Court would be disposed to support any conclusion at which he arrives, however erroneous, provided it really is his conclusion – that is, the outcome of such consideration as might reasonably be expected to be given to a like matter by a man of ordinary prudence guided by such rules and arguments as generally guide such a man in his own affairs. If trustees fail to exercise their discretion, or purporting to exercise it do so in such a manner that the Court is bound to infer that they have not done so honestly, their costs or any proceedings challenging their accounts are taken out of the rules laid down in Turner v Hancock[49] and Stott v Milne;[50] and the Court is at liberty, and under certain circumstances may be bound, for the protection of cestuis que trust, to disallow the trustees’ costs, or even make them pay those of others.
[46]In re Weall, Andrews v Weall (1889) 42 Ch D 674. The case is referred to in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Learmonth, Ford, Clark & Martin, Thomson Reuters 2018) as showing circumstances in which executors might be deprived of their costs.
[47]At p 677.
[48](1883) 22 Ch D 727; (1883) 9 App Cas 1.
[49](1882) 20 Ch D 303.
[50](1884) 25 Ch D 710.
After noting that trustees deserve and receive the utmost consideration at the hands of the Court, his Lordship continued:[51]
But cestuis que trust also have their rights, their claim to consideration. The trust property is theirs, managed for their benefit, and on the trial of a question between them and their trustees, by whom costs are to be borne, they may fairly require something more to be proved than absence of dishonesty. They must not complain of mistakes or errors in judgment, but reasonable prudence is not too much for them to require, and by reasonable prudence I mean that which is defined in the judgment in the case of Speight v Gaunt[52] already mentioned.
[51](1889) 42 Ch D 674 at p 678.
[52](1883) 22 Ch D 727; (1883) 9 App Cas 1.
His Lordship concluded that less than 50% of the costs charged were properly chargeable; and that the rest “has been improperly paid to or allowed to be retained by the solicitor”.[53] There is no reason to think that the principles stated by his Honour would not be applicable to an administrator under the general law. The position is stated in one Australian text[54] in the following terms:-
As a personal representative, for the purposes of administering a deceased estate, represents the estate, he or she is personally liable for the debts and liabilities of the estate. Like a trustee, however, due to acting in a representative (and fiduciary) capacity, the personal representative is entitled to an indemnity from the estate for debts and liabilities properly incurred in its management. That personal representatives hold full title to the assets of the estate, whereas trustees hold only legal title, makes no difference to the scope of the right to indemnity. Accordingly the case law setting those parameters for trustees is equally relevant to personal representatives. Hence the reference in both the trustee and executorial context to the right of indemnity being premised on the expense having been properly or reasonably incurred.
[53](1889) 42 Ch D 674 at p 681.
[54]G E Dal Pont & K F Mackie, Law of Succession (2^nd ed) LexisNexis Butterworths Australia 2017 at [13-40].
For completeness it might be noted that in Speight v Gaunt[55] Lord Blackburn said:
The authorities cited by the late Master of the Rolls, I think shew that as a general rule a trustee sufficiently discharges his duty if he takes in managing trust affairs all those precautions which an ordinary prudent man of business would take in managing similar affairs of his own.
[55](1883) 22 Ch D 727; (1883) 9 App Cas 1, 19.
A similar conclusion was reached by Roper J in Re Craig,[56] who said:
It is the duty of an executor and of a trustee to render accounts when properly called upon and to be constantly ready so to do. He is not bound, and indeed is not necessarily entitled, as against the estate to employ and pay an accountant to prepare them. Whether he is so entitled depends on the nature of the accounts, and whether, acting with prudence, he would employ the accountant if the affairs of the estate were his own affairs. (citation of authorities omitted)
[56](1952) 52 SR (NSW) 265, 267.
The caution with which the courts have permitted a personal representative to be indemnified for the cost of engaging professional assistance under the general law is also apparent from the following passage from the judgment of White J in Chick & Anor v Grosfeld (no 3):-[57]
Unless a will otherwise provides, an executor is not entitled to remuneration for carrying out executorial functions, except to the extent the Court allows the executor commission pursuant to s 86 of the Probate and Administration Act 1898 (NSW). (There is an inherent jurisdiction to allow remuneration, as there is in the case of trustees and financial managers.) As a general rule, an executor is expected to carry out his or her duties, including keeping accounts, personally. If he or she chooses to employ another person to carry out executorial tasks, the charges will be to his or her own account. However, where, having regard to the size and nature of the estate and the tasks that need to be carried out, it is reasonable for the executor to engage the services of another, the expense may be allowed as a disbursement (Macartney v Macartney [1909] Vic LawRp 32; (1909) 1 VLR 183 at 191-192; Swanson v Emmerton [1909] VicLawRp 68; [1909] 1 VLR 387 at 390-391; In the Estate of Purton (1935) 53 WN 149; In The Estate of Instone (Supreme Court of New South Wales, Powell J, 23 August 1993, unreported; BC9303622 at 25).
[57][2012] NSWSC 1536 at [7]. See also Re Craig (1952) 52 SR (NSW) 265, 267-268, cited by his Honour in Saffron v Cowley & Anor; Estate of Saffron [2012] NSWSC 1108 at [10], the test for determining whether the appointment of a professional is warranted appearing to be the nature of the task, and whether, acting with prudence, the personal representative would engage professional assistance if the affairs the estate were the affairs of the personal representative.
His Honour continued:[58]
Even where the executor is entitled to incur an expense and charge it to the estate, such as by engaging the services of a solicitor to act on a conveyance, or engaging the services of an accountant to complete the deceased's or the estate's tax returns, unless the will otherwise provides, an executor who is a professional is not entitled to charge for his or her services if he or she does such work. Nor is the executor entitled to engage, for remuneration, a firm of which he or she is a member if he or she would thereby directly or indirectly benefit from the engagement. This follows from the rule that unless the trust instrument or will so provides, or the beneficiaries being sui juris give their informed consent, a fiduciary cannot place himself or herself in the position of conflict or sensible possibility of conflict between his or her personal interest and fiduciary duty.
[58]At [8].
In Saffron v Cowley,[59] the defendants were the executors of a deceased estate, and two of the three directors of the trustee of a trust which was the residuary beneficiary. In their latter capacity, they authorised the payment to themselves as executors of advances against commission, out of the assets of the estate. White J’s finding appears from the following (after referring to Re Craig):-[60]
The defendants had a clear conflict between their personal interest in receiving remuneration for what were described as advances of commission and their duty to the residuary beneficiary. In their capacity as directors of the trustee they could not properly cause the trustee to consent to their receipt of amounts by way of commission, except with the informed consent of the beneficiaries of the trust, assuming that there were identified beneficiaries who were sui juris who could give such consent.
[59][2012] NSWSC 1108.
[60]At [11].
There is some broad analogy with the present case. As personal representative of the estate, the respondent had a conflict between his interest in the receipt of remuneration by Slipper Lawyers, and his duty to the estate, and ultimately to Je. He could not enter into the costs agreement nor approve payment to the practice for the performance of work to be undertaken by a personal representative, without the informed consent of all beneficiaries, assuming them to be capable of granting it.
Nevertheless, a personal representative may be authorised to receive remuneration by (relevantly) the will, a contract with the beneficiaries, or an order of the Court.[61]
[61]See Ford & Lee para [13.510].
It can be seen, therefore, that under the general law, a personal representative was not permitted to charge the estate for work done in that capacity, including for professional work. A personal representative might, at the cost of the estate, engage professional assistance if a person acting with prudence would do so in similar circumstances in relation to his own affairs. Even then, he could not employ his own firm to act. There was an inherent jurisdiction, and there is now statutory power, for the Court to award commission. Where the personal representative has exercised professional skill in the performance of duties relating to the estate, the award of commission may reflect that. The operation of these principles might be modified by the instrument of appointment; or by the informed consent of all beneficiaries, assuming them to be sui juris and competent to consent.
Moreover, under the general law, the position of a personal representative in relation to engaging his own firm to act is apparent from what has been quoted above from Bray, In re Orwell’s Trusts, and Ford & Lee.
A personal representative may also be authorised to receive remuneration from the estate by statute. Under s 68 of the Succession Act,[62] the Court may authorise the payment of commission to a personal representative for his or her services in that capacity (often referred to as “for their pains and troubles”, an expression found in the Charter of Justice 1823[63]). In Australia, contrary to the United Kingdom, the practice has been to award commission to personal representatives.[64] For present purposes, however, the point is that the legislature has left it in the power of the Court to award commission, in the absence of authorisation in the will, or by the agreement of the beneficiaries.
[62]See also s 101 of the Trusts Act 1973 (Qld) under which a court might authorise a trustee to charge remuneration for the trustee’s services; a trustee being defined in s 5 to include a personal representative.
[63]Discussed in Re Lack [1983] 2 Qd R 613, 614-615, by McPherson J.
[64]See Re Murphy deceased [1928] St R Qd 1, 5-6.
That said, it might be noted that under s 101(2) of the Trusts Act 1973 (Qld), in the absence of a direction to the contrary in the instrument creating the trust, a trustee, being a person engaged in a profession or business for whom no benefit or remuneration is provided “in the instrument creating the trust”, is entitled to charge and be paid out of the trust property “all usual professional or business charges for business transacted, time expended, and acts done by the person or the person’s firm in connection with the trust, including acts which a trustee not being in any profession or business might have done personally”. The term “trustee” is defined in the Act[65] to include a personal representative; and the term “instrument creating the trust”, to include a will. Prima facie, that would mean that the provision applies to a personal representative. However, a definition only applies if the context or subject matter does not otherwise indicate or require.[66] The definition also includes a trustee corporation and a corporation in which trust property is vested; yet s 101 expressly provides that a trustee for the purposes of the section includes a custodian trustee.[67] This may be thought to throw some doubt on the proposition that the Act’s definition of trustee is intended to apply to s 101.
[65]See s 5 of the Trusts Act.
[66]See s 32A of the Acts Interpretation Act 1953 (Qld). Although introduced in 1991, it reflects the general law: see D C Pearce & R S Geddes, Statutory Interpretation in Australia, LexisNexis Butterworths 2014 at 6.67-6.68.
[67]See s 19 of the Trusts Act.
It might also be thought that the provisions of s 68 of the Succession Act are intended to cover the field, thereby excluding the operation of s 101. The Succession Act came into force after s 101. The legislature elected to make provision for the remuneration of personal representatives by granting the Court power to authorise “the payment of such remuneration or commission to the personal representative for his or her services as personal representative as it thinks fit”; and gave the Court power to attach conditions to the payment. If s 101 of the Trusts Act were to apply to personal representatives, the provision would have been unnecessary. Moreover, the Court’s power to impose a condition under s 68 of the Succession Act could be defeated by reliance on s 101.
Moreover, s 101(2) operates where the instrument creating the trust makes no provision for a benefit or remuneration for the trustee. There is, in the case of an intestacy, no instrument creating the trust. Since the trustee under an instrument will usually have been chosen by the person creating the trust, there may be reason to doubt the application of s 101(2) to the services provided by an administrator. The provision may be based on an assumption that the trustee’s appointment would be made with an awareness of the consequences stated in the subsection, though the creator of the trust might choose to “opt out” of them, either by a provision to the contrary, or by specifically providing for a benefit, or some other method of remuneration, in the “instrument”. None of these considerations are applicable to an intestacy.
The protection which the courts have long given to the interests of beneficiaries, and the reasons behind it, would suggest that s 101(2) should not be given any wider operation than its language, properly construed, would require. In any event, s 101(2) could not have been intended to authorise a trustee to charge grossly excessive amounts, for these would not be usual professional or business charges.
It will be apparent therefore, that a personal representative’s duties to preserve the estate, and to act in the interests of the ultimate beneficiaries, preclude the personal representative from charging for services and from being indemnified for expenses, except in circumstances authorised by the cases, or by statute. It would seem to follow that a personal representative who undertook a liability for which the representative intended to indemnify himself or herself out of the estate, when not authorised to do so, acts in breach of the representative’s duty in respect of the estate.

It is also necessary to consider the question from the point of view of Slipper Lawyers, and the respondent, as its sole legal practitioner director with the conduct of the matter. It was entering into a contract with a client under which it was to receive remuneration for its work.
As was said in the judgment of four members of the High Court in Maguire & Tansey v Makaronis:[68]
The solicitor is classically a fiduciary to the client and as such owes certain duties in each particular case.
[68](1997) 188 CLR 449 at 463; citing Clark Boyce v Mouat [1994] 1 AC 428,437; after reference to the statement of Gibbs CJ in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 68.
Their Honours also said:[69]
In Clark Boyce v Mouat,[70] the Privy Council referred to the judgment of Lord St Leonards LC in Lewis v Hillman[71] as authority for the proposition:
The classic case of the [fiduciary] duty arising is where a solicitor acts for a client in a matter in which he has a personal interest. In such a case there is an obligation on the solicitor to disclose his interest and, if he fails so to do, the transaction, however favourable to the client, may be set aside at his instance.
[69]At 464-465.
[70][1994] 1 AC 428 at 437. See also Sims v Craig Bell & Bond [1991] 3 NZLR 535 at 543-545, 546, 547; Witten-Hannah v Davis [1995] 2 NZLR 141 at 147.
[71](1852) 3 HLC 607 at 630 [10 ER 239 at 249].
With reference to cases where the solicitor acts for the client in a matter in which the solicitor has an interest, their Honours said:[72]
In CIBC Mortgages Plc v Pitt,[73] Lord Browne-Wilkinson referred to the considerations of general public policy which found what he identified as the long-standing principle whereby those in a fiduciary position who enter into transactions with those to whom they owe fiduciary duties labour under a heavy duty to show the righteousness of the transactions. Similar considerations are evident in the formulation by Lord St Leonards LC in Lewis v Hillman that, if a transaction between solicitor and client is to stand, it must be “open and fair, and free from all objection”, not merely “fair”.[74]
[72]At 465.
[73][1994] 1 AC 200 at 209.
[74][1852] EngR 392; (1852) 3 HLC 607 at 630 [10 ER 239 at 249].
Similar views were expressed by Mahoney JA in Law Society of NSW v Foreman.[75] His Honour said, with respect to the fiduciary obligations which a solicitor owes to the client:[76]
Such obligations exist, in my opinion, not merely in the carrying out of an agreement already made between a solicitor and her client, but also in respect of the making of it…The content of such obligations, that is, what is necessary to be done in order to discharge them, varies with the circumstances of the particular case….
Such obligations ordinarily or at least frequently involve: that the client, because of independent advice or otherwise, be seen not to have entered into the agreement in reliance upon her relationship with or trust of the solicitor; that there be full and frank disclosure to the client of all information known to the solicitor which the client should know…; and that if there be aspects of the contract in respect of which the solicitor may be in a position of advantage vis-à-vis the client, those matters be brought by her to the attention of the client so that the client can decide whether she should enter into the contract. …. The making of a special agreement in respect of costs is, in my opinion, essentially no different in principle from an agreement by the solicitor to sell property or services to her client. (citation of authorities omitted)
[75](1994) 34 NSWLR 408; [1994] NSWCA 69. His Honour’s views were referred to with approval in Law Society of the Australian Capital Territory v Roche [2002] ACTSC 104 at [59]-[61].
[76]At 435-436.
Mr Cohen, for the respondent, placed reliance (in another context) on the judgment of Mahoney JA in Veghelyi v The Law Society of New South Wales.[77] In that case, his Honour said, in the context of a discussion about gross-overcharging as a form of professional misconduct:[78]
Clients are, or may frequently be, in a vulnerable position vis-à-vis their solicitors; the presumption of undue influence is, I think, based at least in part upon the fact that when making decisions clients ordinarily or at least frequently place trust in their solicitors. They ordinarily are not in a position to know without investigation what work must be done and what charges are fair and reasonable: they ordinarily assume that the solicitor will only make such charges.
Solicitors are, on the other hand, informed, or in a position to inform themselves, of what work may be required and what are fair and reasonable charges. They are, in that sense, in a position of advantage and trust is placed in them. Clients are entitled to be protected against the abuse of such an advantage. It is, I am inclined to think, the fact that that advantage has been misused which may, in a particular case, warrant what the solicitor does being categorised as professional misconduct.
[77][1995] NSWCA 483. His Honour’s observations were cited with approval in the joint judgment of the Court in Law Society of the Australian Capital Territory v Lardner [1998] ACTSC 24 at [126].
[78]At p 6.
In Queensland Law Society v Roche,[79] when a matter was well advanced, the practitioner invited the client to enter into a new costs agreement. The practitioner’s failure to draw the client’s attention to a clause in the existing costs agreement which limited the capacity of the practice to increase the fees payable, his failure to provide an estimate of the likely impact of the new costs agreement on the total amount of fees payable, and his failure to advise the client to obtain independent legal advice before signing the new agreement, together with gross overcharging, resulted in a finding of professional misconduct. Of the failures relating to the entry into the new costs agreement, de Jersey CJ (with the support of the other members of the Court) said:[80]
The respondent thereby failed to afford Mr Arthur “the opportunity to make an informed decision with respect to a contract which fundamentally affected his rights,” amounting to “serious breach of his fiduciary duty.” If sustainable, that amounted to a very serious instance of professional misconduct, resting in the respondent’s preferring his own interest to that of his client.
[79][2003] QCA 469.
[80]At [7].
Later, his Honour said,[81] before referring to statements from Kirby P and Mahoney JA in Foreman:
It is repugnant to think of a solicitor withholding detail from a client, precedent to an agreement, to the solicitor’s advantage and the client’s disadvantage.
[81]At [32].
In Brown v Talbot & Olivier,[82] Ipp J, when examining the reasonableness of a costs agreement which provided for time costing in lieu of the application of the statutory scale, said:[83]
The relationship between client and solicitor is one of the most important fiduciary relationships known to the law: see Re Van Laun; Ex parte Chatterton,[84] Law Society (NSW) v Harvey.[85] In the latter case, Street CJ, in delivering the judgment of the Court said:[86]
Where there is any conflict between the interest of the client and that of the solicitor, the duty of the solicitor is to act in perfect good faith and to make full disclosure of his interest. It must be a conscientious disclosure of all material circumstances, and everything known to him relating to the proposed transaction which might influence the conduct of the client…To disclose less than all that is material may positively mislead.
[82](1993) 9 WAR 70.
[83]At 77.
[84][1907] 2 KB 23 at 29.
[85][1976] 2 NSWLR 154 at 169-170.
[86]At 170.
These views are consistent with what Isaacs J said in Southern Law Society v Westbrook,[87] relied upon by the applicant. There, a solicitor who had prepared a will, induced other beneficiaries to engage him to support the will in a probate action, without disclosing that he was to receive benefits under the will. Isaacs J said:[88]
The respondent was the solicitor for the executors as well as the solicitor who prepared the will; and it was his duty to disclose to the beneficiaries all material facts by which they might direct their actions…. (By a pretence) he got the beneficiaries to trust their interests to his care. It is as if a wolf in sheep’s clothing persuaded a lamb to put itself under his protection against a wolf whom he pretends to be near.
[87](1910) 10 CLR 609.
[88]At 627.
Under the general law, therefore, there is a heavy duty imposed on a solicitor about to enter into a costs agreement, to disclose to the client material information known to the solicitor but not the client, relevant to the client’s decision to enter into a costs agreement. A question may arise whether that position has in some way been modified by the provisions of the LP Act.
Disclosure requirements are set out in s 308 of the LP Act. They are less extensive than those articulated in some judgments.[89] It might also be noted that, for the purposes of these provisions, the “client” is not limited to the contracting party, the term referring to “a person to whom or for whom legal services are provided”.[90]
[89]See, for example, per Ipp J in Brown at 77-78; Foreman at 435-436.
[90]See the definition of “client” in Schedule 2 of the LP Act.
Specific disclosure in relation to an uplift fee is required by s 313, if a costs agreement makes provision for such a fee. Changes to matters disclosed under these provisions must also be disclosed under s 315. Under s 316, failure to comply with these provisions has the effect that the law practice may not recover its fees without assessment under Division 7 of Part 3.4 of Chapter 3 of the Act; the client may apply to have any costs agreement set aside; and the failure may constitute unsatisfactory professional conduct or professional misconduct. These provisions are all found in Division 3 of this Part.
Somewhat related, a conditional costs agreement must, under s 323, set out the circumstances that constitute the successful outcome by reason of which the uplift is payable; and must contain a statement that the client has been informed of the client’s right to seek independent legal advice before entering into the agreement. Some other matters must be set out in the agreement under s 324. Section 326 then provides that subject to Division 5, which contains these provisions, and Division 7, soon to be mentioned, “a costs agreement may be enforced in the same way as any other contract.” Section 327 provides that a costs agreement which contravenes a provision of Division 5 is void. Section 328 provides that a costs agreement may be set aside if it is not fair and reasonable. It identifies matters relevant to the question whether a costs agreement is fair and reasonable, but these do not limit the matters which may be taken into account. In addition to matters relating to provisions of the Act (including failure to comply with the disclosure requirements), matters specifically identified include whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice; and the circumstances and conduct of the parties before and when the agreement was made. If the Court or the Tribunal makes an order setting aside an agreement, the section specifies other orders it can make.
Finally, Division 7 of the LP Act gives a client a right to apply (under s 335) to have costs assessed. If there is a costs agreement, and it has not been set aside, then by virtue of s 340, the costs are to be assessed under the costs agreement, except in certain circumstances. They are that the costs agreement does not comply in a material way with any disclosure requirement found in Division 3; or that Division 5 precludes the law practice from recovering the amount of the costs; or the parties otherwise agree. In any event, the costs assessor is required, under s 341, to consider whether it was reasonable to carry out the work; whether or not the work was carried out in a reasonable way; and, unless s 340 applies, the fairness and reasonableness of the amount of legal costs, in relation to the work. A number of matters relevant to the question whether the costs are fair and reasonable, are also identified.
The Act thus identifies what is required to make a costs agreement enforceable, and significant on a costs assessment. It does not appear to be intended to alter the fiduciary obligations which a legal practitioner owes to a person with whom the practice intends to enter into a costs agreement. That view is consistent with one of the Act’s main purposes, namely, “to provide… for the protection of consumers of the services of the legal profession…”.[91] Moreover, a breach of these obligations would often be relevant to the question whether a costs agreement was fair and reasonable.
[91]See section 3 of the LP Act.
A finding of breach of fiduciary duty under the general law, and consequential remedies, where a fiduciary is faced with a conflict between fiduciary obligations and personal interests, may be avoided where the fiduciary establishes, by way of defence, that the beneficiaries have given their “fully informed consent”.[92]
[92]Maguire & Tansey v Makaronis (1997) 188 CLR 449 at [43].
Jacobs – Charge 1 considered
Charge 1 alleges that the respondent acted in an estate matter where there was a conflict between his personal interest and the interest of the estate and its sole beneficiary. This is alleged to constitute professional misconduct or unsatisfactory professional conduct. It is particularised in a number of ways. One is that the respondent allowed his personal interest in obtaining fees to conflict with the interest of the estate, by entering into a costs agreement with a law practice of which he was the sole legal practitioner director. The Tribunal does not accept the submission orally made by Mr Rice that the mere fact that a solicitor acting as an executor enters into a costs agreement with his own firm does not result in a conflict of interest. By entering into the costs agreement as the representative of the estate, with the intention of discharging the liabilities arising from it with estate funds, as the respondent did, his duty, ultimately owed to Je as beneficiary of the estate, to act in Je’s interest, was placed in conflict with his interest in seeing that the legal practice received remuneration (or, arguably, his duty as the sole practitioner director of the incorporated legal practice to those ultimately interested in the practice, in relation to the obtaining of remuneration).[93] So much is apparent from the previous discussion of authorities. Its consequences for the present application turn on the terms of the agreement, and the respondent’s subsequent conduct. However, the conflict arose from the entry into the agreement. While acting in the matter, he was in a position of conflict, which he had created.
[93]Compare Saffron v Cowley [2012] NSWSC 1108 at 11.
Other aspects of the costs agreement are alleged to support a finding that the respondent allowed his personal interest to conflict with interests of the estate, in support of the general allegation that he acted in a matter where there was such a conflict. One of them is that the costs agreement allowed charging at an hourly rate in excess of the rates allowed under the Supreme Court scale. No evidence has been identified in support of the allegation that charging at the hourly rates in the agreement would result in a greater charge than under the Supreme Court scale, and it is not a matter within the knowledge of the Tribunal. This aspect of the allegation is not established. It might be noted that, notwithstanding his criticisms of the respondent’s billing practices, Mr Reardon has made no criticism of the rates themselves.
It is also alleged in the discipline application that the respondent allowed his personal interest to conflict with the interests of the estate and Je, by entering into the costs agreement which, in addition to charges at hourly rates, allowed uplifts, and a lump sum for obtaining letters of administration, without the disclosure and informed consent previously discussed. In fact, the costs agreement made no provision for charging a lump sum for obtaining letters of administration. It is necessary to say something about the uplifts.
Under the costs agreement, the care and conduct uplift was in the discretion of the practice. Factors identified as relevant have already been mentioned. For present purposes, the question is not whether the uplift should have been claimed, but whether its inclusion in the costs agreement demonstrates that the respondent placed himself in a position of conflict. The applicant’s submission appears to be that the provision facilitated the making of excessive charges, and that, the matter being routine, and with time costing, there was no occasion to make provision for the uplift in the agreement.[94]
[94]See paragraphs 15 and 17 of the applicant’s submissions.
Mr Reardon’s report includes references to, and a helpful discussion of, cases considering such an uplift. It is apparent that rules of court make provision for such an uplift because the application of a scale of costs with specified fees and rates may not properly reward the lawyer who performed the work.[95] So much is implicit in the circumstances identified as relevant to an allowance of this kind. For example, in Brookfield v Davey Products,[96] Branson J said, with reference to the item allowing for such an uplift:
In my view, item 41 of Schedule 2 is principally intended to ensure that a scale of costs which is based overwhelmingly on specified fees or rates for items of work does not result in solicitors who represent clients in complex or novel matters being under-rewarded in comparison with those who are involved in more routine matters. Where a bill is based principally on time costing, the scope of operation of item 41 will, in my view, be limited.
[95]See Sparnon & Anor v Apand Pty Ltd & Ors [1998] FCA 164 per von Doussa J; Brookfield & Anor v Davey Products Pty Ltd [1997] FCA 1462.
[96][1997] FCA 1462.
While these considerations suggest that such an uplift has no place unless fees are charged in accordance with a scale, Mr Reardon pointed to the order in Brookfield v Davey Products. It demonstrates that a care and conduct uplift might in particular circumstances be available notwithstanding some reliance on time costing. This should be placed in context. Her Honour was dealing with an application for an order for costs to be paid to one of the parties by another, in a fixed amount. The complexity of the matter is apparent from the fact that it was anticipated that the bill would take more than four weeks to draw, and would be of the order of 400 pages in length. Fees were claimed on a time cost basis, reduced by her Honour by 40%. In part, that was because the fees claimed for drafting documents on a time basis had led to claims being in an amount which would not be sustainable on taxation. Her Honour also referred to the fact that she had taken into account, in reducing the costs, the fact that at times two or more solicitors were involved in the same task. In those circumstances, her Honour was prepared to make a “modest allowance” under this head, of 7%. The allowance might be characterised as a relatively minor trimming of a substantial reduction of the amount claimed. While the case does not contain any statement of principle relating to the circumstances in which an allowance for care and conduct might be made where fees are charged on a time cost basis, it indicates that an uplift in such a case is exceptional. There is nothing to suggest that at the time when the costs agreement was signed in the present case, there was any prospect of a reduction of the legal practice’s fees by reason of an assessment on a party and party basis, and the consequent risk of a failure properly to provide remuneration for a practitioner’s work as a result of a large reduction of the claimed fees; or that there was any real prospect that exceptional circumstances would arise which would provide a basis for such an uplift.

Charge 17 alleged incompetence in relation to the drawing and execution of the will. It alleged that the dispositive clause failed to identify any beneficiary or charitable purpose, and, as a result, failed to establish a trust. The respondent witnessed the execution of the will, although he was an “interested witness” for the purposes of s 11 of the Succession Act. The respondent failed to ensure that the dispositive clause was effective to dispose of the estate in accordance with Mr Saunderson’s wishes. In so far as the will may have benefited the respondent, the respondent failed to refer Mr Saunderson for independent legal advice. He also failed to have regard to the effect of his becoming an “interested witness” on the will and on Mr Saunderson’s wishes. He thus failed properly to advise Mr Saunderson.
At the end of the hearing on 23 August 2018, an order was made that this charge be varied by adding paragraph 2.7e, alleging that the respondent, in breach of paragraph 10.2.2 of the Legal Profession (Solicitors) Rule 2007, continued to act on the instructions of Mr Saunderson in relation to the will, under which the respondent would or might receive a substantial benefit in addition to reasonable remuneration.
Charge 18 alleged incompetence in relation to the estate. It repeated particulars from charges 16 and 17. It alleged that the respondent failed to have regard to the obligations imposed on him, both as executor and as solicitor for the executor, of the estate. He failed to have regard to Mr Saunderson’s intent, as expressed in the will; and he failed to consider or properly consider the terms of the will, and the effect his becoming an “interested witness” might have on the management of the estate and the disposition of any property in his favour. He also decided to benefit himself in circumstances where he knew or ought to have known that he could not do so.
In this case, the respondent has declined to respond to the allegations made in the charges, on the ground that he might incriminate himself.
The applicant’s written submissions contended that clause 3 of the will was void for uncertainty. No reasonably competent solicitor would have drafted a will in such uncertain terms. Contrary to the wishes of Mr Saunderson, his sisters will now take the estate on intestacy. This was a failure of competence and diligence on the part of the respondent.
It was also submitted that the respondent took advantage of the uncertainty of clause 3 by making a distribution to himself of in excess of $1 million, despite being the solicitor for the estate, and its executor and trustee, when he was not entitled to do so. By the letter of his solicitors of 6 May 2015, the respondent has acknowledged receipt of a benefit under the will, but contended that it had been refunded. By the time the money was refunded, the respondent was under investigation by the Queensland Law Society. The refund did not appear in the law practice’s trust account statement for the estate. This is the best evidence that there was no refund.
The respondent was also precluded from benefitting under the will because he was an interested witness, in view of s 11 of the Succession Act. The respondent knew or ought to have known of the effect of s 11, when taking the money from the estate. The respondent also knew, when drawing the will, that he was acting in contravention of the conduct rules, being Legal Profession (Solicitors) Rule 2007, which required him to decline to act if he was to take a benefit under the will. The circumstances surrounding the drawing and execution of the will would also support the presumption of undue influence. The taking of the benefit involved a knowing breach of ethical rules of serious proportions. The respondent is guilty of professional misconduct.
Orally, the applicant made particular reference to paragraph 3.2.6 of the application. It was contended that the respondent’s absence of entitlement to the money which he took from the estate, for the purposes of charge 18, depended on the fact that clause 3 made a gift to the respondent, which would be void under s 11 of the Succession Act; and would be presumed to be void under the general law. At the time when the money was taken, there was no order under s 11 which would validate the disposition in clause 3. Nor had the presumption under the general law been rebutted. By avoiding making an application about these matters, the respondent avoided any consideration of the question whether clause 3 was void for uncertainty. Mr Rice also referred to O’Brien & Anor v Smith & Anor[149] and In re Hollole,[150] for the proposition that the clause was void for uncertainty. He referred to evidence of the fact that the respondent had acted for Mr Saunderson in other matters. He claimed to have prepared several hundred wills. His reference to authorities showed that he was aware of the circumstances in which Courts are suspicious of the validity of a will, because of undue influence; and the onus which falls on a person who takes a benefit under a will which he played a role in preparing.
[149][2012] QSC 166.
[150][1945] VLR 295.
Mr Rice drew attention to the fact that the trust ledger recorded the transfer out of $1,200,000, but did not show any record of a repayment of $1,040,000. He also submitted that the respondent admitted, in the letter from Senior Legal, that there had been no repayment. He referred to the file notes, pointing out that they do not record Mr Saunderson’s instructions. However, the notes show that Mr Saunderson wanted to establish a trust, and wanted the respondent to give the estate to other people. He did not want his sisters to benefit from it. On the respondent’s recorded understanding of Mr Saunderson’s intentions, the respondent continued to act, in breach of rule 10 of the Legal Profession (Solicitors) Rule. The respondent’s letter of 28 February 2011 did not point out the uncertainty in clause 3 of the will.
The respondent’s written submissions contended that the applicant’s written submissions ranged beyond the matters alleged in the application. The taking of the money alleged in charge 16 was established, but the absence of entitlement was not. Assuming the purported trust was void for uncertainty, if Mr Saunderson intended the respondent to benefit from the will, clause 3 would be construed to give effect to that intention, subject to s 11 of the Succession Act. The applicant has not established that the clause is void for uncertainty; nor that s 11 would apply. The respondent’s file showed that Mr Saunderson knew exactly what he wanted. The questions posed are to be litigated in the Supreme Court, that Court having refused to determine them summarily. This Tribunal ought not to decide them.
It was further submitted that the applicant had failed, in charge 17, to allege what Mr Saunderson’s intention was. Thus the allegations in paragraphs 2.7a and 2.7c cannot be made out. The file notes demonstrated that the respondent had regard to the effect which the fact that he was an interested witness to the execution of the will might have on the will, and the achievement of Mr Saunderson’s wishes. The applicant had failed to identify the advice which it is alleged in paragraph 2.7d of the application the respondent ought to have given. Paragraph 2.7 has not been made out. The applicant’s contention of the respondent’s incompetence in relation to the drafting of the will, with the result that Mr Saunderson’s sisters will benefit, contrary to his wishes, is beyond the allegations made in the application, and thus beyond the jurisdiction of the Tribunal.
Charge 18 was submitted to be duplicitous, relying on facts on which charges 16 and 17 are based. It should be dismissed on that basis. It was submitted that the obligations referred to in paragraphs 3.2.1 and 3.2.2 were not identified, and nor were the respects in which the respondent was said to have failed to have regard to them. The allegations were as to the respondent’s state of mind, but the applicant did not identify the evidence from which the state of mind was to be inferred. Paragraphs 3.2.3 and 3.2.5 faced similar difficulties, as did paragraph 3.2.4. Paragraph 3.2.6 was, in substance, the allegation made in charge 16.
Mr Cohen, in the course of Mr Rice’s oral submissions, conceded that the letter from Senior Legal was an admission by the respondent against his interest, and could be relied upon. He also conceded that, if a sum of the order of $1 million had been repaid to the trust account, that would likely have attracted the attention of the external examiner.
In his oral submissions, Mr Cohen referred to passages from the judgment of Philip McMurdo J (as his Honour then was) in Dore (as executor of the will of W H B Chenhall dec’d)[151] to the effect that a will leaving a benefit to the solicitor who drew it may be valid, notwithstanding that the solicitor breached ethical requirements in drawing it and taking the benefit. He also submitted, with respect to the allegation that his client was negligent in drawing the will, that clause 3 was not clearly void for uncertainty; and it was not clear that the estate passed under the intestacy rules. In support of that proposition he relied upon the fact that in the Supreme Court proceedings, that question was not determined summarily. The interpretation of clause 3 would require a consideration of Mr Saunderson’s intentions under s 33C of the Succession Act. Nor could it be said that the respondent acted to avoid scrutiny by applying for probate in common form, when the matters relied upon by the applicant are apparent from the face of the will. If Mr Saunderson intended the respondent to take the benefit of the estate, it was difficult to resist the proposition that in drawing the will and witnessing its execution, the respondent was negligent. The proposition that the respondent was not entitled to take the estate without a Court determination because he was an interested witness to the execution of the will was not within charge 17. Mr Cohen accepted that there was no evidence that the respondent advised Mr Saunderson to go to another solicitor, because the respondent was a witness to the will. Particular 2.7b of the application could not be read as alleging a failure to comply with paragraph 10.2 of the Legal Profession (Solicitors) Rule. Mr Cohen accepted that, if Mr Saunderson’s intention were to leave the estate to the respondent, then it was a substantial failure of competence on the part of the respondent to execute the will.
[151][2006] QCA 494 at [53]-[55].
In his oral reply, Mr Rice accepted that there was evidence of a referral of Mr Saunderson by the respondent to another solicitor in relation to the will, for the purposes of paragraph 10.2.2b.
Objections to evidence: the Saunderson charges
Mr Cohen objected to the admission of the report by Mr Edwards of his investigation, exhibited to his affidavit, as evidence of the truth of its contents. It was submitted that it contained Mr Edwards’ analysis and opinions in relation to the matters referred to in it. For reasons already stated, expressions by Mr Edwards of opinion which require expertise will be disregarded. Factual matters are, in many cases, likely to be hearsay, but will not be excluded from evidence on that basis. In some cases, the report includes secondary evidence of the contents of a document; but again this evidence will not be excluded. There is no reason to think that the evidence is (at least generally) unreliable; and there has been no suggestion of unfairness. Matters of law, or matters which are properly the subject of submission rather than evidence, will be treated in a similar fashion to such matters in Mr Reardon’s report and in other documents from Mr Edwards. They will not be regarded as evidence of the truth of any fact.
Mr Cohen objected to the admission of the Queensland Law Society investigation report exhibited to the affidavit of Mr Edwards, as evidence of the truth of its contents, apparently referring to the analysis and opinion of its author. The report primarily records matters of fact, some at least of which were based on an examination of the file. There is no reason to exclude this evidence. The Tribunal intends to disregard the opinions of the author of the report, because his qualifications are not identified.
In paragraph 91 of his outline of submissions, the applicant made reference to the fact that the respondent claimed, through his solicitor’s letter of 6 May 2015 to the applicant, to have fully transferred into trust the benefit he received under the will. This apparently is a reference to the sum of $1,040,000 which the respondent transferred to his personal account on 16 July 2014; and a payment made to the trust account of his practice on 27 July 2014. This appears to be the only matter from that letter relied upon by the applicant in paragraphs 91 and 92 of his outline. The respondent’s written submissions contended that this is irrelevant to any allegation in the discipline application, and that the letter of 6 May 2015, at least in relation to the assertion of repayment, was inadmissible. The submission is misconceived. In paragraph 1.8 of the Saunderson charges, it was alleged that on 16 July 2014 the respondent withdrew $1,040,000 from the estate bank account and paid it to his personal account; and in paragraph 1.10 it was alleged that on 27 July 2014, the respondent repaid that amount to the law practice’s trust account. In his written submissions, Mr Rice relied on the repayment as an admission by conduct that the applicant knew he had no entitlement to the money. Paragraph 3.2.6 of the Saunderson charges alleged that the respondent decided to benefit himself (by taking the money) when he knew or ought to have known that he could not do so (in the sense he was not entitled to do so). On that basis, the statement would be relevant. At the hearing, Mr Rice submitted that the evidence demonstrated that the money was not repaid. If that be correct, the statement in the letter could be a false claim of repayment of money alleged to be unlawfully appropriated by the respondent. The letter would remain relevant.
The respondent’s submissions also contained an objection to the matters relied upon in paragraphs 91 and 92 of the applicant’s written submissions, apart from the letter from the respondent’s solicitors of 6 May 2015. These are said to be irrelevant. The objection does not make clear what is said to be objectionable, beyond the matter already discussed. The letter enclosed the will file, contained some admissions, and set out the respondent’s version of some events. It is relevant to the Tribunal’s consideration of the application.
In the respondent’s written submissions, objections were taken to exhibits 4, 5, 6 and 10 to Mr Kelly’s affidavit. These objections were subsequently withdrawn.
Saunderson – Charge 16 considered
As mentioned, Mr Cohen accepted that the letter from Senior Legal of 22 August 2016 established that the respondent had taken the sum of $1,040,000 from the estate; and he submitted that the issue was whether the respondent was entitled to do so. He did not advance a positive argument of entitlement.
The particulars of charge 16 do not specify the basis on which the applicant contended that the respondent was not entitled to take the money. Three matters were advanced by Mr Rice in relation to clause 3 which are of present relevance. The first was whether, on the assumption that language of clause 3 would, if valid, have given the respondent the benefit of the estate, the clause was effective at the time when the respondent took the money, in view of s 11 of the Succession Act. The second was whether, under the general law, the respondent was entitled to take the money without satisfying the Court that Mr Saunderson knew and approved of the contents of the will.
The third matter of potential relevance was raised by Mr Rice in connexion with this charge, as a matter, scrutiny of which was avoided by the respondent’s application for probate in common form. It was whether clause 3 was intended to create a trust, but was void for uncertainty, so that the estate passes as on an intestacy.
The respondent could only claim an entitlement to take the money beneficially on 16 July 2014, if clause 3 on its proper construction gave him the benefit of the residuary estate. No attempt has been made to suggest that the respondent then took the money, intending to hold it as a trustee. In the circumstances under consideration, the respondent having witnessed the will, it follows that s 11 was engaged.
The effect of s 11(2) is that clause 3 would, so construed, be void. However, s 11(3) provides, relevantly, that s 11(2) does not apply if the court is satisfied the testator knew and approved of the disposition; and that it was made freely and voluntarily by the testator. There has been no application to the court for a determination under s 11(3), notwithstanding the passage of almost six years since Mr Saunderson’s death; indeed, there is no evidence of a proposed application in the future. Without a determination under that provision, the respondent had no right to take the money. Accordingly, on the material before it, the Tribunal finds that, if the effect of clause 3 was to give the respondent the benefit of the estate, the respondent had no entitlement to take the sum of $1,040,000, which appears to be the whole of the residue of the estate, on 16 May 2014.
In support of his contention that, under the general law, the respondent was required to place the circumstances in which the will was made before the Court for its scrutiny, Mr Rice relied on Southern Law Society v Westbrook,[152] Wintle v Nye,[153] In re Nickson,[154] and Tobin v Ezekiel.[155] It is unnecessary to consider these cases, in view of the findings made in relation to the other two matters. It might be observed that there was no reference in them to a provision such as s 11 of the Succession Act; and accordingly a question might arise as to whether they have any independent operation when the issue is whether a clause making a disposition to an interested witness may be effective on the ground that the testator knew and approved of the disposition, and the disposition was made freely and voluntarily.
[152]At p 614.
[153][1959] 1 WLR 284, 291.
[154][1916] VLR 274, 281; as cited in Leitch v Dore [2005] 2 Qd R 168 at [8].
[155](2012) 83 NSWLR 757 at [44]-[47].
Strictly speaking, it is unnecessary to consider the third matter mentioned. The only basis on which the respondent could be entitled to take the money beneficially is that clause 3 was intended to give him the benefit of the estate. If clause 3 were intended to create a trust, then the respondent had no right to take, or purport to take, the money. Either the money was subject to a trust, or, if the clause was ineffective, the estate was to pass as on an intestacy. As will appear, the Tribunal is of the view that it is likely that clause 3 was intended to create a trust, but failed to do so. On that basis, therefore, the respondent was not entitled to take the residue of the estate.
Paragraph 1.10 of the application relating to the Saunderson charges alleged that the respondent repaid the amount of $1,040,000 to the trust account of the law practice on 27 July 2014. Mr Rice submitted that the repayment had not occurred. No objection was taken to his doing so. The trust account printout of 20 October 2014 does not record the repayment. The respondent’s letter of the same date stated that on 16 May 2014 the balance of the estate was transferred “to the Beneficiary” and that on 30 May 2014 there was a zero balance and the file subsequently was closed. The letter from Senior Legal, accepted to be written on the respondent’s instructions, stated that the estate “had been paid out to (the respondent) in his personal capacity” (though there is a reference to payment to other entities identified by the respondent pursuant to clause 3); and that there were no funds standing to the credit of the deceased’s estate. The evidence demonstrates that the respondent did not make the repayment alleged to have been made on 27 July 2014.

The application also alleged that on 8 July 2014, $85,000 was paid to an estate bank account. There is no evidence of this. The allegation is not made out.
The Tribunal therefore concludes that on 16 July 2014, the respondent appropriated $1,040,000, being the residue of the estate, to which he was not entitled.
Saunderson – Charge 17 considered
There is a tension between the allegations in paragraph 2.5 and paragraph 2.6 of the application. The former implied that it was Mr Saunderson’s intention to leave his estate to the respondent on trust. The latter implied that clause 3 left the estate to the respondent beneficially. These allegations can only sensibly be understood as alternatives.
In support of the proposition that the will on its face intended to create a trust, Mr Rice referred to In re Hollole.[156] There, O’Bryan J held that a will with features some of which are significantly similar to clause 3, was intended to create a trust, rather than to give the estate to a named person beneficially. The features relied upon by his Honour were that the estate was left to the trustee and executor on trust; and that (after certain periods during which the trust was to subsist) the property was to be disposed of by the trustee as he saw fit. His Honour’s judgment included summaries of several rather similar cases.
[156][1945] CLR 295 at 297-298.
Mr Saunderson’s will left the estate to “the executor and trustee UPON TRUST”, to be collected and converted to cash, with debts to be paid and other obligations met; and directed the respondent to hold the balance “UPON TRUST to my Trustee to distribute same at his sole discretion to whomever, including the support of young footballers through schooling, equipment, tours and the like”. Although some of the features relied upon by O’Bryan J are not present, the repeated references to a trust, and to the respondent as trustee, strongly support the view that it was intended that the respondent hold the residue of the estate on trust. This is confirmed by the direction to distribute. It is not the mere expression of a wish, as occurred in one of the cases referred to by O’Bryan J, Stead v Mellor.[157] Subject to the matter next discussed, the Tribunal considers that the language of clause 3 demonstrates an intention to create a trust.
[157][1877] 5 Ch D 225; discussed in Hollole at p 298.
Mr Cohen referred to s 33C of the Succession Act for the proposition that extrinsic evidence of Mr Saunderson’s intention might be relied upon for the interpretation of clause 3; no doubt thereby intending to raise the prospect that, by reference to the evidence that might be given by the respondent based on the diary notes, the respondent might demonstrate that Mr Saunderson intended him to take the residue of the estate beneficially.
There are difficulties with this submission. There is no evidence that the respondent intends to propound that construction of clause 3. If he did, it is not inconceivable that the Court would consider that there is no ambiguity about Mr Saunderson’s intention to create a trust, and accordingly not admit evidence intended to demonstrate the contrary. The evidence of the respondent would undoubtedly be scrutinised with great care, because of the respondent’s personal interest in the outcome of the proceedings, because of his relationship of influence with Mr Saunderson, and because he drew the will. The diary notes would attract similar attention.
There is also a question about the effect of the evidence based on the diary notes. The note of 22 February 2011 commenced with a statement that the benefit of the estate was to go to the executor and trustee, to distribute at his sole discretion, to whomever, including the respondent. The will was drafted consistently with this instruction. The reference to the respondent as trustee, and the intention that he distribute, indicate an intention to impose some form of trust-like obligation on him. While there was discussion in both diary notes about the fact that the respondent would obtain a benefit, there is no evidence of a departure from the original expression of intention. Indeed, the respondent’s letter to Mr Saunderson of 28 February 2011 placed some emphasis on the instructions that the respondent was to be appointed as trustee of the estate, as well as executor under the will; including an intention to charge fees for acting in both capacities. Evidence consistent with the diary notes may ultimately be held not to provide a basis for finding that it was not intended to create a trust.
On the evidence before it, the Tribunal considers that, if the construction of clause 3 were litigated, it is likely that it would be found that the clause was intended to create a trust, even if reliance were placed on s 33C of the Succession Act, and evidence from the respondent.
Mr Rice referred to O’Brien & Anor v Smith & Anor[158] for the proposition that, if it was intended to create a trust, clause 3 is void for uncertainty. In the Tribunal’s view, the proposition is correct. As Margaret Wilson J pointed out, the beneficiaries of a trust must be identified with sufficient certainty, so that in the case of discretionary trust (as was intended by clause 3) it is possible to say whether any particular person is or is not a member of the class of potential beneficiaries.[159] That is not possible with clause 3.
[158][2012] QSC 166.
[159]O’Brien at [29].
It follows that clause 3, as drafted, fails for uncertainty. The allegation that the clause was void for uncertainty was one of the particularised allegations in the application in support of the allegation at the commencement of paragraph 2, as to incompetence. In the Tribunal’s view, its drafting demonstrated a substantial failure to reach a reasonable standard of competence and diligence.
If, on the other hand, the clause was intended to pass the residuary estate to the respondent beneficially, then it was accepted, correctly, that the witnessing by the respondent of the execution of the will was a substantial failure on the part of the respondent to reach a reasonable standard of competence. It might be observed that, on the basis of the file notes of 22 and 28 February 2011, the respondent apparently believed that he was to receive a benefit under the will. Even if the belief was mistaken, his witnessing of the execution of the will displays a substantial failure in competence.
Paragraph 2.7a alleged that the respondent, in the course of drawing and executing the will, failed to ensure that the dispositive clause was effective to dispose of the estate in accordance with Mr Saunderson’s intentions. If, as the Tribunal considers, a trust was intended, the clause is void. If, on the other hand, it was intended that the respondent take the estate absolutely, the intention failed because the respondent was an interested witness. On either basis, the respondent failed to ensure that clause 3 was effective.
In the end, paragraph 2.7b was not pursued. Paragraph 2.7c made an allegation about the respondent’s state of mind. If it were accepted that Mr Saunderson intended the respondent to take the estate beneficially, then it is an almost inevitable inference that the respondent failed to have regard to the effect that his being an interested witness would have on the will. However, the Tribunal has taken a different view of Mr Saunderson’s intentions.
It is also clear, for the purposes of paragraph 2.7d, that the respondent failed to advise Mr Saunderson properly in the circumstances. It is clear that he failed properly to advise Mr Saunderson on the manner in which he might express his intentions in his will in a way which was achievable. He failed to advise Mr Saunderson of the uncertainty created by clause 3. He failed to advise him that, if clause 3 were intended to confer a benefit on the respondent, he should not have witnessed the execution of the will.
Saunderson – Charge 18 considered
The identified difference between the particulars supporting this charge and those supporting charge 16 was the allegation in paragraph 3.2.6 that the respondent knew or should have known that he was not entitled to take the money which formed the residue of the estate. Reliance was orally placed primarily on s 11 of the Succession Act. It is apparent from the diary notes that the respondent believed that he was to receive a benefit under the will. Given the experience claimed by the respondent he ought to have known that, having witnessed the execution of the will, he was not entitled to take the residue of the estate, unless an order was made under s 11(3) of the Succession Act.
Mr Rice contended that the charge raised “a conscious decision” on the part of the applicant, and his state of mind. The issue is his state of mind, not at the date when he executed the will, but when he took the estate. The fact that the respondent witnessed the execution of the will, believing he was to take a benefit under it, strongly suggests that he did not advert to s 11 at that time. Beyond his apparent experience with wills and estates, there is no evidence that the respondent was conscious of the effect of s 11 when he took the residue. The (untrue) assertion of repayment, made in May 2015, is far from compelling evidence of this. The evidence is insufficient to establish that the respondent actually knew he had no entitlement to take the money at the time when he took it. However, it is a matter which he ought to have known. On that basis, charge 18 is established.
Mr Cohen submitted that this charge was duplicitous with charge 16, but in oral argument withdrew the submission.
Saunderson – Characterisation of the respondent’s conduct
For the respondent to take in excess of $1 million from the estate when he was not entitled to do so is plainly a very serious matter. It would be regarded as disgraceful or dishonourable conduct by members of the profession. The respondent’s conduct which is the subject of charge 16 is therefore found to be professional misconduct.
Charge 18 would add a fault element to this conduct. Given the characterisation of the conduct in relation to charge 16, and the difficulties with the fault element, a consideration of this charge does not materially assist in the characterisation of the respondent’s conduct.
Charge 17 demonstrates gross incompetence on the part of the respondent in relation to the drawing and execution (more specifically, witnessing the execution) of the will. The conduct is at least a substantial failure to reach or keep a reasonable standard of competence and diligence. It is characterised as professional misconduct.
Costs
In oral argument, Mr Cohen accepted that, unless the respondent were successful on a substantial number of charges, a costs order should be made against his client. In view of the findings made in these reasons, it would appear that such an order should be made.
Other orders
Mr Cohen requested the opportunity to make submissions about other orders, after publication of these reasons. It might be noted that the respondent does not hold a practising certificate.
The Tribunal has found that, in five of the matters to which the application relates, the respondent placed himself in a position of conflict, and then engaged in rapacious conduct, resulting in each case in a finding of professional misconduct. In the Saunderson matter, the respondent took $1,040,000 of estate moneys to which he was not entitled, and demonstrated gross incompetence.
In the Tribunal’s view, subject to further submissions, it would be appropriate to recommend that the respondent’s name be removed from the local roll of legal practitioners.
In the circumstances, the Tribunal will indicate the orders it proposes to make in the absence of further submissions, but will permit the parties the opportunity to make further submissions as to appropriate orders. The proposed orders are as follows:-
1.The Tribunal recommends that the respondent’s name be removed from the local roll.
2.The respondent is to pay the applicant’s costs of and incidental to the application, to be assessed on the standard basis.
In the meantime, the following orders are made:-
1.Within 7 days of the publication of these reasons to the parties, either party may give notice to the other party and the Tribunal of its intention to make further submissions about the orders to be made.
2.If a party gives such notice, that party is to file and serve its submissions within 14 days of the publication of these reasons; and the other party may file and serve submissions in reply within 21 days of the publication of these reasons.

CITATION:	Legal Services Commissioner v Slipper [2019] QCAT 146
PARTIES:	LEGAL SERVICES COMMISSIONER (applicant)
v
ROBIN JOHN SLIPPER (respondent)
APPLICATION NO/S:	OCR 110-14
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	10 June 2019
HEARING DATE:	22-23 August 2018
HEARD AT:	Brisbane
DECISION OF:	Hon Peter Lyons QC, Judicial Member Assisted by: Ms Megan Mahon Dr Margaret Steinberg AM
ORDERS:	1. Within 7 days of the publication of these reasons to the parties, either party may give notice to the other party and the Tribunal of its intention to make further submissions about the orders to be made. 2. If a party gives such notice, that party is to file and serve its submissions within 14 days of the publication of these reasons; and the other party may file and serve submissions in reply within 21 days of the publication of these reasons.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent is charged with acting in 4 estate matters where there was a conflict between his personal interest and the interest of the estate and its sole or sole residual beneficiary – where the respondent is charged with acting in a matter where there was a conflict between his personal interest and the interest of his client – where the respondent is charged with charging excessive legal costs to 6 clients – where the respondent is charged with charging legal costs to which he was not entitled on 5 occasions – where the respondent is charged with purporting to increase the costs to which he claimed to be entitled following a request for an itemised bill – where the respondent is charged with appropriating funds to which he was not entitled – where the respondent is charged with conduct falling short of the standard of competence and diligence a member of the public is entitled to expect of a legal practitioner or which is a substantial failure to reach or keep a reasonable standard of competence and diligence – whether the above charges made out – whether the respondent’s conduct in respect of each charge is characterised as unsatisfactory professional conduct or professional misconduct Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673 Bray v Ford [1896] AC 44 Brookfield & Anor v Davey Products Pty Ltd [1997] FCA 1462 Brown v Talbot & Olivier (1993) 9 WAR 70 Chick & Anor v Grosfeld (no 3) [2012] NSWSC 1536 Clark Boyce v Mouat [1994] 1 AC 428 Council of the Queensland Law Society v Roche [2003] QCA 469; [2004] 2 Qd R 574 D’Alessandro & D’Angelo (A Firm) v Bouloudas (1994) WASC 227; (1994) 10 WAR 191 D’Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 Dore (as executor of the will of W H B Chenhall dec’d) [2006] QCA 494 Equuscorp Pty Ltd v Wilmoth Field Warne (No 4) [2006] VSC 28 Harrison v Tew [1989] QB 307 In re Hollole [1945] VLR 295 In re Nickson [1916] VLR 274 In re Orwell’s Trusts [1982] 1 WLR 1337 In re Weall, Andrews v Weall (1889) 42 Ch D 674 Law Society of ACT v Roche [2002] ACTSC 104; (2002) 171 FLR 138 Law Society of NSW v Foreman (1994) 34 NSWLR 408; [1994] NSWCA 69 Legal Profession Complaints Committee vO’Halloran [2011] WASAT 95 Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249; [2006] QCA 145 Legal Services Commissioner v Bone [2013] QCAT 550 Legal Services Commissioner v Podmore [2006] LPT 5 Legal Services Commissioner v Urban [2013] QCAT 521 Maguire & Tansey v Makaronis (1997) 188 CLR 449; [1997] HCA 23 O’Brien & Anor v Smith & Anor [2012] QSC 166 Re Craig (1952) 52 SR (NSW) 265 Re Veron; Ex parte Law Society (NSW) [1966] 1 NSWR 511; (1966) 84 WN (Pt 1) (NSW) 136 Robinson v Pett [1734] EngR 54; (1734) 3 P Wms 24; 924 ER 1049, 1050 Saffron v Cowley & Anor; Estate of Saffron [2012] NSWSC 1108 Southern Law Society v Westbrook (1910) 10 CLR 609; [1910] HCA 31 Speight v Gaunt (1883) 22 Ch D 727; (1883) 9 App Cas 1 Stott v Milne (1884) 25 Ch D 710 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Turner v Hancock (1882) 20 Ch D 303 Veghelyi v The Law Society of New South Wales [1995] NSWCA 483 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 Wintle v Nye [1959] 1 WLR 284 Legal Profession Act 2007 (Qld), s 3, s 24, s 111, s 112, s 113, s 117, s 120, s 122, s 125, s 248, s 237, s 255, s 456, s 656C Queensland Civil and Administrative Tribunal Act 2009, s 28, s 323 Trusts Act 1973 (Qld), s 5, s 19, s 101
APPEARANCES & REPRESENTATION:
Applicant:	G R Rice QC instructed by Legal Services Commission
Respondent:	B T Cohen, solicitor, of Bartley Cohen

Matter	Amount invoiced	Amount repaid	Repayment date
Jacobs	$27,427.59	$16,464.73	2 June 2014
Coughlan	$26,405.73	$15,297.34	31 March 2015
Munt	$23,576.60	$14,855.87	31 March 2015
Trill	$5,950	$2,425.58	15 April 2015
Tully	$61,793.45	$35,926.14	31 March 2015
Tonge	(Not in evidence)	$2,498.25	13 September 2013
Heginbotham	$10,373.22	$2,468.62	13 November 2014