LP 202001 v Council of the Law Society of the Act (Appeal) - [2022] ACAT 80

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

LP 202001 v COUNCIL OF THE LAW SOCIETY OF THE ACT (Appeal) [2022] ACAT 80

AA 42/2020 (OR 1/2020)

Catchwords: APPEAL – occupational discipline – legal practitioner – evidence – standard of practice – fresh evidence

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82
Evidence Act 2011 s 9
Family Provision Act 1969 s 22
Legal Profession Act 2006 ss 269, 271, 272, 277, 291, 300, 386, 387, 389, 425, 427, 435, 423, 431, 433, 585

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91
The Legal Profession (Solicitors) Conduct Rules 2015 (ACT) r 2

Cases cited:ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd & Anor [2021] ACAT 37
Amer v Erikkson [2019] ACAT 108
Australian CapitalTerritory v Wang [2019] ACAT 65
Council of the Law Society of the ACT v Legal Practitioner [2022] ACTSC 129
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village [2021] ACAT 71
Harada v Barnes & Anor [2021] ACAT 66
House v R (1936) 55 CLR 499
Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56
In the Matter of AB [2018] ACAT 18
Kalil v Bray (1977) 1 NSWLR 256
Law Society of South Australia v Jordan [1998] SASC 6809
Law Society of South Australia v Murphy [1999] SASC 83
McSteen v Architects Registration Board of Victoria [1918] VCSA 96
Norbis v Norbis (1986) 171 CLR 518
Tam v Du [2019] ACAT 94
The Council of the Law Society of the ACT v LP [2018] ACTCA 60
The Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2013] ACTSC 134

Tribunal:Presidential Member H Robinson
Member Hawkins

Date of Orders: 5 October 2022
Date of Reasons for Decision: 5 October 2022

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 42/2020

BETWEEN:

LP 202001
Appellant

AND:

COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent

TRIBUNAL:Presidential Member H Robinson
Member Hawkins

DATE:5 October 2022

ORDER

The Tribunal orders that:

The appeal is dismissed.
Order 6 made by the Original Tribunal is amended so as to substitute section 433(1) in lieu of section 431(1) of the Legal Profession Act 2006.
The decision of the Original Tribunal is otherwise confirmed.

………………………………..
Presidential Member H Robinson

For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

By way of an application for appeal dated 23 November 2020, the appellant sought to appeal a decision of the Tribunal (the Original Tribunal) in Council of the Law Society of the ACT Legal Practitioner 202001 dated 26 October 2021 (the Original Decision).
The appeal was brought on numerous grounds. We have summarised them as best we can.
We are are concerned that the penalty of $10,000 was high, having regard to the seriousness of the conduct. Indeed, it was the maximum amount that could be imposed[1]. Nevertheless, it was within the Original Tribunal’s discretion to impose the penalty and, in the absence of it being manifestly unreasonable, must stand.
[1] The maximum penalty payable for unsatisfactory professional conduct – see section 427(1) of the Legal Profession Act 2006.
We have amended Order 6 of the of the Original Tribunal so as to substitute section 433(1) in lieu of section 431(1) of the Legal Profession Act 2006 (LPA) but is otherwise confirmed.
Otherwise, the appeal is dismissed.
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Original Tribunal’ refers to the Tribunal which made the first instance decision dated 26 October 2020. The first instance decision is referred to intermittently as the ‘Original Decision’. ‘Appeal Tribunal’ or ‘Tribunal’ refers to the presently constituted tribunal. The appellant is referred to as the ‘appellant’ or as the ‘Practitioner’. The respondent is referred to as the ‘respondent’ or as the ‘Law Society’ or as the ‘Council’.

Background

At all relevant times the Practitioner held an unrestricted practising certificate and was the principal of a firm carrying out legal practice.
The application for disciplinary action (application) against the Practitioner arose from the Practitioner’s advice to two clients, JD and GM (Clients) on wills and enduring powers of attorney (EPA).
In a complaint to the Law Society dated 4 April 2018, the Clients expressed their dissatisfaction with the practitioner’s service and the fees she charged. The complaint was referred to the Council of the Law Society. After considering and investigating the complaint, the Council filed the application for disciplinary action dated 9 January 2020 with the Tribunal seeking orders pertaining four charges against the Practitioner. The charges cover the Practitioner’s alleged conduct relating to the following:
Charge 1: Lack of competence and diligence
Charge 2: Enduring powers of attorney
Charge 3: Overcharging legal costs
Charge 4: Failure to provide written cost disclosure
The Original Tribunal found the Practitioner’s actions constituted unsatisfactory professional conduct at the higher end of the spectrum. The Original Tribunal found that the Practitioner’s advice and dealings fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner. The Practitioner’s conduct was not considered so significant as to be described as ‘disgraceful’ or constituting a consistent failure to maintain a reasonable standard of competence or diligence. The Original Tribunal also did not consider that a finding should be made that the Practitioner engaged in misconduct or is not a fit and proper person to engage in legal practice.[2]
[2] Original Tribunal at [92]
The Original Tribunal made the following orders:
1.       Pursuant to subsection 425(1) of the Legal Profession Act 2006 (LPA), the respondent is guilty of unsatisfactory professional conduct.
2.       Subject to subsection 423A(2) of the LPA, the respondent is publicly reprimanded pursuant to subsection 425A(3)(e) of the LPA.
3.       Pursuant to subsection 425(5)(a)of the LPA, the respondent is fined in the sum of $10,000 payable within a reasonable period to be advised by the Council.
4.       Pursuant to section 431(1)(sic) of the LPA, the respondent pay the applicant’s costs calculated on a solicitor own-client basis in accordance with the ACT Supreme Court scale in a sum to be agreed and , if not agreed between the applicant and the respondent, the costs are to be assessed by a cost expert, namely LegalCost, and the respondent is to pay 90% of the costs so assessed pls disbursements in full.
The Practitioner appealed the decision of the Original Tribunal. The appeal was heard on 3 February 2022. Both parties were represented by counsel at the hearing. Both counsel made detailed written submissions prior to hearing and made oral submissions at the hearing.
The appeal was conducted as a ‘review’ pursuant to section 82(1)(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). A differently constituted Appeal Tribunal said of section 82(1)(b) in Australian CapitalTerritory v Wang:
…It falls to the Tribunal to decide the case by reference to the evidence before the Original Tribunal in light of the parties’ submissions and the applicable law. The Appeal Tribunal need not and would not be expected to go beyond that material.[3]
[3] [2019] ACAT 65 at [52]
Prior to the commencement of the appeal, the Practitioner made a preliminary application for the admission of further documentary evidence for the appeal pursuant to rule 91 of the ACT Civil and Administrative Tribunal Procedures Rules 2020. The further material was contained in two folders of approximately 30 documents comprising approximately 230 pages. The additional material was of two categories. The first category essentially comprised draft versions of the Clients’ wills and documents that showed when certain documents were checked in (the Client documents) and the second bundle related to complaints which the Practitioner had made in relation to the lawyers retained by the Law Society, namely McInnes Wilson and Lawyers employed by that firm primarily Mr Buxton (McInnes Wilson documents).
After hearing from the parties, the Appeal Tribunal gave leave for further limited documents to be allowed in the appeal being:
(a)a letter from the Law Society to the Practitioner dated 28 June 2018;
(b)eight draft versions of the wills; and
(c)a legible copy of a document tendered in the first instance hearing being the first annexure to the affidavit of Mr Rob Reis’s affidavit dated 29 April 2020.[4]
The Appeal Tribunal’s reasons for same are also set out below.
[4] Transcript of proceedings 3 February 2022, page 23
The Appeal Tribunal has considered all the material before the Original Tribunal, the additional allowed material, the applicable law and the parties’ oral and written submissions to the Appeal Tribunal during this hearing.

Legislation relevant to the appeal

Subsection 79(3) of the ACAT Act provides that a party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law. Therefore, the Practitioner has a right to appeal the decision of the Original Tribunal on a question of fact or law.
The substantive legal framework that applies to this appeal is to be decided is found in the LPA.
The LPA provides a statutory definition of ‘unsatisfactory professional conduct’ and ‘professional misconduct.’
Section 386 of the LPA defines ‘unsatisfactory professional conduct’ as including:
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Section 387 of the LPA defines ‘professional misconduct’ as including:
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
Section 389 of the LPA provides examples of conduct that may amount to ‘unsatisfactory professional conduct’ or ‘professional misconduct’, including conduct in contravention of the LPA and charging of excessive legal costs in connection with the practise of law.
Pursuant to section 585 of the LPA, The Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (the Rules) impose binding obligations on solicitors. In addition, the section also provides that a failure to comply with the Rules can constitute unsatisfactory professional conduct or professional misconduct. The rules apply in addition to the common law and a solicitor is required to observe the higher the standards required by the Rules and the common law and/or legislation in any instance where is a difference between them.[5]
[5] The Legal Profession (Solicitors) Conduct Rules 2015 (ACT) Rule 2
Rule 4 provides:
4.1A solicitor must also:
4.1.1act in the best interests of a client in any matter in which the solicitor represents the client;
4.1.2be honest and courteous in all dealings in the course of legal practice;
4.1.3deliver legal services competently, diligently and as promptly as reasonably possible;
4.1.4avoid any compromise to their integrity and professional independence; and comply with these Rules and the law.
Section 269 of the LPA provides:
Disclosure of costs to clients
(1) A law practice must disclose to a client in accordance with this division-
(a) the basis on which legal costs will be worked out, including whether a scale of costs applies to any of the legal costs; and
(b)the client’s right to-
(i)negotiate a costs agreement with he law practice; and
(ii)receive a bill from the law practice; and
(iii)request an itemised bill if the client receives a lump sum bill for more than the threshold amount; and
(iv)be notified under section 276 (Ongoing obligation to disclose etc) of any substantial change to the matters disclosed under this section; and
(v)that the client is not entitled to request an itemised bill if the bill is for an amount equal to or less than the threshold amount; and
(vi)an estimate of the total legal costs, if reasonably practicable or, if it is not reasonably practicable to estimate the total legal costs, a range of estimates of the total legal costs and an explanation of the major variables that will affect the working out of the costs; and
(vii)details of the intervals (if any) at which the client will be billed; and
(viii)the rate of interest (if any) that the law practice charges on unpaid legal costs, whether the rate is a specific rate of interest or is a benchmark rate of interest; and
(ix)if the matter is a litigious matter, an estimate of—
(i)the range of costs that may be recovered if the client is successful in the litigation; and
(ii)the range of costs the client may be ordered to pay if the client is unsuccessful; and
(c)the client’s right to progress reports in accordance with section 278 (Progress reports); and
(d)details of the person whom the client may contact to discuss the legal costs; and
(e)the following avenues that are open to the client if there is a dispute in relation to legal costs:
(f)costs assessment under division 3.2.7;
(g)the setting aside of a costs agreement under section 288 (Setting aside costs agreements); and
(h)any time limits that apply to the taking of any action mentioned in paragraph (j);
Section 271 of the LPA provides that the disclosure pursuant to section 269 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.
However, section 272(1)(a) provides that disclosure is not required if the total legal cost in the matter, excluding disbursements, are not likely to exceed $1,500 (exclusive of GST). Section 272(2) provides that if a law practice becomes aware that the total legal costs are likely to exceed $1,500 (exclusive of GST), the law practice must disclose the matters in section 269 “as soon as reasonably practicable to the client.”
Section 277 of the LPA is concerned with the effect of a failure to disclose. Relevantly, section 277(7) provides:
Failure by a law practice to comply with this division can be unsatisfactory professional conduct or professional misconduct on the part of any Australian legal practitioner involved in the failure.
Section 291 of the LPA provides:
Notification of client’s rights
(1)     A bill must include or be accompanied by a written statement setting out—
(a)the following avenues that are open to the client if there is a dispute in relation to legal costs:
(i)costs assessment under division 3.2.7;
(ii)the setting aside of a costs agreement under section 288 (Setting aside costs agreements); and
(b)any time limits that apply to the taking of any action mentioned in paragraph (a).
Note         These matters will already have been disclosed under s 269 (1) (Disclosure of costs to clients).
(2)     Subsection (1) does not apply in relation to a sophisticated client.
(3)     A law practice may provide the written statement mentioned in subsection (1) in a form approved by the law society council under section 587 and if it does so the practice is taken to have complied with this section in relation to the statement.
In relation to costs assessment, section 300 of the LPA provides:
Criteria for costs assessment
(1) In conducting an assessment of legal costs, the Supreme Court must consider—
(a)whether or not it was reasonable to carry out the work to which the legal costs relate; and
(b)whether or not the work was carried out in a reasonable way; and
(c)the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that section 300A (Assessment of costs by reference to costs agreement) or section 300B (Assessment of costs by reference to scale of costs etc) applies to any disputed costs; and
(d)if the costs agreement contained provision for an uplift fee under section 284 (Conditional costs agreements involving uplift fees), whether the uplift fee was justified in the circumstances.
Note The Civil Law (Wrongs) Act 2002, pt 14.1 (Maximum costs for certain personal injury damages claims) contains limitations on legal costs.
(2) In considering what is a fair and reasonable amount of legal costs, the Supreme Court may have regard to any or all of the following matters:
(a)whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with this Act;
NoteThis Act is defined in the dictionary.
(b)any disclosures made by the law practice under division 3.2.3 (Costs disclosure);
(c)any relevant advertisement about—
(i)the law practice’s costs; or
(ii)the skills of the law practice or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf;
(d)the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter;
(e)the retainer and whether the work done was within the scope of the retainer;
(f)the complexity, novelty or difficulty of the matter;
(g)the quality of the work done;
(h)the place where, and circumstances in which, the legal services were provided;
(i)the time within which the work was required to be done;
(j)any other relevant matter.

The Original Tribunal’s decision

The original application pleaded four charges against the Practitioner. As stated above, the Original Tribunal described them as dealing with the Practitioner’s alleged:
(a)     lack of competence and diligence;
(b)     conduct in drafting the EPAs;
(c)     overcharging legal costs; and
(d)     failure to provide written cost disclosure.[6]
[6] Original Tribunal at [16]
This Appeal Tribunal sets out those charges and the Original Tribunal findings as follows:
Charge 1: Lack of competence and diligence - the Practitioner failed to act completely, diligently and as promptly as reasonably possible in breach of rule 4.1.3 and the common law
Finding of the Original Tribunal: The Original Tribunal considered that because both Clients had two children from a previous marriage and the wills provided for different percentages of specific property these beneficiaries may receive under the Clients’ wills, a challenge under the Family Provision Act 1969 (FP Act) was more than a remote possibility. In the circumstances, it considered that the Practitioner should have advised the Clients of this risk and of their right to make a statement under section 22 of the FP Act. Failing to do so showed a lack of competence and diligence.[7]
[7] Original Tribunal at [27]
Charge 2: Enduring Powers of Attorney - the Practitioner substantially prepared EPAs for her Clients after telling them that the document was almost completed and in so doing failed to act in the best interests of her client and failed to treat her Clients fairly and in good faith in breach of rule 4.1.1 and the common law
Finding of the Original Tribunal: The Original Tribunal considered that the Practitioner breached rule 4.1.1 and the common law in failing to treat the Clients fairly and in good faith in the representations she made, and the work undertaken on the EPAs on 1 March 2018.[8] The Original Tribunal found that she misrepresented to the clients the work that had already been done on the EPAs prior to that date.
[8] Original Tribunal at [38]
Charge 3: Overcharging of legal costs - the Practitioner overcharged her Clients and in so doing failed to act in the best interests of her clients and failed to treat her clients fairly and in good faith in breach of rule 4.1.1 and the common law
Finding of the Original Tribunal: The Practitioner charged the Clients for the time spent with her (time costed amount) while approximately eight draft wills were produced, and also charged them $800, being the flat rate for two standard wills. While the latter error was corrected by the Practitioner by refunding the flat sum to the Clients some months after they lodged their complaint, the Original Tribunal considered the time costed amount charged by the Practitioner was nonetheless excessive. The Original Tribunal stated that its finding on this charge was strengthened because the Practitioner did not advise the Clients about binding death nominations, the taxation of superannuation, and the option of a statement under the FP Act. The Original Tribunal found the Practitioner failed to act in the best interests of her Clients and failed to treat her Clients fairly and in good faith in breach of rule 4.1.1 and the common law.[9]
Charge 4 Failure to provide written cost disclosure - the Practitioner failed to provide written cost disclosure to the clients in breach of section 269 of the LPA
Finding of the Original Tribunal: The Practitioner determined when the Clients provided their written instructions to her on 1 March 2018 that the wills were not standard and that an hourly rate would apply and for this reason, she asked the Clients to sign a fee for service agreement containing the following term “Cost for professional services: time costed at $480 plus GST”. The Original Tribunal found that the term “time costed at $480” with no reference to the term “hour” or any other measure of time was confusing.[10] The Original Tribunal further found that the Practitioner’s fee for service agreement did not meet the requirements of section 269 of the LPA such as providing an estimate or range of estimates and options for dispute resolution.[11]

The appeal hearing

[9] Original Tribunal at [55]-[56]
[10] Original Tribunal at [63]
[11] Original Tribunal at [67]

The appeal was heard on 3 February 2022. The Practitioner was represented by Mr Burnside QC of Counsel and the respondent by Mr Moujalli of Counsel. At the conclusion of the hearing the Appeal Tribunal reserved its decision.
On 1 June 2022 Mossop J of the ACT Supreme Court delivered a decision in Council of the Law Society of the ACT v Legal Practitioner [2022] ACTSC 129. On 4 July 2022, the Tribunal wrote to both parties and advised that if either party wishes to make submissions about the relevance of any aspect of this decision to the present proceedings, they may do so by filing a written submission on or before 18 July 2022, and the Appeal Tribunal would consider that submission in reaching its final decision.
The respondent filed submissions in accordance with the directions. The appellant did not. On 19 July 2022, the appellant requested an extension of time to provide submissions to 3 August 2022. The Tribunal granted that extension. No submission was received on or before 3 August 2022, nor to date.
The Tribunal has had regard to the respondent’s submissions on Council of the Law Society of the ACT v Legal Practitioner [2022] ACTSC 129 and confirm that nothing in them changed our view as to the appropriate outcome in this case.

The Practitioner’s application to admit fresh evidence

The first issue to be resolved on appeal was the Practitioner’s application to admit further evidence.
As set out above, the fresh evidence the Practitioner sought to rely upon can be divided into two broad collections – the ‘client documents’ and the ‘McInnes Wilson documents’.
The Client Documents included:
(a)a letter from the Law Society seeking production of the practitioner’s file for the clients and her reply;
(b)documents recording the electronic document history (check-in information) for various documents;
(c)eight draft versions of the Clients’ wills; and
(d)a better quality copy of the record of invoices issued for the Clients’ wills.
The McInnes Wilson documents concerned unrelated complaints by the Practitioner and complaints made against the law firm representing the respondent.
As these documents were not before the Original Tribunal, the Practitioner needed to seek leave to have them admitted on appeal.
Rule 91(c) of the ACT Civil and Administrative Tribunal Rules 2020 provides that:
For an appeal within the tribunal, the appeal tribunal–
(c) may, if leave is granted, received further evidence about questions of fact, either orally or in a hearing, by written statement or in another way.
The principles regarding the grant of leave to introduce further evidence on appeal are well-settled. Ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.[12] Exceptions may be made where there was:
(a)an acceptable reason for the additional evidence not being placed before the Original Tribunal; and
(b)the evidence would have produced a different result.[13]
[12] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 per President Neate citing CDJ v VAJ (No 1) [1998] HCA 67
[13] Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602Trading as Southside Village [2021] ACAT 71 at [3], [12]; Amer v Erikkson [2019] ACAT 108
Additionally, we also note the observation of President Neate in Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [30] that:
…an Appeal Tribunal would only grant leave to admit further evidence about questions of fact in exceptional circumstances where it serves the demands of justice to do so.
As we understand it is the Practitioner’s submission that the reason she did not file the documents at first instance is that they should have been filed by the Law Society. The Practitioner did not cite any authority of the proposition that the Law Society was obliged to put evidence of this kind before the Tribunal, and we are unaware of any relevant authority. She contended that the absence of the material meant that the Original Tribunal did not have all the relevant material needed to make the correct decision.[14] This amounts to an argument that omission of the evidence severs the demands of justice.
[14] Appellant’s submissions, 15 September 2021 at [89]
The Practitioner also accused the Council and its legal representatives of improper conduct, namely the withholding of relevant documents assumed to be the eight draft versions of the wills.[15]
[15] Respondent’s submissions, 6 October 2021 at [2.1]
The respondent submitted that we should adopt this standard two-factor test and submitted that the circumstances of this case were not sufficiently exceptional to warrant the admission of additional evidence.[16] The Council rejected the Practitioner’s accusations against the Council and (by necessary implication) its legal representatives. The respondent wanted the accusations withdrawn and submitted that if they were not withdrawn, they should be rejected by the Tribunal.[17] The respondent also submitted that the Practitioner could have put the documents into evidence before the Original Tribunal as they were available to her at all times.
[16] See Hamers v South Canberra Holdings Pty LtdACN 606 747 602Trading as Southside Village [2021] ACAT 71 at [3]
[17] Respondent’s submissions 6 October 2021 at [2.3]
The McInnes Wilson documents can be dealt with quickly. The Tribunal made directions on three occasions (10 February 2020, 7 April 2020 and 4 May 2020) for the Practitioner to file her evidence. She acknowledged at the original hearing that she had the opportunity to bring forward any evidence that would assist her[18] and considered that opportunity continued until the morning of the first hearing.[19] Additionally, she is an experienced legal practitioner, she was represented by Senior Counsel, and she had access to the documents throughout the proceedings and means to obtain them even if she did not. It was she who contended they were relevant. Notwithstanding that she may have believed that the Law Society ‘should’ have filed the documents, she could have done so herself, and has offered no reasonable excuse as to why she did not. In any case, we were not persuaded that these documents are in any way relevant to the proceedings. They concern a dispute between the Practitioner and certain solicitors employed at the law firm engaged by the respondent, not the relationship between the Practitioner and the respondent. It is unlikely that admission of the documents would have resulted in a different decision being made in the first instance. Finally, we reject the accusation that the Law Society acted improperly in not filing the documents. Accordingly, we are not satisfied that it would be in the interests of justice to admit the McInnes Wilson documents into evidence on appeal, and we dismiss the application in relation to them.
[18] Transcript of proceedings 4 May 2020, pages 40-42
[19] Transcript of proceedings 19 May 2020, page 60
The client documents are somewhat different. We have the same concerns about the lack of a reasonable excuse here as we did in relation to the McInnes Wilson documents. Again, the Practitioner asserted[20] that the respondent should have placed these documents before the Original Tribunal but offered no basis for this assertion, not any explanation for why she did not do so herself. The difference is that we are satisfied that the draft wills are relevant to the proceedings, and that they could have made a difference at first instance. Accordingly, we have decided, in the interests of justice, to admit them, notwithstanding our concerns that there is no reasonable excuse for their omission from the original hearing.
[20]Appellant submissions, 15 September 2021 at [89]
We acknowledge, here, that the respondent, rightfully, questioned whether these wills are inadmissible hearsay, this being a proceeding to which the Evidence Act 2011 (the Evidence Act) applied. To this end, however, we do not think that the Evidence Act requires their exclusion. We do not consider the wills to be evidence of what the Clients’ representations as to their intentions were, but rather as evidence that changes were in fact made to the drafts over the course of the 1 March 2021 meeting, a non-hearsay purpose.
It is of some concern to us that because of the circumstances under which the documents were admitted, the respondent is unable to cross-examine the Practitioner about the authenticity of the documents. This has the potential to give rise to a significant injustice, but for reasons that will become apparent, we do not believe an injustice arises in this case.
We also allowed into evidence the legible copy of exhibit RR1, page 181, as this is not new evidence.

The substantive appeal

The Practitioner’s submissions

In her submissions filed on 15 September 2021, the Practitioner identified several grounds of appeal.[21] Some of these are precisely stated, others are more in the form of a discursive commentary on the Original Tribunal’s decision. In the case of the latter, have done our best to identify the errors alleged.
Errors in relation to the Orders
[21] Appellant’s submissions, 15 September 2021
In relation to the Orders, the practitioner contended the Original Tribunal failed to consider whether the provisions of section 272(1) of the LPA had the effect that the disclosure of fees was not required under section 269 of the LPA in the circumstances. In particular, the practitioner alleged that the Original Tribunal erred in that it:
(a)fused both matters and both clients together as one;
(b)failed to consider that an EPA and a will are separate matters and that each will and each EPA are separate legal documents;
(c)failed to separate the professional costs and to consider them in relation to each matter;
(d)failed to separate the disbursements and to remove them from consideration;
(e)merged professional costs on two different documents for two people with different situations who had different and changing instructions, needs and requirements.
The Practitioner also argued that the Original Tribunal erred in:
(a)making Order 2 a public reprimand without considering whether there were any special circumstances;
(b)making Order 3 as it imposed the maximum fine of $10,000 under sections 425(5) and 427 as it:
(i) failed to consider the provisions of section 427 of the LPA without reference to $10,000 being the maximum fine and without any enquiry into the impact of such a fine on the appellant;
(ii) failed to assess that the fees charged were at the lower end of the scale and that the professional costs were below the threshold for each person in each matter and were below the amount of the (maximum) fine;
(iii) failed to consider that, on the Practitioner’s case, the provisions of section 272(1) did not require disclosure under section 269 and did not consider whether no fine could apply to the EPA matter as it was under the threshold. Further, the imposition of the maximum fine of $10,000 on the wills matters was more than the amount charged by the Practitioner and not justifiable in the circumstances.
The appellant contended that the Original Tribunal erred in making Order 4 in ordering the Practitioner pay the Council’s costs pursuant to section 431(1) of the LPA and in ordering that Legalcost be appointed and thereby remove the cost assessment procedures in the Court Procedures Rules 2006 because:
(a)section 431(1) does not pertain to costs orders;
(b)the calculation of the costs on a ‘solicitor own-client basis’ in accordance with the Supreme Court scale was not supported by any reasoning and or justification; and
(c)there was no evidence concerning the appointment of Legalcost, nor the proportion of the costs payable from an assessment. The effect was to remove from the appellant the right for a cost assessment provided for in the Court Procedures Rules 2006 and beyond the power of the Original Tribunal.
Alleged errors in relation to Charge 1 – Competence and diligence
In relation to Charge 1, the appellant contended that it erred on the following grounds for the reasons stated.
Original Decision Paragraph 20 – time spent on work
The appellant submitted that the Original Tribunal erred in finding that the time spent by the Practitioner was excessive because of “decades in legal practice” of the Practitioner because:
(a)when considering the time the Clients spent with the Practitioner, the facts referred to by the Original Tribunal are silent about whether the time was actually spent upon the work by the Practitioner;
(b)the finding that the time was an ‘extensive’ period of time for the work undertaken by the Practitioner by assessing the end result of the work but not by assessing either the time taken in fact or the work involved to get the result;
(c)No assessment was made of the ‘matter’ to which the work related before the Original Tribunal reached its conclusion upon the application of section 269 of the LPA. The Original Tribunal treated both Clients as one person and both persons had one matter despite there being four separate documents.
Alleged errors in relation to Charge 2 – Duty to act in best interests of client and to treat client fairly and in good faith
In relation to Charge 2, the appellant submitted that it erred on the following grounds for the reasons stated.
Original Decision Paragraphs 31 and 87– when work undertaken
The appellant submitted that the Original Tribunal erred in finding that the Practitioner undertook the work on the EPAs on 1 March 2018 and not on 23 February 2018 because:
(a)when considering the evidence of GM and JD signed on to the EPAs very early on and that this was consistent with the evidence of the Practitioner;
(b)it failed to consider the practice software of the Practitioner showing that the EPA was prepared on 23 February 2018;
(c)it failed to consider the evidence of the Practitioner when she said that she checked the whole of the EPA document on 1 March 2018 from the document that she had prepared; and
(d)did not properly consider the preparation of the document and advising the Clients on research conducted by JD.
Original Decision Paragraph 32 – whether JD could see computer screen
The appellant submitted that the Original Tribunal erred in finding that JD could see the computer screen on which the Practitioner worked and that this constituted unsatisfactory conduct, overcharging and a breach of Rule 4.1.1 of the Solicitors Conduct Rules because the finding:
(a)was not supported by the evidence of the Clients;
(b)was contrary to the evidence of the Practitioner and as supported by her computer records.
Original Decision Paragraph 36– time spent of Powers of Attorney at second meeting
The appellant submitted that the Original Tribunal erred in finding that approximately two hours of the second meeting on 1 March 2018 was spent on the EPAs and that the document history showed that the document was modified at 2.52pm on 1 March 2018 because the finding:
(a)was not supported by the evidence of the Clients; and
(b)was contrary to the evidence of the Practitioner and as supported by her document history records.
Original Decision Paragraphs 37-38 – representations made by Practitioner as to work undertaken on Powers of Attorney
Finally on this charge, the appellant submitted that the Original Tribunal erred in finding that the Practitioner breached Rule 4.1.1 in “failing to treat the Clients fairly and in good faith” by the representations she made and the work undertaken on 1 March 2018 because the finding was contrary to the evidence in the preceding paragraphs of the Original Decision in that the Practitioner downloaded the EPAs and prepared the work on 23 February 2018 and checked the work in conference with the Clients on 1 March 2018.
Alleged errors in relation to Charge 3 – overcharging
In relation to Charge 3, the appellant contended that it erred on the following grounds for the reasons stated.
Original Decision Paragraph 52 – whether the Practitioner produced eight draft versions of the wills
The appellant submitted that the Original Tribunal erred in finding that the Practitioner did not produce the eight versions of the wills prior to the hearing and that the Law Society did not receive the eight versions of the wills; erred in changing the punctuation in the transcript; by finding that it was the Practitioner to prove its case on the work undertaken in relation to the wills. Consequently, the findings of unsatisfactory conduct, breach of Rule 4.1.1 and the breach of section 269 are erroneous because the findings:
(a)were contrary to the evidence of the Practitioner;
(b)did not refer to the letter of the Law Society to the Practitioner dated 28 June 2018 and that the letter was not included in the evidence;
(c)did not consider that the Law Society did not include the whole of the file the Practitioner had sent to the Law Society in the evidence;
(d)did not consider the Practitioner’s request at the directions hearing on 15 May 2020 for the whole of the Law Society file be included in the material, which was refused;
(e)did not consider that between 5 May 2018 and the hearing, the Law Society did not raise any question in relation to the eight versions of the wills nor did the Law Society request further copies or claimed not to have received them; and
(f)did not take account of the evidence of the Practitioner in relation to the eight versions of the wills.
Original Decision Paragraph 54 – changes in instructions alleged to have been made by the Clients
The appellant also said that the Original Tribunal erred in failing to accept the evidence of the Practitioner about the changes made by JD to her will and that the instructions of the Clients were set out in three pages because it:
(a)did not consider that the instructions by JD and GM changed repeatedly and that there were many pages of instructions; and
(b)did not consider that the changes by JD can be verified by a comparison of the written instructions provided by JD and JD’s final version of her will and also the eight drafts of the will demonstrate the nature and extent of the changes in instructions.
Original Decision Paragraph 55 – whether amount charged by the Practitioner was excessive
Finally, on this charge the appellant submitted that the Original Tribunal erred in finding that the Practitioner charged the clients for time spent with her whilst eight drafts of the will were produced and did not consider the discount given to the Clients, nor the non-charging of half an hour of work, nor unrecorded time and that the Practitioner also charged the Clients $800 being the fixed price for a standard will. This caused the Original Tribunal to wrongly conclude that the amount charged by the Practitioner was excessive. The Original Tribunal also erred in finding that the Practitioner did not advise the Clients about binding death nominations and superannuation when the original complainants did not make such a complaint and that they had a financial advisor advising them in relation to same and that they were still working. The appellant further submitted that the Original Tribunal erred in finding that superannuation was also part of the attendance on 23 February 2018. The Original Tribunal’s erred in relation to the forgoing findings because the findings were not based on the evidence both the total time spent and the amounts invoiced and in relation to binding death nominations were not supported by the evidence and did not form part of the charges.
Alleged errors in relation to Charge 4 – cost disclosure

In relation to Charge 4, the appellant contended that the Original Tribunal erred on the following grounds for the reasons stated:
Original Decision Paragraph 61 – whether the wills were complex
The appellant submitted that the Original Tribunal erred in finding that the wills were not complex because the reasoning and findings of paragraphs 54 and 61 of the Original Decision are inconsistent.
Original Decision Paragraph 63– whether the term “time costed at $480” was confusing
The appellant submitted that the Original Tribunal erred in finding that the term “time costed at $480” in the Fee for Service Agreement with no reference to the term ‘hour’ was confusing because:
(a)it did not consider the Practitioner’s letter to the Clients dated 2 March 2018 which contains the words ‘per hour’; and
(b)it did not consider the evidence of GM and his familiarity of time costing by a unit of time for legal service.
Original Decision Paragraphs 64 and 65 – whether earlier breach by the Practitioner of section 269 LPA was irrelevant
The appellant submitted that the Original Tribunal erred in noting that this was not the first time the Practitioner had been subject to a complaint arising from an alleged breach of section 269 of the LPA because:
(a)the earlier matter or complaint was not relevant to the present complaint and was not the subject of any notice or cross examination;
(b)considering the earlier matter was contrary to section 91 of the Evidence Act 2011;
(c)considering the earlier matter was a breach of natural justice; and
(d)it indicated that the Original Tribunal had a preconceived view adverse to the Practitioner.
Original Decision Paragraph 68 – whether the Practitioner expressed the view that there were two will matters before her cross-examination
The appellant submitted that the Original Tribunal erred in finding that the work of the two wills was one matter because:
(a)it did not properly consider the Practitioner’s evidence;
(b)it did not have regard to the nature of the work that was undertaken or regard to the wills and powers of attorneys for two Clients being two wills and two powers of attorney; and
(c)it wrongly found that the Practitioner expressed the view that each will was separate for the first time in cross examination, when the Practitioner had expressed the view in her affidavit.
Original Decision Paragraphs 69-70– whether the Original Tribunal erred in regarding a ‘matter’ as capable of involving work on two wills
The appellant submitted that the Original Tribunal erred in finding that the manner in which a Practitioner arranges the administrative presentation can alter the character of work that the Practitioner undertakes because it did not consider the Wills Act 1968 and that Act’s requirements for each will and that each will is a separate document regardless of how the will may be described for cost disclosure purposes.
Original Decision Paragraphs 72 and 74 – whether the Practitioner expressed the view that there were two will matters for the first time during

cross-examination
The appellant submitted that Original Tribunal erred in finding that there was significant doubt concerning the Practitioner’s credibility as it did not properly take into account the Practitioner’s evidence.
Original Decision Paragraph 81 – whether the Original Tribunal erred in failing to have regard to material not in evidence
The appellant submitted that the Original Tribunal erred in finding that the “totality of this material” allowed the Original Tribunal to make findings on the allegations in the application when the Law Society did not put all relevant documents before the Original Tribunal including the eight versions of the will and the Original Tribunal changing the transcript referred to above. The Original Tribunal also erred in finding that prior dealings between the Practitioner and McInnes Wilson and Mr John Buxton are considered ‘irrelevant’ as the dealings were current and that the Practitioner had made a complaint to the Law Society about Mr Buxton.
Original Decision Paragraph 87 – whether the Original Tribunal erred in finding that the Practitioner failed to treat the clients fairly and in good faith in advising that she had almost completed their EPAs on 1 March 2018
The appellant submitted that the Original Tribunal erred in finding that the Practitioner had not almost completed the client’s EPAs on 1 March 2018 because it did not properly consider the Practitioner’s evidence and her computer records.
The Original Decision Paragraph 89 – whether the Original Tribunal erred in categorising the Practitioner’s work related to estate management as globally rather than considering each charge separately
Finally, the appellant submitted that the Original Tribunal erred in finding that the four charges related to estate management were to be considered globally rather than considering each charge separately because the work related only to wills and powers of attorneys.

Respondent’s submissions on appeal

In its response to the appellant’s submissions, the respondent filed submissions dated 6 October 2021. Its responses were as follows.
Decision orders generally
The respondent submitted that the Original Tribunal had considered the effect of section 272(1) of the LPA; had performed a close and careful analysis of the relevant evidence and had concluded that the fees for preparing the Clients’ wills exceeded the statutory threshold of $1,500. Further, the respondent submitted that the Practitioner should have formed a view as to the scope of work required from the first meeting on 23 February 2018. It thus followed that section 272(1) could not operate to exclude the statutory obligation for costs disclosure in accordance with section 269 of the LPA.
The respondent submitted that it would appear that the Practitioner contends that a matter could not have more than one client or the preparation of more than one document and that this contention should be rejected.
The respondent contended that the Practitioner’s submission that the Original Tribunal had failed to consider that an EPA and a will are separate matters, should be rejected as the Original Tribunal had clearly seen them as separate matters when considering whether that was a breach of section 269(1) of the LPA.
The respondent also submitted that the Original Tribunal had clearly identified the amount of legal costs ‘less disbursements’ and therefore the Practitioner’s submission should be rejected.
Orders 2, 3 and 4 – Reprimand, fine and costs
As regards Order 2, the respondent argued that the Practitioner had failed to demonstrate that there were special circumstances warranting consideration for the making of an order privately reprimanding the Practitioner and that the sanction determined by the Original Tribunal was within the range of sanctions for unsatisfactory professional conduct “at the higher end of the spectrum”. With respect to the fine in Order 3, the respondent submitted that there was no error. The respondent submitted that the Original Tribunal had followed earlier authority of the tribunal which had considered the importance of cost disclosure and the fiduciary relationship between a solicitor and a client and given the breach was serious and that the Practitioner had shown no remorse or regret for her conduct, there was no error. The respondent asserted that once the Original Tribunal had found the Practitioner guilty of unsatisfactory professional conduct, it was under a statutory mandate to order that the Practitioner pay costs unless satisfied that exceptional circumstances existed. Further, section 433(5) of the LPA confers a discretion upon the Original Tribunal to order a stated amount or an unstated amount, and that section 433(5)(b) then imposes an obligation that if an unstated amount is ordered, the Tribunal must state the basis upon which the amount of costs is to be decided. In ordering that the costs were to be assessed by a cost expert in the absence of agreement between the parties, the Original Tribunal had performed its duty in accordance with the subsection and that this was consistent with The Legal Practitioner v Council of the Law Society of the Australian Capital Territory.[22]
Alleged errors in relation to Charge 1 – competence and diligence
Alleged error in respect of Original Decision Paragraph 20 – time spent on work
[22] [2013] ACTSC 134 at [62] per Nield AJ
The respondent submitted that the Original Tribunal had recorded a detailed analysis of the work undertaken by the Practitioner in relation to the preparation of the wills in reaching the finding that the Practitioner’s costs for the preparation of the wills was excessive.
Alleged errors in relation to Charge 2 – duty to act in best interests of client and to treat client fairly and in good faith
Alleged error in respect of Original Decision Paragraphs 31 and 87 – when work undertaken
The respondent submitted that the Original Tribunal’s reasons for finding that the work on the EPAs had not been undertaken prior to 1 March 2018 are set out in the Original Decision. The Original Tribunal had regard to the electronic history of the EPAs which indicated that the EPA for GM was not created until 1 March 2018. This meant that the EPAs could not have been created let alone completed on 23 February 2018. The respondent argued that it then followed that the finding that the Practitioner had misrepresented the true position to the Clients in relation to the EPAs and made the conclusion that the Practitioner had breached her professional obligations almost inescapable.
Alleged error in respect of Original Decision Paragraph 32 – whether JD could see computer screen
The respondent submitted that ultimately the Original Tribunal did not need to make a finding that JD could see the Practitioner’s computer. Rather, the factual basis for the Original Tribunal’s finding in respect of Charge 2 was the amount of time spent of the EPA documents. As there was no finding, there could be no error as alleged.
Alleged error in respect of Original Decision Paragraph 36 – time spent of Powers of Attorney at second meeting
The respondent asserted that there was ample evidence for the Original Tribunal’s finding that the Practitioner spent approximately two hours at the meeting on 1 March 2018 working on the EPAs including the Practitioner’s evidence, the evidence of GM and JD, and the electronic history for the documents. The respondent submitted that there was no error of fact in the Original Tribunal’s finding.
Alleged error in respect of Original Decision Paragraphs 37 and 38 – representations made by Practitioner as to work undertaken on Powers of Attorney
The respondent argued that the relevant breach found by the Original Tribunal was not that the Practitioner checked the EPAs with the Clients at the meeting on 1 March 2018, but rather the Practitioner misrepresenting to the Clients that the EPAs were nearly finished when they were not. The respondent submitted that there was no error of fact or law.
Alleged errors in relation to Charge 3 – overcharging
Alleged error in respect of Original Decision Paragraph 52 – whether the Practitioner produced eight draft versions of the wills
The respondent said that the Practitioner did not produce the draft versions of the wills for the purpose of the proceedings and the issue as to whether the Practitioner had provided the draft wills to the Council prior to the filing of the application for disciplinary action against the Practitioner was no more than a ‘red herring’. The respondent submitted that the Practitioner had ample opportunities to put them before the Original Tribunal herself. The respondent further contended that there was ample evidence presented by them to show that the Practitioner made numerous errors in the drafting of the wills which contributed to the Practitioner overcharging for the preparation of the wills. The respondent submitted that there were no errors of fact or law.
Alleged error in respect of Original Decision Paragraph 54 – changes in instructions alleged to have been made by the Clients
The respondent submitted that there was conflicting evidence as between the Practitioner and the Clients and that the Original Tribunal had preferred the evidence of the Clients. The respondent said that a process of comparison between the Clients’ written instructions and that of the final version of the wills was undertaken by the Original Tribunal and that the Original Tribunal had concluded that there were no substantive changes. The respondent also submitted that if the draft wills corroborated the Practitioner’s case, she should have put them in evidence before the Original Tribunal.
Alleged error in respect of Original Decision Paragraph 55 – whether amount charged by the Practitioner was excessive
The respondent argued that it was difficult to discern the precise errors which are alleged by the Practitioner. The respondent submitted that if the Practitioner is contending that the Original Tribunal was in error as to the professional fees charged, then there was no error. As the Original Tribunal had set out its reasoning based on the evidence, there was no error.
Alleged errors in relation to Charge 4 – cost disclosure
Alleged error in respect of Original Decision Paragraph 61 – whether the wills were complex
The respondent submitted that paragraphs 54 and 61 of the Original Decision did not contradict each other and that the fundamental difficulty for the Practitioner is that she did not at any stage provide an explanation as to how she determined if a will was simple or complex and, moreover, the Practitioner denied that the Clients were entitled to be advised of these criteria. As no explanation was provided, the Original Tribunal could only look at the original instructions and the final wills and assess whether the wills were complex or simple. The respondent further submitted that no reason has been provided by the Practitioner as to how the Original Tribunal erred in this respect.
Alleged error in respect of Original Decision Paragraph 63 – whether the term “time costed at $480” was confusing
The respondent submitted that it is self-evidently correct that the term is confusing. However, the respondent submitted that the more critical omission by the Practitioner was her failure to clearly advise the Clients that their wills were complex. The respondent said that when the Practitioner wrote to the Clients in letter dated 2 March 2018 only then was there a reference to “$480 per hour”, but this was after the wills had been finalised and executed and after the Practitioner had performed the relevant work.
Alleged error in respect of Original Decision Paragraphs 64 and 65 – whether earlier breach by the Practitioner of section 269 LPA was irrelevant
The respondent argued that the reference by the Original Tribunal to an earlier decision involving the Practitioner was more for the purpose of noting that the Practitioner should have been aware of her disclosure obligations under section 269 of the LPA. The respondent further submitted that ultimately Charge 4 turned on whether the Practitioner charged the Clients $2,960 for work on a single matter or work distributed over two matters and as such, none of the Original Tribunal’s reasoning drew upon any findings of fact from the earlier decision. This reference to the earlier decision did not result in any denial of natural justice and was not contrary to section 91 of the Evidence Act 2011.
Alleged error in respect of Original Decision Paragraph 68 – whether the Practitioner expressed the view that there were two will matters before her cross-examination
The respondent submitted that the Original Tribunal’s finding that the Practitioner expressed for the first time in cross examination that there were two separate matters for work on JD’s will and the work on GM’s is correct. The Practitioner was unable to identify any occasions prior to her cross examination where this had been stated regarding the Practitioner’s contention that there could not have been one matter for two wills because the wills were “separate and different documents”. The respondent stated that in the absence of an authoritative or statutory definition of ‘matter’ in the LPA or other legislation, the work encapsulated can only be assessed by reference to the objective indicia of what the parties have agreed to or contemplated as the scope of work falling within a matter. In the present circumstances, the respondent submitted that all the relevant indicia pointed to the Practitioner and the Clients contemplating that the Practitioner was to prepare a will for each of the Clients within the scope of a single matter. As such, the Practitioner has failed to expose any error in the Original Decision.
Alleged error in respect to Original Decision Paragraphs 69 and 70 – whether the Original Tribunal erred in regarding a ‘matter’ as capable of involving work on two wills
The respondent submitted that there is no impediment to a practitioner performing work for more than one client or on more than one legal document in a matter. Nevertheless, the Original Tribunal was correct in finding that in the circumstances there was a single matter for the preparation of both wills.
Alleged error in respect of Original Decision Paragraphs 72 and 74 – whether the Practitioner expressed the view that there were two will matters for the first time during cross- examination
The respondent submitted that the Original Tribunal made no error in finding that the Practitioner’s contention that there were two separate matters for the wills was raised by her for the first time in cross examination. That was based upon the evidence before the Original Tribunal which was recorded in the decision. The respondent submitted that the Practitioner’s submission that disclosure was not required, should also be rejected based on the Practitioner’s own evidence that the total professional cost in the wills matter was $2,960. The respondent submitted that there were no legal or factual errors in the Original Tribunal’s finding that the Practitioner had breached section 269(1) of the LPA.
Alleged error in respect of Original Decision Paragraph 81 – whether the Original Tribunal erred in failing to have regard to material not in evidence
The respondent submitted that the Original Tribunal based its decision on the material and evidence before it and if the Practitioner considered other material should have been presented to the Original Tribunal, the Practitioner had the opportunity and a duty to do so. The respondent submitted that there was no basis to the Practitioner’s contention that the Council sought to have the transcript of the hearing changed. The Original Decision merely noted a typographical error and in any event, counsel for the respondent disputed the provision of the draft wills to the Council. The respondent submitted that no error of fact had been demonstrated in the Original Decision as to when the work on the powers of attorney was carried out.
Alleged error in respect of Original Decision Paragraph 89 – whether work related to estate management
The respondent submitted that the Original Tribunal’s characterisation of the relevant work relating to the client’s estate management as “globally” was not a product of any material error in the Original Tribunal’s Decision.

Appeal threshold

Section 79(3) of the ACAT Act provides that a party to the original application may, by application, appeal a decision to the Tribunal on a question of fact or law. Section 82 of the ACAT Act gives the Appeal Tribunal a choice as to the method by which an appeal pursuant to section 79 should be heard. At a directions hearing on 22 October 2021 the parties agreed that the hearing will be as a review with any new evidence as admitted.[23]
[23] Order 22 October 2021
In ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd & Anor[24] another appeal tribunal referred to the interpretation of section 79(3) and stated:
The case law has interpreted section 79(3) of the ACAT Act to mean that the appellant must show an error of fact or law in the decision under appeal and that the error affected the result.[25] In Excel Intelligent Pty Ltd v Thomson,[26] the tribunal distilled some important principles[27] that were discussed by Burns J in B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324.[28] These principles were discussed in the context of an appeal by way of rehearing but they apply mutatis mutandis[29] to an appeal by way of review. The principles are stated as follows (with some paraphrasing to apply the principles to the present context):
(a)     An appeal tribunal must determine whether the decision appealed against is wrong because… an original tribunal fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.
(b)     Ordinarily, if there has been no further evidence admitted or no relevant change in law, an appellant tribunal in entertaining an appeal… can exercise its appellate powers only if satisfied that there was an error on the part of the original tribunal below.
(c)     The appeal tribunal will give proper allowance to the advantage of the original tribunal who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
(d)     The appeal tribunal is obliged to conduct a real review of the reasons of the original tribunal.
(e)     Once error below has been found (after making proper allowance for the advantages of the original tribunal), the appeal tribunal can substitute its own decision based on the facts and the law as they now stand. [Footnotes retained]
[24] [2021] ACAT 37 at [4]
[25] Tam v Du [2019] ACAT 94 at [22] citing Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29]-[39]; Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46]-[55]; In the Matter of AB [2018] ACAT 18 at [41]
[26] [2018] ACAT 4
[27] [2018] ACAT 4 at [53]
[28] [2013] ACTSC 219 at [13] and following
[29] This is a Latin term for ‘once the necessary changes have been made’.

The material in relation to Mr Buxton and McInnes Wilson is irrelevant. No error is disclosed.
Alleged error in respect of Original Decision Paragraph 89 – whether work related to estate management
The use of the words ‘estate management’ overstated the work that the appellant was asked to do. The Practitioner was primarily engaged to advise on and draft wills and powers of attorney, the Clients having financial planning advice from other sources. However, this is not a material error that would justify an appellate remedy. It is clear from the reasoning that the Original Tribunal had a clear idea of the work that the appellant was engaged to perform and did indeed perform.
This is not an appealable error.

Final comments on penalty

Having carefully reviewed the evidence before us, we have found no discernible error on the part of the Original Tribunal. We do, however, make the following observations, based on our reading of the transcript and the material.
We did not see the Practitioner or any of the witnesses give evidence and are not in the position to assess the credibility of any witness, other than by comparing the substance of what they said with the documents. Nonetheless, it seems to us that there are two possible interpretations on the Practitioner’s actions in this case.
The first is that there was a continual failure on the part of the Practitioner to clearly communicate with her clients. The Practitioner, subjectively, considered the wills matters to be separate matters, assessed her obligations regarding costs agreements on that basis, and was satisfied that the wills were simple wills that fell under the threshold, The Practitioner’s opinion only changed as the meeting on 1 March dragged on and on. The Practitioner assumed that the clients, as educated and rational people, would appreciate that after six hours of drafting, the wills must be considered ‘complex’ and time costing requirements would apply. Either she did not consider further explanation necessary, or she overlooked the explanation amongst the frustration of having to draft and redraft the wills.
The second possibility is that the Practitioner misled or lied to the clients about the likely costs of the wills, and about the progress of the EPAs, and then sought to squeeze every cent out of them.
We think that the first explanation is much more likely. Indeed, we consider that the failure to do such things as accurately time cost her work on individual files, or identify that the cancellation of the $800 that did not go through, are suggestive of a failure of good administrative practice rather than anything calculated. However, this is all a matter of supposition. There is no real evidence either way because the Practitioner has failed to admit she did anything wrong. She has instead sought to rely on highly technical and even disingenuous arguments about the total amount of the bill (after the $800 was refunded). This is a great shame, because if, as is more likely the case, these events were the consequence of miscommunication and genuine mistakes, the Practitioner has suffered a very significant and even disproportionate penalty indeed. If, on the other hand, her actions display a degree of calculation, or recklessness, then the penalty imposed is more appropriate.
This matter is an appeal, and for this Appeal Tribunal to uphold the appeal and substitute a substantially lower fine for that imposed by the Original Tribunal we would need to be satisfied that the Original Tribunal has erred in the application of a legal principle or show that the penalty is so unreasonable or unjust that the Original Tribunal erred in the exercise of its discretion.[61] The only basis upon which an error could be found is perhaps in the Original Tribunal’s conclusion that the conduct was at “higher end” of the spectrum, but no comparative cases were put before the Appeal Tribunal.
[61] See House v R (1936) 55 CLR 499, 505
Nonetheless, we are left with a feeling of unease about the imposition of the maximum penalty in this case. We are not satisfied that the Practitioner’s conduct was deliberately misleading, and, notwithstanding previous complaints, no evidence was put before the Original Tribunal of a pattern of behaviour. The conduct was not found to amount to misconduct, and nor were the allegations so serious that suspension or cancellation were suggested. The actual amount in that was in issue in these proceedings, while certainly not insignificant, was not large. Moreover, we are satisfied that the amount that the Practitioner charged, by reference to the work done, was not overall unreasonable, even if it was poorly communicated and the practices adopted inefficient.
In Law Society of South Australia v Murphy Doyle CJ made the point that:
In dealing with a charge of unprofessional conduct, the Court acts in the public interest, and not with a view to punishment: New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183-184; Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 250-251. The Court is concerned to protect the public, not to punish a practitioner who has done wrong.[62]
[62] [1999] SASC 83 at [30]
The maximum penalty should be reserved for matters that are at the very highest end of the spectrum, or where there are special circumstances that warrant the imposition of a maximum fine. However, although we have concerns that the fine that imposed by the Original Tribunal was high even on their finding that the conduct was on the higher end of the spectrum and required the imposition of the maximum amount, it was not manifestly unreasonable. It is especially not so having regards to the Practitioner’s failure to concede mistakes in her procedures, such that she could put submissions in mitigation. We are therefore of the view that the financial penalty imposed was within the Original Tribunal’s discretion and in the absence of it being manifestly unreasonable must stand.

Conclusion

The appeal is dismissed.
Order 6 of is amended so as to substitute section 433(1) in lieu of section 431(1) of the LPA.
The decision of the Original Tribunal is otherwise confirmed.

………………………………..

Presidential Member H Robinson
For and on behalf of the Tribunal

Date(s) of hearing:	3 February 2022
Counsel for the Applicant:	Mr Burnside QC
Counsel for the Respondent:	Mr Moujali
Solicitor for the Respondent	McInnes Wilson Lawyers