Mijatovic v Legal Practitioners Complaints Committee
[2008] WASCA 115
•29 MAY 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MIJATOVIC -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2008] WASCA 115
CORAM: MARTIN CJ
BUSS JA
BEECH AJA
HEARD: 10 MARCH 2008
DELIVERED : 29 MAY 2008
FILE NO/S: CACV 100 of 2007
BETWEEN: TOMAS MIJATOVIC
Appellant
AND
LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :HON R VIOL (SUPPLEMENTARY DEPUTY PRESIDENT)
MR C EDMONDS SC (SENIOR SESSIONAL MEMBER)
MS B HOLLAND (SESSIONAL MEMBER)
Citation :LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and MIJATOVIC [2007] WASAT 111
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE M L BARKER (PRESIDENT)
MR C EDMONDS SC (SENIOR SESSIONAL MEMBER)
MS B HOLLAND (SESSIONAL MEMBER)
Citation :LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and MIJATOVIC [2007] WASAT 111 (S)
Catchwords:
Courts and tribunals - Jurisdiction - Whether jurisdiction of Legal Practitioners Disciplinary Tribunal preserved by s 36 of the Interpretation Act 1984 (WA) - Whether State Administrative Tribunal has jurisdiction in respect of allegation of unprofessional conduct by legal practitioner occurring prior to commencement of Legal Practice Act 2003 (WA)
Statutes - Repeal - Whether liabilities under Legal Practitioners Act 1893 (WA) are preserved by s 37 of the Interpretation Act 1984 (WA) - Whether contrary intention appears
Statutes - Presumption against retrospective alteration of rights and obligations
Legal practitioners - Misconduct, unfitness and discipline, unprofessional conduct, unsatisfactory conduct - Whether practitioner on notice of allegation of dishonesty - Whether requirements of procedural fairness satisfied - Whether incidental findings as to practitioner's evidence may be taken into account by Tribunal in determining its final orders
Words and phrases - 'Unprofessional conduct' - 'Unsatisfactory conduct' - 'Liabilities'
Legislation:
Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA), s 5, s 10
Interpretation Act 1984 (WA), s 36, s 37
Legal Practice Act 2003 (WA), pt 12
Legal Practitioners Act 1893 (WA), s 29A, s 28A
State Administrative Tribunal Act 2004 (WA), s 105
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), div 72
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr M D Cuerden
Respondent: Mr G H Murphy SC & Ms G L Roberts
Solicitors:
Appellant: Paul O'Halloran & Associates
Respondent: Legal Practitioners Complaints Committee
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Archer v Howell (No 2) (1992) 10 WAR 33
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Bannister v Walton (1993) 30 NSWLR 699
Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279
Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Byrne v Garrisson [1965] VR 523
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
Dearman v Dearman (1908) 7 CLR 549
Etherton v Public Service Board of New South Wales (1983) 3 NSWLR 297
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Harris v Caladine (1991) 172 CLR 84
Keating v The State of Western Australia [2007] WASCA 98
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460
Lau Liat Meng v Disciplinary Committee [1968] AC 391
Legal Practitioners Complaints Committee and Mijatovic [2007] WASAT 111(S)
Maxwell v Murphy (1957) 96 CLR 261
Minister for Home and Territories v Smith (1924) 35 CLR 120
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273
Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Public Service Board of New South Wales v Etherton (1985) 1 NSWLR 430
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Rodway v The Queen (1990) 169 CLR 515
Smith v New South Wales Bar Association (1992) 176 CLR 256
Stead v State Government Insurance Commission (1986) 161 CLR 141
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Walter v Council of Queensland Law Society Incorporated (1988) 62 ALJR 153
MARTIN CJ:
Grounds 1A and 1
I agree with Beech AJA for the reasons he gives that grounds 1A and 1 fail.
Ground 2
I agree with Buss JA for the reasons he gives, that ground 2 also fails, and wish to add some observations of my own.
The variable content of the requirements of procedural fairness
It is well established that the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case - see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Because of the large variety of statutory frameworks in which the obligation to provide procedural fairness arises, and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of procedural fairness might arise, it is impossible to lay down a universally valid test or norm which can be applied to determine whether procedural fairness has been provided in each and every case - see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at 503 ‑ 504, (cited with approval in SZBEL).
A court required to determine whether a decision maker has departed from the requirements of procedural fairness must therefore analyse all facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular case - Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
In the factual circumstances recounted by Buss JA, it was clear from the commencement of the proceedings against the practitioner that the Committee alleged that he had charged a substantial amount (about $2,000) for work allegedly done before and during a social occasion, when in fact no legal work was done. The practitioner joined issue with that allegation by asserting that work was in fact done on that occasion, and sought to rely upon documentary evidence to sustain that proposition. In the positions respectively adopted by the parties, there was no room for a contention that the practitioner had mistakenly overstated the amount of work done, or the value of that work, or had mistakenly entered or misconstrued file notes or timesheet entries. Rather, the issue joined by the parties was the simple issue of whether, as the practitioner alleged, he had performed legal work before and at Miss Maud's or whether, as the Committee alleged, he had done no legal work whatsoever. In the context of the particulars given by the Committee, and the documents relied upon by the practitioner, it must have been obvious that rejection of the practitioner's assertions led inexorably to the conclusion that the documents upon which he relied were falsified.
The practitioner filed a statement of issues, facts and contentions to be relied upon by him in which evidence was foreshadowed as to the legal work which he asserted he had performed on the relevant social occasion. He cross‑examined the witnesses called on behalf of the Committee on the critical question of whether or not legal work was in fact done on that occasion. He had every opportunity, from the commencement of the proceedings, to assess and consider precisely what evidence he wished to lead on the question of whether or not legal work was in fact done by him on that occasion.
In that context, the characterisation of the conduct in which the practitioner allegedly engaged as 'dishonest' did not add in any material way to the factual issues which the parties had joined. Of course, that characterisation gave rise to the need to determine the practitioner's state of mind, but the position which had been emphatically adopted by the practitioner left no room for a contention that he may have been inadvertently mistaken as to the quantity or value of the work done, or that he may have been inadvertently misled by the documentary records upon which he relied.
At the conclusion of some days of hearing on 7 November 2006, Senior Counsel for the Committee expressly disavowed an intention to submit that the Tribunal should make a finding of dishonesty against the practitioner. The hearing was then adjourned. When the hearing resumed on 30 November 2006, and before the practitioner had been cross‑examined in relation to this issue, Senior Counsel resiled from the position previously adopted, and advised that the Committee would press for a finding of dishonesty in relation to the fees raised for work allegedly done before and during the social occasion. After hearing argument on the issue, the Tribunal announced that it would entertain such a submission.
In my view, in the particular context of this case, that ruling did not cause any practical injustice to the practitioner in respect of the way in which he had conducted his case up to that point. The evidence bearing upon the issue which had been led to that point was from the client and the client's friend. They were cross‑examined by the practitioner at some length on the question of whether or not legal work was in fact done on the relevant social occasion. That was, and remained, the central issue in relation to this aspect of the Committee's case against the practitioner. It is very difficult to see how they could have given any relevant evidence in respect of the issue of the practitioner's honesty at the time he claimed fees for work done on the relevant occasion, or produced documents to support that claim. Accordingly, if the practitioner was in doubt as to the precise extent of the case against him in relation to that issue prior to the Committee's ruling on 30 November 2006, it is difficult to see how that could have had any material impact upon the line which he took in the cross‑examination of those witnesses.
When the Tribunal announced its ruling on 30 November 2006, the practitioner was still in evidence. He did not seek an adjournment in order to consider the effect of the Tribunal's ruling upon the evidence to be led by him. He had not been cross‑examined on any matters relevant to this issue. So he was aware of the precise extent of the case against him at the time he was cross‑examined on those matters.
It is very hard to imagine that the practitioner could have led any other evidence on the question of his honesty in relation to these particular issues. While he could have led evidence in relation to the substantive factual question of whether legal work was done on the relevant social occasion, such as evidence from his wife, he was aware from the time of commencement of the proceedings against him that that question was in issue.
Accordingly, in the particular context of this case, in my opinion, the announcement of the Tribunal made on 30 November 2006 to the effect that it would entertain a submission of dishonesty in relation to these matters had no material impact upon the practitioner's opportunity to prepare for and conduct cross‑examination of the Committee's witnesses, or upon his opportunity to consider and lead evidence in his own defence.
When the time came for submissions, the Committee's assertion to the effect that a finding of dishonesty should be made against the practitioner in relation to these matters was made clearly and unequivocally. The practitioner had every opportunity to respond to that submission. However, he continued to adhere to the fundamental proposition that the work had in fact been done as claimed. That fundamental position left no meaningful opportunity for an assertion of inadvertence or mistake.
In my opinion, no practical injustice was caused to the practitioner by reason of the Tribunal's determination on 30 November 2006 that it would entertain an allegation of dishonesty against him in this respect, or in the Tribunal's subsequent consideration and determination of that issue. Accordingly, in my opinion, ground 2 fails.
Ground 3
I agree with each of Buss JA and Beech AJA that in the event of failure of grounds 1 and 2, ground 3 must be dismissed on the basis that there was no possibility that any denial of procedural fairness in respect of what is described as 'incidental findings' could have affected the outcome - see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147. The 'outcome' in this context is the decision of the Tribunal to recommend to the Full Bench of this Court that the practitioner be struck from the Roll of Practitioners.
However, the Full Bench of this Court is not bound to accept the recommendation of the Tribunal. When the Full Bench of this Court comes to consider the proper disposition of the reference from the Tribunal, it will be necessary to identify precisely which findings made by the Tribunal adverse to the practitioner should be acted upon by this Court. Accordingly, even though the matters raised in ground 3 have no direct impact upon the outcome of this appeal, it is desirable for me to express a view on the allegations made in that ground in order to reduce the risk of repetition of those allegations in a hearing before the Full Bench.
For the reasons given by Beech AJA, the practitioner was not denied procedural fairness in relation to the adverse finding made by the Tribunal in respect of his view of the prejudice to be suffered by his client as a consequence of the Second Costs Agreement. However, for the reasons given by Beech AJA, I agree that the practitioner was denied procedural fairness in relation to the finding of the Tribunal to the effect that, in his letter of 2 May 2003 to his client he had dishonestly asserted that he had been away in Queensland from 3 April 2003 until 28 April 2003 (see Legal Practitioners Complaints Committee and Mijatovic [2007] WASAT 111 at [221]), and the further finding that he had invented instructions from the client to commence an appeal and thereby
'deliberately and callously caused the client anguish' (see Legal Practitioners Complaints Committee and Mijatovic [2007] WASAT 111(S) at [37]). Accordingly, in my opinion, it would not be appropriate for the Full Bench of this Court to act upon those findings when considering the reference from the Tribunal. However, in my opinion this appeal should be dismissed.
BUSS JA: The material facts, the grounds of appeal and the reasoning and decisions of the State Administrative Tribunal (the Tribunal) are set out in the reasons of Beech AJA.
Ground 1A
In ground 1A, the appellant contends that the Tribunal erred in law in purporting to determine applications VR 58 of 2006 and VR 59 of 2006, being applications purportedly made under the Legal Practitioners Act 1893 (WA), and in failing to dismiss both applications for want of jurisdiction.
I agree with Beech AJA, for the reasons he gives, that ground 1A fails.
Ground 1
In ground 1, the appellant contends that the Tribunal erred in fact in finding in VR 58 of 2006 that the appellant deliberately or dishonestly concealed the terms and effect of the costs agreement made on or about 3 February 2003 (the Second Costs Agreement), in that the Tribunal's reasons for so finding were contrary to the case advanced by the respondent (the Committee) and specific concessions made by the respondent, not reasonably open to the Tribunal, and internally inconsistent.
I agree with Beech AJA, for the reasons he gives, that ground 1 fails.
Ground 2: the relevant facts and the Tribunal's reasons
Ground 2 is in these terms:
Further and alternatively, the Tribunal erred in law in finding in VR 59 of 2006 that the appellant:
(a)had acted dishonestly in charging fees with respect to the meeting at Miss Maud's on 31 October 2003; and
(b)had kept up the pretence throughout the hearing
in that the appellant was not properly on notice of any such allegations against him and was thereby denied procedural fairness.
In application VR 59 of 2006, the Committee alleged that the appellant was guilty of unprofessional conduct in about 2003 by charging a grossly excessive fee for the performance of professional services in acting for the client in property settlement proceedings commenced by the client in the Family Court.
In his response dated 26 May 2006, the appellant denied, in essence, that he had charged a grossly excessive fee in acting for the client in connection with the Family Court proceedings.
On 3 July 2003, the appellant issued a lump sum bill of costs to the client for $22,000, and subsequently transferred that amount from his trust account to his general account in payment of the bill. In late December 2003, the appellant provided the client with an itemised bill of costs. This bill asserted that costs and disbursements of $30,446 had been incurred, the costs having allegedly been calculated at the rate of $250 per hour, but claimed the lesser sum of $23,250 including GST. On 28 January 2004, the client filed a notice at the Family Court disputing the appellant's itemised bill of costs. On 4 June 2004, a registrar of the Family Court taxed the itemised bill at the rate of $250 per hour. The registrar disallowed, in total, $17,759.90 of the itemised bill, and allowed costs and disbursements of $5,490.10 including GST. That is, $17,759.90 was taxed off the sum of $23,250 which the appellant had claimed in the itemised bill.
In its statement of issues, facts and contentions dated 28 June 2006, the Committee alleged, relevantly, that the items in the appellant's itemised bill fell into four categories:
(a)charges for work for the period before 25 July 2002 (the First Period);
(b)charges for work for the period before 12 August 2002 (the Second Period);
(c)charges for work for the period between 12 August 2002 and 24 February 2003 (the Third Period); and
(d)charges for work for the period after 24 February 2003 (the Fourth Period).
Plainly, there was some overlap between the First Period and the Second Period.
The Committee alleged, in pars 3.39 and 3.40 of its statement, in relation to the appellant's charges for the Third Period, as follows:
3.39Whilst it is not the task of the Tribunal to tax the Practitioner's costs for itself, the Third Period comprises some charges which are questionable.
3.40For example, items 64 to 68 of the Bill of Costs relate to a social engagement which took place at Miss Maud's restaurant on 31 October 2002 ('the Social Engagement'). The factors relating to the Social Engagement are set out as follows:
a.The total professional costs claimed relating to the arrangements for and the attendance at the Social Engagement total $2,250.00 plus GST;
b.Item 66 of the Bill of Costs claiming 4.3 hours of professional time totalling $1,075.00, and is described by the Practitioner in the Bill of Costs as 'Conference with Client, David Castillo, Barry at Miss Mauds';
c.In addition, the time recorded by the Practitioner for items 64 to 68 of the Bill of Costs relating to the Social Engagement was recorded on the Practitioner's timesheet dated 31 October 2002 which records a daily total time charged of 21.3 hours in respect of various matters. The times recorded for the client's file are the final entries appearing on the timesheet for that day.
Items 64 ‑ 68 of the itemised bill, and the grounds of dispute in relation to those items, are as follows:
| Item No | Date | Detail | Time | Amount Claimed | Grounds of Dispute | Amount offered |
| 64 | 31.10.02 | Telephone attendance on client and David Castillo | 0.8 | $200.00 | Client's son invited him to son's (David Castillo's) birthday party and client paid $1250, no advice given or legal matters discussed ('social engagement') | $0 |
| 65. | Conference with David Castillo | 2.3 | $575.00 | Social engagement | $0 |
| 66. | Conference with client, David Castillo, Barry at Miss Mauds | 4.3 | $1,075.00 | Social engagement | $0 |
| 67. | Travel to and from conferences with client and David Castillo and travel cat bus | 0.6 | $150.00 | Social engagement | $0 |
| 68. | Preparation for client meetings - tactics, issues | 1.0 | $250.00 | Social engagement | $0 |
David Castillo is the client's son. Harry Savell (referred to in item 66 as Barry) is the client's partner.
In a witness statement dated 29 September 2006 (which was filed at the Tribunal and served on the appellant on or about that date), the client (who was the Committee's witness) set out what had occurred at the Miss Maud function on 31 October 2002:
On 31 October 2002 I went to David's [that is, David Castillo's] house at 6:40pm for his party. I know this was the time because I rang David on my mobile phone to ask him to open the front gate to his complex to let me in. Tom [that is, the appellant] was there with his girlfriend. I think his girlfriend's name is Erin Dods. There were a number of people there. I spoke to Tom socially. We all went to Miss Mauds for dinner (I did not pay for Tom's meal). Tom was sitting diagonally across the dinner table from me. Towards the end of the evening I handed Tom $1,250 in cash across the table. We did not discuss my case at all as it was a social occasion. Outside Miss Mauds I asked Tom for a receipt for the money and he said he would send it to me. I received by post a receipt from Tom for the money dated 1 November 2002. (Book of Documents VR 59 of 2006 at page 349 and Book of Documents VR 58 of 2006 at page 71 and Book of Documents VR 59 of 2006 at pages 350‑351 are photographs from the dinner at Miss Mauds on 31 October 2002).
In a witness statement dated 30 August 2006 (which was filed at the Tribunal and served on the appellant on or about 29 September 2006), Mr Savell (who was the Committee's witness) set out his recollection of events at Miss Maud on 31 October 2002:
I went to Teresa's [that is, the client's] son's (David Castillo's) birthday party on 31 October 2002 which included a meal at Miss Mauds. Tom Mijatovic ('Tom') was there. At dinner I sat next to Teresa and Tom was sitting diagonally over the other side of the table. I did not hear Teresa talk to Tom at all about her family law proceedings. The talk was of a social nature. I do not recall Teresa giving any money to Tom that evening, although I knew that Teresa had taken $1,250 in cash with her to the party in order to pay Tom because we talked about it in the car on the way to Teresa's son's apartment.
In his witness statement dated 17 October 2006 (which was filed at the Tribunal and served on the Committee on or about that date), the appellant verified that his schedule of charges filed at the Tribunal on 26 May 2006 was true and correct and the charges set out in the schedule were fair, reasonable and proportionate.
In a further witness statement dated 30 August 2006 (which was filed at the Tribunal and served on the Committee on or about 31 October 2006) the appellant said, in relation to the Miss Maud function on 31 October 2002:
[Harry Savell] did not see most of the work discussions on 31 October 2002. He was talking with my wife and others at the time including David [Castillo]. When I met [the client] out the front I talked about her case quite a bit because … we were waiting for the other witnesses to attend - David and Jasmin. I recall that [Harry Savell] went inside at one point and left [the client's] side quite often for food and drinks.
The appellant's file notes for 31 October 2002 include notes to the effect that on that date:
(a)he conferred with the client's son in West Perth, at the client's son's apartment, from 2 pm to 4.30 pm, 'but say 2.2 hours'; and
(b)he conferred with the client, the client's partner and the client's son from 5.15 pm to 5.45 pm and from 5.45 pm to 11 pm.
The appellant initially said that the notes in question were prepared after the conference, but he was unable to be more specific. Later, he conceded that it was possible they were made at any time up to 6 months after the event.
The appellant's time sheet for 31 October 2002 includes the times for the items described in the notes and also includes 1 hour for preparing for the meeting with the client. The time sheet records the items relating to the client at the end of the time sheet. Before those items there is an additional 12.3 hours of work. If the appellant had undertaken work for the client as alleged from 2 pm onwards, he would have commenced work at about 1.40 am that day, and would have worked without interruption until 2 pm.
The hearing before the Tribunal occurred on 1, 2, 3, 6, 7 and 30 November 2006, and 1 December 2006. The Committee called the client and Mr Savell as witnesses. The appellant, who represented himself, gave evidence, but he did not call any other witnesses. The appellant's evidence (including cross‑examination) occurred on 7 and 30 November and 1 December. The Committee filed and served written submissions on 20 December 2006 and the appellant responded with his written submissions on 31 January 2007.
On 7 November 2006, senior counsel for the Committee commenced cross‑examining the appellant. Towards the end of the hearing on that day, the Tribunal raised with senior counsel whether he intended to submit to the Tribunal that it should make findings of dishonesty against the appellant in relation to, relevantly, VR 59 of 2006. Senior counsel said, relevantly:
(a)The Committee relied upon 'the decision of the [registrar of the Family Court] as the prima facie case' (ts 172).
(b)'The [appellant] has sworn an affidavit, in which he attests to the veracity of a number of these charges by reference to documents, and I am testing the witness regarding the veracity of that statement. It goes to credit' (ts 172).
(c)The Committee did not need to allege that the appellant had acted dishonestly for the purpose of establishing unprofessional conduct by overcharging (ts 172).
(d)However, in relation to the appellant's contention that there were reasonable grounds for the charges he made, the Committee was testing that contention, in part, by endeavouring to establish what work was actually done (ts 172 ‑ 173). Senior counsel said:
Well the way we would see it, sir, is that we rely upon effectively the documents and the matters set out in the statement of facts and contentions. We say that that raised a prima facie case. We say that the practitioner has an opportunity to lead rebuttal evidence in relation to these charges, as we would see it. Now the registrar considered all of those things and came to the view that the proper charges were the ones that he allowed and which were recorded in the certificate of taxation. Now we are simply doing no more than seeking to examine with this witness that case that he puts in rebuttal, with a view to showing that the registrar got to the right result (ts 173 ‑ 174).
Senior counsel also referred to the Miss Maud function in respect of which he had not yet cross‑examined. He said that the issues in relation to the Miss Maud function would be:
did the practitioner reasonably regard that as a fair and proper charge at the time? And one needs to examine his notes and when he says they are created. That's just part of considering the communication about which he's giving evidence. It certainly isn't definitive or … probably not even critical, if they were produced at some later date, as he reflected back on these events (ts 179).
The Tribunal inquired of the appellant whether he wished to make any submissions in relation to the discussion between the Tribunal and senior counsel for the Committee. The appellant said he had no comments (ts 179).
After a short adjournment, the presiding member of the Tribunal made the following ruling on 7 November 2006 in relation to the further cross‑examination of the appellant:
we've reflected on the conversation we had with [senior counsel for the Committee] and we feel that the cross‑examination can continue as - - on the basis it has been so far, but on the basis that in the end, the tribunal will not be asked to make a finding as to the question of dishonesty in relation to - - for example, in relation to number 59 of 06. But the cross‑examination is aimed at the question of whether or not there was actual authority in the respondent to do the work that he did, or whether he had a reasonable apprehension that he was entitled to do the work. That is the basis (ts 182).
When the hearing before the Tribunal resumed on 30 November 2006, senior counsel for the Committee made the following statement:
I thought I should raise one matter before I go any further, and that is in relation to the ruling or direction that was given on the last occasion, at the end of the day, about that the court would not be asked to make any finding as to the question of dishonesty in relation to 59 of 06.
In our submission, there is an issue in 59 of 06, at least in relation to the Miss Maud's occasion, where it has been part of the fabric of the case from day one, including the application which was filed which contained the documents that form the substratum for this case, those documents including the notice of objections that were filed by [the client] in the taxation, in which the occasion of Miss Maud's was always said to be a social occasion in which no legal work was done.
That featured in our statement of issues, facts and contentions. It featured in our opening, and it has always been part of the fabric of this case. In our submission, respectfully, the purpose of the inquiry is to ultimately protect the public and to maintain proper standards in the profession, and the charter by which the tribunal is required to resolve these matters requires the tribunal, in our submission, to act fairly, but also according to the substantial merits of the case. That's section 9 and section 32(2) of the State Administrative Tribunal Act.
We accept that the case has to be prepared fairly, but also has to be dealt with on its substantial merits and, in our submission, it would not be dealing, this case in 59 of 06, on its substantial merits if the tribunal could preclude itself now from making any decision of a finding that that was a social occasion at Miss Maud's at which no legal advice was given or no legal communications occurred between the client and the practitioner. That is a matter of fact that, in our submission, will need to be found in the resolution of this case.
If it was a social occasion in which there was no conference, as the practitioner puts it, with his client, over 4.3 hours, it's over $1000 that occasion, just that night. It had its periphery before that dinner, with a so-called conference at Mr David Castillo's house, and the tribunal has heard evidence about what happened from the [Committee's] witnesses, point of view on that occasion. It was a social occasion. It was pre‑dinner drinks before the dinner.
Overall, this evening of 31 October, was charged at well over $2000, but just the dinner itself is over $1000 and in our respectful submission, the tribunal will be faced with findings of fact, whether there was a conference for 4.3 hours with [the client] and her family at Miss Maud's over dinner or whether that was a social occasion at which legal matters weren't addressed so as to carry the epithet of conference. It is clear that some money was handed over on that occasion, the 1250, but it is a stark contrast between the evidence of the [Committee's] witnesses and the evidence of the practitioner.
If in truth there was no conference on that occasion and a charge was made, just confining it to the dinner, of well over $1000, then, in our submission, it would be an appropriate exercise of power within this case to make a finding that that charge was not honestly raised (ts 2 ‑ 3).
The presiding member of the Tribunal responded to senior counsel as follows:
What is just a little troubling, Mr Murphy, is this, that leaving Miss Maud's aside, where you were heading towards, in the course of your cross‑examination of the witness, really was that there was a falsification of records, a fabrication of records really, to lay a foundation in which he then might properly charge for the various items of work. There's no charge of dishonesty in either 58, 59 or 60, and somehow it seems to me that the allegation of the process by which he sought to justify those charges is much more serious than the fact of overcharging itself.
…
it's just a little troubling that we don't see the word 'dishonesty' or 'illegal conduct' or something of that nature in the charges. I know I'm not addressing specifically Miss Maud's, and I understand everything you say about that, and that may be the case, but it's a bit broader than just Miss Maud's I think (ts 3 ‑ 4).
A little later, another exchange occurred between senior counsel for the Committee and the presiding member of the Tribunal:
MURPHY, MR: we have accepted the substance of the ruling made on the last occasion, but we would wish to be heard on whether that extends to foreclosing now any consideration of whether the practitioner charged for a conference at Miss Maud's conference which didn't occur.
VIOL, MR: Limited to Miss Maud's?
MURPHY, MR: Yes, and, in our submission, if the tribunal was to preclude now any consideration of making such a finding, then, in our submission, that wouldn't be acting according to the merits of the case. It wouldn't be fair, because one needs to address fairly the complaints that are made on both sides, and it is something which has been, as I say at the start, a significant event. It's a lot of money really, particularly for somebody in [the client's] position, to be charged $1000 to go to dinner.
VIOL, MR: So what you're saying is that in relation to 59 of 06, looking at the Miss Maud's matter in isolation, you say that if it can be established, if the tribunal is satisfied that the circumstances were as [the client] and her witness said they were, and rejects what the [practitioner] says about it - that is, from the beginning to the end of the night - a finding could be made that in charging what he did, the [practitioner] grossly overcharged and in so doing acted dishonestly. That's really what is being put. Is that right?
MURPHY, MR: He certainly grossly overcharged, and the finding could be made that the charge was raised dishonestly (ts 5 ‑ 6).
The presiding member of the Tribunal inquired of the appellant whether he had any submissions in relation to the issues being debated. The appellant submitted to the Tribunal, in effect, that it was not open to the Tribunal to make a finding that he had acted dishonestly in charging in relation to the Miss Maud function and that the Tribunal should not permit senior counsel for the Committee to submit in closing that such a finding was open.
After a short adjournment, the Tribunal ruled on 30 November 2006 in relation to the point as follows:
The practitioner was on notice that the Committee charged him with charging a grossly excessive fee specifically in relation to the meeting at Miss Maud's. Further, the practitioner was on notice that the Committee based its claim in relation to the Miss Maud's meeting on the fact that this was a social occasion only. A claim of charging a grossly excessive fee in these circumstances may involve evidence that the practitioner knew it was grossly excessive and as a result may give rise to a submission and a finding in this respect of dishonesty (ts 9).
On 30 November and 1 December 2006, senior counsel for the Committee continued his cross‑examination of the appellant. The cross‑examination on 30 November 2006 included cross‑examination in relation to the Miss Maud function and other work allegedly performed by the appellant for the client on that date.
The Committee, in its written closing submissions dated 20 December 2006, submitted, relevantly, in relation to the Miss Maud function:
the objective facts and uncontradicted evidence overwhelmingly show that the Miss Mauds occasion was a social one, that the practitioner knew this and yet charged for work done at Miss Mauds which he knew he had not done and that the charge was not honestly raised in that regard.
The appellant, in his written closing submissions dated 31 January 2007, submitted, relevantly, in relation to the Miss Maud function:
100.The client admitted that she conducted business at Miss Mauds by handing over money and she was not present when the practitioner was with her son earlier that day. The client admitted that the practitioner was asked to attend Miss Mauds and that some of the persons present were involved in her matter as witnesses or supporters.
101.The [practitioner] admitted he did not charge for all of the time spent at Miss Mauds there nor all of the travelling and that he wrote off $9,000.00 of time which covers 'any issues'. The [practitioner] admitted he attended from his office with suit and his brief case and notes were taken by his wife who counted the money.
102.In any event, the Miss Mauds conference occurred around important events in the client's case and major settlement offers. It is implausible to think that the matter would not be discussed when money was handed over or when witnesses were present particularly when a response to a major settlement offer was made and the fax machine was checked for a response just prior to the conference.
103.9.0 hours were billed on 31 October 2002 at a total charge of $2,250 in a claim of an estate valued at $400,000.00. The write off of $9,000.00 covers this entire period in any event.
The Tribunal, in its reasons, summarised the appellant's evidence in relation to the work he allegedly undertook for the client on 30 October 2002:
The practitioner gave evidence that on 30 October 2002 he had telephone discussions with both the client and client's son in relation to his settlement offer made by letter that day. He said that either that day or the next day the client or client's son mentioned that there was to be a 'meeting' at Miss Maud Restaurant so that he could meet all the witnesses. The practitioner said that on 31 October 2002 the client's son rang him and asked to see him before the meeting that night. He went to the client's son's apartment. He said he discussed the client's son's opposition to the settlement offer. This was so even though he had discussed the settlement offer with the son the previous day and despite there having been no response to that offer. This conference finished at 4:30 pm. He was initially unsure what happened thereafter. He might either have continued at the apartment or been at Miss Maud Restaurant. Later in his evidence he said that between 4.30 pm and 5.15 pm he travelled from the apartment to his office and checked if any response had been received from the husband's solicitors. There was none. He then went straight to Miss Maud Restaurant. He charged at his hourly rate for the time taken to travel on a CAT bus from his office to West Perth and to the restaurant.
The practitioner said under cross-examination, that in accordance with his records, between 5:15 pm-5:45 pm he had a 'conference' with the client on the footpath outside Miss Maud Restaurant. (This conference was not put to the client during her cross-examination. Moreover, the client and her partner say, including by reference to telephone records, they were at the client's son's house from about 6:45 pm to 7:30 or 8 pm.) During this conference the practitioner said he told the client that no reply had been received from the husband's solicitors and went through with her his recent discussion with the client's son. The practitioner said that the client's friend and the practitioner's partner (now wife) were present during this conference. He said his partner had finished her day's work and joined them. (She worked part time in the evenings for the practitioner.) He did not believe she was with him at the client's son's apartment. (Contrary to the evidence of the client and the client's partner.) The practitioner was unclear whether the client's son was also present, having said he was with the client's son at this time and later saying that the client's son was running late.
As to the time at Miss Maud Restaurant, the practitioner acknowledged that he did not know all of the people in the client's son's group. He conceded that not all the people present had anything to do with the case. When it was suggested that that it was extraordinary that he attended Miss Maud Restaurant for a conference with strangers to the matter, the practitioner then said that the people attending were not strangers to the case. The practitioner said the occasion was an important information gathering exercise. It was, he claimed, a 'watershed meeting'. (T:131-132, 1.12.06) He wanted to get down what was said by the potential witnesses in the form of witness statements. When asked to identify these statements, the practitioner eventually acknowledged that he had not prepared any. He disagreed with the proposition that there was nothing in his one page of notes for this occasion which would help with the drafting of witness statements. He said that the notes were to remind him of what had been discussed. He said further that he had prepared an affidavit for the client as examination in chief evidence and that information he had obtained from her at the restaurant was used for that purpose. He agreed that the people who attended ate dinner and drank beverages. However, he said he did not know it was the client's son's birthday celebration until around 10 pm-11 pm that night. This was when people started saying 'happy birthday' to the client's son. He said that the client's son had not mentioned to him that it was his 30th birthday that day. He says their table was the furthest away from the music, which only started at around 8 pm or 9 pm and the atmosphere was quiet.
The practitioner's partner (now wife) also attended the restaurant. When asked why it was necessary for her to attend, the practitioner said that she was his casual legal secretary at the time and he had asked her to attend in order to take notes and assist him. He denied that she was invited for social reasons and claimed he wanted someone as an 'independent observer' at the restaurant. After initially giving evidence that he did not remember if his wife made notes, the practitioner said he saw her taking notes during the evening, but could not remember exactly which discussions she took notes of. He had not seen the notes; he had not asked her to produce them nor did he ask her about the notes prior to resuming giving evidence on the next day (1 December 2006). Nor was there any mention of her taking notes in his wife's affidavit which refers to the Miss Maud Restaurant occasion and which he relied upon in the taxation proceedings (T:79-125, 30.1.06 and to 133, 1.12.06) [401] ‑ [404].
The Tribunal then summarised the evidence of the Committee's witnesses:
The client in her witness statement said the function at the apartment and Miss Maud Restaurant was a social one, being a celebration of her son's birthday.
She said that she arrived at her son's house at 6.40 pm for his party. She knows that was the time because she had to ring the client's son to ask him to open the front gate to his complex to let her in, and had a record of the relevant entry in her telephone account. She said that at the apartment she spoke to the practitioner and his partner socially. They all then went to Miss Maud Restaurant. The practitioner was sitting diagonally opposite her. Towards the end of the evening she passed him $1250 cash. But otherwise, she 'did not discuss my case at all as it was a social occasion'. Outside the restaurant she asked the practitioner for a receipt and he said he would send it.
In her supplementary evidence, the client identified from photographs taken at Miss Maud Restaurant the people in her son's group who attended the dinner. They were her partner, her daughter, her daughter's boyfriend, the client's son, the client's son's girlfriend, the practitioner, the practitioner's partner and another friend of the client's son.
In the course of her cross-examination, the client gave evidence that there was no telephone call either to or from the practitioner on 31October 2002. At the client's son's apartment the practitioner talked to his girlfriend and apart from saying 'hello' to each other there was no conversation between the client and the practitioner. The practitioner put to her that she had discussed with him the client's son buying the house from the husband. The client denied any such conversation. She said the practitioner was not taking any notes. At the restaurant she confirmed that the practitioner did not discuss her case with her and with the client's son. It was put to her that the practitioner was taking notes (notwithstanding the practitioner's own evidence that he did not take notes here). She denied this. She was also clear that he did not have his briefcase with him.
The client's partner in his witness statement said the occasion was a social one. He sat next to the client and he did not hear her talk about the proceedings. 'The talk was of a social nature'. He did not see her hand over the $1250.
Under cross-examination the client's partner gave evidence that when he and the client arrived at the son's apartment, the client telephoned the client's son in order to get access to his apartment. He then referred to the time shown on the client's mobile phone records to ascertain the time of that phone call, which was shown as 6.43 pm. He said that at the apartment the practitioner talked to his girlfriend and he heard no conversation between the practitioner and the client about her case. At about 8 pm they left the client's son's apartment to go to Miss Maud Restaurant. The client and he went there in their own car. He denied that there was any meeting outside Miss Maud Restaurant. It was a buffet dinner in a large room with other tables around and near to where an accordion was being played. The practitioner was with the "young people" and "having fun". The client and he left Miss Maud Restaurant at around 10.30 pm-11 pm and went home in their own car [405] ‑ [410].
The Tribunal's findings in relation to the Miss Maud function and the work allegedly undertaken by the appellant on 31 October 2006 were these:
Whilst cautious about making a finding involving dishonesty, we think the Committee's submissions are compelling. The assertion that a solicitor would attend a birthday function at his friend's apartment, followed by a dinner at a restaurant attended by members of the friend's family and other friends, some of whom were not known to the solicitor, for the express purpose of discussing the friend's mother's Family Court proceedings and obtaining witness statements, all at a cost to the client of $250 per hour or part thereof, is inherently improbable. That this is so is demonstrated by the absence of any witness statements produced at the end of the 'meeting'. In the usual course a solicitor would require his client and witnesses to attend at his office during normal business hours to take witness statements.Statements would be taken, checked and signed. On the client's and her partner's evidence, which we accept, the practitioner took his partner to the client's son's apartment as well as to the restaurant. That could only have been for social purposes. Again, it strikes us as highly unlikely that the practitioner could have been invited to and attended the function at the son's apartment and at Miss Maud Restaurant in the company of the other guests without knowing, as he claims, that the occasion was the celebration of the son's, his best friend's, 30th birthday. The practitioner's evidence as to a 'conference' on the street outside the restaurant was not credible. The practitioner's evidence as to the purpose of the evening and as to the events which took place was contrary not only to the evidence of the client and the client's partner but to the probabilities of the matter. The practitioner did not call any other person present at the 'conferences' to support his version of it. The inconsistencies and inherent improbabilities in the practitioner's version of events and its conflict with that of the client and the client's partner are evident from the outline given above. We think the client's and her partner's account of the evening reflects their better recollection of events and is more congruent with the probabilities. The practitioner's admission that his file note of the event may have been made up to six months after the event not only means it cannot be regarded as a reliable record for this occasion, but is damning of the practitioner's records generally. The practitioner's records disclose times and locations for 'conferences' that day which are contradicted by the evidence, including the telephone records, of the client and her partner. Finally, we note the cursory manner in which the practitioner has dealt with these charges in his Closing Submissions, and to the reference there (par 92 t- par 96) to these charges being included in that part of his fees which were 'written off'. That seems to us to demonstrate, to some degree, that the practitioner had little confidence that his evidence and records of the day would be accepted.
We mention that on the day following the October function, the practitioner claimed a further $750 for a three hour conference with the client's son. At that time, no response from the husband's solicitors had been received.
We find on the whole of the evidence that to the practitioner's knowledge:
(1) the function at the client's son's apartment and Miss Maud Restaurant was a social one at which both the practitioner and his partner attended;
(2) there were no professional services performed by the practitioner during his time at the apartment or at the restaurant (save receipt of $1250);
(3) the practitioner's file notes, telephone notes and timesheet entries were not made at the time they record but much later and probably in late 2003, and are a fabrication of what took place; and
(4)none of the practitioner's charges for that day are supportable and were included by the practitioner in an attempt to justify his bill of $22 000.
We think the Committee's serious allegations that the practitioner's claims for his costs for this occasion were dishonest and that he kept up the pretence throughout the proceedings, have been made out [415] ‑ [418].
The critical findings, for present purposes, were that the appellant acted dishonestly in charging fees to the client in connection with the Miss Maud function, his file notes, telephone notes and time sheet entries in relation to that function were a fabrication, and he maintained throughout the proceedings the pretence that the charges relating to the function were reasonable and proper.
Ground 2: procedural fairness: legal principles
By s 32(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal is bound by the rules of procedural fairness except to the extent that the Act or an enabling Act authorises, whether expressly or by implication, a departure from those rules. Neither of the parties suggested, correctly in my opinion, that, in the present case, the exception had any application.
Section 32(2)(b) of the SAT Act provides that the Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. This is consistent with the main objectives of the Tribunal in dealing with matters within its jurisdiction. Those objectives are set out in s 9 and include, relevantly, achieving the resolution of questions, complaints or disputes, and making or reviewing decisions, fairly and according to the substantial merits of the case. Section 32(2)(b) and the main objective set out in s 9 to which I have referred to do not, however, diminish the Tribunal's obligation to observe the rules of procedural fairness.
Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ).
The requirements of procedural fairness are flexible. Proceedings before the Tribunal may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular litigants, and whether the particular proceeding is in the Tribunal's original or review jurisdiction.
Procedural fairness, in the context of a disciplinary hearing against a professional person who has been charged with misconduct in a professional respect, requires that, before the hearing of the charge, the defendant be given sufficient particulars to enable him or her to consider his or her response, make inquiries and gather evidence, and prepare for the hearing. See Etherton v Public Service Board of New South Wales(1983) 3 NSWLR 297, 301 (Hunt J) and, on appeal, Public Service Board of New South Wales v Etherton (1985) 1 NSWLR 430, 432, 434.
If the prosecutor proposes to submit, or the tribunal before whom the hearing is conducted proposes to find, that the defendant acted fraudulently or dishonestly, then the allegation of fraud or dishonesty, and proper particulars of it, must be given to the defendant with sufficient notice to enable him or her to have a fair opportunity of meeting it.
Similarly, a defendant may be denied procedural fairness if the charge against him or her is altered without any or sufficient notice and a fair opportunity to meet it. If an alteration is sought to be made late in the proceedings, it may not be fair to permit the alteration even if the defendant is given notice of and a fair opportunity to meet it. The tribunal hearing the charge must make a judgment about the fairness of the alteration after having regard to the particular facts and circumstances of the case.
In Archer v Howell (No 2) (1992) 10 WAR 33, a barrister was charged with a disciplinary offence which alleged that he had acted as a legal adviser in circumstances where he 'knew' of a conflict of interest. The board hearing the charge found that the barrister did not know of the conflict of interest but, without giving him an opportunity to be heard, proceeded to find that he 'should have known' of the conflict. The Full Court of the Supreme Court of Western Australia held that the barrister had been denied procedural fairness. Rowland J said:
In my view, procedural fairness required that in an enquiry of this nature where the allegation concerned a state of affairs at a particular time, then if the enquiry was to be enlarged in a significant way then the appellant should have been told and should have been given the opportunity to answer. The enquiry was changed. The appellant was not notified (50).
Franklyn J observed:
The Board dealt with those complaints by finding the allegation of relevant knowledge at the time of acceptance of the brief to be not made out. That should have disposed of them both. However, without any amendment being sought or made, without giving the appellant notice or the opportunity of being heard on the matter and despite the hearing having been conducted as deposed to by the appellant, it found him guilty of conduct said by it to constitute a conflict of interest other than that with which he had been charged, which was not alleged or pursued by the complainant in evidence and to which the defence was not directed (52).
In Lau Liat Meng v Disciplinary Committee [1968] AC 391, the appellant, a solicitor, was charged with a disciplinary offence. During the hearing of that charge, the appellant gave evidence which revealed he had failed properly to account for a payment of $500. The disciplinary committee found him guilty of misappropriation without amending the charge and, further, without adjourning the proceedings as he had requested. The Privy Council set aside the disciplinary committee's finding of grossly improper conduct in relation to his retention of the $500. Lord Hodson, who delivered the judgment of their Lordships, said:
While acknowledging the gravity of the admission made by the appellant as to his $500 which he put into his own pocket without disclosure to his client and as to which he gave no satisfactory explanation, it must be recognised that he was not charged either with having made excessive charges for professional work or having committed any specific fraudulent act. The case against him was contained in the statement quoted above which was made pursuant to rule 2 of the Advocates and Solicitors (Disciplinary Proceedings Rules), 1963. It was once amended but no amendment was made or sought to be made after the appellant had made his admission (see r. 10 of the same rules, which expressly provide for amendment of or addition to the case). Formal amendment might have been dispensed with provided adequate notice of the charge had been given, but natural justice requires adequate notice of charges and also the provision of opportunity to meet them. This requirement was not met (404).
Also see Walter v Council of Queensland Law Society Incorporated (1988) 62 ALJR 153.
Ground 2: the nature of an inquiry into overcharging
In D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198, Ipp J (Pidgeon and Franklyn JJ agreeing) considered the nature of an inquiry into an allegation that a legal practitioner has engaged in excessive or unreasonable overcharging. His Honour said:
The inquiry into what amounts to grossly excessive or unreasonable costs would ordinarily involve, first, a determination of what, in the particular circumstances, would be a reasonable sum to charge. The resolution of that question would often turn on multiple factors, including the amount at which the costs in question was or would likely be taxed, the difficulty of the case, the novelty or complexity of the legal issues presented, the experience of the practitioner, the quality of his or her work, the amount of time spent by the practitioner on the matter, the responsibility involved, the amount or value of the subject matter in issue, and any costs agreement that might have been entered into (214).
These observations assume, of course, that at least some work has been undertaken by the legal practitioner.
Ground 2: its merits
The Committee did not expressly allege dishonesty, in relation to the Miss Maud function or at all, in its application to the Tribunal (that is, VR 59 of 2006) or in its statement of issues, facts and contentions dated 28 June 2006. Similarly, senior counsel for the Committee did not allege dishonesty in his opening. Indeed, on 7 November 2006, when the Tribunal raised with senior counsel whether he intended to submit that it should make findings of dishonesty against the appellant, senior counsel said in effect that he would not be submitting in closing that the Tribunal should make any such findings. Senior counsel's statement, in this respect, occurred during his cross‑examination of the appellant and towards the end of the hearing on 7 November 2006. The hearing was then adjourned.
When the hearing resumed on 30 November 2006, senior counsel for the Committee informed the Tribunal (and the appellant) in effect that the Committee had reflected on its position during the adjournment, and now wished to submit to the Tribunal, in due course, that the appellant had acted dishonestly in charging fees to the client in connection with the Miss Maud function.
The crucial question, for the purposes of ground 2, is whether the Committee's change of position, with the Tribunal's permission, offended the requirements of procedural fairness; in particular, whether, in the circumstances, it was fair to permit the change of position including whether, in the circumstances, the appellant was given adequate notice of the Committee's proposed submission and an adequate opportunity to meet it.
This crucial question must be evaluated in the context of the relevant matters in dispute between the parties. First, to the appellant's knowledge, the Committee and the client contended at all times, including before the proceedings in the Tribunal were commenced by the filing of application VR 59 of 2006, that the appellant did not perform any work at the Miss Maud function (or at the pre‑dinner drinks), whereas the appellant contended at all times that he had performed all of the alleged work on 31 October 2002 for which he had charged. Secondly, the present case did not involve alleged overcharging resulting from the appellant's erroneous view as to the value of the work he had performed at the Miss Maud function (or the pre‑dinner drinks). Thirdly, the present case did not involve alleged overcharging resulting from the appellant's mistake in recording the time he spent working, or his incorrect recollection of the work he had performed, at the Miss Maud function (or the pre‑dinner drinks). Fourthly, the present case did not involve alleged overcharging resulting from the appellant's erroneous estimate of the work performed or the time spent working at the Miss Maud function (or the pre‑dinner drinks). Fifthly, the present case did not involve alleged overcharging resulting from the appellant's mistaken entries or notations in his file notes, telephone notes or time sheet records in relation to 31 October 2002.
In my opinion, the Tribunal acted fairly in permitting the Committee's change of position at a late stage in the proceedings. Further, in my opinion, the appellant was given adequate notice of the Committee's proposed submission that the appellant had acted dishonestly in charging fees to the client in connection with the Miss Maud function (and the pre‑dinner drinks), his file notes, telephone notes and time sheet records in relation to those occasions had been fabricated, and he had maintained throughout the proceedings the pretence that the relevant charges were reasonable and proper. Also, in my opinion, the appellant was given an adequate opportunity to meet the allegations in question. My reasons for those opinions are as follows:
(a)As I have mentioned, the appellant did not, at any time, assert that the fees he charged to the client in connection with the Miss Maud function were, wholly or partly, as a result of an erroneous view as to the value of the work he had performed, a mistake in recording his time, an incorrect recollection of the work he had performed, or an erroneous estimate of the work performed or the time spent working.
(b)Further, as I have mentioned, the appellant did not, at any time, assert that the fees he charged to the client in connection with the Miss Maud function were, wholly or partly, as a result of his mistaken file notes, telephone notes or time sheet entries.
(c)During the proceedings before the Tribunal, the appellant maintained that his charges in connection with the Miss Maud function were reasonable and proper.
(d)Also, as I have mentioned, to the appellant's knowledge, the Committee and the client contended at all times, including before the proceedings in the Tribunal were commenced by the filing of application VR 59 of 2006, that the appellant did not perform any work at the Miss Maud function (or at the pre‑dinner drinks). This is evident, for example, from paras 3.39 and 3.40 of the Committee's statement of issues, facts and contentions, items 64 ‑ 68 of its grounds of dispute in relation to the itemised bill of costs, and the witness statements filed and served by the Committee.
(e)The appellant cross‑examined the Committee's witnesses (that is, the client and Mr Savell) with a view to establishing that he had, in fact, performed work, as he alleged, at the Miss Maud function.
(f)In the circumstances, at all times, if the Committee's contentions in relation to the Miss Maud function (and the pre‑dinner drinks) were accepted, and the appellant's contentions in response were rejected, the only reasonable conclusion open was that the appellant had been dishonest, in that:
(i)he had deliberately charged for work he knew he had not performed and for time he knew he had not spent working;
(ii)he had deliberately fabricated his file notes, telephone notes and time sheet entries in relation to the Miss Maud function (and the pre‑dinner drinks); and
(iii)he had, throughout the proceedings before the Tribunal, maintained the pretence that his charges to the client in connection with the Miss Maud function (and the pre‑dinner drinks) were reasonable and proper.
(g)The appellant was an experienced legal practitioner who was admitted to practice on 3 March 1993. In other words, when the proceedings were before the Tribunal, he had been practising for about 13 years.
(h)Although the Committee's change of position, with the Tribunal's permission, in relation to dishonesty, occurred on 30 November 2006, in the course of the appellant's cross‑examination, senior counsel for the Committee had not commenced cross‑examining in relation to the Miss Maud function (or the pre‑dinner drinks).
(i)Senior counsel for the Committee's cross‑examination of the appellant on 7 November 2006 involved, at least in part, attacking the appellant's credit. The cross‑examination was directed, in part, to establishing what work was actually done by the appellant and, necessarily, whether he had charged for any work that had not been done or any time that had not been spent. See the discussion between senior counsel and the Tribunal on 7 November 2006, in the presence of the appellant, which I have summarised at [37] above.
(j)The Committee's change of position, with the Tribunal's permission, occurred at the commencement of the resumed hearing on 30 November 2006, but the hearing continued on that date and on 1 December 2006. Also, the Committee filed and served written closing submissions on 20 December 2006 and the appellant responded with his written closing submissions on 31 January 2007. There was sufficient time for the appellant to consider whether he should call any other witnesses (for example, his wife) to rebut the Committee's contentions in relation to the Miss Maud function (and the pre‑dinner drinks). The appellant did not, at any time, make an application to call additional evidence for that purpose. He was content to rely on his own evidence.
(k)The appellant did not make an application on 30 November or 1 December 2006 to adjourn the proceedings to enable him to reflect upon or seek advice concerning the Committee's change of position.
(l)It is apparent, from the relevant matters in dispute between the parties which I have enumerated at [66] above, that the Committee's change of position, with the Tribunal's permission, in relation to dishonesty, would not have had any material impact on senior counsel for the Committee's cross‑examination of the appellant. In other words, that cross‑examination would always have been directed to establishing the primary facts on which any conclusion of dishonesty would be based, namely, that the Miss Maud function (and the pre‑dinner drinks) was a social function and the appellant did not perform any work as alleged or at all.
In the facts and circumstances which I have recounted at [66] ‑ [67] above, the Tribunal's ruling on 30 November 2006 did not involve a denial of procedural fairness to the appellant. Also, formal amendment of application VR 59 of 2006 was unnecessary: see ss 9 and 32(2)(b) of the SAT Act.
I should note that, if, contrary to my opinion, there was a denial of procedural fairness, I would not have dismissed ground 2 on the basis that there was no possibility that the denial of procedural fairness could have affected the outcome. See Stead v State Government Insurance Commission (1986) 161 CLR 141, 147. I agree, in this regard, with the observations of Beech AJA.
Ground 2 fails.
Ground 3
Ground 3 alleges:
Further and alternatively, in deciding to transmit a report to the Full Bench of the Supreme Court with a recommendation that the name of the appellant be struck off the roll of practitioners, the Tribunal erred in fact and in law in that the Tribunal wrongly relied on findings made by the Tribunal which were not open to the Tribunal for the reasons pleaded in grounds 1 and 2 herein, and to other 'incidental findings' including in relation to the appellant's evidence which involved a denial of procedural fairness to the appellant.
Beech AJA has concluded, in relation to ground 3, as follows:
Had grounds 1 and 2 failed, I would have dismissed ground 3 on the basis that there was no possibility that any denial of procedural fairness in respect of the incidental findings could have affected the outcome.
I have concluded that ground 2 should be upheld and that the matter should be remitted to the Tribunal for it to determine the appropriate disposition of the matter in the absence of a finding of dishonesty in respect of the Miss Maud occasion. Obviously, ground 3 consequently succeeds insofar as it complains of the Tribunal's reliance, in the Penalty
Reasons, on the finding of dishonesty in respect of the Miss Maud occasion.
Unlike Beech AJA, I have decided that ground 2 fails. In my opinion, ground 3 should be dismissed on the basis that there is no possibility that any denial of procedural fairness in respect of the 'incidental findings' could have affected the outcome. It is apparent from the Tribunal's reasons in relation to penalty that it first reached its decision on penalty without regard to the 'incidental findings' [41] ‑ [45]. The Tribunal then said that the 'incidental findings' fortified the conclusion which had already been reached [46].
I agree with Beech AJA, however, for the reasons he gives, that the Tribunal should not have made findings of dishonesty against the appellant in relation to the alleged instructions to appeal or the letter dated 2 May 2003 and his absence in Queensland. Those findings must not be taken into account by the Full Bench in its consideration of The Tribunal's report and reasons.
Conclusion
I would grant leave to appeal on all grounds but, for the reasons I have given, the appeal should be dismissed.
BEECH AJA:
Introduction
The appellant is a legal practitioner. On 31 March 2006 the Legal Practitioners Complaints Committee (the Committee), instituted three applications in the State Administrative Tribunal (the Tribunal), each alleging unprofessional conduct on the part of the appellant. All three of the references arose out of the appellant's representation of a client, Ms Teresa Castillo, in proceedings before the Family Court of Western Australia. The Tribunal made findings of unprofessional conduct against the appellant and, subsequently, ordered that a report be transmitted to the Supreme Court (full bench) with a recommendation that the appellant be struck off the roll of practitioners. The appellant appeals against the Tribunal's decisions.
Overview of the facts
The Tribunal's reasons for decision were very comprehensive, being 147 pages long. Because of that, and because of the relatively limited scope of the grounds of appeal, I do not propose to outline the Tribunal's
findings in a comprehensive way. Rather, I will provide an introductory overview of facts and then, in the course of considering the grounds of appeal, refer to further findings relevant to each ground of appeal.
There were a significant number of substantial factual disputes before the Tribunal. The Tribunal resolved those disputes in favour of the witnesses called by the Committee, principally the client. With very few exceptions, those findings are not challenged. Unless otherwise mentioned, the facts set out below are based on findings of the Tribunal which are not challenged in this appeal.
The client separated from her husband in 1999. In April 2002 she commenced property settlement proceedings in the Family Court for orders in relation to the distribution of the assets of the marriage. The matrimonial assets were modest, comprising of the matrimonial home, some shares, a boat, cars and some other assets. The client commenced the proceedings with the assistance of a non‑lawyer friend.
The client's son and the appellant were, at that time, friends. In the period between April and July 2002 they discussed the client's Family Court proceedings. The appellant subsequently claimed that the client's son was speaking on her behalf, and that he was entitled to charge for those conversations. The Tribunal rejected those claims, finding that the appellant was not entitled to charge prior to July 2002 when he was retained by the appellant.
In July 2002 the client learned that her husband had instructed solicitors. The client then retained the appellant to act on her behalf in the Family Court proceedings.
On 25 July 2002, the client signed a costs agreement prepared and provided to her by the appellant. This costs agreement (which the Tribunal referred to as 'the First Costs Agreement') permitted the appellant to charge $250 per hour, substantially above the scale fee, and provided the client with rights to itemisation and taxation of any costs charged. No complaint was made as to the circumstances of the execution and the terms of the First Costs Agreement.
Also on 25 July 2002, the appellant and the client attended a conciliation conference in the Family Court. Settlement negotiations took place but were not successful. A similar conference was attended by the client and the appellant on 10 October 2002. Thereafter, the appellant commenced written settlement negotiations with the husband's solicitor on the client's behalf. After a brief exchange of correspondence, the matter was settled in December 2002. Consent orders reflecting the settlement were made by the Family Court on 9 January 2003. Pursuant to those orders, on or about 6 February 2003, the husband paid the sum of $136,000 to the appellant for the benefit of the client. The appellant paid that sum into his trust account.
Shortly before 6 February 2003, the client signed a document entitled 'Authority and Agreement', which the appellant had prepared. The Tribunal called this the 'Second Costs Agreement'. The Second Costs Agreement included provisions by which the client agreed to:
1.a deduction of $22,000 from the settlement proceeds in respect of the appellant's costs, disbursements and GST;
2.a deferral of any account for the appellant's costs until after 2 July 2003;
3.waive any further claim she may have had in respect of the balance of the amount received from the settlement;
4.treat the balance of $114,000 payable to the client as a final settlement of any claim she might have against the appellant; and
5.waive her rights to the itemisation and taxation of the appellant's costs.
At the hearing before the Tribunal, the appellant claimed that the Second Costs Agreement reflected a prior oral agreement between himself and the client agreeing his fees at $22,000. The appellant said that the document had been read by and explained to the client. The Tribunal rejected the appellant's evidence in this regard. The Tribunal accepted the client's evidence that there was no prior agreement, or even discussion, as to the subject matter of the Second Costs Agreement, and that the client signed the Second Costs Agreement without the appellant explaining to her the nature of the document and without her even reading it. The Tribunal found that the appellant dishonestly concealed the terms and effect of the Second Costs Agreement from the client. By ground 1, the appellant appeals against this finding of dishonesty. The Tribunal's findings that the agreement was not the subject of a prior oral agreement and that the document was not explained to the client are not challenged.
On 24 February 2003 the appellant prepared, and the client executed, an 'Account Withdrawal Authority' providing for the withdrawal of $22,000 from the appellant's trust account in payment of the appellant's costs, disbursements and GST. Near the end of that meeting the appellant gave the client a cheque drawn on his trust account in the sum of $114,000 (being the settlement sum of $136,000 less a deduction of $22,000 for the appellant's costs, disbursements and GST). The client was distressed and confused at not receiving the full settlement sum. She requested an itemised account. At this meeting and subsequently, her requests for such an account were not met.
On 3 May 2003 the client made a complaint to the Committee about the appellant's conduct in refusing to provide her with an itemised account.
The $22,000 was retained by the appellant in his trust account until 3 July 2003, when he issued a lump sum bill to the client and then subsequently transferred the $22,000 to his office account.
Following further requests made by the Committee, the appellant provided an itemised account in late December 2003. The account showed costs and disbursements incurred of $30,446 calculated at $250 per hour, but claimed costs in the sum of $23,250 including GST. It included an amount of $2,250 plus GST in respect of 31 October 2002. The Tribunal found that on that day there was a birthday function at Miss Maud Restaurant for the client's son at which no legal work was done or discussed. The Tribunal found that the appellant's conduct in charging for 31 October 2002 was dishonest. That finding of dishonesty is challenged by ground 2.
On 28 January 2004 the client filed a notice disputing the appellant's bill of costs. The bill was taxed by a registrar of the Family Court on 4 June 2004. The bill was taxed at the rate agreed in the First Costs Agreement, namely $250 per hour. The Registrar assessed the account at $5,490.10 inclusive of GST. In other words, he taxed $17,759 from the account in the original sum of $23,250. The Registrar, and also the Tribunal, found that the client's family law dispute was not a complex case. The appellant had attended two conciliation conferences, written some straightforward letters seeking and agreeing to settle the matter, and filed nothing other than an address for service. The implementation of the settlement agreement was a very straightforward process.
The Committee instituted three proceedings alleging unprofessional conduct against the appellant. The first (VR 58 of 2006) alleged that from July 2002 to December 2003 he improperly and calculatedly advanced his own interests in conflict with and to the detriment of his client's interests. This reference included an allegation that the appellant procured the client's execution of the Second Costs Agreement by concealing from her its terms and effect. It also complained that the appellant failed to provide an itemised account, despite repeated requests, until December 2003.
The second reference (VR 59 of 2006) alleged that the appellant had charged the client a grossly excessive fee.
The third reference (VR 60 of 2006) alleged that in the course of the taxation the appellant communicated with the court on issues relevant to the taxation proceedings without the leave or request of the court, without notifying the solicitor then acting for the client in the taxation, and without forwarding the communication to the client's solicitor at or about the same time he sent it to the court.
No challenge is made to the findings of the Tribunal in respect of the third reference.
The Tribunal referred to reference VR 58 of 2006 as the Conflict Complaint, reference VR 59 of 2006 as the Overcharging Complaint, and reference VR 60 of 2006 as the Communication Complaint. I will, at times, do the same.
By written reasons ([2007] WASAT 111) delivered on 23 May 2007 (Reasons), the Tribunal found the appellant guilty of unprofessional conduct on each of the three references (the First Decision). The Tribunal made orders accordingly, and also determined that it would hear from the parties on the question of penalty and costs.
On 4 July 2007 the Tribunal heard oral submissions as to penalty and costs to give effect to the Reasons. By then, the Tribunal had been reconstituted so as to include the President. That was done because s 250A(2) of the Legal Practice Act 2003 (WA) provides that the Tribunal is not to exercise its powers to make and transmit a report on its findings to the Supreme Court (full bench), or order suspension from practice, unless the Tribunal is constituted so as to include the President. No complaint is made as to the reconstitution of the Tribunal.
On 4 July 2007, the Tribunal ordered (the Second Decision) that a report be transmitted to the Supreme Court (full bench) with a recommendation that the name of the appellant be struck off the roll of practitioners, and also ordered that the practitioner be suspended pending that determination. On 18 July 2007 the Tribunal delivered written reasons ([2007] WASAT 111 (S)) for so ordering (Penalty Reasons).
The Appeal
In form, the appellant has appealed against the First Decision only. However in substance he appeals, in one respect, against both decisions and, otherwise, against some of the findings made in the First Decision and against the Second Decision. Although the defect in the form of the notice of appeal was identified by the respondent, no objection was taken to it on that ground. I will deal with the substance of the appellant's appeal.
By s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), a party to a proceeding may appeal from a decision of the Tribunal, but only if the court to which the appeal lies gives leave to appeal. In this case, an appeal of any decision of the Tribunal lies to this court (s 105(3)(a)). A 'decision' includes an order, direction or determination of the Tribunal (s 3(1)).
On 6 September 2007, Buss JA ordered that the application for leave to appeal be heard together with the appeal.
The exercise of the power to grant leave was explained by Buss JA in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] ‑ [18] (Wheeler & Pullin JJA concurring).
By s 105(2) of the SAT Act, the general rule is that an appeal can only be brought on a question of law. (As to the meaning of an appeal 'on a question of law', see Paridis [53] ‑ [57]). An exception to that general rule is provided by s 105(13). That subsection provides relevantly, that:
Despite subsection (2), if the Tribunal’s decision -
(a)is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b)has the effect of depriving a person of the person’s capacity to lawfully pursue a vocation,
an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.
It is common ground that the Second Decision of the Tribunal, which included orders suspending the appellant from practice, had the effect referred to in s 105(13)(b). That leaves the question of whether the Tribunal's decision is made 'under a relevant Act'. 'Relevant Act' is materially defined to mean an Act specified in sch 1 of the SAT Act. Among the Acts specified in sch 1 is the Legal Practice Act 2003 (WA). The Legal Practitioners Act 1893 (WA) is not specified in sch 1. For reasons to be explained in dealing with ground 1A, in my opinion the Tribunal's decision was made under the Legal Practice Act 2003.
Consequently, s 105(13) of the SAT Act enables the appellant in this case to bring an appeal on any ground, whether it involves a question of law, a question of fact, or a question of mixed law and fact.
Initially, the appellant relied on three grounds of appeal. Those grounds do not seek to disturb the findings of unprofessional conduct made in relation to any of the three references, but seek to overturn findings of dishonesty made by the Tribunal. Ground 1 challenges the finding in the Conflict Complaint that in procuring the execution by the client of the Second Costs Agreement, the appellant 'deliberately' or 'dishonestly' concealed the terms and effect of that agreement. Ground 2 challenges the finding in the Overcharging Complaint that the appellant charged fees dishonestly in relation to the client's son's birthday function at Miss Maud Restaurant on 31 October 2002. Ground 3 challenges the reliance by the Tribunal in its Penalty Reasons on the findings of dishonesty the subject of grounds 1 and 2, and other 'incidental' findings of dishonesty made by the Tribunal.
At the hearing of the appeal on 10 March 2008, the appellant was granted leave to add a new ground of appeal, ground 1A. By ground 1A, the appellant contends that the Tribunal did not have jurisdiction in relation to the Conflict Complaint and the Overcharging Complaint, in that those complaints related to conduct prior to 1 January 2004 and the Tribunal's jurisdiction is limited to conduct after 1 January 2004. Because it raises a question of jurisdiction, I will deal with ground 1A first.
Ground 1A: Jurisdiction
Ground 1A is in these terms:
The Tribunal erred in law in purporting to determine applications VR 58 of 2006 and VR 59 of 2006, being applications purportedly made under the Legal Practitioners Act 1893 (WA), and in failing to dismiss both applications for want of jurisdiction.
Particulars
(a)The Legal Practitioners Act 1893 is not an enabling Act within the meaning of s 13(1) of the State Administrative Tribunal Act 2004 (WA).
(b)The Tribunal erred in finding that it had jurisdiction to determine applications VR 58 of 2006 and VR 59 of 2006 by virtue of s 37 of the Interpretation Act 1984 (WA).
On 1 January 2004 the Legal Practitioners Act 1893 (WA) (the 1893 Act) was repealed and the Legal Practice Act 2003 (WA) (the 2003 Act) came into force. In essence, the appellant submitted that:
(a)the Tribunal's jurisdiction in respect of allegations of unprofessional conduct by legal practitioners is limited to conduct occurring after 1 January 2004;
(b)liability in respect of pre‑2004 conduct under the 1893 Act is preserved by s 37 of the Interpretation Act 1984 (WA);
(c)notwithstanding the repeal of the 1893 Act, the existence of the former Legal Practitioners Disciplinary Tribunal constituted under that Act was continued by operation of s 36 of the Interpretation Act; and
(d)consequently, an allegation of unprofessional conduct said to have occurred prior to 1 January 2004 must be heard by the former Legal Practitioners Disciplinary Tribunal as constituted under the 1893 Act.
Counsel for the appellant readily acknowledged that the result for which he contended was not one which would have been specifically intended by the legislature. However, he contended that it was the only construction of the relevant legislation which was reasonably open. For the reasons which follow, I do not accept that submission. An alternative construction advanced by the respondent is open and is to be preferred, and that is that the Tribunal's jurisdiction under the 2003 Act extends to pre‑2004 conduct.
It is convenient to identify the various relevant statutory provisions before explaining that conclusion.
In this case, two questions arise as to whether the breach of the requirements of procedural fairness which I have identified might have affected the outcome. First, might it have affected the Tribunal's finding that the appellant acted dishonestly in charging in respect of the Miss Maud occasion? Secondly, if the finding of dishonesty in relation to the Miss Maud occasion had not been made, might the ultimate outcome, namely the recommendation that the practitioner be struck off, have been different?
In relation to the first question, I am not satisfied that there is no possibility that the denial of procedural fairness arising from the belated articulation of the allegation of dishonesty could have affected whether the finding of dishonesty was to be made. I have concluded that procedural fairness required the appellant to be given sufficient notice of an allegation of dishonesty to allow proper opportunity to prepare for cross‑examination of the Committee's witnesses knowing of that allegation, and to be given proper opportunity to consider what, if any, other evidence he might call in relation to the events of 31 October 2002. I have also concluded that the articulation of the allegation for the first time on 30 November 2006 deprived the appellant of those opportunities. In these circumstances, it cannot be said that there is no possibility that a different finding might have been made, had the requirements of procedural fairness been complied with.
As to the second question, the Committee highlighted 10 aspects of the findings made by the Tribunal. The Committee submitted that when those 10 matters were taken into account, there was no possibility that, even if the Tribunal had not made a finding of dishonesty in respect of the Miss Maud occasion, it could have made any difference to the recommendation of striking off ultimately made by the Tribunal. I do not accept that submission. There is no doubt that, without any finding of dishonesty in relation to the Miss Maud occasion, it would be well and truly open to the Tribunal to come to the same decision, namely that the practitioner ought be struck off. However, in my opinion, the Tribunal ought perform its important statutory function of determining the appropriate disposition of the matter again, without regard to the finding of dishonesty in respect of the Miss Maud occasion which was, for the reasons given, procedurally flawed. In reconsidering the matter, the 10 aspects of its finding which have been highlighted by the Committee will be relevant to take into account.
The Penalty Reasons of the Tribunal demonstrate that the dishonesty element of the Overcharging Complaint loomed large in the Tribunal's consideration of the appropriate disposition of the matter. In the Penalty Reasons, the Tribunal concluded that the appropriate order was an order recommending that the practitioner be struck off [41]. The reasons for that conclusion were then set out at [42] ‑ [45]. Thereafter at [46], the Tribunal stated that it was fortified in its view as to the appropriate penalty having regard to other matters. I will return to that statement in the context of ground 3.
Paragraphs [43] and [44] are in these terms:
The Overcharging Complaint included a specific allegation (articulated during the hearing) that the practitioner had knowingly and dishonestly charged for work at the October function at which no professional services were provided and that he had kept up that pretence throughout the proceedings. The background was that the practitioner had initially claimed substantial fees on that occasion for what he recorded as and claimed in oral evidence were professional services provided. This was in circumstances when, in truth, he knew that he had not provided any such services and had no entitlement to such fees. He persisted with these claims during the taxation, and at the hearing before the Tribunal, relying on fabricated records and supported by his oral testimony. That complaint also involved allegations made by the Committee during the hearing that insofar as the practitioner sought to rely upon his records as evidencing work undertaken in the period prior to the first costs agreement and in the period after February 2003, those records were unsafe and unreliable. With respect to the last mentioned period, the Committee’s case as reflected in the evidence of its witnesses (by their witness statements), was that the practitioner’s claim to having received instructions to appeal was an invention.
The Tribunal, as it said, was reasonably satisfied that each of these serious allegations had been proved in accordance with the civil standard, that is, on the balance of probabilities, the Tribunal being actually persuaded as to their occurrence on the basis of what the Tribunal regarded as reasonably clear and cogent evidence.
It can be seen from these passages in the Tribunal's Penalty Reasons that the allegation of knowingly and dishonestly charging in respect of the Miss Maud occasion was central to the Tribunal's consideration of the appropriate penalty. The matter should be remitted to the Tribunal for it to consider the appropriate penalty in the absence of the specific finding of dishonesty in respect of the Miss Maud occasion being set aside.
For those reasons I would uphold ground 2.
Ground 3
Ground 3 challenges the reliance by the Tribunal on the findings the subject of grounds 1 and 2, and also upon other findings described as 'incidental findings' which were said to involve a denial of procedural fairness to the appellant. The 'incidental findings' which the appellant complained of were not identified in the grounds of appeal. The appellant's written submissions (par 45) identified them as these:
(1)that the appellant was not honest in his evidence in certain respects (Penalty Reasons [37(3)], [47]); and
(2)that the appellant had deliberately and callously caused the client anguish in relation to an appeal and that he invented the instructions to appeal (Penalty Reasons [37(4)], [43] and [47]).
In oral submissions before the Court of Appeal counsel for the appellant also referred to findings at [51] but accepted that they were a summary of the findings otherwise complained of. Consequently those findings do not require separate consideration.
I begin by setting out or summarising the relevant parts of the Tribunal's Penalty Reasons.
The Penalty Reasons
Under the heading 'Legal Principles' the Tribunal referred to Smith v New South Wales Bar Association (1992) 176 CLR 256, and to the reasons of Ipp J in Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 [108] ‑ [109] (to which I will return). The Tribunal concluded that the authorities permitted it, subject to the requirements of notice and opportunity, to consider incidental findings both generally in relation to penalty, and specifically in relation to whether the practitioner has reformed his ways or is likely to re‑offend [29].
Senior counsel for the Committee made submissions as to the findings already made by the Tribunal relating to the appellant's credibility. In making those submissions, it was emphasised that those findings ought not be elevated to separate instances of misconduct and the practitioner's penalty be based upon each of those separate instances.
In setting out its determination on penalty, the Tribunal recognised that an order striking the name of the practitioner from the roll, as sought by the Committee, is the most severe order which can be made. Nevertheless, it concluded as follows [41]:
[H]aving regard to the terms of the charges upon which the practitioner was found guilty, and the findings on specific matters alleged and directly arising from them, we think, subject to a consideration of the practitioner's personal circumstances and the likelihood of a re‑occurrence (below), the appropriate order is that sought by the committee. This is so for the following reasons.
Paragraphs [42] ‑ [45] then followed, in these terms:
[42]The Conflict Complaint involved a charge that the practitioner had improperly and calculatedly advanced his own interests in respect of costs by entering into the second costs agreement and delaying providing an itemised bill of costs. It is evident that the terms of that agreement were highly disadvantageous to the client (par [158], par [159]). Moreover, the 'particulars' of the charge (by the Committee’s Statement of Issues, Facts and Contentions) included that the practitioner had knowingly concealed the terms and effect of the second costs agreement at the time it was produced by him for the client to sign. That is, as found, the practitioner procured his client to sign that document in circumstances which hid from her the fact that she was entering into a new costs agreement in such terms. The practitioner procured the client's execution of the withdrawal authority without providing her a proper opportunity of reading this nor explaining it to her (par [195]).
[43]The Overcharging Complaint included a specific allegation (articulated during the hearing) that the practitioner had knowingly and dishonestly charged for work at the October function at which no professional services were provided and that he had kept up that pretence throughout the proceedings. The background was that the practitioner had initially claimed substantial fees on that occasion for what he recorded as and claimed in oral evidence were professional services provided. This was in circumstances when, in truth, he knew that he had not provided any such services and had no entitlement to such fees. He persisted with these claims during the taxation, and at the hearing before the Tribunal, relying on fabricated records and supported by his oral testimony. That complaint also involved allegations made by the Committee during the hearing that insofar as the practitioner sought to rely upon his records as evidencing work undertaken in the period prior to the first costs agreement and in the period after February 2003, those records were unsafe and unreliable. With respect to the last mentioned period, the Committee’s case as reflected in the evidence of its witnesses (by their witness statements), was that the practitioner’s claim to having received instructions to appeal was an invention.
[44]The Tribunal, as it said, was reasonably satisfied that each of these serious allegations had been proved in accordance with the civil standard, that is, on the balance of probabilities, the Tribunal being actually persuaded as to their occurrence on the basis of what the Tribunal regarded as reasonably clear and cogent evidence.
[45]The Tribunal regards this conduct of the practitioner as violating in fundamental respects the trust which a lay client necessarily places in a solicitor. It is this relationship of trust which so much of the law governing fiduciaries and the Professional Conduct Rules seek, in the client’s interests, to promote (to ensure the client gets the full benefit of the lawyer’s services) and to protect, to ensure that no advantage is taken of the relationship. Strict observance of these standards was particularly important in the present case where the client, because of her limitations in communicating in English and her inexperience with solicitors, trusted and was dependent upon the practitioner.
In [46], the Tribunal stated that it was 'fortified' in its view as to the appropriate penalty, having regard to incidental findings made as to the circumstances and context of the practitioner's conduct and to the subject of the charges, including findings made with respect to the practitioner's conduct at the hearing. Those findings were said to be relevant both to the nature of the penalty and as to whether the practitioner may re‑offend.
At [47] the Tribunal referred to and adopted the specific findings on credibility referred to in the Committee's submissions, as set out in [37] of the Penalty Reasons. These findings included, at [37(3)], that the practitioner was not honest in part of his evidence in relation to the Second Costs Agreement and as to the period of his absence in Queensland. (The practitioner had asserted that because he was in Queensland he did not receive correspondence from the client informing him that the matter was at an end and not to do anything further.) Further, at [37(4)] the Tribunal found that to further his own ends the practitioner had deliberately and callously caused the client anguish by inventing the instructions to appeal and by purporting to continue to act for her in relation to an appeal when he had acknowledged in correspondence that his instructions were at an end.
Other incidental findings were then identified in the Penalty Reasons. The Tribunal observed that these various findings caused the Tribunal grave concern as to whether the practitioner is a person who can be expected to promote the maintenance of proper professional standards and who can command the confidence and respect of the court, his fellow practitioners, and lay clients [51].
The Tribunal considered the likelihood that the practitioner may re‑offend and, in that context, stated that it was far from satisfied that the practitioner understood and appreciated the nature of his misconduct.
At [60] ‑ [62], the Tribunal considered questions of procedural fairness; that is whether the matters the subject of the incidental findings were 'alive' at the hearing and whether the practitioner had an opportunity to deal with them.
The Tribunal referred to the challenge, in cross‑examination, by senior counsel for the Committee of the veracity of the appellant's evidence and as to the genuineness of the records upon which he sought to rely in his evidence [60].
The Tribunal observed that 'clearly the Tribunal was required to make findings on these matters for the purposes of determining whether the charges were made out' [61].
At [62], the Tribunal concluded that they thought it was reasonably 'self‑evident', both that the Tribunal would make incidental findings (including in relation to the practitioner's evidence and records), and that such findings would or might be taken into account by the Tribunal on the subject of penalty. The reference to 'self‑evident' is, no doubt, a reference to the reasons of Ipp JA in Barwick [109] which had been considered earlier in the Penalty Reasons.
The Tribunal concluded that the appropriate order was that a report be transmitted to the Supreme Court (full bench) with a recommendation that the appellant be struck off the roll of practitioners.
The significance of ground 3
It can be seen from the Penalty Reasons that the Tribunal first reached its decision on penalty without regard to the 'incidental findings' [41] ‑ [45]. The incidental findings were then said to fortify the conclusion already reached [46]. Had grounds 1 and 2 failed, I would have dismissed ground 3 on the basis that there was no possibility that any denial of procedural fairness in respect of the incidental findings could have affected the outcome.
I have concluded that ground 2 should be upheld and that the matter should be remitted to the Tribunal for it to determine the appropriate disposition of the matter in the absence of a finding of dishonesty in respect of the Miss Maud occasion. Obviously, ground 3 consequently succeeds insofar as it complains of the Tribunal's reliance, in the Penalty Reasons, on the finding of dishonesty in respect of the Miss Maud occasion.
Further, ground 3 needs to be dealt with in respect of the incidental findings complained of, so as to identify whether any of the matters of which complaint is made ought not to have been taken into account in determining the appropriate disposition of the matter by the Tribunal (and so ought not be taken into account upon the Tribunal's reconsideration).
Legal principles
In determining the three complaints, the Tribunal made various adverse findings of fact against the appellant. Ground 3 complains of the use by the Tribunal of certain of those findings in determining the appropriate sanctions for the practitioner as a result of his conduct the subject of the three complaints. It is convenient to outline the legal principles respecting the limits, arising from the requirements of procedural fairness, upon the use by the Tribunal of adverse findings against a practitioner in determining the question of a practitioner's continuing fitness to practise.
In Smith v New South Wales Bar Association the Court of Appeal heard disciplinary proceedings against a barrister in which it was alleged that the barrister had announced his appearance in a case without having an instructing solicitor, and had told the magistrate that he was instructed by a solicitor without believing in the truth of this statement. The Court of Appeal heard evidence from the barrister and from the solicitor. The solicitor's evidence was that he had not spoken to the barrister about the case. The Court of Appeal rejected the barrister's evidence that he had spoken to the solicitor about the case. In ordering that the barrister be disbarred, the Court of Appeal relied in part on its finding that the barrister had lied to the magistrate and to the Court of Appeal about the conversation with the solicitor. No allegation that the barrister had lied in his evidence before the Court of Appeal was made. The High Court held that procedural fairness required that the Court of Appeal not make an order based partly on the finding that the barrister's evidence was deliberately false without first giving the barrister an opportunity to be heard in relation to such a finding. Brennan, Dawson, Toohey and Gaudron JJ found (269) that because no allegation of deliberate lying had been made against the appellant before the adverse finding was made, the finding was flawed.
Deane J gave separate reasons which were, relevantly, more expansive. At 272 ‑ 273 his Honour said as follows:
If, in the course of the hearing before the Court of Appeal, it had been sought to expand the particulars of the allegations against the appellant to include an allegation that he had deliberately given false evidence to that Court, a question would have arisen whether it would be reasonable to require the appellant to deal at the one time with the original particularized complaints against him and a complaint that the evidence which he gave in answer to those complaints was deliberately false. Obviously, there would have been something to be said for the view that it would have been unfair to require the appellant to establish that he had been honestly mistaken in giving the evidence upon which he relied before that evidence had been rejected by the Court of Appeal. In fact, there was no attempt to amend the particulars of complaint. In the absence of any such amendment, the issue before the Court of Appeal remained whether the effect of all the evidence, including the appellant's evidence about the car park conversation, was that the particularized complaints had been made out to the requisite standard of proof. The appellant could not realistically be expected, while maintaining the reliability of his evidence in relation to that issue, to have set out to establish how and why that evidence was honestly mistaken. If the Court of Appeal, after reaching the conclusion that the appellant's evidence about the car park conversation should be rejected, had thought it desirable or necessary to consider whether the appellant had been guilty of professional misconduct in that he had deliberately given false evidence before it, 'at the very least a new charge would have [had] to be laid (before it could be relied upon) so that [the appellant could] then know of it, appreciate what he [had] to meet and be allowed ample opportunity to meet it'. Such a new charge could have been laid by appropriate amendment to the particulars of complaint and an appropriate opportunity of being heard could have been provided by relisting the matter for that purpose. In fact, however, no specific charge of deliberately giving false evidence before the Court of Appeal was ever laid against the appellant and no opportunity was extended to him to deal with such a specific charge before the Court of Appeal made its initial finding of guilt. (footnotes omitted)
His Honour concluded that the order that the barrister be disbarred was affected by a denial of procedural fairness because the barrister had never been given an opportunity to be heard in relation to whether his evidence to the Court of Appeal was deliberately false.
At the conclusion of his judgment, Deane J added the following (274):
There is one further matter which I would mention. It is that nothing in this judgment should be read as supporting a proposition that the Court of Appeal can never, in disciplinary proceedings, make or act on a finding that the practitioner concerned gave deliberately false evidence before it. To the contrary, it appears to me that circumstances could arise in which it would border on the absurd if the court were precluded from making or acting upon such a finding. If, for example, the practitioner conceded under cross‑examination that he or she had deliberately lied in his or her evidence‑in‑chief about critical matters, the court would clearly be justified in allowing an amendment of the particulars of complaint to include that misconduct and, having given the practitioner the opportunity of being heard in relation to it, in taking account of it in determining the appropriate order in the circumstances of the case.
The effect of the decision in Smith v New South Wales Bar Association has been considered in a series of cases in New South Wales. In Barwick, Ipp JA, with whom Tobias JA and Stein AJA agreed, reviewed a number of New South Wales decisions (subsequent to Smith v New South Wales Bar Association), including Bannister v Walton (1993) 30 NSWLR 699. In Bannister, Mahoney JA held that Smith does not require that in every case, before a finding of lying can be used to influence the order to be made against a practitioner, there must be an amendment of the particulars of the complaint to include that allegation as a specific item of misconduct. In Barwick [107] Ipp JA was of the opinion that the approach taken in the New South Wales decisions was consistent with the reasons of Deane J in Smith.
He stated as follows [108] ‑ [109]:
The relevant time for determining the fitness of a practitioner to practise is the time of the determination by the disciplinary body seized with the question: cf A Solicitor v The Law Society of New South Wales (2004) 204 ALR 8. The misconduct charged will have taken place before the decision is made; there will inevitably be a gap between the date of the misconduct and the date of the determination. It will not be unusual for the practitioner concerned to submit that circumstances have changed since the misconduct charged; arguments as to remorse, reform, character change and subsequent good deeds are not uncommon. The practitioner's conduct of the defence and the veracity and candour of his or her testimony will often be the best evidence as to whether these mitigating circumstances are to be accepted.
It is often self‑evident that the tribunal or court determining fitness to practise might find that the practitioner has lied in the disciplinary proceedings before it. It is also often self‑evident that such a finding, if made, might influence the tribunal or court in deciding what order should be made in regard to the practitioner's right to practise. When the practitioner knows that there is a risk of such a finding being made and used by the disciplinary body concerned in determining what final order to be made, and has adequate opportunity to deal with this prospect, there would be no procedural unfairness were the disciplinary body so to act on the finding. This would be the case even though the practitioner may not have been charged with specific misconduct relating to the conduct the subject of the finding. The act of charging the practitioner would be an unnecessary formality.
In Barwick, Ipp JA concluded, by reference to exchanges between the tribunal and counsel at the hearing of the complaint, that the appellant had known that the tribunal might make a finding that some of the appellant's evidence was not honest, and that if such findings were made, the tribunal might take them into account in determining what ultimate order should be made: [100] ‑ [101].
In my opinion, the position may be summarised as follows. In the course of making findings as to contested matters of fact, the Tribunal can consider the evidence of the various witnesses, including the practitioner, in the ordinary way. In the course of so doing, it may find that a particular witness, including a practitioner, was a dishonest witness and reject the witnesses' evidence on that basis. However, such a finding of dishonesty may not be used to determine the appropriate orders to be made in respect of the practitioner unless one of two conditions exists:
(a)the complaint has been amended to complain of the practitioner's dishonesty in relation to the evidence; or
(b)the way in which the proceedings were run means that the practitioner was on notice that there was a risk of a finding of dishonest evidence being made and used by the disciplinary body in determining what final order should be made, and the practitioner has an adequate opportunity to deal with the prospect of such a finding.
That brings me to the question of whether the Tribunal's use of the incidental findings complained of was consistent with these principles.
Analysis
The first incidental findings complained of are those in the Penalty Reasons [37(3)] and [47] (summarised earlier in these reasons) that the appellant's evidence was, in certain respects, not honest.
Two aspects of the appellant's evidence which were said to have been dishonest were relied upon in this respect by the Tribunal in its Penalty Reasons. The first was his evidence that he did not believe that the Second Costs Agreement was prejudicial to the client. The second was his evidence that he was absent in Queensland for a period of time, and this explained why he had not received various documents and letters sent to him by the client. The second piece of evidence can conveniently be dealt with in the context of the second incidental finding complained of, to which it is closely related. For the reasons which follow, in my opinion the Tribunal was entitled to have regard to the first but not the second of these aspects of the appellant's evidence.
The first of these matters related to the appellant's understanding and beliefs as to the effect of the Second Costs Agreement. Thus, it was of central significance to the Conflict Complaint. The nature and the subject matter of cross‑examination of the appellant (summarised in Reasons [166]) meant that it was plain that the Tribunal would be invited to disbelieve the appellant's evidence in this respect. The Committee's written closing submissions included submissions (at par 1.1) specifically inviting a rejection of the appellant's evidence as to whether the Second Costs Agreement was prejudicial.
In my opinion, the cross‑examination of the appellant and the Committee's closing submissions put the appellant on notice that the Tribunal would be invited to reject his evidence as to whether the Second Costs Agreement was prejudicial. Although it was not spelled out in specific terms, in my opinion it was, given the significance of the subject matter of the evidence, sufficiently evident that, if the Tribunal rejected his evidence in this respect, such a finding might be used by the Tribunal in determining what final order should be made. The Tribunal did not err in having regard to this finding.
I turn to the second aspect of the appellant's evidence (regarding his absence in Queensland), together with the other incidental finding of which complaint is made, namely the finding referred to in the Penalty Reasons at [37(4)], [43] and [47]. In these paragraphs the Tribunal had regard to its finding (in the Reasons) that the appellant had invented an appeal and had thereby deliberately and callously caused the client anguish. For the reasons which follow, in my respectful opinion the Tribunal erred in so doing.
The appellant's evidence that he was absent in Queensland arose in the context of the client's evidence that, in March and April 2003, she sent several letters and other written notices to the appellant stating that the matter was at an end and that he was not instructed to do anything further. The question of whether such documents had been received by the appellant was relevant to the Overcharging Complaint. Specifically, the fourth period challenged by the Committee related to the period after late February 2003. On the Committee's case, the solicitor client relationship had terminated by the end of February 2003 and the client had written in terms which unequivocally confirmed that, by her letters of 3 and 11 April 2003.
The appellant wrote to the client by letter dated 2 May 2003. In that letter, the appellant referred to the client's letters dated 3 April 2003 and 11 April 2003. The appellant's letter of 2 May 2003 stated, in effect, that he had been away in Queensland from 3 April 2003 until he returned on 28 April 2003. Senior counsel for the Committee cross‑examined the appellant on his letter of 2 May 2003. In the course of that cross‑examination, senior counsel asked the appellant how he could explain that, during the period in which he was said to have been absent in Queensland, he had written letters dated 8 April and 14 April 2003, the second of which had requested the client to attend his office to swear various papers. In his evidence during cross‑examination the appellant accepted that his letters of 8 April and 14 April 2003 had been prepared from his Perth office, and said that he must have been mistaken in his letter dated 2 May 2003 as to the length of his absence from the office. The Tribunal rejected his evidence that the letter of 2 May 2003 had involved a mistake, given that it had been written just a few days after he had said in the letter that he had returned. The Tribunal concluded that the appellant was not honest with his client in his letter of 2 May 2003, and was not honest in his evidence regarding this correspondence before the Tribunal (Reasons [221]).
In its Reasons dealing with the charges for the fourth period, the Tribunal set out excerpts from a document headed 'Second termination notice and letter of reality' dated 11 April 2003 written by the client. The Tribunal observed that '[t]he terms of this letter reveal the client's anguish at the state of affairs; that is, the practitioner apparently commencing further and costly proceedings, which the practitioner had deliberately and callously brought about to further his own ends' (Reasons [435]). Those findings were incorporated in the submissions of the Committee on penalty set out at Penalty Reasons [37(4)] and accepted by the Tribunal at [47].
Senior counsel for the Committee accepted, at the hearing of the appeal, that no submissions were made to the Tribunal by the Committee inviting specific findings against the appellant in these respects.
The effect of what occurred on 7 and 30 November 2006, set out earlier in these reasons and summarised by the Tribunal in its Reasons [338], was that, with the exception of the Miss Maud occasion, the Committee would not invite the conclusion that false documents were deliberately created by the appellant, or that that was to be taken into account in determining the appropriate order against the appellant. That seems to me to be relevant to whether it was self‑evident, or the appellant was otherwise on notice, that the Tribunal might conclude that he had invented instructions to appeal and that such a conclusion might be relevant to the appropriate orders to be made.
An allegation that the appellant had invented instructions to appeal and thereby had deliberately and callously caused the client anguish in relation to the appeal is an allegation of serious and deliberate wrongdoing. In my opinion, if the Committee sought to have the Tribunal conclude that the appellant had invented instructions to appeal, and to take that finding into account in determining the appropriate order ultimately to be made, that position should have been made explicit. I am not satisfied that it was self‑evident that such a finding or findings as to the honesty of the appellant's evidence regarding his letter of 2 May 2003 and his absence in Queensland during April 2003, would be matters which it was open to the Tribunal to take into account in determining the appropriate order. Consequently, in my opinion, the Tribunal ought not to have had regard to its findings respecting the honesty of the appellant's evidence as to his absence in Queensland, or to its findings referred to in [37(4)] of the Penalty Reasons.
For these reasons, I would uphold ground 3 in part.
Conclusion
For the reasons I have given, I would grant leave to appeal on all grounds; uphold ground 2 and, in part, ground 3; and otherwise dismiss the appeal. The matter should be remitted to the Tribunal for reconsideration in light of the reasons of this court.
Reconsideration by the Tribunal of the appropriate orders to be made does not involve making a fresh assessment of the credibility of the appellant. Rather, it requires an evaluative judgment taking into account the various relevant facts and factors (and excluding the findings the subject of ground 2 and ground 3 insofar as the latter ground has succeeded). That being so, I see no impediment to the Tribunal being constituted in the same way as it was in making the decision to refer the matter to the Supreme Court (full bench).
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