Nikolaidis v Legal Services Commissioner

The appeal in *Nikolaidis v Legal Services Commissioner* concerned a practitioner's alleged professional misconduct arising from the charging of costs. The Legal Services Commissioner had laid information alleging professional misconduct, which was heard by the Administrative Decisions Tribunal. The Tribunal had found the practitioner guilty of professional misconduct in relation to one of the complaints.

The central legal issues before the Court of Appeal were whether the Administrative Decisions Tribunal erred in rejecting an expert witness report concerning the fair and reasonable costs of legal services, and whether the Tribunal correctly determined that the practitioner had engaged in professional misconduct by charging "grossly excessive" costs. Specifically, the court had to consider the weight to be given to a costs certificate issued under Part 11 of the *Legal Profession Act 1987* (NSW) in disciplinary proceedings under Part 10 of the Act, and the evidentiary basis required to establish professional misconduct, particularly the practitioner's personal involvement in knowingly overcharging or recklessness regarding excessive costs.

The Court of Appeal reasoned that a costs certificate issued under Part 11 of the *Legal Profession Act 1987* (NSW) was not binding on the Tribunal in disciplinary proceedings under Part 10. The Tribunal was entitled to consider its own professional experience in determining whether costs were "grossly excessive" for the purposes of professional misconduct. However, the court found that the Tribunal had erred in its approach to the expert evidence and in its finding of professional misconduct. The Tribunal's rejection of the expert report, which contained assumptions instructed by the practitioner, was considered problematic. Furthermore, the court determined that the evidence did not sufficiently establish that the practitioner was personally implicated in knowingly overcharging or was reckless as to whether the costs charged were excessive, a necessary element for a finding of professional misconduct under s 208Q of the Act.

The appeal was allowed. The finding of the Tribunal that the second complaint was established and amounted to professional misconduct was set aside, as were the orders made by the Tribunal in respect of that complaint. Ground 2 of the Information was dismissed, and the respondent was ordered to pay the costs of the appeal.