LOWER COURT JUDICIAL OFFICER: Karpin A; Norton S; Taksa L
COUNSEL: A: M McCulloch SC / T A Berberian R: M Einfeld QC / G Travers
SOLICITORS: A: Eakin McCaffery Cox, Sydney R: Verekers Solicitors, Sydney
CATCHWORDS: LEGAL PROFESSION – conduct of barrister – overcharging – failure to conform with provisions of the Legal Profession Act 1987 – appropriate penalty – whether conduct amounted to professional misconduct or unsatisfactory professional misconduct – whether a fine should be imposed – principles – PROCEDURE – right of appeal – jurisdiction of Court of Appeal – interaction between Legal Profession Act 1987 and Legal Profession Act 2004
DECISION: (a) Appeal allowed (b) Set aside the orders made by the Administrative Decisions Tribunal on 8 March 2006 (c) The respondent be found guilty of professional misconduct with respect to the first ground of complaint made in the Information filed with the Tribunal on 3 June 2005 and guilty of unsatisfactory professional conduct with respect to the second ground of complaint contained in the said Information (d) The respondent be publicly reprimanded (e) The respondent to pay the costs of the appellant of and incidental to the proceedings before the Tribunal (f) The respondent to pay the costs of the appellant of the appeal
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40186/06 ADT 052017/05
TOBIAS JA BRYSON JA BASTEN JA
Wednesday 6 December 2006
THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v TIMOTHY MEAKES
Judgment
TOBIAS JA: By an Information filed in the Administrative Decisions Tribunal (the Tribunal) on 3 June 2005, the appellant informed the Tribunal of a complaint made under Pt 10 of the Legal Profession Act 1987 (the 1987 Act) against Timothy Meakes, the respondent barrister. The appellant claimed that the conduct the subject of the complaint constituted professional misconduct or, alternatively, unsatisfactory professional conduct.
The proceedings were heard by the Tribunal on 14 September 2005 and determined on 8 March 2006. It was then ordered that the respondent be found guilty of unsatisfactory professional conduct in respect of the two complaints in the Information; that he be publicly reprimanded; and that he pay the appellant’s costs of and incidental to the proceedings before the Tribunal.
The first complaint was that the respondent, when acting as a barrister for Mr J Chitty in the matter of Chitty v Opat Coatings Pty…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading NSW Bar Association v Meakes
Sign in free to access the full text
Details
AGLC
NSW Bar Association v Meakes [2006] NSWCA 340
Case
[2006] NSWCA 340
Decision Date
CaseChat Overview and Summary
The New South Wales Bar Association appealed to the Court of Appeal against orders made by the Administrative Decisions Tribunal concerning a barrister, Mr Meakes. The dispute centred on allegations that Mr Meakes had overcharged his client, Mr Chitty, for legal services provided between June 1999 and December 2000, and had failed to comply with disclosure requirements under the *Legal Profession Act 1987* (NSW).
The Court was required to determine whether Mr Meakes' conduct amounted to professional misconduct or unsatisfactory professional conduct, and to consider the appropriate penalty. The appeal also involved questions regarding the jurisdiction of the Court of Appeal and the interaction between the *Legal Profession Act 1987* and the *Legal Profession Act 2004*.
The Court found that Mr Meakes' conduct in relation to gross overcharging constituted professional misconduct, while his failure to comply with disclosure obligations amounted to unsatisfactory professional conduct. The Court reasoned that the overcharging contravened the high standards of honesty and integrity expected of legal practitioners, and that while the *Legal Profession Act 2004* governed the appeal, the substantive standards of professional conduct had not changed significantly since the *Legal Profession Act 1987* was in force when the conduct occurred.
The Court of Appeal allowed the appeal, setting aside the Tribunal's orders. Mr Meakes was found guilty of professional misconduct regarding the overcharging and unsatisfactory professional conduct concerning the disclosure failures. He was publicly reprimanded and ordered to pay the costs of the Bar Association for both the proceedings before the Tribunal and the appeal. One judge also proposed a fine of $15,000, considering the seriousness of the misconduct and the need for the Court's disapproval to be sufficiently marked, but this was not ultimately part of the majority orders.
Orders
Orders of the court
(a) Appeal allowed; (b) Set aside the orders made by the Administrative Decisions Tribunal on 8 March 2006; (c) The respondent be found guilty of professional misconduct with respect to the first ground of complaint made in the Information filed with the Tribunal on 3 June 2005 and guilty of unsatisfactory professional conduct with respect to the second ground of complaint contained in the said Information; (d) The respondent be publicly reprimanded; (e) The respondent to pay the costs of the appellant of and incidental to the proceedings before the Tribunal; (f) The respondent to pay the costs of the appellant of the appeal
Background
Background to the litigation
The submissions sought were duly filed and have been most helpful. Each reaches the same conclusion, and while their reasons differ this is not in a manner which requires the Court to resolve those differences. Suffice it to say that the parties are in agreement that the appeal to this Court is governed by either by s729A(2) of the 2004 Act (as the respondent contends) or by s171F(2) of the 1987 Act (in the form in which it stood immediately prior to its repeal by the 2004 Act on 1 October 2004. both provisions are identical in their terms. In the result, it is common ground that s75A of the Supreme Court Act 1970 applies to the appeal and that the appeal is to be by way of rehearing and not by way of a new hearing or a hearing de novo.The relevant facts It is convenient to set out the relevant facts as alleged in the particulars to the first complaint contained in the Information. They were as follows:(a)On 7 June 1999, the respondent received a brief from Mr Stephen Spinak to act for Mr Chitty in relation to a potential claim against Mr Chitty’s employer, Opat Coatings Pty Limited.(b)The respondent did not provide a disclosure of his fees as required by Pt 11 of the 1987 Act and in particular, did not disclose the basis upon which he proposed to charge as required by that Act.(c)Mr Chitty and Mr Spinak attended a conference with the respondent on 7 June 1999 for which he charged a fee of $895. It was alleged that the charge was excessive for the work performed.(d)The respondent held a further conference with Mr Spinak on 8 August 1999 for which he charged a fee of $895. It was alleged that that charge was excessive for the work performed. (e)On 27 September 1999 the respondent perused briefed material for which he charged a fee of $990. It was alleged that this charge was excessive for the work performed.(f)On 28 September 1999 the respondent perused additional briefed material, prepared a memorandum of advice, drafted a statement of claim and particulars pursuant to Pt 9 r27 of the District Court Rules. The charges rendered for those attendances were respectively $990, $895 and $1,550, a total of $3,435. It was alleged that these charges were excessive for the work performed.(g)On 7 February 2000 the respondent had a conference with Mr Spinak in relation to evidence, quantum and liability for which he charged a fee of $1,595. It was alleged that this charge was excessive.(h)On 10 December 2000 the respondent had a further conference with Mr Spinak and provided a further advice on evidence and quantum for which he charged a fee of $1,595. It was alleged that the charge was excessive for the work performed. (i)On 6 November 2000 the respondent had a conference with Mr Spinak and Mr Chitty and prepared a memorandum of advice for which he charged a fee of $1,695. It was alleged that that charge was also excessive.(j)On 29 November 2000 the respondent consulted with Mr Spinak and Mr Gambi, counsel for Opat Coatings Pty Ltd, and perused additional briefed materials for which he charged a fee of $1,595. It was alleged that the charge was excessive for the work performed.(k)On 30 November 2000 the respondent charged a fee of $3,495 for preparation for a District Court arbitration hearing to be held the following day, a conference with the plaintiff and Mr Spinak and an advice on quantum and settlement. It was alleged that the charge was excessive for the work performed.(l)On 1 December 2000 the respondent charged a brief on hearing fee of $3,495. It was alleged that the charge was excessive for the work performed.(m)On 4 December 2000 the respondent prepared two memoranda of fees for the legal services referred to in particulars (c) to (l) above and which reflected the fees charged on each of those occasions. To the total of those charges he added an uplift factor of 25%. It was alleged that that uplift factor was excessive and out of all proportion to the work done and was not pursuant to any agreement with the client.(n)The total charged by the respondent in his memoranda of fees dated 4 December 2000 was $25,891 (excluding GST). The total fees so charged were alleged to be excessive for the work performed.(o)In about November 2002 the respondent repaid the sum of $12,500 to Mr Chitty following the letter’s application for an assessment of the respondent’s fees. The respondent also paid the costs of Mr Chitty’s solicitor in the amount of $2,500 relating to the assessment process.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Fourth, given that the respondent will be ordered to pay the appellant’s costs of the appeal, to also impose a fine would place an unreasonable financial burden upon him. The Court’s disapproval of the respondent’s conduct will, in my opinion, be sufficiently marked by the orders that I propose.Conclusion In my opinion, the respondent’s conduct with respect to his gross overcharging of Mr Chitty should be found to constitute professional misconduct as a consequence of which I would propose the following orders:(a)Appeal allowed;(b)Set aside the orders made by the Administrative Decisions Tribunal on 8 March 2006;(c)The respondent be found guilty of professional misconduct with respect to the first ground of complaint made in the Information filed with the Tribunal on 3 June 2005 and guilty of unsatisfactory professional conduct with respect to the second ground of complaint contained in the said Information;(d)The respondent be publicly reprimanded;(e)The respondent to pay the costs of the appellant of and incidental to the proceedings before the Tribunal;(f) The respondent to pay the costs of the appellant of the appeal. BRYSON JA: I agree with Tobias JA. BASTEN JA: For the reasons given by Tobias JA, I agree that the appeal in this matter should be upheld and that the Respondent is guilty of professional misconduct with respect to the first ground of complaint. However, there is inconsistency between a finding that the Respondent is guilty of a more serious level of misconduct and the conclusion that the disciplinary order made by the Tribunal remains the appropriate expression of disapprobation. In addition to the reprimand, in my view the Respondent should be fined an amount of $15,000. It is necessary to set out my separate reasons for proposing that order. Because the Court is taking a more serious view of the conduct of the practitioner than that adopted by the Tribunal, it is important to identify the statutory jurisdiction which permits the Court to take that course.Jurisdiction of Court The practitioner was briefed to provide legal services to the solicitor’s client on 7 June 1999. At that time, he was required to make a disclosure of matters relating to costs, as identified in s 175(2) of the Legal Profession Act 1987 (NSW) (“the 1987 Act”): see s 178(2). The legal services were provided between June 1999 and December 2000. The statutory definition of “unsatisfactory professional conduct” and of “professional misconduct”, then found in s 127 of the 1987 Act, and set out at [23] above, has not changed substantially since that time. However, the definition relevantly deals with reasonable standards of competence and diligence. The conduct involved in the present case did not demonstrate lack of reasonable competence or diligence. Rather, the practitioner failed to comply with a statutory obligation of disclosure and charged excessive fees for the services provided. The latter misconduct involved a contravention of the high standards of honesty and integrity required in accordance with general law principles governing professional responsibility. Accordingly, no issue arises as to changes in the legislative scheme with respect to the substantive standards of professional conduct.