| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : RESTIFO and LEGAL PROFESSION COMPLAINTS COMMITTEE [2009] WASAT 242 MEMBER : JUSTICE J A CHANEY (PRESIDENT) MR M ODES QC (SENIOR SESSIONAL MEMBER)
MS D DEAN (MEMBER)
HEARD : 11 NOVEMBER 2009 DELIVERED : 11 DECEMBER 2009 FILE NO/S : VR 60 of 2009 BETWEEN : FRANCES RESTIFO Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
PAUL THOMAS WILLIAMS
Second Respondent
Catchwords: Legal profession - Allegation of settling action without instructions - Complaint dismissed by Legal Profession Complaints Committee - Whether reasonable likelihood practitioner will be found guilty by State Administrative Tribunal of unsatisfactory professional conduct or professional misconduct - Application for
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review of decision dismissing complaint - Approach to be taken to review - Obligation of practitioner to pursue settlement Legislation: Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 421, s 421(3), s 425, s 426, s 428, s 435, s 437, s 438, s 439, s 440, s 441, Pt 13 Div 10
State Administrative Tribunal Act 2004(WA), s 5, s 17, s 18, s 24, s 27, s 29, s 29(3)(c)(ii), s 30, s 31 Result: Application dismissed Category: A
Representation: Counsel:
Applicant : Self-represented
First Respondent : No appearance
Second Respondent : Mr P Arns
Solicitors:
Applicant : Self-represented
First Respondent : Law Complaints Officer
Second Respondent : Arns and Associates
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Ms Frances Restifo was represented by a solicitor, Mr Paul Williams, a principal of Williams & Co, in relation to litigation brought against her by Concorde International Travel Pty Ltd in the District Court of Western Australia. The matter was due to go to trial on 25 February 2008. On the afternoon of 22 February 2008, Mr Williams agreed a settlement of the action on the basis that the plaintiff would discontinue its action against Mrs Restifo and her husband, with each party bearing its own costs. Accordingly, the trial did not proceed. 2 Subsequently, Mrs Restifo made a complaint to the Legal Profession Complaints Committee that Mr Williams had settled the matter without her instructions. The Committee investigated the complaint, and determined that there was no reasonable likelihood that the Tribunal would make a finding against the practitioner of unsatisfactory professional conduct or professional misconduct. Accordingly, it dismissed the complaint. Mrs Restifo sought a review of that decision by the Tribunal. 3 The Tribunal conducted a hearing as to whether there was a reasonable likelihood of the practitioner being found guilty of unsatisfactory professional conduct. It heard evidence from the complainant, three witnesses called by her, and the practitioner. It concluded that the complaint was not supported by the evidence, and concluded that the practitioner did have instructions to make the settlement proposal which was ultimately accepted. Accordingly, the Tribunal concluded that the decision of the Legal Profession Complaints Committee should be affirmed.
Nature of the application 4 On 7 April 2009, the Legal Profession Complaints Committee (LPCC) resolved to dismiss a complaint by Ms Frances Restifo because it was satisfied that there was no reasonable likelihood that a practitioner about whom she had complained, Mr Paul Williams, would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct. 5 Pursuant to s 435 of the Legal Profession Act 2008 (WA) (LP Act), a person aggrieved by a decision of the LPCC to dismiss a complaint may (Page 4)
apply to the Tribunal for a review of the decision. The LP Act came into force on 1 March 2009. It repealed and replaced the Legal Practice Act 2003 (WA) (2003 Act). Under the 2003 Act, a decision by the LPCC to dismiss a complaint was not susceptible to review by the Tribunal. 6 An application for review by Mrs Restifo was made on 19 May 2009. It was the first application to be brought before the Tribunal under s 435 of the LP Act. It therefore raises, for the first time, the question of the proper role of the Tribunal in applications for review under s 435 of the LP Act, the question of what orders the Tribunal might make on such an application and the appropriate procedures to be adopted in such applications. 7 An application under s 435 of the LP Act comes within the Tribunal's review jurisdiction, since it involves a review of a decision by the LPCC: see s 17 State Administrative Tribunal Act 2004 (WA) (SAT Act). By s 18 of the SAT Act, the Tribunal is required, in exercising its review jurisdiction, to deal with a matter in accordance with the SAT Act and the enabling Act. In this case, the enabling Act is the LP Act. 8 The review of a reviewable decision is by way of a hearing de novo, and is not confined to matters that were before the original decisionmaker, but may involve consideration of new material whether or not it existed at the time the decision was made: see s 27 of the SAT Act. 9 Section 29 of the SAT Act relevantly provides: (Page 5)
10 Section 30 of the SAT Act requires the decisionmaker to use its best endeavours to assist the Tribunal to make its decision on the review. By s 31 of the SAT Act, the Tribunal is empowered to invite a decisionmaker to reconsider its decision. 11 Given s 29 of the SAT Act, it is necessary to consider the functions and discretions exercisable by the LPCC in making its decision. 12 Section 409 and s 410 of the LP Act provide for complaints to be made to the LPCC about Australian legal practitioners. Complaints cannot be dealt with more than six years after the alleged conduct unless certain criteria are met: see s 411 of the LP Act. 13 Section 415 of the LP Act enables the LPCC to dismiss complaints summarily in certain circumstances including where the complaint is vexatious, misconceived, frivolous or lacking in substance. 14 By s 421 of the LP Act, the LPCC is given power to investigate the conduct of an Australian legal practitioner if it has reasonable cause to suspect the practitioner has been guilty of unsatisfactory professional (Page 6)
conduct or professional misconduct. The LPCC is not required to investigate a complaint which is referred to the Tribunal, that is dismissed or withdrawn under Pt 13 of the LP Act, or a complaint that is subject to mediation under that part: see s 421(3) of the LP Act. 15 Section 425 of the LP Act provides that, after investigation of a complaint, the LPCC may dismiss the complaint if it is satisfied that: 16 By s 426 of the LP Act, the LPCC is given certain summary powers. That section provides: (1) This section applies if (a) the Complaints Committee (i) completes an investigation into the conduct of an Australian legal practitioner; and (ii) is satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of unsatisfactory professional conduct (but not professional misconduct); and (iii) is satisfied that the practitioner is generally competent and diligent; and (iv) is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner; and (b) the Australian legal practitioner concerned consents to the exercise of power by the Complaints Committee under this section. (2) If this section applies, the Complaints Committee may do any one or more of the following (Page 7)
17 Section 428 of the LP Act gives to the LPCC the power to refer matters to the Tribunal, regardless of whether it has conducted an investigation. 18 The LP Act gives jurisdiction to this Tribunal. When exercising jurisdiction conferred under the LP Act, the Tribunal is to be constituted by a judicial member, a senior member who is a legally qualified member, and a person who is not a legal practitioner. In relation to interlocutory hearings, directions hearings or procedural hearings, the Tribunal is to be constituted so as to include either the President or a Deputy President: see s 437 of the LP Act. 19 Section 438 of the LP Act gives the Tribunal power to transmit a report to the Supreme Court (full bench) with a recommendation for the removal of the practitioner's name from the local roll, or to make a range of orders set out in s 439, s 440 and s 441 of the LP Act. The range of orders available to the Tribunal under those sections is far more extensive than the limited disciplinary powers exercisable by the LPCC under s 426 of the LP Act. 20 As that analysis demonstrates, the functions and discretions exercisable by the LPCC can be summarised as including the power to dismiss in certain circumstances (s 415 and s 425), impose a summary penalty (s 426), or refer the matter to the Tribunal (s 428 of the LP Act). In exercising its review jurisdiction, the Tribunal has the functions and (Page 8)
discretions corresponding to those exercisable by the LPCC: see s 29(1) of the SAT Act. 21 Obvious difficulties arise with the notion of the Tribunal exercising the LPCC's function under s 428 of the LP Act, which would require that the Tribunal, standing in the shoes of the LPCC, refer the matter to itself. 22 When the LPCC refers a matter to the Tribunal, it does so in the Tribunal's original jurisdiction, and it assumes the conduct of the application. In a case where the LPCC has formed a view that there is no reasonable likelihood of the practitioner being found guilty of unsatisfactory professional conduct or professional misconduct, there may be practical difficulties in the Tribunal, if it were to form a different view, directing the LPCC to refer the matter to the Tribunal for adjudication. If, however, on a review under s 435 of the LP Act, the Tribunal has only the functions and discretions of the original decisionmaker, and it forms a view that there is a reasonable likelihood that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the only apparent function that the Tribunal could perform is to direct the LPCC to refer the complaint to the Tribunal, or in appropriate cases, to seek the practitioner's consent to deal with the matter under s 426 of the LP Act. 23 There may be an argument that the provisions of Pt 13 of the LP Act should be construed as enabling the Tribunal, on an application for review under s 435 of the LP Act, to, in appropriate cases, go beyond the functions and discretions of the LPCC, and make a finding of unsatisfactory professional conduct or professional misconduct, rather than merely reach the conclusion open to the LPCC that there is a reasonable likelihood that the practitioner would be found guilty of conduct of that nature. 24 That argument would involve the Tribunal going beyond the powers conferred on the Tribunal by s 29 of the SAT Act, and does not sit well with s 29(5). However, by s 5 of the SAT Act, an enabling Act prevails where there is any inconsistency between the SAT Act and the enabling Act. There is an argument that in the context of a s 435 application, limitation of the powers of the Tribunal to those exercisable by the LPCC would result in unworkable outcomes. That is because, as mentioned above, in cases where the summary conclusion of the complaint under s 426 of the LP Act was inappropriate, the Tribunal's only option would be to refer the matter to itself, or perhaps to send the matter back to the LPCC for reconsideration in accordance with directions or (Page 9)
recommendations of the Tribunal pursuant to s 29(3)(c)(ii), or reconsideration generally pursuant to s 31 of the SAT Act. The difficulty with that latter course is that the LPCC would, in effect, be required to prosecute an application in which it had formed the view that it has no reasonable prospect of success. A further difficulty with that course is that the Tribunal must necessarily have given expression to a view as to the likely outcome in respect of a matter upon which it would be subsequently asked to adjudicate. A perception of bias may very well arise. That perception might be removed by ensuring that the Tribunal hearing the referred matter, is differently constituted than the Tribunal which dealt with the matter on the s 435 review, but the position is not satisfactory. 25 A further reason why it may be desirable that the Tribunal's jurisdiction should extend beyond the jurisdiction of the original decisionmaker is the inefficiency, cost and delay, which would be involved in the Tribunal adjudicating on the question of a reasonable likelihood of a finding against the practitioner, which, as this case shows, might require a hearing and oral evidence, and then being required to rehear much of the same evidence following referral of the matter to the Tribunal. 26 In those circumstances, it may be arguable that the scheme of the LP Act in relation to applications for review under s 435 is inconsistent with s 29 of the SAT Act and that, on a proper construction of the LP Act, the Tribunal is empowered, in appropriate cases, to determine the ultimate question of whether or not a practitioner has engaged in conduct warranting any of the sanctions open to the Tribunal under Pt 13 of the LP Act. 27 If that argument were upheld, it would not follow that, in every application under s 435 of the LP Act, the Tribunal must necessarily conduct a full hearing into the allegations being made by the person aggrieved by the LPCC's decision. There will be cases where it is sufficient for the Tribunal to review the papers considered by the LPCC. In some cases, the papers will contain sufficient information as to the complainant's and the practitioner's respective positions to make an assessment of the likelihood of a finding against the practitioner without the necessity of further evidence or submissions, particularly oral submissions. For example, where a complaint that has been dismissed by the LPCC on the basis that it is not in the public interest to refer a matter to the Tribunal, that question may be able to be determined simply by regard to the nature and particular details of the allegations without any (Page 10)
necessity to consider whether the allegations might be sustainable. Similarly, it may be readily demonstrable from the materials considered by the LPCC that the complainant's allegations have no reasonable likelihood of being established before the Tribunal. 28 It is not necessary, or appropriate, to reach a conclusion in this case as to the nature and extent of the Tribunal's powers on a review under s 435 of the LP Act. It is not necessary because of the conclusion that we have reached on the merits of Mrs Restifo's complaint which we set out below. It is not appropriate because we have not had submissions on the point from the parties, and in particular from the LPCC. It is a matter that will need to be considered with the benefit of decided submissions in an appropriate case. 29 The uncertainty, and potential inefficiencies, of the application of s 435 of the LP Act and Pt 3 Div 3 of the SAT Act should be given some clarification by legislative amendment. 30 This matter, being the first of its kind brought to the Tribunal, also raised the issue as to who should be the appropriate parties to an application for review under s 435 of the LP Act. The proceedings were commenced by the applicant naming the LPCC as the respondent. It is appropriate that the LPCC be named as a respondent, since an original decisionmaker has certain obligations, such as providing relevant documents to the Tribunal (s 24 of the SAT Act) and assisting the Tribunal to reach the correct and preferable decision (s 30 of the SAT Act). However, it is clear that the practitioner, the subject of the complaint, should also be a respondent to an application under s 435 of the LP Act. That is because the proceedings involve a consideration of the likelihood that the Tribunal may make a finding of unsatisfactory professional conduct or professional misconduct against the practitioner. 31 Section 413 of the LP Act requires the LPCC to notify a practitioner of any complaint against them and s 414 of the LP Act gives the practitioner a right to make submissions. The same right should exist in relation to proceedings before the Tribunal in relation to the complaint. 32 The role in which the LPCC and the practitioner concerned may play in the proceedings will depend upon the issues which fall for determination in the particular matter. It may be that, in some cases, the LPCC will be excused from participation once it has provided the documents in its possession to the Tribunal. In other cases, it might be appropriate for the practitioner to take no active part in the proceedings or (Page 11)
at least in relation to some preliminary issues in the proceedings; for example, where there are threshold questions of jurisdiction, or perhaps questions of public interest, in respect of which the practitioner does not wish to be heard. 33 In this case, the LPCC assisted the Tribunal by providing the documents in its possession and attending a mediation session to assist in that process. Thereafter, it was excused from further participation in the proceedings, and the matter proceeded as proceedings, in effect, between the complainant and the practitioner concerned.
The allegation 34 The essence of Mrs Restifo's complaint against Mr Williams is that, in the days leading up to a trial of her District Court action in which she was being sued for $32,402.55 by Concorde International Travel Pty Ltd, Mr Williams compromised the action without her instructions. It is common ground that a settlement of the proceedings was negotiated on the basis that the plaintiff's claim against Mrs Restifo would be dismissed and each party would bear its own costs of the action. Mrs Restifo contends that the settlement was reached contrary to, or at least without, her instructions, and that Mr Williams thereby was guilty of unsatisfactory professional conduct or professional misconduct. 35 The LPCC investigated the complaint, a comprehensive response from the practitioner and a detailed reply to that response from Mrs Restifo. On the basis of those documents, the LPCC resolved to dismiss the complaint because it was satisfied that there was no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct. It provided reasons for that decision by letter dated 21 April 2009. 36 In giving its reasons, the LPCC noted that there was a clear conflict of evidence between the practitioner and the complainant concerning settlement instructions which were given. The Tribunal noted that the practitioner's version of the events was supported by his contemporaneous handwritten notes. It concluded that there appeared to have been a misunderstanding between the practitioner and the complainant regarding her instructions, but that there was insufficient evidence that the practitioner deliberately misconstrued the plaintiff's instructions and put in an incorrect offer to the plaintiff. (Page 12)
37 The LPCC also dealt with an allegation of overcharging, but that allegation was not pursued before the Tribunal by Mrs Restifo.
The factual background 38 Mrs Restifo and her husband are principals in a travel agency, known as Supreme Travel. Mrs Restifo has responsibility for the daytoday conduct of that business. Her husband has the conduct of a separate business. 39 In 2004, Mrs Restifo made bookings through an airline ticket wholesaler, Concorde International Travel Pty Ltd (Concorde). Although the bookings related to seven different passengers, they were apparently made by one client. The client used a credit card which turned out to be fraudulent. Concorde then claimed payment by Mr and Mrs Restifo for the tickets which it had supplied in an amount totalling $32,402.55. Because she had not received payment on the credit cards from the banks concerned, Mrs Restifo refused to pay Concorde. Concorde subsequently sued for the value of the tickets on the basis of an oral contract. 40 It is apparent that, from discussions with employees of Concorde, Mrs Restifo formed the view that Concorde was aware of frauds emanating from Africa, such as the one to which she had been subjected, and that it ought not have accepted the order. Through her lawyer, she lodged a counterclaim for damages, which she sought to set off against the plaintiff's claim. The counterclaim asserted that, prior to accepting her request for bookings, Concorde had knowledge of organised ticket fraudsters, and, in particular, of earlier attempts to make precisely the same bookings through other travel agencies which had been associated with fraudulent use of stolen credit card details. Various causes of action were asserted against the plaintiff in the counterclaim. 41 Mrs Restifo consulted Williams & Co in May 2005, in relation to the District Court action by Concorde, and proceedings in the Magistrates Court brought by a bank against the Restifos relating to the same transactions. The Restifos gave instructions that they wished to defend both actions. 42 In his letter of response to the LPCC, Mr Williams explained the context of his instructions in the following way: In that regard the complainant's instructions were to the effect that after many years of running Supreme Travel, she was fed up with the standover and bullying conduct of air ticket wholesalers that Supreme Travel and other small travel agencies had been on the receiving end of. Predictably, (Page 13)
Concorde eventually directed significant resources towards progressing its claim and on an informal basis made it clear that it would contest any adverse decision at first instance in the District Court proceedings, by way of subsequent appeal proceedings. 43 On 8 February 2007, the District Court matter was listed for a pretrial conference. Mr Williams instructed an independent barrister, Mr Nash. Mr Nash attended the pretrial conference with Ms Oldfield, then a solicitor employed by Williams & Co. 44 In his report following the pretrial conference, Mr Nash advised that he had spent some time explaining to the Restifos that there was a substantial risk that they could lose if they took the matter to trial and would face a judgment and costs liability in the order of $100,000. It is apparent that Mr Nash eventually persuaded the Restifos to place an offer of $15,000 inclusive of costs to the defendant. A counteroffer of $26,000 (inclusive of costs) was made by the plaintiff. Mr Nash reported that he 'persuaded' the Restifos to make an offer of $20,000 as a last ditch effort to settle the matter 'which they reluctantly agreed to do'. The plaintiff declined to accept less than $26,000. The Restifos' offer was only available for 24 hours. 45 On 9 February 2007, Ms Oldfield wrote to Mrs Restifo confirming that her offer of settlement was no longer open. In that letter, Ms Oldfield said: We understand that you feel very strongly regarding the actions taken by Concorde International Travel Pty Ltd, however, given the risks of litigation and the costs of the same we confirm our recommendation to renew your offer of settlement. 46 Apparently as a result of a comment by the District Court Registrar at the pretrial conference, Concorde brought an application in the District Court to justify the matter staying in that court, rather than being remitted to the Magistrates Court, given the amount in issue. When the matter was first heard before a different Registrar, he apparently treated the application as, in effect, an application by the defendants to remit the matter to the Magistrates Court. He did so on the basis that the pretrial conference Registrar had no jurisdiction to require the plaintiff to make an application for the matter to remain in the District Court jurisdiction. Mr Nash was again briefed to appear on that application. The Registrar declined to remit the matter. 47 In the course of dealing with that matter, Mr Nash had a discussion with Mr Benari (Concorde's solicitor) about possible settlement. In (Page 14)
reporting to Mr Williams, Mr Nash observed that the parties are about $6,000 apart 'which isn't an economic amount to go to trial over'. He added: In my view, our client's prospects of success at trial are not good and they ought seriously reconsider their rejection of the last offer made by the plaintiff. If they wait till trial or close to it before deciding to settle on that basis, the offer by the plaintiff of not asking for costs is likely to have evaporated. I am particularly concerned that Mr Restifo is very reluctant for this matter to go to trial and wishes to settle whereas Mrs Restifo thinks and feels it is a matter of principle 48 Following Mr Nash's report, Ms Oldfield wrote to Mrs Restifo reiterating Mr Nash's advice and urging Mrs Restifo to reconsider settlement. 49 By letter of the same date, Mr Benari wrote to Williams & Co on a without prejudice basis, advising that his client was prepared to accept the sum of $26,000 inclusive of costs to settle the matter on the basis that the offer was open only for seven days. Mr Benari's letter advised that if no response was received within seven days, the offer was withdrawn 'and will not be reinstated and my client will not entertain any other settlement proposals from your client'. 50 Three days later, on 29 March 2007, Ms Oldfield recorded a telephone conversation with Mrs Restifo in which Mrs Restifo advised that she wanted to go to trial, that it was a matter of principle, and that she could not 'let them get away with it'. 51 A listing conference for the trial was set down for 16 April 2007, but was adjourned. On 17 April 2007, Mr Williams wrote to Mrs Restifo reporting progress. He reiterated his, and counsel's, previous advice that the matter should be settled. He set out detailed reasons for that advice. In summary, Mr Williams expressed the view that the defence was 'not without risks', that the law favoured the plaintiff, and that even if the defence were successful, the Restifos would incur unrecoverable costs which were likely to exceed any amount that they might pay to settle the matter. Mr Williams pointed out that, were Mrs Restifo to proceed, she would face a liability and costs which might total $75,000 to $100,000. 52 There followed an unsuccessful attempt by the Restifos to join certain airlines as parties to the proceedings. 53 Sometime around July 2007, Mrs Restifo advised Ms Oldfield that Concorde had made significant changes to the process by which tickets (Page 15)
are issued to travel agencies, apparently with a view to avoiding problems of the nature that had given rise to the claim against the Restifos. 54 In late July 2007, Mrs Restifo instructed Williams & Co to put an offer to Mr Benari to settle the matter on the basis that Concorde pay the Restifos' costs (estimated at $30,000) in full and final settlement of all parties' claims in the matter. That offer was conveyed by letter dated 25 July 2007. The offer was rejected. 55 The matter was eventually listed for trial for three days to commence on 25 February 2008. Apparently because Mr Nash was not available to do the trial, Williams & Co instructed a different barrister, Mr Hershowitz, to represent the Restifos at trial. 56 On 18 February 2008, Mr Hershowitz met with Mrs Restifo in conference. He gave certain advice, which he conveyed by letter dated 20 February 2008 to Williams & Co, in relation to a subpoena which had been issued to an employee of Concorde by Williams and Co. Mr Hershowitz took the view that it would be preferable to have the plaintiff call the employee so that Mr Hershowitz could crossexamine him, rather than the defendant call him without the benefit of having taken a witness statement, and without knowing precisely what he might say in evidence. Mr Hershowitz had held a discussion with Mr Benari in relation to the subpoena question, and it is apparent that, in that discussion, Mr Benari raised the question of settlement, and indicated that his client would be prepared to accept the sum of $20,000 inclusive of costs in full and final settlement. In his letter to Mr Williams of 20 February 2008, Mr Hershowitz said: Given the merits of your client's defence, the small amount of the claim and the costs which she will not be able to recover even if successful, together with the costs she has to pay the plaintiff in any event arising from previous orders made, I recommend that she gives serious consideration for accepting the offer to settle. 57 There followed two days of intensive settlement discussions involving Mr Williams, Mrs Restifo and Mr Benari. The discussions were all conducted by telephone. Mr Williams made contemporaneous notes of the numerous telephone calls involved. He said, and we accept, that those notes were made as the telephone calls were in progress. We have no reason to doubt that the notes, although very much in summary form, accurately reflect the telephone conversations which took place. Mrs Restifo did not accept the accuracy of the notes, but for reasons (Page 16)
which we will explain, we do not accept Mrs Restifo's evidence and contention that the notes incorrectly record the telephone conversations. 58 On 20 February 2008, a series of telephone calls commenced with Mr Williams telephoning Mr Benari, no doubt as a response to having received Mr Hershowitz's letter. He telephoned Mr Benari to confirm that Concorde was prepared to make an offer of $20,000 as had been suggested by Mr Hershowitz. Mr Williams told Mr Benari that any settlement would have to 'be well below $20,000, and that in the unlikely event that the complainant wished to make a counteroffer, it would be for a much lower figure such as $12,500'. Mr Williams' note recites 'he goes nuts says $20,000'. The conversation ended with Mr Benari advising that he would seek instructions as to whether or not his client might be prepared to settle at $17,500. 59 In her submissions to the Tribunal, Mrs Restifo appeared to suggest that it was inappropriate for Mr Williams to have embarked upon discussions with Mr Benari without first obtaining her instructions to do so. In our view, that criticism is unjustified. Mr Williams had been told by counsel that an offer had been made. He was obliged to convey that offer to his client, Mrs Restifo's, attention even if he thought it unlikely that the offer would be accepted. Failure to convey the offer to his client would have breached his professional duties. It was entirely appropriate for Mr Williams to telephone Mr Benari to confirm directly that an offer had been made. It is apparent that he made it clear in that conversation that the offer was unlikely to be accepted. His actions were appropriate and professional. 60 Mr Williams then telephoned Mrs Restifo. It appears they may have had more than one conversation that afternoon. It is apparent that Mr Williams urged her to endeavour to settle the matter. The conversations concluded with Mrs Restifo indicating that she would call back the following morning, no doubt after having considered Mr Williams' advice. Mr Williams then advised Mr Benari by telephone that he would come back to him the following morning. 61 On 21 February 2008, Mr Williams again rang Mrs Restifo. Mrs Restifo indicated that her friends were telling her to fight on. Mr Williams repeated his advice to settle and pointed out the significant commercial advantages in resolving the matter rather than going to trial. Mrs Restifo advised that she wanted to consider the position again, and Mr Williams agreed to call her back. (Page 17)
62 Mr Williams then telephoned Mr Benari and advised that his (Mr Williams) client was still considering the matter. There was a discussion about the availability of the plaintiff's witnesses who would be required to fly from Sydney if the trial were to proceed. 63 At about midday on 21 February 2008, Mr Williams again telephoned Mrs Restifo who told him that she had not yet made up her mind. Mr Williams emphasised that a decision was required within the next couple of hours. 64 Mr Williams then telephoned Mr Benari to advise that the client was still considering the position but that he did not have instructions to put a counteroffer. 65 In mid to late afternoon on 21 February 2008, Mr Williams again telephoned Mrs Restifo and had a further discussion about settlement. Mrs Restifo told him that she did not wish to settle the District Court proceedings on terms that involved the payment of any money to Concorde. After a further lengthy discussion, Mr Williams says that he was instructed by Mrs Restifo to put a 'walk away offer' to the plaintiff, although he told Mrs Restifo that the offer was unlikely to be accepted. 66 Mrs Restifo denies that she gave instructions to put a 'walk away offer', being an offer that the parties' respective claims be settled on the basis that each party bears its own costs. She raises a number of matters which she says indicate that she did not give that instruction. 67 In her oral evidence, Mrs Restifo said that the expression 'walk away offer' was never used in any discussions between her and Mr Williams, and that at all times she had made it clear that she insisted on going to trial and did not want to consider settlement. That evidence is, however, inconsistent with the evidence of the witnesses called by Mrs Restifo. Mr Brian Bedwell is a longstanding friend and business associate of Mrs Restifo. He was one of Mrs Restifo's confidantes whom she consulted in relation to the action from time to time, and when she was considering settlement in the days leading up to the trial. Mr Bedwell said that Mrs Restifo consulted him about a 'walk away offer', and that he said that it was ultimately a matter for her to decide. Evidence to the same effect was given by another confidante and friend of Mrs Restifo, Ms Julie Wylie. Her evidence was that Mrs Restifo consulted her about the pressure Mr Williams was bringing to bear for her to take a 'walk away deal'. (Page 18)
68 The evidence of Mrs Restifo's confidantes is entirely consistent with Mr Williams' evidence and the contents of his file notes. It is directly contrary to Mrs Restifo's evidence that the expression 'walk away' was never used during the negotiations leading up to the settlement. The fact that Mrs Restifo sought advice from her colleagues is consistent with Mr Williams' evidence that she was considering his firm advice that the matter should be settled, and that the prospect of a 'walk away deal' was part of that consideration. The notion of a 'walk away deal' is consistent with Mrs Restifo's advice to Mr Williams that she did not want to settle on terms that involved payment of money to the plaintiff. The 'walk away deal' was a settlement which did not involve any payment to the plaintiff. 69 We find that Mrs Restifo did give instructions to Mr Williams to make a walk away offer on the afternoon of 21 February 2008. 70 Following that telephone conversation, Mr Williams rang Mr Benari. Before Mr Williams had the opportunity to put the walk away offer, Mr Benari first told him that he now had instructions to settle on the basis of the payment to Concorde of $15,000. Mr Williams said that he would take instructions in relation to that offer, and advised Mr Benari of his instructions to counteroffer on a walk away basis. Mr Benari responded that his client was very unlikely to accept that counteroffer. 71 Mr Williams then conveyed the $15,000 offer to Mrs Restifo by telephone. He advised that he still considered that settlement at that figure was very much in Mrs Restifo's commercial interests. He pointed out that she had already achieved changes to Concorde's systems by her actions, and that there was little to be gained by proceeding to trial, even if she successfully defended the matter. Mrs Restifo responded that she would consider the position on the basis that Mr Williams would call her the following day. 72 On 22 February 2008, Mr Williams again telephoned Mrs Restifo. She did not make a decision at that time and Mr Williams repeated his firm advice that she should settle. 73 Later that morning, Mr Williams again telephoned Mrs Restifo. She advised him that she wanted to proceed to trial, and would only settle if the plaintiff's primary witnesses provided affidavits detailing Concorde's misconduct. Mr Williams advised her that making that request would simply result in the matter proceeding to trial, and confirmed his instructions that the matter was to go to trial. (Page 19)
74 Mr Williams then telephoned Mr Benari to reject the offer of $15,000. Mr Benari enquired what the defendant would require to settle the matter, and Mr Williams indicated that the only proposition that his client had countenanced was the 'walk away offer' made previously. Mr Benari enquired whether the defendants would be prepared to renew their counteroffer. Mr Williams indicated that he would take instructions. 75 It is apparent from that exchange that Mr Williams was alive to the need to obtain instructions from his clients before agreeing to settlement. He then telephoned Mrs Restifo to seek instructions. She advised him that she required further time to talk with her associates regarding the 'walk away offer'. Mr Williams queried why that was necessary, given that she had provided those instructions the previous afternoon. It is apparent, however, that the matter was left on the basis that Mrs Restifo would consider the matter further. 76 About an hour later, Mr Williams again rang Mrs Restifo. Mrs Restifo advised that she had spoken to her friends and now wanted all her costs paid and an apology. Mr Williams told her that, in his view, that offer would have no prospects of acceptance. According to Mr Williams, there was then further lengthy and detailed discussion about the position which concluded with Mrs Restifo instructing him to put the 'walk away offer' to Concorde. Mr Williams was adamant that that instruction was given. He indicated that, initially, Mrs Restifo told him to put the offer 'just to see what they say'. Mr Williams said, and we accept, that he went to pains to explain that if the offer were accepted, then that would conclude the action, and that Mrs Restifo would be bound by the agreement to settle. Given the indication that Concorde might be prepared to accept the offer to walk away, Mr Williams made it clear that there was a real prospect that the action would be settled on that basis if Mrs Restifo instructed him to make the offer. We accept Mr Williams' evidence in relation to that conversation, and that, after that explanation, he was instructed to put a 'walk away offer'. It was entirely consistent with the course of dealings constituted by the telephone conversations, and the consistent position adopted by Mr Williams that he required Mrs Restifo's instructions before committing her to any settlement. 77 Mrs Restifo argued that, because the conversation commenced with her insisting that she wanted all her costs paid, it is inconceivable that she would then instruct Mr Williams, in the same conversation, to put a 'walk away offer'. We do not accept that submission. There is nothing improbable about a client being persuaded to make a less demanding offer than initially proposed following discussion with a solicitor about the (Page 20)
prospects of the initial proposal being accepted and the desirability of a less demanding offer. The client's change of position simply reflects an acceptance, during the course of the conversation, of the merits of the solicitor's advice. 78 Following that conversation, Mr Williams telephoned Mr Benari and put the 'walk away offer'. It was immediately accepted. Discussion followed as to the terms of a proposed deed of settlement and release. 79 Mr Williams immediately confirmed the telephoned conversation by emailing a letter of offer, and a written acceptance was faxed and emailed by Mr Benari shortly afterwards. Mr Williams also prepared an urgent letter, which he forwarded by email to the Restifos confirming that settlement had been achieved, and he commenced preparation of the settlement deed. 80 Mr Williams did not receive any response to the email to Mrs Restifo confirming settlement until later the following week.
Mr Williams' conduct 81 There is no doubt that Mr Williams strongly urged Mrs Restifo to settle the action. In our view, his conduct in that respect was entirely appropriate. Two independent counsel had given advice, consistent with Mr Williams' own view, that there was a significant risk that the plaintiff would succeed in its action. That outcome would have resulted in the Restifos facing a liability for a judgment of $35,000 together with substantial costs payable to the plaintiff on top of their own legal costs. We have no reason to doubt the views of counsel and Mr Williams that the defence to the action was by no means assured. Even if the defence succeeded, Mr Williams' constant advice throughout, which was undoubtedly correct, was that the Restifos' unrecovered costs would have exceeded the amount which, at all stages, the plaintiff was prepared to accept to settle the matter. 82 On the other hand, Mrs Restifo's motivation for proceeding to trial appears to be based upon the hope that the evidence might demonstrate inappropriate conduct on the part of Concorde, or might prove embarrassing to it. It is apparent that the events surrounding the action had already brought changes to the way Concorde dealt with ticketing through travel agents, and it is not easy to see precisely what more Mrs Restifo hoped to achieve. In our view, Mr Williams acted in a way consistent with his belief as to what was in his client's best interests. (Page 21)
83 That would not, of course, enable Mr Williams to act without instructions in relation to settling the action. In our view, however, he did not act without instructions. The LPCC formed a view that there was a misunderstanding of the instructions, but that Mr Williams did not intentionally misconstrue the instructions. Having now had the benefit, not available to the LPCC, of hearing the witnesses, we are satisfied that Mr Williams did have instructions to make the 'walk away offer'. It may well be that those instructions were given somewhat reluctantly, and that Mrs Restifo subsequently regretted the instructions, but at the time Mr Williams conveyed the offer which was accepted, he had instructions to do so. 84 In her evidence to the Tribunal, Ms Wylie complained that, in her assessment of the position, Mr Williams did not do what she would expect a solicitor to do. She would expect a solicitor to pursue his client's instructions regardless of the solicitor's view as to what action is appropriate in the circumstances, and to avoid attempting to persuade a client to take a different course. That view misconstrues the proper role of a solicitor. It is entirely appropriate for a solicitor, and it is indeed his duty, to advise a client, if necessary strongly, not to pursue a course which the solicitor considers to be inappropriate or contrary to the client's interests. Ultimately, unless the client instructs the solicitor to act contrary to the solicitor's duty as an officer of the Court, the solicitor can only act on the client's instructions, or cease to act for the client because the relationship of trust has broken down by reason of the client's refusal to accept the solicitor's advice. In this case, Mr Williams gave appropriately strong advice, and we are satisfied that, in light of that advice, he eventually received instructions to act as he did. 85 It follows that the application for review of the LPCC's decision should be dismissed, and the decision of the LPCC that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct is affirmed.
Orders 86 For the above reasons, the Tribunal makes the following orders: 1. The applicationis dismissed. (Page 22)
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