Set aside by Appeal : Set aside in part by Appeal on 8 June 2007: Leon Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 CITATION: Legal Services Commissioner v Nikolaidis (No 3) [2005] NSWADT 200 DIVISION: Legal Services Division APPLICANT PARTIES: The Legal Services Commissioner RESPONDENT Leon Nikolaidis FILE NUMBER: 032022 HEARING DATES: 12/07/2004-13/07/2004, 28/07/2004, 21/01/2005, 28/02/2005 & 1/04/2005 SUBMISSIONS CLOSED: 04/01/2005 DATE OF DECISION: 08/25/2005 BEFORE: Brennan JWF - Judicial Member; Bishop C - Judicial Member; O'Neill A - Non Judicial Member APPLICATION: Professional Misconduct - fail to comply with cost assessor under s. 207 - Professional Misconduct - overcharge MATTER FOR DECISION: Penalty Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : District Court Act 1973 Legal Practitioners Act 1898 Legal Profession Act 1987 Alexander v Cambridge Credit Corporation (Receivers Appointed) [1985] 2NSWLR 685 Barwick v Law Society of NSW [2000] HCA2 Hutchings Electrical Pty Limited v Director General Department of Fair Trading (No. 2) [2002] NSWADT 755 Knaggs v Solicitors Statutory Committee (No. 2) 27 NSWLR 603 Legal Practitioners Conduct Board v Hannaford [2002] 83 SA SR 277 Law Society of New South Wales v Berry [2005] NSWADT 46 Law Society of NSW v Bannister [1990] NSWLST7 Law Society of NSW v Bannister [1993] NSWLST 6 Law Society of NSW v Ciampa [1999] NSW ADT 13 Murray v Legal Services Commissioner [1999] NSWCA70 Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 NSW Bar Association v Amor-Smith [2003] NSWADT237 CASES CITED: NSW Bar Association v Cummins [2001] 52NSWLR 279 NSW Bar Association v Evatt [1968] 117 CLR 177 NSW Bar Association v Stevens [2003] NSWCA 95 Palmer v Clarke [1989] 19NSWLR 158 The Legal Services Commissioner v Nikolaidis [2004] NSWADT 195 The Legal Services Commissioner v Nikolaidis (No.2) [2004] NSWADT 248 Re City Equitable Fire Insurance Co. Limited [1925] 1CL407 RE Hodgekiss [1962] NSWLR340 Re Leon Nikolaidis [1998] NSWLST5 Re Timothy Rybeck [1997] NSWLST 6 Re Veron ex parte The Law Society of NSW [1966] 84WN NSW (Part 1) 136 Sinha v The Health Care Complaints Commission [2001] NSW CA 48 Bannister v Walton SC NSW CA unreported 30 April 1992 Veghelyi v The Law Society of NSW unreported 6 October 1995 APPLICANT M Hadley, barrister REPRESENTATION: RESPONDENT J Chippindall, barrister (Days 1-5) G C Lindsay SC with J Chippindall, barrister (Day 6) ORDERS: 1. On the first count on which the practitioner was found guilty of professional misconduct on 1 November 2004:; (a) that the practitioner be publicly reprimanded; (b) that the practitioner pay a fine of $5,000 on or before 1 November 2005 provided however that in the event that the fine is not paid on or before 1 November 2005 then the practising certificate of the Practitioner shall be cancelled until such time as the fine has been paid in full; and; (c) that the practitioner pay the costs of the Legal Services Commissioner of and incidental to the first count including all reserved costs of the Commissioner, such costs to be as agreed or assessed pursuant to Division 6 Part II of the Legal Profession Act 1987 within two (2) months of the date of such agreement or assessment; 2. On the second count on which the practitioner was found guilty of professional misconduct on 1 November 2004; (a) that the practitioner be publicly reprimanded; (b) that the practitioner pay a fine of $12,000 on or before 1 November 2005 provided however that in the event that the fine is not paid on or before 1 November 2005 then the practising certificate of the Practitioner shall be cancelled until such time as the fine has been paid in full; and; (c) that the practitioner pay the costs of the Legal Services Commissioner of and incidental to the second count including all reserved costs of the Commissioner, such costs to be as agreed or assessed pursuant to Division 6 Part II of the Legal Profession Act 1987 within two (2) months of the date of such agreement or assessment REASONS FOR DECISION 1 By information filed in the Tribunal on 21 October 2003 the Legal Services Commissioner ("the Commissioner") informed the Tribunal that as a result of the Commissioner's investigation of a complaint made under Part 10 of the Legal Profession Act 1987 ("the Act") against Mr Leon Nikolaidis ("the Practitioner") a legal practitioner within the meaning of Section 128 of the Act, the Commissioner claimed that the Practitioner, while practising as a solicitor, was guilty of professional misconduct. 2 There were two grounds of complaint, namely: a) The Practitioner failed, without reasonable excuse, to comply with notices issued by a costs assessor under Section 207 of the Legal Profession Act 1987 ; and b) The conduct of the Practitioner involved the deliberate charging of grossly excessive amounts of costs. 3 In the course of the hearing the Practitioner sought to rely upon an Affidavit of a costs consultant, Mr Kerry Hardman. The Tribunal ruled that this affidavit was inadmissible on 28 July 2004 and this was the subject of written reasons published on 3 September 2004 (see Legal Services Commission v Nikolaidis [2004] NSWADT 195 ). The Practitioner applied to the Supreme Court for leave to appeal on the issue of the rejection of the Hardman report and sought a stay of the proceedings in the Tribunal pending hearing of that appeal. 4 The stay application was refused in the Supreme Court on 27 August 2004. 5 On or about 30 September 2004 the Practitioner sought a stay of proceedings in the Tribunal to prevent the determination of the misconduct issues and the publication of the Tribunal's findings until determination of the Practitioner's appeal to the Supreme Court. That stay application was refused by the Tribunal. 6 On 1 November 2004 the Tribunal published its reasons for decision on the conduct issues and found that the Practitioner's conduct in relation to each of the two complaints against him amounted in each instance to professional misconduct. {Legal Services Commission v Nikolaidis (No. 2) [2004] NSWADT 248}. 7 On 17 November 2004 the matter was listed for directions to fix a date for hearing of evidence and submissions on the final orders that the Tribunal should make following the two findings of professional misconduct. 8 Shortly before the directions listing the Tribunal received a fax from the Practitioner's firm seeking a stay of proceedings which was repeated in an oral application made on 17 November 2004 and this further stay application was listed before the Tribunal on 21 January 2005. On that date the application was dealt with and an ex tempore judgment given refusing the stay sought. The Practitioner sought written reasons for this decision and these were published before the date fixed for final evidence and submissions on 28 February 2005. 9 Directions were given on 21 January 2005 for the filing and service of any character or other material on which the Practitioner sought to reply by 4 p.m. on 21 February 2005 and for the Commissioner to file and serve any similar material in reply by 4 p.m. on 24 February 2005. 10 The matter then came on for hearing on Monday, 28 February 2005. The only material filed by the Practitioner was a report by a solicitor, Mr Mark Webeck, dated and filed on 25 February 2005 which Counsel for the Commissioner first received on the morning of the hearing. Mr Webeck has been a costs assessor since 1999 and a member of the Costs Review Panel since 2002. The Commissioner's Counsel objected to this material not only on the basis that it was filed too late, but also that it was irrelevant to any issue of penalty (p. 4 of 28 February). Mr Chippindall on behalf of the Practitioner pressed the tender of the report on the basis "It only goes to the issue of what Mr Webeck considered were reasonable rates at the time. That is relevant, in my respectful submission, on the question of penalty… don't seek to canvass the rulings of the Tribunal" (i.e. on the second finding of deliberate charging of grossly excessive amounts of costs). 11 The Tribunal although not initially persuaded of the relevance of the report admitted it into evidence to afford Counsel the opportunity to persuade the members of its relevance and to assist to establish whether the Practitioner's views on his charges were consistent. 12 The Tribunal ultimately was not assisted by Mr Webeck's report. The Costs Assessor and the Review Panel that dealt with the Practitioner's charges found that no disclosure had been made by the Practitioner at the time he was retained as required under s175. Mr Webeck assumed for the present purposes that the appropriate disclosure was in fact made. The report asserts that Mr Webeck "would have in all likelihood allowed the hourly rates (as claimed) for the period 1994 to 2000." 13 However, the Tribunal has already made findings on the effect of the Review Panel's decision; the Panel determined the costs to which the Practitioner was entitled and that was binding on the Practitioner. The report although it does not spell out a total amount that in Mr Webeck's view represents the Practitioner's entitlement is tantamount to a traverse of issues already determined by the Tribunal. The report does not establish what was in the Practitioner's mind when the charges were made. It does appear from the submission of this report that the Practitioner has sought to defend his charges notwithstanding the Tribunal's findings. The late filing of this material which was repeated when later directions for the filing of material on or before 17 March 2005 were not complied with by the Practitioner appears consistent with the priority given by the Practitioner to the requests of the costs assessor and the conduct of these proceedings. 14 The Practitioner's Counsel also sought to tender part of page 5 and all of page 6 of the report of Mr Hardman and two bills annexed to that report plus the Practitioner's account to his client. Mr Hardman's report with its annexures was ruled by the Tribunal to be inadmissible in the hearing limited to the misconduct issues on 28 July 2004. 15 Counsel in tendering this material on behalf of the Practitioner asserted: "They do show, when taken together, what the totality of charges based on those figures would be, and they are relevant, in my respectful submissions, to the question of whether, in the circumstances, the overcharging is gross, and the state of mind of Mr Nikolaidis when making those charges." 16 The Tribunal responded in these terms: "As far as the first matter is concerned, there is a finding that the charge was gross, so if you are submitting on that basis, the tender is quite objectionable. So, I'd ask you to withdraw that. If you are tendering on the basis that [the material] shows his state of mind, that's a different issue." The Practitioner's Counsel then withdrew the first basis of tender and asserted the relevance only "on the basis of the practitioner's state of mind and whether it was reasonable for him to hold the belief that he was not overcharging." 17 The Tribunal in fairness to the Practitioner admitted this material for the purposes of its final determination of the outcome of these proceedings. The alternate charges propounded by Mr Hardman do not assist as the proper costs have been determined in the costs assessment procedure and the Tribunal has already made findings against the Practitioner on the relevant issues including a finding that the charges were "grossly excessive" . This material does not assist the Tribunal in assessing the state of mind of the Practitioner when the costs were charged and, indeed, it is hard to view it as anything other than being tendered to support the costs charged by the practitioner. 18 The Hardman report was prepared in the course of these proceedings on the following instructions of the Practitioner's firm: "We seek to retain you to prepare an itemised bill with reference to the file for the period 29 August 1994 to 26 May 2000 and our costing records. We would provide you with the following information and instruct you to make the following assumptions for the purpose of preparing the bill: (i) the identity, experience and role within the firm of each person who did any work; (ii) the assumption that there was a valid costs agreement in place during the whole of the relevant period; (iii) where the costing records may be ambiguous, such further information as is available to us to identify precisely who did what, or in the absence of such instructions you are to take the most conservative position; (iv) the assumption that all work recorded on the time costing record was undertaken and necessary for the conduct of the matter; and (v) in respect of work that the file demonstrates was undertaken but is not recorded on costing records, you would insert in the bill such claim as you consider is reasonable based on the evidence available to you. Where there is no evidence as to the person who undertook the work you would assume it was undertaken by the person who had carriage of the file at the relevant time and where is no evidence on which to make an assessment the length of time, you are to assume that it was 1 unit. We would also ask you then to record on the bill such reductions as you would consider are required where the amount claimed is to be excessive, work claimed is clearly not chargeable to the client e.g. preparation of bills or where you may otherwise be provided instructions eg that the recorded attendance to produce the bill that in your professional opinion should properly have been rendered ('allowable work'). Following on from that assessment, we would ask you to include two additional columns. The first would apply to the allowable work the rates determined by the Costs Review Panel that had reviewed an assessment of another bill rendered in relation to the file. The second additional column would apply such rates as you would consider a fair and reasonable (upon the basis that there was no valid costs agreement in place)." 19 The report is based on assumptions nominated by the Practitioner's firm that are simply inconsistent with the findings of the Review Panel. The report has the effect in this submission of asserting that the Review Panel was wrong and it also traverses the Tribunal's finding of deliberate charging of grossly excessive costs. 20 The section of Mr Hardman's report, the two bills he prepared and the Practitioner's bill of costs to his client do not assist us in determining the state of mind of the Practitioner in relation to these charges when his bill was sent to his client nor do they assist us in determining the proper orders to be made bearing in mind the finding of the Tribunal on the second Complaint made on 1 November 2004 (see Legal Services Commission v Nikolaidis No. 2 above). 21 By consent an Affidavit of the Manager of the Professional Standards Department of the Law Society of New South Wales, Raymond John Collins, sworn on 24 February 2005 tendered by the Commissioner was admitted into evidence. This affidavit recorded the opening of 48 complaint files in relation to the Practitioner which resulted in three reprimands of the Practitioner, two in 1994 and one in 1999. The reprimands were recorded as follows: a) The solicitor failed to pay funds of the complainant into his trust account and applied those funds in payment of costs and disbursements without authority and without having rendered a bill of costs. The Committee accepts that the solicitor's action was not wilful and notes that the funds amounting to $1,500.00 were received by the solicitor on 19 September 1988 and were absorbed by bills of costs sent by the solicitor to the complainant on 20 September 1988 and 10 October 1988. b) The Solicitor delaued (sic) in forwarding the statutory notification to the proper insurer within the requisite time. c) Delay in honouring an undertaking. Ignoring correspondence. 22 On 28 February 2005 written submissions by Counsel for both parties were before the Tribunal and these were expanded by oral submissions. The Practitioner's submissions included reference to a prior finding of professional misconduct against the practitioner by the Tribunal on 26 May 1998 Re Leon Nikolaidis [1998] NSWLST 5 ("the prior matter"). 23 The findings and reasons given in the prior matter are matters of concern to the Tribunal in this present matter and will be referred to again later. 24 In those written submissions the Practitioner relied inter alia upon the following further matters in relation to the final orders: "The charges should be treated separately both as to their seriousness and the imposition of penalty." 25 The Tribunal has in fact adopted and applied that submission in the context of these proceedings. The various appeals and/or applications for leave to appeal made or foreshadowed by the Practitioner and the applications for stay have focussed on the second ground of complaint. Indeed, Mr Lindsay SC, who appeared for the Practitioner on the final day of the hearings conceded [p18 at 42-48] as follows: "Our basic submission is that we accept the findings made by the Tribunal in respect of ground 1, that some form of order would be made referable to the solicitor. If the tribunal were to accept our submissions today on ground 2, and to dismiss that part of the information, then obviously no question would arise about the relevance of ground 2." 26 Mr Lindsay advised that a summons for leave to appeal in the Court of Appeal was filed on 20 January 2005 returnable on 11 April 2005 and anticipated that on that date the Practitioner would seek to have the summons stood over to enable the Tribunal to deliver its final decision. 27 In these circumstances the Tribunal has decided to make a separate set of orders for each of the two complaints so that, irrespective of further proceedings on the second complaint, this decision will, subject to there being no separate appeal on the orders being made on the first complaint, at least determine that complaint once and for all and so avoid further expense to the parties and to the justice system in relation to that first complaint. 28 The Practitioner submitted: (i) The Practitioner "challenges the findings of the Tribunal as to the charges of deliberate gross and excessive charges." (ii) The Tribunal's decision is the subject of an application for leave to appeal to the Supreme Court which will be heard on 11 April 2005. (iii) Reliance is placed on the question of penalty on the submissions made to the Tribunal as to (sic) whether there ought to be a stay of proceedings and furthermore, the submissions to be addressed to the Court of Appeal as to the general nature of the appeal. 29 The Tribunal has given consideration to these matters. It is clear that the Practitioner does not accept the Tribunal's findings on the overcharging complaint. He is seeking to test those findings on appeal, which is perfectly proper. The Tribunal's obligation is to make orders in the light of its findings and with its view of the appropriate outcome in the particular circumstances of the matter. Those circumstances include the whole of the evidence and findings including evidence and matters raised on the various stay applications to the extent that they are relevant to the formulation of final orders. There can be no valid suggestion of special leniency for a practitioner who challenges or does not accept the Tribunal's findings or wishes to challenge the findings on appeal. Similarly, there can be no increment to the penalty by the Tribunal in consequence of the challenge, non-acceptance or pending appeal processes. The first two of the submissions referred to in paragraph 23 are accordingly rejected and the third does not assist the Tribunal which is bound in the discharge of its duties to look at all the evidence together with the various submissions which have been made to the Tribunal and the Court of Appeal that are before the Tribunal. 30 The Practitioner also submitted: "The Tribunal in its decision on the 21st January 2005 expressed the view that a stay ought not to be granted until the decision as to the Tribunal (sic) as to penalty had been determined and the practitioner is content with that issue subject, of course, to the submission that any penalty which the Tribunal may apply should have its operation stayed until the Court of Appeal has determined whether leave ought to be granted." 31 The Tribunal cannot identify in express terms the assertion made in relation to the 21 January 2005 decision but this may have been thought to have arisen from the references to NSW Bar Association v Stevens [2003] NSW CA 95, Bannister v Walton SC NSW CA unreported 30 April 1992 and Sinha v The Health Care Complaints Commission [2001] NSWCA 48. The Tribunal said in its unreported decision in the matter of 21 January 2005 at p7: "These three decisions do not in the Tribunal's view assist the practitioner as in each of those three cases the penalty issue had been determined and in each instance the professional person involved was appealing an order that would prevent his or her continuing to practise their profession." 32 The Tribunal was not, as the submission might be taken to imply, suggesting the outcome of a stay application made after final orders are made. If such an application were made after this decision is handed down the application would then have to be dealt with on its merits. 33 Mr Chippindall then proceeded in his written submissions to the protective nature of the Tribunal's jurisdiction. He referred to NSW Bar Association v Evatt (1968) 117 CLR 177 at 183: "The power of the Court to discipline is, however, entirely protective, and notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved." This is a long-established principle. 34 Mr Chippindall also drew our attention to remarks in the Court of Appeal in NSW Bar Association v Cummins (2001) 52 NSW CR 279 at 284 to 286 . He further submitted that, apart from general principles the decision of the Full Court in Re Veron ex parte The Law Society of NSW (1966) 84WN NSW (part 1) 136 is remote from this present matter there being in Veron a general pattern of overcharging over a number of matters. These two submissions were of assistance and have been taken into account by the Tribunal in formulating its orders. 35 Counsel for the practitioner then set out the provisions of s131, s207 and s208Q of the Act which the Tribunal appreciated in the context of the submissions raised although the Tribunal's view is that it had clearly taken those provisions into account in finding that professional misconduct had been established. 36 The Practitioner's submissions then proceeded to a factor "which the Tribunal ought to consider in assessing penalty". This was expressed as: "... the appeal remains on foot and the application for leave to appeal will have to be considered by the Court of Appeal in April 2005. The essence of the challenge of the Tribunal's decision relies on its reliance on the decision of Veghelyi v The Law Society of NSW unreported 6 October 1995 . The practitioner relies on the submission which he made in respect of the stay application and the submissions which were before the Tribunal in the hearing on the 21 January 2005 (the White Book). If these submissions are upheld and the appeal is allowed, this matter will have to be reheard by the Tribunal." 37 The orders made by the Tribunal can clearly only reflect the Tribunal's own decision on the evidence and the proper exercise of its functions whereas in this case it has found that professional misconduct has been established. It is of no assistance in determining the orders to be made for the Practitioner's counsel to in effect assert in this context that, if the finding of professional misconduct was overruled, the matter will have to be re-heard. 38 Mr Chippindall's written submissions then turned to submissions in relation to the first complaint (under s207(6)). The Tribunal has mainly summarised the submissions and then dealt with each submission. (i) The Practitioner has not benefited from the course of conduct and, if anything, he suffered. His costs were reduced and he recovered nothing apart from about $2,500.00 prior to 1994. 39 In the view of the Tribunal this submission indicates a lack of appreciation of the matters in issue. The complaint arises out of the Practitioner's non-compliance with the cost assessor's notices. It is obvious that the words used by this Tribunal's predecessor, The Legal Services Tribunal, when the Practitioner was previously the subject of a misconduct complaint, have not been absorbed. In re Leon Nikolaidis 1998 NSW LR 5 the Tribunal said under the heading "Determination" on this issue: "The relevant legislation imposes on Solicitors an obligation to comply with notices issued by an assessor. The Parliament, in its wisdom, attached a heavy penalty for non-compliance, the rationale for this presumably being that for costs assessments to be done properly, expeditiously and appropriately for the benefit of both solicitors and their clients, it is vital that the independent costs assessors receive the information to which they are entitled to enable them to fulfil their function." 40 It was put to the Tribunal firstly on behalf of the Practitioner a case where there was no suggestion that the Practitioner owed money to the client and therefore the only person to suffer as a result of the delay was the Practitioner. If this is intended to imply that therefore compliance with time limits by the practitioner was not necessary then such an implication is nonsense. The Tribunal rejects this submission. The Act does not distinguish between solicitor beneficiaries or client beneficiaries in costs assessments. The Act says that assessments are to be conducted in a certain way, and they should be, otherwise the system for determination of reasonable and proper costs would break down. (ii) The Solicitor "has had to pay the costs of two costs assessments and we might infer the costs of the various proceedings against the client's former solicitors". 41 The Tribunal finds that these factors do not constitute any mitigating factors as far as the consequences which flow from his failure to comply with the costs assessor's notices are concerned. The complaint arose from the Practitioner's non-compliance with the Act, the payment of the costs of the costs assessor and the review panel arose out of his charges to his client and to the findings made in relation to work done for the client while any costs paid by the Practitioner in consequence of proceedings commenced against his client's prior solicitor can hardly be relevant to the consequences of his non-compliance with valid notices from the costs assessor. 42 The Tribunal accordingly also rejects this submission. (iii) The practitioner has produced his whole file to the Tribunal and gave extensive evidence of the history of the dispute. There is no suggestion of any concealment by the practitioner. The penalty he has suffered is a reduction of the fees payable to him from about $28,000.00 to finally about $5,500.00. 43 There has not been any suggestion that the Practitioner has withheld documents or concealed facts or other matters. The Tribunal is entitled to expect that a practitioner against whom a complaint is lodged would behave honourably in the conduct of the proceedings. In the Tribunal's findings there are some discrepancies in his evidence, but no suggestion of non-disclosure of his file or concealment and since that has been raised while it is to be expected it does certainly go to his credit and has been taken into account in formulating the final orders. 44 The Tribunal does not accept that the Practitioner has suffered the "penalty" claimed for indeed the sums approximately referred to in this submission reflect the complaint of "the deliberate charging of grossly excessive amounts of costs." which is the second complaint established against the Practitioner. For the sake of precision the costs originally charged by the Practitioner amounted to $28,635.60 and these were reduced in the costs assessment process to $5,820.60. 45 The submissions continued: (iv) The practitioner delegated the whole of the control of the litigation firstly to his former partner and secondly to employed solicitors. He acknowledged that his system for the preparation of bills "left something to be desired and that he owed an obligation to check the documents which were issued in pursuance of this system. The solicitor who prepared the bill and submitted the bill for assessment is no longer employed by the solicitor. He was one of considerable experience and it was reasonable for the solicitor to have relied upon that solicitor to prepare a proper bill." 46 Insofar as these submissions relate to the finding of professional misconduct made by the Tribunal on 1 November 2004 the submissions are rejected. The submissions are made in relation to the first complaint and in that context are rejected. The notices were addressed to the Practitioner personally, compliance was his statutory obligation and indeed he subsequently deposed on 29 March 2005 "the notices were at all material times on my desk for my attention". If the submissions are treated as being intended to relate to the findings on the second count, it does not assist the Tribunal which has made findings on these issues. The Practitioner was in sole practice at the time the bill was issued and it is clear that as a sole practitioner he was responsible for the bill and responsible for the actions of his employees in the conduct of the practice. He concedes that his systems were not adequate. This is not a mitigating event which would have been the case had the Practitioner checked the bill after it was issued and modified the charges so that total charges consistent with or at the very least within an explicable range of amounts determined by the Review Panel's determination were charged. The complaint is of "deliberately charging of grossly excessive amounts of costs". The Tribunal has found that charge established and that the conduct is professional misconduct. The Solicitor is responsible for the bill being submitted for assessment and the events that then ensued. 47 In Re Hodgekiss [1962] NSWSR 340, which involved alleged breaches of s43 of the Legal Practitioners Act 1898 Owen J referred at 345, to the solicitor's evidence being to the effect: "Whatever deficiencies there were in what I will call the individual trust accounts were caused by inadvertence or mistake on the part of either some member or members of the appellant's staff or by his partner or, in some instances, by himself in paying out of the trust account on account of a client amounts in excess of the money held in that account to the client's credit." 48 Clearly, in that matter some of the responsibilities of Mr Hodgekiss were delegated to others as is the case in this matter but there was no question in Hodgekiss as there can be no question here that the Practitioner was responsible for inadvertence or mistakes of himself and others. S43 of the 1898 Act referred to "wilful failure" and the comments of Hardie J at 352 et seq referred to the decision of Romer J in re City Equitable Fire Insurance Co. Limited [1925] 1CL 407 where the terms "wilful default" and "wilful misconduct" were considered. Hardie J at 353 stated in relation to "wilful failure" in s43: "I am of opinion that the section deals with personal breaches of the statutory provision in question on occasions when the solicitor knew or believed that the was committing such breaches or was recklessly careless in that regard." 49 The considerations in In re Hodgekiss (supra) are of some assistance to the Tribunal although the complaint which has been found to be established in this matter relates to a complaint involving the term "deliberate". Mr Hodgekiss in a Trust account complaint relied in part upon "a firm of competent and reputable accountants, and in addition, upon members of his staff". (per Hardie J at 357). His Honour was then dealing with the issue of whether the conduct amounted to professional misconduct and this Tribunal has already passed that point in its determination of this matter. However the consideration of this matter has assisted the Tribunal in determining what are in its view the appropriate orders. The billing system of the Practitioner had its shortcomings as his Counsel accepted. In cross-examination on 13 July 2004 at 45 the Practitioner said he did not see or sign the bill in question although he generally signed most bills. He said at 46 in relation to the client's bill at a time when he was a sole practitioner: "Q. When you say 'contentious bill', how could it be contentious before it went out? You mean, like a – to the assessor? A. Well, I mean we knew that Mr Antoni was going to be a contentious matter. He had terminated our retainer, and I think at that time we were aware of allegations already made, many serious allegations about his former solicitor. He's made allegations about our firm. We knew it was contentious, and I would have expected to see the bill before it went out." 50 The Tribunal has formed the view that the Practitioner was clearly reckless or careless in this matter and that having accepted in his terminology that the Antoni bill was a "contentious bill" he took no action at the time the bill was served or subsequently to check the bill. He cannot now seek to rely on delegation in mitigation of the consequences of the Tribunal's finding where he clearly recklessly failed at the time or later to check the bill. The Practitioner has promoted the bill and continued to promote it throughout these proceedings. (v) The Solicitor relied on the advice of his employed solicitor that the s207 notices should be strictly construed and the advice of Mr Harris played some part in the practitioner's thinking. The affidavit of the practitioner deposed to the advice given by Mr Harris after 6 February 2001 that firstly the costs assessor's notices of 28 November 2000 were then functus and did not give rise to a continuing obligation to comply, secondly the assessor had to issue a further notice for there to be statutory compulsion and the attendance protection of the person responding; thirdly where there was non-compliance or inadequate compliance a further order (see notice) was required and finally any subsequent compliance would not affect the fact that non-compliance had occurred. 51 The purpose of the s207 notices as the Tribunal pointed out to the Practitioner in the prior matter in 1998 was, in effect, to achieve compliance with notices by a practitioner. There is no suggestion that the section is intended to produce complaints to the Tribunal for the prospect of such complaints is part of the armoury designed to achieve compliance and help the system of assessment to function "property, expeditiously and appropriately" as already quoted from the decision in the prior matter. The Tribunal in its reasons for decision on 1 November 2004 found at para 29 that the advice of Mr Harris "was clearly wrong and the conduct of the Practitioner between February 2001 and June 2001 is clearly inconsistent with the practitioner having accepted or acted on that advice." The submission (iv) does not assist the Tribunal in its consideration of the appropriate final orders it should make. 52 In view of his experience in the prior matter any question of his reliance on the advice of Mr Harris is not credible. 53 The next submission of the Practitioner's Counsel may be summarised as follows: (vi) (a) The suggestion that the finding of the costs assessor, as it were, binds all parties is the subject of the appeal and even if it were so, it is submitted that it was open to the practitioner to consider whether or not he would subject the decision of the Review Panel to a review under sections 208 of the Legal Profession Act 1987 and for reasons which he explained in cross-examination, he decided not to do so. 54 This issue appears to relate in part at least to both complaints. The Tribunal holds that it is obliged to determine the proper final orders to be made on the basis of its findings. There was in fact at that time no application by the Practitioner to appeal or seek leave to appeal the decision of the Review Panel although later on 28 February 2005 the Practitioner sought an adjournment so that such an application might be made. In the Tribunal's findings the costs determined as fair and reasonable by the Review Panel were the costs the Practitioner was entitled to charge and the yardstick against which the charges actually made should in this case be measured. The Tribunal finds that this submission is not relevant to the issues to be decided and in common with a number of other similar submissions relates to the issue of professional misconduct that has, for the purposes of this hearing, been resolved and not to the "penalty" issue which is the remaining matter for the Tribunal to determine to complete these proceedings. (vi) (b) Although the handling of the matter in the practitioner's office left a good deal to be desired, the practitioner's conduct in respect of these charges goes (sic) no wilful defiance of his obligations under the Act although his obligations were clearly less than as prompt as the legislation would embrace. It deserves a reprimand. It is acknowledged freely that the practitioner should have had more regard to the notices and should have endeavoured to meet their requirements other than raise, as he did, issued arising out of constructions of other legislation and delay caused by the necessity of talking to his former partner. 55 The wording of submission (vi) (b) has some difficulties. In the view of the Tribunal the Commissioner did not have to establish "wilful defiance" to establish the first complaint to which this submission relates and no such finding has been made. The submission at least indicated that the Practitioner through his Counsel acknowledges his error in showing insufficient "regard" to his obligations to comply with such notices and not to raise issues causing delay. This acknowledgement has been taken into account to the Practitioner's credit in formulating the final orders. 56 It is noted that in the prior matter in which the determination was handed down in May 1998 the Practitioner received a reprimand. However, that reprimand did not result in the Practitioner taking adequate and proper steps to respond promptly to the notices issued on 28 November 2000 which were the subject of the first complaint in this matter. The reasons for the Tribunal's findings are detailed in the decision of 1st November 2004 which need not be repeated here. The matter is serious and indicates, in the Tribunal's view, that the Practitioner and the profession at large need to realise that these matters are important to the proper resolution of costs issues and so also important to the administration of justice. The Tribunal finds that to impose a further reprimand by itself would be to fail in its protective role [see Evatt's case supra para 29]. The Tribunal finds that a disciplinary order which will have more impact on the Practitioner and other members of the profession is called for. That order should reflect the serious nature of the misconduct in this matter as a clear indication to this Practitioner and to members of the legal profession generally and as a reassurance to the community that practitioners who fail to comply with the cost assessments procedures will be dealt with appropriately. 57 The next submission may be summarised in the following terms: (vii) The penalty that the practitioner has suffered is an assessment of his costs at a minimum level which assessment was reversed in part by the Review Panel. It is easy to understand why, in the events that have happened, a practitioner would not involve himself in the expense of an appeal under section 208L which is, of course, confined to issues of law or 208M which is a general application for leave. It has been said in a number of decisions of the Court of Appeal, the avenues of appeal are limited. In view of the relatively small amount of money involved, the Tribunal should infer that the decision by the practitioner not to challenge these matters further was reasonable in the circumstances and not evidence that he accepted the appeal panel's findings. He, of course, is the one who suffers the penalty for this decision not only does he recover nothing for his costs but, in addition, he has had to pay the costs of the original assessment before Mr McNally and the costs of the Review Panel. 58 The Practitioner has been found guilty of professional misconduct on the first complaint. The assessment process determined his entitlement to costs and in no way affected his right to recover his proper costs from his client. The decisions of the assessor and the Review Panel are not "penalties". The decisions simply reduced his charges under the assessment process to fair and reasonable charges. The requirement to pay costs of the process is a reflection of the solicitor seeking to recover costs in the particular matter. The Tribunal finds there are no penalties as such suffered by the Practitioner in the material put on his behalf in the previous paragraph and that this submission does not assist the Tribunal in its remaining task of making the appropriate final orders to follow the findings of professional misconduct. 59 The final assertion in relation to the Practitioner's decision not to challenge the decision of the Review Panel, the Tribunal also finds irrelevant for the end result is what should be looked at. The issue is the relationship between the costs determined by the Review Panel in what, there being no appeal or application for leave, became the final act in the assessment process in this matter and the total costs charged to the client. Both sums are determined and clear. (viii) The Practitioner acknowledged that he had previously faced a charge (in the prior matter) under s207 when he was found guilty. He was reprimanded and there are some similarities in the events that happened. 60 This is a reference to the prior matter (para 20) and constitutes a disclosure and acknowledgement and it is appropriate to deal with the prior matter at this stage. 61 In the prior matter reliance was placed upon six separate notices issued under s207 of the Act by the costs assessor engaged to assess the costs of the practitioner following a request from a client of the Practitioner. There are similarities between the prior matter and these present proceedings which the Tribunal finds disturbing. It was accepted that the Practitioner had a reasonable excuse for not complying with the first notice of 20 September 1996 as he was unaware of it until he returned from overseas on 8 October 1996. The Practitioner's evidence quoted in the decision in relation to the notices included a conversation the Practitioner had with his secretary to the following effect from his evidence: "You had better keep contact with the Costs Assessor and let him know how you are travelling in preparing the bill and obtain from him any necessary extensions of time because we have a lot on our plate between now and Christmas and we will have to seriously prioritise some of the work." And in relation to the preparation of an itemised bill of costs which the Practitioner proposed to submit to the costs assessor in the prior matter he is quoted as saying before he left for overseas in his evidence: "it was a low priority because we didn't, we couldn't complete it within time without prejudicing or deferring other work that we were doing for clients." 62 On 1 November 2004 when the Tribunal made the finding on conduct in this matter it was quite properly unaware of the prior matter. The Tribunal had previously accepted the agreement of Counsel for both parties that the Tribunal should first determine the conduct complaints and only then proceed subsequently to hearing submission on the issue of orders to be made (if any). In its decision of 1 November 2004 the Tribunal rejected the Practitioner's evidence that the notices of the assessor were functus and his argument that the notices did not give rise to a continuing obligation to comply after the date fixed for compliance. The Tribunal is concerned that this excuse should be proffered by the Practitioner when he had previously been found guilty of professional misconduct under s207(6) of the Act in the prior matter. In the prior matter he clearly sought to raise unsuccessfully the issue of "reasonable excuse" without seeking to rely, as he did in this matter on the specious functus response. 63 In his affidavit sworn 6 April 2004 the Practitioner acknowledged receipt of the two s207 notices from the costs assessor on 29 November 2000. His evidence of the "functus" advice from Mr Harris is based on information and belief of Mr Harris' recollection of Mr Harris' advice. He adopted in his affidavit the estimate of Mr Harris that this advice was given after the Practitioner received a letter dated 6 February 2001. The Tribunal has already examined these issues in its published decision when it found the first complaint established. 64 The Practitioner's conduct was inconsistent with the advice which he raised by way of explanation. In cross-examination on 13 July 2004 the Practitioner acknowledged that he understood the notices. He stated "the document just could not be responded to without the assistance of the person that had the carriage of the matter." He failed to seek an extension of time or to explain any difficulties he was experiencing to the assessor once he had received the notices as would have been the proper and professional approach. The Practitioner (p26) agreed that he was aware at the time of receiving the notices of another decision of the Tribunal which included the following assertion: "The relevant legislation imposes on solicitors an obligation to comply with notices issued by an assessor. The parliament, in its wisdom, attached a heavy penalty for noncompliance, the rationale for this presumably being that, for costs assessments to be done properly, expeditiously, and appropriately for the benefit of both solicitors and their clients, it is vital that the independent costs assessors receive the information to which they are entitled, to enable them to fulfil their function." 65 The decision in question was not identified at that time but the excerpt was later seen to be a quote from the decision in the prior matter. The Practitioner's conduct has been consistent in both matters. He chose in both matters to delegate to his staff compliance with notices that entailed a personal obligation on the Practitioner, he failed to fulfil his obligations in the costs assessment procedures which appear in the Practitioner's mind to not be of high priority or warrant the personal acts of courtesy such as explaining delays and seeking extensions of time that basic common sense demand. 66 The professional misconduct of the Practitioner under Section 207 is seen in a more serious light when it is appreciated that the Practitioner had previously been found guilty on a similar complaint in the prior matter. 67 The final submission under this heading was in the following terms: "It is submitted that in a matter in which the practitioner had been only incidentally involved, it was reasonable for him to seek the assistance of his former partner and to obtain from his former partner, both a Statutory Declaration and an affidavit. Both of these documents were read before the Tribunal and the former partner, Mr Michael Zwar, was not required for cross-examination. It may be inferred, it is submitted, that the informant did not wish to challenge his evidence of the events that happened; the history of Zwar's dealings with the former client and the fact that Mr Zwar had submitted to the former client a fees agreement which was not returned. The whole history of the matter is contained in the submissions addressed to the Tribunal and they show a history of events that which it can hardly be suggested that this particular client did not know what he was being charged with or, for that matter, that there was a history of over servicing." 68 The Tribunal has found that the Practitioner was entitled to his proper costs as determined by the Review Panel. This final submission goes to the issue as to whether professional misconduct occurred and that finding has already been made. The Second Ground of Complaint: 69 The first paragraph of the Practitioner's written submissions on this complaint (paragraph 10) canvasses findings of the Tribunal and issues in the Practitioner's pending appeal and the consequences of that appeal being successful. These are not relevant matters in the determination of the appropriate disciplinary order that the Tribunal should now make. 70 In the following paragraph of the Practitioner's submissions list are what are asserted to be the relevant factors and these are summarised by numbered sub paragraphs below: (i) The Commissioner seeks a fine and a reprimand not the removal of the practitioner from the Roll. There is no suggestion of dishonesty, misappropriation or a regime of regular overcharging and the practitioner has only been before the Tribunal once previously. 71 The Tribunal will deal with the consequences of the orders sought separately below. The evidence does not suggest dishonesty, misappropriation or a regime of regular overcharging and these are not issues in the second complaint although the Tribunal has found that the conduct amounts to professional misconduct and the consequences of that and the seriousness of the material have been taken into account by the Tribunal in its deliberations. The Tribunal does not see the finding on the prior matter as a mitigating factor but it does accept that other practitioners have been the subject of multiple complaints over a period of years (see for example Law Society of NSW v Berry [2005] NSWADT 46 to which further reference is made below). (ii) (a) The practitioner has not enforced his costs entitlement of $5,820.60. This is a business decision of the practitioner which the Tribunal finds is not relevant to its present determination. (b) The practitioner "has suffered the matters referred to earlier… together with a penalty in effect imposed upon him by requiring him to pay the costs of the various assessments." These matters have already been dealt with above and are not relevant to the present disciplinary determination. (c) There is no suggestion that the former client was vulnerable to solicitors within the meaning of Timothy Rybeck 1997 NSW LST6. 72 The Tribunal accepts this and has at no stage dealt with this matter on the basis that vulnerability was involved. (d) There is every suggestion that the client knew what he was being charged and he might expect to pay. 73 The Tribunal finds it hard to see this submission other than one simply disputing the Tribunal's finding that the proper costs to which the Practitioner was entitled were those determined in the costs assessment process. The Practitioner properly sought assessment of his costs by a costs assessor when the client failed to pay the Practitioner's account. This submission is not helpful to this determination. (iii) The Practitioner relies on what was said on the issues as to penalty in NSW Bar Association v Amor-Smith [2003] NSW ADT 237 at paragraphs 136 to 145 and the Tribunal's conclusions at 163-167. 74 The Tribunal does not see much advantage to the Practitioner in such reliance as the paragraphs referred to do not generally have much relevance to this set of facts or to contain comments which would assist the Tribunal in reaching a proper decision. The Tribunal has indeed sought to address each of the submissions of the Practitioner but has unfortunately found that many do not assist and many indeed seek to re-argue findings already made. However having had detailed written submissions and been addressed for much of one day by Junior Counsel for the Practitioner and much of a second day by his Senior Counsel who adopted and expanded the submissions previously made the Tribunal feels that despite the repetition involved it should as far as possible address each submission. 68. The paragraphs 136 to 145 deal with the following: (136) Delay of 4 years between Tribunal hearing and hearing in Court of Appeal – not a factor in this matter. (137) The conduct of Mr Amor-Smith ("the barrister" in this paragraph) was conduct less serious than that of Veghelyi (see Veghelyi v The Law Society of NSW – NSW Court of Appeal unreported 6 October 1995) in that the misconduct was limited to one occasion and the charge of almost $240,000 was twice the costs assessor's determination of about $120,000. Ultimately, at para 149 the Tribunal found that the barrister had through the costs assessment process been found to have charged nearly five times a fair and reasonable amount for his services. This hardly helps Mr Nikolaidis because his charges were about five times those determined by the Costs Panel. The barrister was removed from the roll of legal practitioners while Veghelyi (supra) was also struck off after adverse findings inter alia in relation to the practitioner's dealings with 16 clients including 11 findings of gross overcharging, and 8 of wilful breaches of s41 of the Legal Practitioners Act. (138) This paragraph relates to a submission that the barrister became unduly obsessive about his brief and unduly concerned that he might be liable for professional negligence. To summarise this paragraph is to call into question why irrelevant submissions were made consistently by the Practitioner. (139) An error of judgement led the barrister to spend an excessive period of time on the particular case – that is not the complaint or evidence against Mr Nikolaidis – the finding was of "gross overcharging". (140) The barrister's submission in terms that his fee recording was subject to compromise in recognition that barristers do not always receive the full amount that they charge is not seen by the Tribunal as any vindication of the charges and there is no evidence that this Practitioner ever sought to review his charges or compromise them which would, while in no way excusing his gross overcharging, have been a mitigating factor in this disciplinary aspect of this matter. (141) This paragraph dealt with some issues of contrition in the barrister's case. The Practitioner has consistently maintained that his charges were proper so his reliance on this paragraph does not assist his cause. (142) The barrister had been in practice about 30 years and had been found guilty of what was described as "only one professional misdemeanour" namely speaking to a witness who was under cross-examination for which the barrister was fined. The Practitioner has been in practice for about 25 years and has one adverse finding that being in the prior matter. The barrister was struck off for overcharging and over-servicing while Veghelyi was struck off for gross overcharging and other misconduct. The Tribunal has found that the Practitioner has been guilty of gross overcharging and while there are some parallels this paragraph from Amor-Smith does not help the Practitioner. (143) The barrister relied upon three positive character references but that was hardly relevant to this matter for when these submissions were made on what was, at that stage, intended to be the final day of the hearing, the Practitioner had not produced any references. Fortunately this was one of a number of shortcomings in the Practitioner's submissions that was finally addressed when the practitioner in effect accepted the suggestion of the Tribunal. (144) The unspecified unhappy aspects of the barrister's early life, the impact of a strike-off order on his daughter and the fact that he was relinquishing practice are not factors that have any relevance to the Practitioner's situation. (145) This paragraph reads as follows: "On these grounds, Ms Anderson submitted that an order removing the Barrister from the roll would be excessively severe and hurtful to him having regard to the level of misconduct in which he had engaged, and was not necessary to protect professional and public interests in the light of his undertaking to relinquish legal practice." 75 The Tribunal does not see how the Practitioner and his advisers could seriously seek to rely on this paragraph in relation to penalty. The Practitioner's submissions made significant references to matters where strike off orders had been made but the issues were either not addressed or inadequately addressed by him and he maintained a consistent approach that the finding against him "of deliberate charging of grossly excessive amounts of costs" was wrong and was the subject of appeal. (163-167) The Tribunal does not find it appropriate to detail each of these paragraphs on which the Practitioner relies for they follow much the same pattern and are mainly particular to the barrister's case or refer to matters already dealt with elsewhere in this decision. However, it is worth noting that in 164 the Tribunal referred to Legal Practitioners Conduct Board v Hannaford [2002] 83 SASR 277 and asserted: "It cannot be the case, however, that misconduct on a single occasion only, or in the context of a single retainer, can never provide sufficient grounds for removal from the roll." (iv) In the fourth and final submission under this heading the Practitioner submitted that the misconduct in Amor-Smith set the present case apart from other cases of gross overcharging. 76 Counsel asserted that the Practitioner's misconduct is distinguishable from the misconduct in the gross overcharging findings referred to in Amor-Smith (supra). There was no deduction of excessive costs from a verdict by this Practitioner, nothing to suggest the client was vulnerable in having just been successful at trial or just achieved a settlement nor of any financial benefit to the Practitioner. The evidence suggests he should have paid more attention to his costing records system and verified himself that work was properly done and properly charged. The submission concluded: "It is significant that this informant has not sought an order that he be removed from the roll or that his practising certificate should be cancelled." 77 The Tribunal accepts that there are factors which distinguish this case from some other overcharging matters and notes the practitioner's admissions in relation to his costing records system and the need for personal verification. This represents progress from the position he took during the hearing. The issue of the significance of the order sought by the Commissioner will be dealt with subsequently. 78 The Practitioner's Counsel submitted in paragraph 12 that the Practitioner "acknowledged freely that the administration of this case [i.e. Antoni] left something to be desired". There was no pattern of overcharging as in Veghelyi (Veghelyi v Law Society of NSW 6 December 1995 unreported Court of Appeal) nor "the obsession of Amor-Smith (supra) and there was no systematic scheme to take advantage of clients as in Veron (supra)". These matters have already been referred to. 79 The submissions continued by referring to the Practitioner having been in practice about 25 years initially as a barrister and then as a solicitor. "Nothing has been led against him as to personal integrity. It may be true that there has been a degree of inattention in this litigation but, it is submitted, no more." 80 The Tribunal accepts there is no evidence that suggests the Practitioner is other than a man of integrity. The guarded admission is unfortunate, though it is consistent with the attitude of the Practitioner towards the cost assessment procedure where, in the Tribunal's view, he displayed arrogance and a lack of understanding of his duties vis a vis the assessment process. 81 Counsel then referred to page 6 of the Hardman report which was admitted into evidence for this final part of the hearing and which has been dealt with above. The Tribunal has already determined the issue of what were the proper costs of the Practitioner and in these circumstances is not assisted by the references to reasonable rates of charges and the evidence of Mr Zwar. The Tribunal has for the purposes of these proceedings determined these issues and these submissions and the lengthy quotation from Veghelyi (supra) cannot take the matter further. Indeed, the discrepancies in the charges to Mrs Phelps in Veghelyi (supra) pale somewhat into relative insignificance when compared with the extent of the overcharging found against the Practitioner in this matter. 82 Finally, in relation to what he described as the issue of penalty which is perhaps a convenient but inappropriate word (see Evatt's case supra) Counsel submitted the Tribunal should take into account at least the following factors. (i) A taxing officer (if under the old system) is an officer of the Court; a costs assessor is not. 83 Both the former system of taxation of costs and the present system of assessment of costs were designed to determine proper costs. The fact that an assessor is not an officer of the Court does not in the finding of this Tribunal affect the authority of the assessor to issue s207 notices, nor does it disentitle the assessor from receiving the same courtesy and co-operation as formerly a taxing officer was entitled to receive. The Tribunal finds that this issue of status does not have any bearing on the determination of the appropriate final orders by this Tribunal. (ii) The taxation system operated in an adversarial situation; the costs assessor, in the contrary, does not; 84 The Tribunal accepts that the procedures have changed significantly, although there remains some adversarial aspects with issues being dealt with by correspondence rather than in a hearing. The Tribunal finds that this change of systems is not relevant to the matters remaining to be determined by it. (iii) It is relevant to consider the expressed views of assessors of what are reasonable charges; 85 The Tribunal has already considered the evidence of the assessor and the Review Panel in reaching its finding on the complaints. If this submission is intended to refer rather to the evidence of costs experts other than the assessors the Tribunal has already made rulings above on the evidence of Messrs Hardman and Webeck tendered in relation to this part of the overall hearing. (iv) The majority of the work done by the Practitioner was done on the express instructions of his former client and in accordance with the costs agreement and, in particular, the complaints to the Law Society about the conduct of the client's former solicitors. 86 These matters go to the correctness or otherwise of the determination of the Review Panel and the ruling by the Tribunal that the proper costs of the Practitioner in this matter was the sum of $5,820.60 as determined by the Review Panel and that this determination was binding upon the Practitioner. There are limited circumstances where the determination of the costs assessment process can be further challenged and the Practitioner did not to pursue those avenues. 87 In conclusion, Mr Chippindall reiterated the orders sought by the Commission and repeated that the Commissioner had not sought a strike off order. 88 In relation to costs the Practitioner submitted that each party should pay their own costs which he asserted is the usual practice in the Tribunal. He relied upon Hutchings Electrical Pty Limited v Director General Department of Fair Trading (No. 2) [2002] NSWADT 755 which was a matter in the General Division of the Tribunal and quoted s88 of the Administrative Decisions Act 1997 which is in the following terms: "88 Costs. (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2)The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 6 of Part II of the Legal Profession Act 1987 or on any other basis. 3. However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. 4. In this section, "costs" includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application." 89 The reference to Hutchings does not assist the Tribunal. In that matter the Tribunal did make an order for costs having found that "the special circumstances" test in s88(1) had been satisfied and , indeed, expressed the view that the circumstances would also satisfy the tests under the Victorian Civil and Administration Tribunal Act 1998 . At para 29, the Tribunal said: "I agree with the Applicants in that I consider that these findings are sufficient to allow the circumstances of this matter to be considered as special circumstances… These are complex proceedings in which the Applicants would have been put to expense that they should not have incurred because in my view the proceedings should never have been commenced. I am therefore satisfied that there are special circumstances warranting an award of costs as required by section 88(1) of the ADT Act." 90 The Practitioner's submission on costs is in terms that unless special circumstances are shown each party should pay their own costs. However this submission is erroneous in the Tribunal's view. There is indeed another Act within the terms of s88(i): Section 171E of the Legal Profession Act 1987 reads, as far as is relevant: "171E (1) The Tribunal may make orders requiring a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Commissioner, the appropriate Council and the complainant). (2) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment form the Public Purpose Fund to the practitioner of the legal practitioner's costs. (3) An order for costs: a) may be for a specified amount or an unspecified amount, and (b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and (c) may specify the terms on which costs must be paid." 91 The normal order in the Legal Services Division of the Tribunal is for practitioners against whom findings of unsatisfactory professional conduct or professional misconduct are made to be ordered to pay the costs of the proceedings. The Tribunal does have a discretion as to whether or not it makes an order for costs. The costs of a successful practitioner are not ordered against the other party (complainant) but may if the Tribunal considers special circumstances so warrant be ordered to be paid from the Public Purposes Fund. The legislation recognises the reality that such proceedings arise out of the complaints made in relation to the conduct of a member of, or an employee in, an honourable profession upon which the administration of justice depends. The informant in this matter is a creature of stature charged with the responsibility of investigating and bringing to the Tribunal complaints such as these present ones against Mr Nikolaidis. The Tribunal rejects the Practitioner's submission on costs and is comfortably satisfied that this is a proper case, where the misconduct of the Practitioner has led to these proceedings, for the Practitioner to be ordered to pay the Commissioner's costs of and incidental to these proceedings and an order reflecting this view will be made in this matter. 92 In the course of the proceedings the costs of some applications brought unsuccessfully by the Practitioner were reserved. The proceedings now having been determined against the Practitioner with findings of professional misconduct on both grounds alleged the Tribunal orders that the costs to be paid by the Practitioner shall, for the sake of clarity include all reserved costs of the Commissioner. 93 After the Practitioner's Counsel had completed his tender of material on this phase of the proceedings and completed his submissions the Tribunal bearing in mind the submissions and the material before it offered the Practitioner a short adjournment to consider his position. The presiding officer said (t18 of 28 February 2005):- "This is a very serious matter and the Tribunal must consider all possible penalties prescribed for in the legislation. That does include a striking off order, or a suspension order. Not necessarily so, but it should not come as a surprise to you or your client." 94 A short adjournment was then sought and granted so that Counsel might give advice and take instructions. 95 The Practitioner in his submissions referred a number of times to the power to strike off and emphasised that such an order was not sought in these proceedings. The Tribunal has taken the view that a "strike-off" or suspension order can be made in an appropriate case, irrespective of the disciplinary orders sought by the applicant. S171C of the Legal Profession Act 1987 sets out the orders that the Tribunal can make in the following terms: " 171C Determinations of Tribunal (1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following: (a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct, (a1) order that the name of the interstate legal practitioner be removed by the appropriate regulatory authority of another State or a Territory from the roll of that State or Territory that corresponds to the role of legal practitioners if the interstate legal practitioner is guilty of professional misconduct, (b) order that the legal practitioner's practising certificate be cancelled, (c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order, (c1) order that the appropriate regulatory authority of another State or a Territory cancel the interstate legal practitioner's practising certificate or order that an interstate practising certificate not be issued to the interstate legal practitioner until the end of the period specified in the order, (d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct, (e) make an order publicly reprimanding the legal practitioner or, if there are special circumstances, privately reprimanding the legal practitioner, (f) order that the legal practitioner undertake and complete a course of further legal education specified in the order, (f1) in the case of a barrister who is a public notary, order that the barrister cease to accept instructions in relation to notarial services, (g) in the case of a solicitor, make any one or more of the orders referred to in subsection (2), (g1) in the case of a locally registered foreign lawyer, order that the registration of the foreign lawyer under Part 3C be cancelled, Note: This section applies to locally registered foreign lawyers. See section 48ZV. (h) if applicable, make a compensation order, (i) make ancillary orders. (2) In the case of a solicitor, the Tribunal may do any one or more of the following: (b) order that the solicitor's practice be subject to periodic inspection by the person, and for the period, specified in the order, (c) order that the solicitor seek advice in relation to the management of the solicitor's practice form the person specified in the order, (d) order that the solicitor cease to employ in the solicitor's practice the person specified in the order, (e) order that the solicitor employ in the solicitor's practice a person belonging to the class of persons specified in the order, (f) order that that solicitor cease to accept instructions in relation to the class of legal services specified in the order, (g) order that the solicitor's practising certificate be endorsed with a condition restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate, (h) order that the appropriate regulatory authority of another State or a Territory endorse the interstate practising certificate of a solicitor who is an interstate legal practitioner with a condition restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate (or its equivalent) in that State or Territory. (3) If the Tribunal makes an order publicly reprimanding a legal practitioner, the Tribunal is to publish the order and a statement of its reasons for making the order. (4) If the Tribunal makes an order privately reprimanding a legal practitioner, the Tribunal is to provide the appropriate Council and the Commissioner with a copy of the order and a statement of its reasons for making the order. (5) It is sufficient compliance with the requirement to publish an order under subsection (3) if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner's functions in respect of the register of disciplinary action required to be kept under Division 9A." 96 In the view of the Tribunal its powers to make orders under s171C are not fettered by the orders sought by the complainant. However, where a lower level disciplinary order is sought by the complainant the Tribunal should as a matter of procedural fairness alert the respondent practitioner if it becomes apparent that a higher level of disciplinary order may be appropriate or should, at least, be considered. 97 In re Francis William Bannister 1990 NSW LST 7 heard in the Legal Profession Disciplinary Tribunal the Law Society left it to the Tribunal to decide whether the solicitor was unfit and whether or not his name should be removed from the roll. The Society sought an order pursuant to s163 "and such further or other order as the Tribunal shall consider appropriate" and costs. On appeal in Law Society of NSW v Bannister [1993] NSWLST6 Sheller JA (with whom Gleeson CJ and Handley JA agreed) said at p11 in relation to the issue of Bannister's fitness to practice and the Society's attitude: "On more than one occasion during submissions to the Tribunal its Counsel indicated that the Law Society left it to the Tribunal to decide whether the solicitor was unfit and whether or not his name should be removed form the roll. At no stage did Counsel urge or even suggest that on the evidence the Tribunal was bound to order that the solicitor's name be removed from the roll." 98 The Tribunal after initial division between the members fined Bannister $10,000. The Society appealed and the Court of Appeal was firmly of the view that Bannister should be removed form the roll. This Tribunal is of the view that had the Society in Bannister not adopted an equivocal stance but instead sought the imposition of a fine it would still have been open to the Tribunal, as it was on appeal to the Court, to make a strike-off order. Since submissions in this matter closed the decision of the Tribunal in Law Society of New South Wales v Berry (supra) has been published where the Society sought in its application a reprimand, a fine and an order for costs. This was the third occasion Berry had been found guilty by the Tribunal of professional misconduct involving non-compliance with s152 notices, and it was his fifth appearance before the Tribunal in 13 years. The Tribunal, notwithstanding the orders sought the by the Society, found the admitted professional misconduct proved and proceeded to consider what order it should make within the regime established by s171C-171E of the Legal Profession Act 1987 . The Tribunal declared: "All of the evidence considered, we are not satisfied to the requisite standard that the Solicitor is, at this time, a person who is fit to practice. The evidence before us certainly did offer some prospect that the solicitor's state could improve, but that appears to be unlikely to be so in the very near future." 99 The Tribunal in Berry ordered that the solicitor's name be struck from the roll of legal practitioners. 100 In Berry the decision appears to suggest that once professional misconduct is established there may then be an onus on the practitioner to satisfy the Tribunal that the practitioner is fit for practice. The Tribunal agrees with the view that it is not constrained to making orders within the ambit of orders sought by the complainant but does not agree that an onus of proof applied to a practitioner once professional misconduct has been established. 101 There is at least one other relevant authority indicating that the predecessors of the Tribunal have also not been inhibited by limited orders sought in the Information. In Law Society of NSW v Ciampa 1999 NSWADT13 the Society sought orders for the solicitor to be reprimanded and a substantial monetary penalty be imposed together with an order for costs. The Tribunal found the practitioner guilty of professional misconduct in three matters. The orders made were: (i) a reprimand; (ii) a fine of $10,000; (iii) a practising certificate not to issue to the practitioner for three years from the date of Order; and (iv) Practitioner to pay the Society's costs. 102 The Tribunal at para 57 set out and subsequently adopted the statement of Giles AJA in the Law Society Informant CPDR NO. 4 1994 page 30: "The jurisdiction of the Tribunal and of this Court in disciplinary matters is exercised to protect the public, not to punish the solicitor. The object of protection of the public may require that a legal practitioner be removed from the roll, be suspended from practice, or only be permitted to practise under particular circumstances, where the practitioner is not fit to be held out to be entrusted, at all, for a time, or without qualification, with the heavy responsibilities attendant upon the office. The public is protected by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise. But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be temped to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with." 103 The Tribunal's findings were in the following terms (at para 60): "The Tribunal is of the opinion that the orders sought by the Society that the Solicitor be reprimanded and a substantial monetary penalty be imposed fall short of orders that adequately protect the public. An order is needed to deter the Solicitor from repeating the misconduct and also deter others who might be tempted to fall short of the high standards required by them by acting as solicitors without the appropriate practising certificates. Whilst it is not known whether the Solicitor intends to resume his career as a solicitor nevertheless the Tribunal is of the opinion that there be should a period of time during which the Solicitor is suspended form holding a practising certificate." 104 Following the short adjournment on the fifth day of the hearing the Practitioner returned and sought an adjournment to enable the Practitioner to: a) apply to the Court for leave to appeal out of time the decision of the Review Panel on the assessment of costs (a decision published on 24 January 2002) under s208(L) or s208M; and b) an order staying the further hearing of these proceedings before the Tribunal (while acknowledging that an application to this Tribunal for such a stay of proceedings was refused by the Tribunal after a hearing on 2 1 January 2005). 105 At T29 Counsel for the Practitioner confirmed the two bases on which an adjournment had been sought and these were opposed by Mr Hadley, Counsel for the Commissioner. Notwithstanding the findings of the Tribunal and the submissions of contrition by the Practitioner's Counsel, it was clear that the Practitioner could not see past his view that the Tribunal was in error and the issues were ones to be resolved in the Supreme Court. It is not clear where that left the first ground of complaint where professional misconduct had been found and this was acknowledged in the Practitioner's written submissions. It must be stressed that the finding of professional misconduct is a most serious matter and it justified a serious response on its own as far as the disciplinary consequences are concerned. Similarly, a serious response was called for on the "gross overcharging" count. The Tribunal had expected on 28 February to have had before it character evidence in support of the Practitioner together with evidence, if not of contrition, at least of changes to his office procedures designed to avoid the problems that led to these proceedings. 106 The Tribunal sought to clarify that there was no third basis for seeking an adjournment namely to enable the Practitioner to present additional evidence "as to the character or circumstances of the practitioner being a fit and proper person to remain a solicitor or in other mitigation of penalty" (T29-30) 107 Counsel conceded that: "the question of putting in further evidence was discussed, and advice was taken that, at this stage, we should rely on what we saw as the error of law". 108 The Practitioner then added a third basis, that is for time to provide evidence of "fitness to practice" to his application for adjournment. Evidence of that nature should clearly on the directions given been submitted before 28 February 2005. 109 The Tribunal was reluctant to finalise the matter without giving the Practitioner an opportunity to produce evidence of his character and fitness to practice and adjourned the matter to 1 April 2005. Directions were then given and accepted requiring the Practitioner to file and serve any further material on which he sought to rely by 4 pm on 17 March 2005 and the Commissioner to file any material in reply by 4 pm on Wednesday, 30 March 2005. Costs of the day were reserved. 110 Notwithstanding these directions made and consented to on 28 February 2005, the Practitioner filed five documents on 30 March 2005, those being an affidavit he had sworn on 29 March 2005 and four character references, two of which were dated 29 March and the remaining references were dated 23 March and 24 March respectively. No leave to file these five documents out of time was sought and no explanation offered on behalf of the Practitioner for this failure to comply with the directions given by the Tribunal. This was not the first time that the Practitioner had failed to comply with directions. No adverse inference is drawn in this instance as there may have been perfectly valid reasons for the delay, but this is mentioned in the hope of encouraging the maintenance of professional standards by those members of the profession who practise in this jurisdiction. The affidavit and the four references plus a separate bundle of documents tendered separately by the Practitioner will be dealt with below. 111 Mr Lindsay SC who appeared with Mr Chippindall for the practitioner on the final day of the hearing, indicated his intention to deal with three topics. These were: (a) procedural questions; (b) evidence on the question of penalty and proper order; and (c) submissions on that penalty or proper order. 112 The Tribunal was informed that the ordinary summons seeking leave to appeal the decisions of this Tribunal of 28 July 2004 and 1 November 2004 to the Court of Appeal filed on 20 January 2005 remain returnable on 11 April 2005 and that on that date if the Tribunal had not earlier made final orders the Practitioner would seek adjournment of that application until the final orders were made. In addition a notice of motion was filed in the Court of Appeal on 15 March 2005 seeking a stay of these proceedings in the Tribunal. The motion was heard by Bryson J on 21 and 23 March 2005. His Honour refused the stay of proceedings and dismissed the Notice of Motion (see Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 ). His Honour stated at paragraph 16: "It is my assessment that Mr Nikolaidis' prospects of obtaining some appellate intervention which will prevent the Tribunal from proceeding to its final decision, in the course which it has indicated it will take, can be stated as no higher than as reasonably arguable." and concluded at paragraph 21: "Notwithstanding that Mr Nikolaidis has arguable and well-considered grounds on which he wishes to challenge the proceedings in the Tribunal, I am of the view that the continuation of those proceedings and if he should ultimately prove to be right, the adverse impact of any decision against him, are circumstances against which this court should not protect him." 113 The Practitioner had sought a stay of proceedings in the Tribunal on 21 January 2005 which was refused and written reasons were published. Those reasons, while given at Tribunal level and, from the Tribunal perspective, far distant from the supervisory responsibilities of the Court of Appeal, still have basically much in common with His Honour's reasons including reference to two of the three decisions mentioned in His Honour's judgment (see Alexander v Cambridge Credit Corporation (Receiver Appointed) [1985] 2NSWLR 685 and NSW Bar Association v Stevens [2003] NSWCA 95). The stay application dealt with on 21 January 2005 followed an earlier unsuccessful application to the Tribunal for a stay made on or about 30 September 2004. 114 In the course of submissions on 28 February 2005 the Tribunal drew Counsel's attention to the decision in Law Society of NSW v Bannister (supra) when the complainant did not seek a specific disciplinary order and the Tribunal 's decision to impose a fine was overruled by the Court of Appeal which made a striking off order. The Tribunal stressed its obligation to consider the possible orders detailed in the Legal Profession Act 1987, particularly in the context of its prior findings of professional misconduct against the practitioner and the absence of character and other evidence on the "fitness to practice" issue. 115 Bryson J on 23 March 2005 in this matter said, at para 14: "It was contended to the effect that the claim for appellate intervention was a strong one, and it was said the Tribunal has irretrievably denied Mr Nikolaidis procedural fairness so that it is incapable of giving further consideration to the Information without there being reasonable apprehension of bias. IT was further contended to the effect that the course which the Tribunal announced that it proposed to consider goes far beyond any claim made in the information or by the Legal Services Commission." 116 Those contentions like the Tribunal's finding that it should not admit the Hardman report in its decision of 28 July (reported on 3 September – see above) are now matters for determination in another place at another time. His Honour made clear the Tribunal's current obligation in para 19 as follows: "ADT has a duty to proceed expeditiously. The matter before it relates to the public interest and does not only concern the interests of parties. Ancillary restraints may be necessary for the just and effective administration of justice and exercise of powers of the court such as the power to consider and allow appeals, but it is not and cannot be a matter of course to bring proceedings under challenge to a halt while some interlocutory appeal is contemplated. Unless there is some appropriately strong claim for the protection of the effectual exercise of this court's powers on appeal there should not be such an intervention." 117 The transcript of Mr Lindsay's submissions at the top of T7 is incomplete. He refers to procedural questions and then specifically to the caution required not to hold against the practitioner the fact that he sought to challenge rulings at an interlocutory stage. The Tribunal accepts unreservedly the Practitioner's right to appeal; to do otherwise would be absurd; to consider penalising a practitioner for appealing a decision would be anathema. The Tribunal at T23 on 28 February 2005 pointed out its hope to receive material on fitness from other members of the profession on the adjourned date and stated: "It is a bit of a juggling act, I guess, to be facing a penalty resolution in the Tribunal, at the same time (as) dealing with an appeal where the (outcome sought) is that the Tribunal has made an error, and we are mindful of that, that those factors have been taken into account in dealing with the stay application." 118 We might add that those same factors have been taken into account in the determination of final orders. 119 Mr Chippindall responded at T24 of 28 February 2004: "I should say straight away, Mr Brennan, that I am not endeavouring to suggest that the Tribunal has made any decision on the matter, not for one instant. Nor am I suggesting that you are somehow prejudiced against the practitioner. I understand it is a relevant factor as to the range of penalties that may be imposed. However, in the light of the remarks of the Tribunal, it would seem to me that I have an obligation to make the application which I have just made, and to put the matters before the Tribunal which I have put." 120 Mr Lindsay invited the Tribunal to withdraw its finding of 1 November 2004 on the second ground of complaint (the deliberate charging of grossly excessive amounts of costs) and then to dismiss ground 2. Senior Counsel submitted that " there are fundamental substantive and procedural impediments to the subsistence of a finding of misconduct against the solicitor on ground 2." 121 Senior Counsel submitted at t8: "The solicitor was charged with 'overcharging'. He was found guilty on the Commission's submissions substantially with a failure to supervise his office. Now, if that submission is correct, the broader case, in my submission, is not open in these proceedings for two reasons – and each of them are matters that I am going to bring to the tribunal's attention. Firstly, there would be denial of procedural fairness in the sense that it is not open to the informant to go beyond the information. Secondly, in my submission, there is a lack of jurisdiction to go beyond the information. The procedural requirements of Part 10, including section 155, in my submission were not followed in relation to the broader case, and in that regard I submit that the case falls within the sort of discussion that can be found both in the judgment of the High Court in Barwick v The Law Society – and I'll hand up copies of these decisions to you shortly – Barwick v The Law Society of New South Wales. It's reported inter alia at volume 169 ALR 236 and the paragraphs of central significance are paragraphs 51, 61 and 63. The second judgment, which is broadly to the same effect, is Murray v The Legal Services Commissioner and that is reported at (1999) 46 NSWLR 224 at paragraphs 88 to 92. The tribunal will notice that under Part 10 the jurisdiction of the tribunal is directly related to the obligation of any decision maker, such as the Commissioner, to conduct an investigation and to make an informed decision under section 155 of the Act. The investigative and decision making procedure that culminates with the decision under section 125, and then the decision in relation to that, to deal with the filing of the information, that's…[not transcribable]…. That we have been informed by both the High Court and the Court of Appeal that it is designed to not provide protection to the practitioners so that they can respond to particular investigation that is made, and a particular complaint. So that, ultimately, the jurisdiction of the tribunal is tied to the procedure that precedes the filing of the information. Now, in this case, the case that was advanced against the solicitor, it is tied to what I would describe as the bare fact of intending to belittle in any way the distinction, but the bare fact of overcharging was not the broad case of failing to supervise or failing to supervise… [not transcribable]…, so we would submit that whether the broader case is analysed in terms of procedural fairness or lack of jurisdiction, there are procedural impediments standing in the way of adverse findings against the solicitor in respect of ground 2." 122 The Tribunal in its decision of 1 November 2004 has made a finding of professional misconduct in relation to the "overcharging" complaint and is of the view that having resolved the issues involved it would not be appropriate to accept Counsel's invitation to revisit those issues and dismiss the second complaint. However, while of that view, the Tribunal has considered in detail the submissions in support of that "invitation" and formed the view that if it is open to the Tribunal to follow the course of dismissal at this stage as proposed by Mr Lindsay, it would not be appropriate to do so. 123 The decision of 1 November 2004 is a detailed one and it is a decision dealing with a practitioner who was a sole trader at the time. The overcharging complained of occurred. A solicitor in sole practice is responsible for the acts of his employees and the Practitioner in this matter has on the evidence not only the responsibility for his employees' acts but an additional personal responsibility for he has repeatedly adopted and propounded the charges which are the subject of the Second Complaint. The Tribunal does not see that either Murray or Barwick supra would assist the Practitioner if the Tribunal had accepted Counsel's submission in relation to the Second Complaint. The allegation of overcharging was investigated and it is the subject of the information. This is not a charge made limited to failure to supervise and that is not the finding of the Tribunal. 124 The submissions of the Practitioner made on 28 February 2005 before Senior Counsel was briefed to appear on 1 April 2005 made numerous references to orders striking solicitors off the Roll. To the extent that it may be implicit in Mr Lindsay's submissions that the information did not seek a striking off order and that consequently such an order could not be made, the Tribunal rejects such a proposition on the basis of its interpretation of s171C and the decisions already cited and discussed [see Law Society v Bannister, Berry and Ciampa supra.] 125 These proceedings have been conducted at the request of the parties on the basis that the Tribunal would hear the evidence and make findings on the allegations of professional misconduct and then, and only then, proceed if either or both grounds were established to the determination of any penalty or disciplinary action appropriate to this matter. The Tribunal has followed that procedure and the determination on the issue of professional misconduct has been made. On 1 April 2005, seven months after publication of its decision, the Tribunal was invited to withdraw that decision, that being an invitation based on arguments not previously advanced to the Tribunal when the issue of professional misconduct was being argued nor in any of the Practitioner's applications to this Tribunal for a stay of proceedings, nor as far as we can determine from the record, in any of the practitioner's applications to the Supreme Court. The finding has been made and is subject to an application for leave to appeal. The Tribunal is mindful of its duty as expressed in this matter by Bryson J (see above) and has determined that the proper course for it to take now is to complete the proceedings without avoidable delay by making findings on the penalty or disciplinary issue which was the only matter remaining for determination on the final day of the hearing namely 1 April 2005. 126 In Knaggs v Solicitors Statutory Committee (No 2) 27NSWLR 603 the Court of Appeal dealt with a summons seeking an order in the nature of certiorari to quash orders of the Statutory Committee pronounced by a committee of four members who were totally different from the members who had "attended the hearing and participated in the preparation of the statement of findings and order" (at 605). The Court stated at 610: "The Statutory Committee is a creature of an Act of Parliament. As in the case of any such body, it must conform to the rules which Parliament has established." and at 611: "Whatever may be the position in respect of superior courts with inherent powers, a series of decisions in this State has emphasised the requirement of courts and tribunals of limited jurisdiction established by statute to adhere strictly to the formalities required by law. Those formalities extend to the publication of reasons and to pronouncing their orders. If they are required of courts, with the large penumbra of powers necessarily imputed to courts for the performance of their functions, they are also required of tribunals such as the Statutory Committee." 127 The legislation does not empower the Tribunal to withdraw a decision or finding whether the same be final or interlocutory. The Tribunal is a creature of statute and it does not have the inherent powers and jurisdictions of the Supreme Court. There is no express power to withdraw the decision of 1 November 2004 and the Tribunal finds it is unable to do so and if it is wrong in so finding then in the circumstances of the conduct of this matter the Tribunal finds that it would be inappropriate for it to take that course. The hearing was compartmentalised at the request of the parties. The evidence and submissions in the course of the allegation of professional misconduct were taken and dealt with to the intent that if the issue of penalty arose, it would be dealt with separately. The Tribunal has made a separate ruling on the admissibility of the report of Mr Hardman and a separate ruling on the issue of professional misconduct It holds those issues are finalised in this hearing, and, if it is in error in so finding, it holds that on the evidence in the matter and based on the submissions made nothing has been raised which would justify a withdrawal of the prior decision. 128 The Full Court decision in Palmer v Clarke [1989) 19NSWLR 158 where it was held that the District Court Rules which authorise the pronouncement of a reserved judgment and the delivery of written reasons for judgment must be strictly complied with. The District Court created by statute has no inherent powers and power for its actions must be found in legislation or proper implications from statute. The departure from the procedure authorised by the Act or rules made pursuant to the Act rendered null a prior partial decision of the District Court notwithstanding the provisions of the then Section 159(1) of the District Court Act 1973 quoted by Kirby P at 171-172: The section in the District Court Act 1973 provides relevantly: '159(1) Where, in the purported commencement of any proceedings or at any stage in the course of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with any requirement of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect - (a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings.' 129 The Tribunal finds that it does not have the statutory power to withdraw its finding on the principal matter, namely the finding of professional misconduct. 130 On the second "Procedural" aspect Mr Lindsay submitted that the Tribunal was not entitled in these proceedings to make a striking off order. It was not asserted that the Tribunal was going to strike Mr Nikolaidis off but that issue was raised in the context of inviting him to put on further material which he has done in the form of his affidavit and the four references. Counsel accepted that the powers in s171C are expressed in broad terms. Secondly, it was submitted that the Commission and the Tribunal were required to comply with procedural fairness in terms of the decisions in Barwick and Murray (Barwick v Law Society of NSW [2000] HCA2 and Murray v Legal Services Commissioner [1999] NSWCA70). 131 Counsel pointed out that the Commissioner had never put to the Practitioner any suggestion that he would be exposed to a strike-off order and that the first occasion when a strike-off order fell for consideration was when it was raised by the Tribunal on 28 February 2005. This is quite correct. The Practitioner had stressed in written submissions that no strike off order was sought. The issue was raised by the Tribunal and we have elsewhere expressed our reasons for taking the view that the Tribunal had the power to make a strike-off order or indeed a suspension order from the terms of s171C the decision in Bannister (supra) and subsequently supported by the decision in Berry (supra). It is clear that in the Tribunal's view it has the power to make any one or more of the orders specified in s171C irrespective of the actual orders sought. The ultimate issue is what is the appropriate course to take in this case. The Tribunal certainly raised the fitness to practice issue and effectively invited the Practitioner not simply to address the issue, but to accept the opportunity offered on 28 February 2005 to seek sufficient time to put character and other material before the Tribunal which, rightly or wrongly, the Tribunal felt was a significant omission where two findings of professional misconduct had been made. 132 The central submission of Mr Lindsay in relation to Bannister's case (supra) was detailed at T16 of 1 April as follows: "In our submission, Bannister's case cannot justify the course that – at least for the purposes of argument on 28 February – was mooted; namely that it was open to the Tribunal to consider and, indeed, the Tribunal is obliged to consider the possibility of a strike-off order, notwithstanding that the information contained only relief falling short of such an order, and the submissions of the informant did not embrace the idea of a striking order." 133 The Tribunal has already expressed its reasons for forming the view that the course taken in Bannister authorised the Tribunal in a proper case to make an order of a higher protective nature than the order sought in the Information. That view will no doubt be the subject of further consideration in some other case in the future. 134 Mr Lindsay tendered 14 pages of letters and facsimile transmissions. In relation to that material he said T12: "Now, all of that material, taken together, in our submission, at a factual level, means that the Tribunal could not, in our submission, make a finding of misconduct referable to Ground 2 of the Information." 135 Those 14 pages were part of the documentation before the Tribunal prior to its determination that the Practitioner was guilty of professional misconduct. That issue was fully argued and considered previously and the Tribunal declines to re-open it to reconsider documents previously before the Tribunal or fresh arguments that are not based on a changed circumstances or the discovery of new facts. 136 Senior Counsel for the Practitioner also tendered soon after his submissions on Bannister's case the practitioner's affidavit filed on 30 March and four letters to the Tribunal on the character of the Practitioner. Mr Malcolm Oakes SC advised that he had been briefed every couple of years by the Practitioner's firm in the broad area of corporate insolvency. He has known Mr Nikolaidis for many years and always regarded him as an honest person who pursued his clients' claims or defences with vigour and was prepared to represent and do his best for difficult clients when other solicitors would have declined the retainer. He had read the decisions in the prior matter and in these proceedings of 1 November 2004 and the affidavit of Mr Collins of 24 February 2005. Nothing in those documents caused him to change his overall view of the Practitioner and he bemoaned the ultimate responsibility of the principal of a small solicitor's practice with reliance on staff and systems and the notices and costs assessment where Mr Nikolaidis had never been paid, apart from some disbursements. 137 Mr Michael Pembroke SC provided the second reference based on his knowing Mr Nikolaidis professionally for nine years during which time he has formed an insight into his personality, character and probity. He has found the Practitioner to be honest, professional and diligent and one conscious of his professional and moral obligation to his clients and the profession. He has seen nothing to indicate conduct by him other than as a respected and law-abiding member of the profession and any contrary conduct would be inconsistent with Mr Pembroke's observation and perception of Mr Nikolaidis. Mr Pembroke made no reference to having seen any material or being aware of any facts or findings in these proceedings. 138 Mr T S Hale SC's letter referred to his professional association with Mr Nikolaidis since the early 1990's and to his having been briefed by the Practitioner and his firm many times in a variety of matters. He had closely observed the Practitioner's professional conduct and found him to be hard-working, conscious of and assiduous in fulfilling his duties to the court and his clients and one who pursued his clients' interests with great energy, dedication and tenacity. In Mr Hale's experience, the Practitioner always acted with honesty and showed the good character required of a legal practitioner. He had seen the material detailed by Mr Oakes and was conscious of and did not discount the serious findings made against Mr Nikolaidis. He still adhered to his overall opinion of Mr Nikolaidis and still considered him to be a fit and proper person to be a legal practitioner. 139 The final reference was from Mr Bernard Coles QC who has known the Practitioner professionally for many years and been briefed by him regularly. Mr Coles stated that Mr Nikolaidis is a vigorous proponent of his clients' interests and that he has never seen any indication to suggest he is a dishonest person. He was aware of the two findings of professional misconduct which he briefly described. He observed that the demanding and stressful nature of his work could have led to his becoming too reliant on systems and staff but that, as principal, he would accept that he has the ultimate responsibility. Nothing Mr Coles has been told of these proceedings altered his opinion of the Practitioner as hard-working and conscientious or to consider that he is presently permanently unfit to remain a member of an honourable profession. 140 The Practitioner's affidavit sworn on 29 March 2005 when coupled with the four character references cast new light upon the proceedings and, indeed, upon the Practitioner. It is unfortunate that the Practitioner elected to defer providing this material until just before the hearing on 1 April 2005. It is most likely that, had it all been filed in accordance with the directions given for the 28 February 2005 hearing, the hearing would have been shortened by one day, considerable time and money saved by the Practitioner and the court system and his fitness to practise would not have become such a focus of attention. Conversely, his obvious standing in the profession, as testified by the distinguished group of referees who have supported him marks the Practitioner as a prominent solicitor in his area of practice of whom conduct of a standard higher than has been disclosed in this matter could properly be expected. Because of his standing younger members of the profession might reasonably look to the Practitioner as a role model. Consequently, the two adverse findings against him should carry important messages to the legal profession: all practitioners, notwithstanding their seniority, must ensure that their professional charges are fair and reasonable and made in compliance with the Act. They must honour their professional responsibilities to comply with proper notices (such as the s207 notices in this matter) in a prompt and courteous manner. Costs assessors, court officers and representatives of the Bar and the Law Society and the Legal Services Commission involved in the administration of the Legal Profession Act 1987 are not adversaries, but persons and organisations charged by statute with specified duties which they must fulfil and that, in fulfilling those duties, they are entitled to co-operation and courtesy from the legal profession. The Affidavit of 29 March is the first evidence the Tribunal received of changes made in the preparation of accounts after September 2004 to help identify any contentious matters. This material assisted in part in resolving the Tribunal's concerns about this Practitioner's fitness to continue to practice. 141 In summary, Mr Nikolaidis deposed inter alia that: (i) He had read and given serious consideration to the decision of 1 November 2004. (ii) The notices from the assessor were on his desk for his attention at all material times and he should have recognised that it was entirely his responsibility to ensure compliance but instead he failed to give them proper and due regard. His difficulties did not constitute reasonable excuse and he should have notified the assessor of the difficulties as he perceived them. (iii) He should have copied his file and immediately produced the file to the assessor. (iv) Notwithstanding any view he had of the content of the notices and his obligations, professional courtesy required that he respond as best he could and raise any concerns he had with the costs assessor. 142 Turning to the second count the Practitioner further deposed: a) That notwithstanding his appeal regarding the exclusion of Mr Hardman's report and the finding of professional misconduct on the second complaint, the issue of the bill and the surrounding circumstances did not constitute "best practice" for a sole practitioner. b) Significant detailed steps have been taken in his firm to ensure that there is not a repeat of the Antoni bill and circumstances. These include staff education, consultations with a costs expert, new procedures for the review of bills where more than one solicitor in the firm or a former employee of the firm has done work on a file, further review processes before bills are issued, a review of older files previously handled by a former employee and a process to identify non-chargeable work. c) Arising from these proceedings, it is apparent and he recognises and acknowledges that he failed to properly supervise his employed solicitor in the preparation of the Antoni bill. It was not appropriate then or now for him to rely simply on the judgement of employed solicitors as to the appropriateness of charges and it is appropriate for him to: i) Review any bills issued in relation to files where the nature of the work is contentious or there has been any expression by the client of any concern regarding the level of charging, and to review all bills issued subsequently to that client; ii) Review any bill issued where the amounts objected to are disproportionately large to the total of the bill; iii) Prior to its issue, review any bill, where it will include work performed by staff no longer in his employ; and iv) On a periodic and on a random basis, review bills issued by all solicitors in his employ. d) He has retained Mr Hardman to provide in-house an MCLE seminar for all staff on costing issues generally and the effects of amendments to the Legal Profession Act and is seeking to retain him to conduct an overall review of the firm's costing practices. e) It is necessary for him to ensure that under his systems clients are only billed for work properly chargeable to them and that charges for work are reasonable and to see that the systems are operating properly and efficiently generally and through periodic and sporadic reviews. 143 The Practitioner concluded his affidavit with his assurance to the Tribunal of his commitment to the course of future conduct he had outlined in his affidavit. Mr Nikolaidis was available for cross-examination on his affidavit but was not required for that purpose by the Commissioner. The affidavit has been summarised in considerable detail because of the importance attached to it by the Tribunal. 144 Mr Lindsay submitted that the 14 pages of correspondence being part of one of the exhibits to the Practitioner's affidavit of 6 April 2004 which were tendered as exhibit 2 of 1 April 2005 would, if the Tribunal decided that to make a finding adverse to the practitioner lead the Tribunal to withdraw ground 2 and discuss that complaint. The Tribunal does not accept this submission. 145 There are three major aspects to this proposition. The Tribunal was addressed at length and considered the oral and written submissions of the Practitioner before pronouncing its decision of 1 November 2004. Details reasons for the findings of 1 November were given. Issues now sought to be raised on behalf of the Practitioner were not raised before 1 November. The decision of 1 November was not an interlocutory one, it was the final decision of the Tribunal on whether the Practitioner's conduct was professional misconduct, unsatisfactory professional conduct or conduct not established or not sufficient to justify any adverse finding. It was a stage in the proceedings marked out to occur at an early part of the hearing, not an interim finding, not an interlocutory finding, but a final finding on that issue in the Tribunal, just as the decision not to admit the evidence of Mr Hardman in that part of the hearing was, for the purposes of the Tribunal's hearing, a final decision. 146 The Practitioner's own final affidavit acknowledges his failings, consistent with the Tribunal's prior findings on 1 November 2004 and that acknowledgement is to his credit so we do not propose to pursue that issue. 147 Mr Lindsay submitted that the documents in exhibit 2 of 1 April 2005 would, if the Tribunal decided some finding adverse to the Practitioner should be made on ground 2, have the effect of substantially ameliorating the finding in favour of the Practitioner. There is no question of "if" as far as a finding is concerned. An adverse finding was made on 1 November 2004 and, while the Tribunal has listened to and carefully considered the submissions of Senior Counsel the Tribunal is clearly of the view, that it's finding on complaint 2 was correct and if it had the power to do so it would not be appropriate for the Tribunal in view of the evidence to change the finding. Reliance was sought to be placed on the procedure adopted by the Practitioner in rendering his bill. This submission included the following: "The next point to notice is that the bill, when it was rendered in June of 2000, was served not on the client as such, but on the client's new solicitors. So there couldn't be said to be any element of overbearing conduct in the service or rendering of the bill. The next thing to note, following on from that, is that when the bill was served in that way, it was served expressly subject to assessment under Part 11. There was no attempt, independently of the processes, for which Part 11 provides to enforce an entitlement to costs against the solicitor. It was the solicitor who recognised, the solicitor's firm for practical purposes at the moment, that before you could enforce an entitlement for costs, or would enforce an entitlement for costs against a client, the costs had to be assessed. The process of – as one sees from the letter of 9 June 2000, the second letter in the bundle – next, the solicitors for the client were actively involved in promoting the idea that there would be an assessment, and the solicitor rang the cost assessor…[not transcribable]…. his determination, sought as we know a review from a review panel, leading to the issue of a certificate, as we know, by the review panel." 148 This is simply not consistent with the documents tendered: By letter of 9 January 2000 the Practitioner wrote to Messrs Kilmath Lawyers, omitting formal parts: "We…. enclose as requested 1… 2… 3. Our memorandum of costs and disbursements (we reserve the right to amend)." 149 On that day M D Nikolaidis also wrote to Mr J Antoni (omitting formal parts) "We refer to the above matter and enclose herewith by way of service Itemised Bill of Costs. If this itemised bill is not settled within twenty one (21) days we propose lodging the bill for assessment in accordance with the provisions of the Legal Practitioners Act." 150 On 13 June 2000 a further copy of the bill was sent by the Practitioner to Mr Antoni. The letter indicates that subtotals had then been inserted on the bottom of each page. 151 The Tribunal rejects this submission. If there is gross overcharging the Tribunal holds that the overcharging occurs when the bill is rendered unless of course moneys are charged and paid or appropriated without a proper bill in which event the date of overcharging is appropriately advanced. The Bill was sent on 9 June 2000 and that "sending" completed the act of overcharging. It is not correct to assert in the Tribunal's view that the Bill was served not on the client but on the client's solicitors. The documents tendered by Mr Lindsay establish that the Bill was sent twice to the client and also to the solicitor. The Tribunal does not accept that the 21 day requirement for payment was other than a demand for payment within 21 days. The reference to assessment was not a "promotion of the assessment process" but an essential fall-back if the bill was not paid or compromised for in that event assessment was an essential step if the Practitioner wanted to enforce payment. 152 On 1 April Senior Counsel for the Practitioner tendered documents which became exhibit 1 of that date. Mr Lindsay said on this tender at T4/T5: "So that the tribunal can follow what I've said, and have before it the basic documents that outline the course of proceedings in the Court of Appeal, I propose to tender a bundle of documents which will comprise Bryson J's decision – reasons for judgment that is – delivered on 23 March, and the documents that underlie that; namely the summons filed on 20 January, the draft notice of appeal picked up by the summons, the complainant's summary of argument dated 17 January, the document placed before Bryson J entitled 'Procedural Summons', and dated 21 March, and another document of the same date, that's 21 March, being an outline of submissions in support of the stay application. This tender is important for two reasons: one, so that the tribunal can be apprised of what occurred, and the natures of the questions that did arise, and, two, to deal with a matter that did emerge in the proceedings, in submissions that were made on behalf of the informant in the tribunal on 28 February. On that occasion Mr Hadley, on behalf of the informant, made submissions to the effect that the pendency of the proceedings in the Court of Appeal might demonstrate on the part of the solicitor, a lack of acceptance, which might be taken into account on the question of penalty or proper order." 153 The Tribunal had already been informed of the outcome of the hearing in the Court of Appeal before Bryson J and the judgment of His Honour was available. Out of respect for Counsel there being no objection this material became exhibit 1. The Tribunal does not see any merit in the tender but it did have an unfortunate impact. The material in the exhibit related to the appeal/stay process which is the step beyond the Tribunal's processes. The Tribunal was informed that an application for leave for a stay had been lodged. It did not in the circumstances need to know more and relied erroneously on the notion that the documents tendered would be relevant to the final orders being considered by the Tribunal. The "unfortunate impact" referred to above was the temporary loss of one of these documents in the Registry which has delayed the preparation of this decision. The forensic aspect of the tender was neither positive nor negative. The right of a party to appeal or seek leave to appeal Tribunal decisions is basic. Concern that the final outcome had a dependency on the proceedings in the Court of Appeal is not a matter of concern for the Tribunal. The Tribunal's obligation is to make decisions which it regards as consistent with the law and the evidence. It is naïve to suggest that the fact that the Practitioner by initiating the appeal process has a lack of acceptance which might be taken into account on the question of "penalty". Any and every decision of the Tribunal may be subject to appeal and it is right and proper for parties to be able to test the decisions of lower courts and Tribunals. 154 In his address, Mr Lindsay further submitted inter alia: a) The Practitioner's affidavit of 30 March 2005 demonstrates a substantial acceptance of the Tribunal's warnings; b) Allowance should be made for the substantial character references of four Senior Counsel supporting the Practitioner; c) The Affidavit of Mr Collins sworn on 24 February 2005 refers to one prior Tribunal proceeding; the fact that other complaints have been made against the Practitioner of itself says nothing; d) "The course of these proceedings can comfortably proceed within the parameters of the information and be dealt with within the parameters of the orders that were sought in the information". e) "On the basis of Ground 1, if not also ground 2, that it would be open to the Tribunal to impose a public reprimand". f) The Practitioner accepts that the Tribunal will give close consideration to the question of a fine and costs order and if a costs order were considered that costs order should be taken into account in its consideration of the fine, if any, which it might otherwise have imposed, even to the extent of a costs order being made but no fine imposed. g) If a fine were imposed it would be a modest one. The proceedings have highlighted for the Practitioner the importance of dealing properly and responsibly with a costs assessor and of maintaining proper office systems for the preparation and assessment of costs. Accordingly, it was submitted that an order for costs and the proper reprimand would be sufficient to mark the seriousness of the solicitor's misconduct. 155 The Tribunal accepts the propositions (a) (b) and (c). In relation to item (d), the Practitioner's own reticence gave rise to the Tribunal's concern as to his fitness to practise. Ultimately, the Practitioner addressed this issue and while based on decisions such as Bannister, Berry and Ciampa (see supra) the Tribunal has the firm view that the Tribunal is bound to impose a more severe disciplinary order than sought by the complainant in the Information within the limits imposed by s171C where the Tribunal finds that is appropriate. The finding is that the orders sought in the information do not inhibit the orders the Tribunal may make. The Information does not limit the jurisdiction of the Tribunal (see Berry, Bannister and Ciampa supra). This is no longer a matter in which the power to strike off the Practitioner needs to be considered further as the Tribunal is satisfied that he is fit to practise. Much time and effort has been devoted to the submissions of the Practitioner. Although many were repeated and not relevant, it was necessary to detail and deal with the same as they are reflective of the Practitioner's instructions and views so they have been taken into account in the Tribunal's deliberations. 156 The remaining propositions (e) (f) and (g) do not in the Tribunal's view reflect the serious nature of the findings made against the Practitioner. His prior public reprimand did not protect the administration of justice from the conduct now before the Tribunal. A public reprimand reflects the disgrace that a finding of professional misconduct brings on a solicitor and the acknowledgement of that disgrace is appropriate in this matter but it is not adequate in itself for either ground. 157 Mr Hadley in reply firstly made it clear that it was not the Commissioner's submission "that someone should be treated differently because they chose to exercise rights of appeal". This is accepted and the Tribunal recognises that the filing of an appeal has no bearing whatever on the determination of the final orders the Tribunal should make. However, as he pointed out, there have been a number of references on behalf of the Practitioner to the pending appeal and repeated efforts to rely on the evidence of Mr Hardman. He refers to the continued efforts to promote the significance and admissibility of the Hardman report and pointed out clearly that "the remedy or finding or penalty should not be devalued because an appeal has prospects of success." 158 After registering his dissatisfaction at the late provision of material by the Practitioner's advisers, Mr Hadley went on to deal with the submission in relation to withdrawal of the Tribunal's findings. It is in the following terms: "There was no specific description in my friend's submissions about the power of the Tribunal to withdraw its reasons. I raised this with him, and I gather that it is put on the basis that the Tribunal is still at an interlocutory stage, and that the power exists to withdraw findings, or to modify reasoning that may have existed up until the time that the Tribunal's orders are entered. I gather that is the nature of the submissions to power. I suspect Mr Lindsay put it more eloquently than that. Certainly my instructing solicitor and I have not been able to find any specific power that gives you the right to make the kind of alteration that is sought and it is something that is certainly outside my experience in terms of the usual way that such matters are dealt with." 159 The Tribunal has considered and rejected the withdrawal submission. One of the reasons given endorses the views of the Commissioner in that as a creature of Statute the Tribunal needs precise power to pursue a course of action and there is no enabling provision in the legislation which was brought to the Tribunal's attention in submissions to identify a source of power to withdraw the finding on complaint 2. In addition, however, if the Tribunal is in error and it does have a power to withdraw findings or modify reasoning the Tribunal is of the view in any event that this would not be appropriate in this case. The Tribunal has published reasons for its findings on the second complaint as it has on the evidentiary issue and the Tribunal is not persuaded that it was in error by reason of any matter raised by the Practitioner. 160 Mr Hadley also submitted that a finding would ordinarily stand after full argument on various matters, subject to whatever might happen on appeal. He put to the Tribunal that what had been submitted on behalf of the Practitioner represents an attempt to either "dress-rehearse" the appeal and/or re-argue matters that were either argued before the Tribunal or could have been argued before this Tribunal during the hearing that occurred. The Tribunal does not express an opinion on the first description of the submission and agrees that the matters raised in relation to ground 2 have already been fully argued and determined in this Tribunal and should not now be disturbed by the Tribunal. 161 On the issue of procedural fairness, Mr Hadley indicated that the Practitioner's submission alleged the findings on ground 2 were procedurally unfair because they were outside what was raised in the Information. Mr Hadley suggests this seems to be confusing the result of the conduct with the cause of that result. We accept that view and would point out again that the issue of the possibility of a strike-off order or a suspension order arose in the context of the hearing. This was virtually moments before that possibility was voiced. Prior to 28 February 2005, the Practitioner had been given plenty of opportunities to update his own evidence with material detailing his remorse and action taken by him to avoid a repetition in subsequent matters. The separate hearing date set aside for submissions on the orders to be made gave him the opportunity to establish his credentials with character evidence from his clients, peers and associated persons. One would expect that evidence to show that (1) he was a person of good standing in the profession, trusted by his peers and (2) that reputable practitioners in the full knowledge of the matters that have been involved in these proceedings and, the findings of professional misconduct were prepared to transact professional business with him where trust and reliability are essential. 162 The failure of the Practitioner to tender at that stage any evidence in support of his fitness to practise clearly in the view of the Tribunal made it incumbent on that Tribunal to raise on 28 February 2005 the possibility of consideration being given to a strike-off or suspension order. The evidence and the adverse findings made it incumbent upon the Tribunal to consider such orders in the absence of other mitigating evidence to establish his continuing fitness to practise. 163 Mr Hadley gave examples of more serious situations of gross overcharging and maintained that the allegation of misconduct has never been put wider than as set out in the Information. He pointed out that the lack of supervision issue which he had raised in an earlier submission had from the Practitioner's final affidavit been adopted and addressed by the Practitioner. It is appropriate to point out clearly that the misconduct of the Practitioner took a number of forms. His failure to supervise his office with the recklessness evident in his acceptance that Mr Antoni's bill was in the contentious group before it was issued. In the view of the Tribunal the misconduct of the Practitioner in the actual issuing of the bill of costs went beyond a failure to supervise for as the sole proprietor of his firm he distanced himself from the costing and failed to check the charges at the time the bill was issued or it appears subsequently at least until after the Information was filed. The Practitioner adopted the charges, and applied for assessment and subsequently review. 164 Mr Hadley referred to the submissions of Mr Lindsay on the meaning of overcharging and queried whether the overcharging was at the time of a request to pay or only when the funds were received. This was an issue that could have been raised during the long hearing that led to the decision of 1 November 2004. Any such definitive issues, Mr Hadley submitted, do not constitute a good reason for the Tribunal withdrawing its findings previously made after a lengthy hearing. 165 Counsel for the Commissioner further submitted that there is no good reason for the Tribunal to withdraw its findings on ground 2 or any part of its reasons in relation to that finding. That was made on the assumption that the Tribunal has the power to withdraw those findings. Indeed, for reasons already given, the Tribunal agrees with that thesis, but had formed the view that it does not have the power, in any event, to withdraw the finding on ground 2, nor if it had the power would it in this matter do so. 166 In relation to penalty, the Commissioner repeated his submission that the powers of the Tribunal under Section 107(1)(c) at this stage of the hearing are wide and are not confined to the relief sought in the Information. He referred us to the decisions in Ciampa and Bannister. In the circumstances of this case, the Commissioner did not press for a strike-off order, bearing in mind the Tribunal's power of imposing a fine of up to $50,000.00 per offence and its power in relation to costs orders. Mr Hadley expressed concern that the costs issues had been complicated by submissions put in relation to withdrawing ground 2 or suspending in some way the operation of the finding on that ground. The submission of the Commissioner was in terms that costs should be dealt with in the normal straightforward manner and that the usual costs order should be made in favour of the Commissioner, as is the normal practice in matters of this nature. He submitted the question of costs should not be complicated by the fact that there is an appeal outstanding and no consideration should be taken of the appeal in relation to the determination of costs. 167 On the quantum of any fine Counsel for the Commissioner indicated that "one factor affecting the amount of that fine might be the need to send a message to this practitioner that the seriousness of what had occurred and considering that factor, it is, of course, legitimate to have regard to the Affidavit material that has been filed today which puts the matter in a somewhat different light from the way it appeared on the last occasion." 168 The Tribunal does not, however, accept that submission as resolving the issue. Its jurisdiction is protective and, while there may be a significant worthwhile outcome in the future standards of conduct of this Practitioner, the responsibility of the Tribunal extends to other members of the profession in their day to day dealings with their clients in billing and with costs assessors, the responsibility extends to the general public who not only need to be protected from professional misconduct, but also to know that there is within the justice system a Tribunal whose duties include the protection of the public. In the view of the Tribunal a nominal fine or no fine plus a costs order would send the wrong message to the profession and to the public and certainly not encourage the resolve expressed by the Practitioner in his final, if last-minute, affidavit. 169 Finally in reply, Mr Lindsay clarified that nothing said was intended to be critical of submissions that were made by Counsel for the Commissioner in a personal sense. He maintained the prior submissions of Mr Chippindall in relation to the Hardman report which the Tribunal can only conclude included the rather extraordinary aspects of the constant repetition of the rejection of the report being subject to appeal. Finally, he dealt again with the issue of the withdrawal of the finding on the second complaint by referring both to Knaggs and Palmer. The Tribunal has already considered and dealt with those matters in detail above and sees no point in now repeating the material. 170 The Tribunal rejects the submission that for it to make an order exceeding in gravity the order sought in the Information would amount to procedural unfairness. Complaints to the Tribunal against Practitioners if established result in the Tribunal being required to make such order under s171C as it deems appropriate. It is not inhibited by the orders sought in the Information. Upon consideration of all the factors raised and specifically the matters already detailed in the practitioner's affidavit of 29 March 2005 and what has been said by his four referees, the Tribunal holds that ultimately this is not a matter justifying a strike-off order, a suspension or a restriction on the Practitioner's right to practise. Costs. 171 In the orders which follow the Practitioner has been ordered to pay the Commissioner's costs. Various submissions have been made on behalf of the practitioner in relation to costs but the decision of the Tribunal is that it is proper in this instance to deal with costs as a separate matter and not to couple it to any other order. The Practitioner has contested these proceedings with vigour as is his right. Findings of professional misconduct have been made against him and the Commissioner (a statutory body) has been put to expense in litigating this matter. The proper order in relation to both complaints is, in the Tribunal's view, that the Practitioner should pay the Commissioner's costs. Findings – First Count: 172 After a lengthy hearing the Tribunal found that Leon Nikolaidis the Practitioner was guilty of professional misconduct on the two counts alleged by the Commissioner. The Decision of the Tribunal was published on 1 November 2004. 173 As already detailed the Decision of 3 September 2004 in relation to the admissibility of the Hardman report and the Decision of 1 November 2004 on the findings of professional misconduct are both subject to a pending application for leave to appeal to the Court for Appeal. The Tribunal holds that it is proper for the Tribunal to make orders in relation to these proceedings without in any way taking into account the fact that, if leave is granted, previous findings of the Tribunal will be subject to appeal as, indeed, in that process could well be the orders made following the hearing on 1 April. The parties have acquiesced in the Tribunal's proposal that separate orders be made on each of the two counts and where it is clear that the finding on the first count is accepted by the Practitioner then in respect of what further litigation arises on the second count there is a reasonable prospect that this Decision may complete the proceedings in relation to the s207 notices, provided of course that neither the Commissioner nor the Practitioner elects to appeal the actual terms of the orders made on the first count. 174 The complaint in relation to the non-compliance with the s207 orders is a serious matter. The Tribunal might well have been excused from forming initially the view that such a notice was completely foreign territory to the Practitioner after more than 20 years' practice and that he needed the guidance of his employed solicitor to deal with the notice and comply with it. It has transpired that any such thought was nonsense for this Practitioner had been through a similar complaint and an adverse finding in relation to a s207 Notice some two years before the actual events which led to the complaint in these proceedings. 175 The Tribunal holds that the Practitioner was from that recent experience in what we have termed the prior matter quite aware of his responsibilities to the costs assessor and the overall duties and responsibilities of a costs assessor as part of the necessary procedure for the administration of justice. His attitude in 1998 to prioritising his duties was spelt out in the earlier Tribunal Decision. Reasons were raised from time to time in the Practitioner's case in relation to the necessity to consult with Mr Zwar, the pressure of business before Christmas recess, the advice received from Mr Harris, but given the circumstances in this matter, none of these reflected other than adversely upon the Practitioner. 176 Mr Nikolaidis in his affidavit sworn 29 March 2005 literally within hours of the commencement on 1 April of the sixth day of the hearing in the matter faced the issues of his behaviour squarely and acknowledged his personal fault in failure to comply with the notices and the obvious action he should have taken in December 2000 in relation to the notices. 177 The finding on this count was published on 1 November 2004. It remains, now having heard submissions and all the evidence on final orders, for the Tribunal to make what it regards to be the appropriate order in relation to this count. 178 In 1988 approximately two years before the events leading up to the first charge the Practitioner received a reprimand and was ordered to pay costs for professional misconduct arising out of his non-compliance with that same section of the Act. The similarities are obvious except that, given the prior conviction, initial efforts made in these proceedings to explain his conduct border on the extraordinary. 179 The Practitioner, if he wishes to be a member of an honourable profession must abide by the rules of that profession which are a necessary part of the administration of justice. The system of costs assessment is designed to be of benefit to both the public and the profession. It should be prompt, efficient and inexpensive. The assessor is not an adversary, he is a fellow professional charged with carrying out an important function. The Tribunal takes a very serious view of the conduct of the Practitioner in relation to the two notices. He is a man who has been in practice for some twenty five years and is clearly held in high regard in the profession from the four character references submitted to the Tribunal by members of the Bar whose letters have already been summarised. His conduct in relation to the costs assessor and the notices issued to him falls far short of the proud reputation he enjoys, as evidenced by those references and a respected family tradition in the practice formerly conducted by his father. 180 Clearly a fine is appropriate, coupled with a reprimand. The prior reprimand by itself did not prevent this further transgression by the Practitioner. The fine imposed must record the seriousness of this misconduct in the hope that, should the practitioner in the future have to deal with requests for information or s207 notices from a costs assessor, he will remember the assurances he has given the Tribunal and the serious view which the Tribunal took upon his non-compliance in this instance. 181 No guidance was given by Counsel as to a range of fines although the Practitioner's Counsel did submit that there should be some notional absorption of a small fine within a costs order. 182 The Tribunal has an obligation to fulfil its protective role and it is of the view that it should send a message to the Practitioner and to the profession of the seriousness of this misconduct and reassure the public that it will enforce the important administrative machinery provided by s207 for the benefit of the public whose faith in the justice system is essential. The Practitioner is in sole practice but he employs a number of solicitors and from the evidence particularly of the character witnesses the firm is prominent in its area of practice. The public and the profession are entitled to expect high standards and hopefully what is called "best practice" from such a firm and certainly from its principal. 183 After detailed consideration of the various submissions and the facts in the matter the Tribunal has determined that the appropriate sum for a fine on this first count of the Information is the sum of Five thousand dollars ($5,000.00). The amount is intended to reflect the seriousness of the behaviour involved and the other factors raised. 184 The public reprimand is important as it marks the disgrace of a member of an honourable profession inherent in his misconduct but the reprimand is not a sufficient disciplinary act in itself unless coupled with the fine determined in the previous paragraph. The fine in turn is not to be diluted by having a costs component, the Practitioner should pay the costs of the Commissioner in terms of the order set out at the commencement of this decision for the reasons detailed above in paragraph 143. 185 No submissions have been put to the Tribunal on possible hardship to the Practitioner or for the need for time to pay. 186 Accordingly, the orders to be made in relation to the first count are to be to the following effect: a) That the Practitioner be publicly reprimanded; b) That the Practitioner pay a fine in the sum of Five thousand dollars ($5,000.00), such fine to be paid on or before 1st November 2005 and in default of payment on or before 1st November 2005 that his practising certificate be cancelled until the fine is paid in full; c) That the Practitioner pay the costs of the Legal Services Commissioner of and incidental to the first count including all reserved costs of the Commissioner, such costs to be as agreed or assessed pursuant to Division 6 Part II of the Legal Profession Act 1987 within two (2) months of the date of such agreement or assessment. Findings – The Second Count: 187 The finding on the second count is clearly more serious than that on the first count. The actual finding of "the deliberate charging of grossly excessive amounts of costs" cannot be other than extremely serious. The two cases that were cited as leading cases in this area to the Tribunal of Veghelyi and Amor-Smith both involved the practitioner being struck from the Roll. The Commissioner did not seek a strike-off order or a suspension from practice. The Tribunal on 28 February 2005 drew to the attention of the parties the possibility that such an order rather than a fine could be imposed. The Tribunal is of the view that a strike-off or a suspension fall within the capacity of the Tribunal, notwithstanding the nature of the orders sought by the complainant. This view was supported by the Decision in the Court of Appeal of Bannister v Law Society already referred to a number of times above, Law Society v Ciampa, Law Society v Berry (see above) and the wide wording of s171C. 188 As was evident in the transcript, the Tribunal's concern arose from the seriousness of such a finding and the absence at that time on the fitness to practice issue despite directions intended to tease out material in mitigation. 189 Character evidence to support any suggestion that he was fit to practise was not before the Tribunal until April 1. Indeed there was no evidence of remedial action taken of training courses for his employees or other actions which indicated steps and procedures adopted to prevent a repetition of the misconduct and/or the. Practitioner's contrition or any mitigating circumstances and/or his assurance that the misconduct would not be repeated. 190 Literally at the eleventh hour, this evidence was provided, not just late for the 1 April hearing but, no doubt, overdue in that it should have been before the Tribunal following similar earlier directions in time for the hearing on 28 February 2005. 191 The Tribunal is comfortably satisfied with its finding in response to the submissions that it had the power to make a strike-off or suspension order. The final evidence of the Practitioner and the supporting character references of leaders of the profession have satisfied the Tribunal that the Practitioner has established his fitness to practise. In fulfilment of its obligation to protect the public, to maintain public confidence and to discourage similar conduct by other practitioners, the Tribunal finds that a strike-off order or a suspension is not necessary or appropriate. 192 That conclusion, however, does not take away the seriousness of the misconduct of the Practitioner. He has now acknowledged his responsibility and, from the detail he has set out, he clearly now recognises it as a serious responsibility, requiring a significant change in his systems and the introduction of other filtering processes to ensure there is no repetition. The fine and other orders are not to punish the Practitioner. The Tribunal has determined that the appropriate outcome in addition to a reprimand is imposition of a fine and a costs order. The fine must, in all the circumstances, be substantial to be consistent with the seriousness of the misconduct and provide a warning to other members of the profession and reassurance to the public at large that gross overcharging whether or not the amounts charged are paid will be taken very seriously by this Tribunal. 193 The Tribunal has concluded that the sum of Twelve thousand dollars ($12,000.00) is the proper amount in all the circumstances to reflect the seriousness with which it regards the professional misconduct of the Practitioner established in response to the second ground of complaint. Accordingly, the Tribunal has ordered payment of that fine of Fifteen thousand dollars ($15,000.00) within two (2) months from the date of these orders in addition to the public reprimand of the Practitioner and an order based on the considerations in paragraph 143 above for the payment of costs by the practitioner. 194 On the second count on which the Practitioner was found guilty of professional misconduct on 1 November 2004 the Tribunal orders shall be to the following effect:- a) that the Practitioner be publicly reprimanded; b) that the Practitioner pay a fine of $12,000 on or before 1 November 2005 Provided however that in the event that the fine is not paid on or before 1 November 2005 then the Practitioner's Practising Certificate shall be cancelled until the fine is paid in full; c) that the Practitioner pay the costs of the Legal Services Commissioner of and incidental to the second count including all reserved costs of the Commissioner, such costs to be as agreed or assessed pursuant to Division 6 Part II of the Legal Profession Act 1987 within two (2) months of the date such agreement or assessment. Publication of Order and Reasons: 195 Section s171C(3) of the Legal Profession Act 1987 requires the Tribunal where it makes an order publicly reprimanding a legal practitioner to publish the order and a statement of its reasons for making the order. Under subsection (5) this obligation to publish is satisfied if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner's functions in respect of the register of disciplinary action required to be kept under Division 9A. The Registrar of the Tribunal is accordingly requested to provide the required information to the Commissioner as expeditiously as possible. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.