Legal Services Commissioner v Piper [2006] NSWADT 12

CITATION: Legal Services Commissioner v Piper [2006] NSWADT 12

DIVISION: Legal Services Division

APPLICANT PARTIES: Legal Services Commissioner RESPONDENT Martin Piper

FILE NUMBER: 052013

HEARING DATES: 11/10/05

SUBMISSIONS CLOSED: 10/11/2005

DATE OF DECISION: 01/12/2006

BEFORE: Chesterman M - ADCJ (Deputy President); Currie JS - Judicial Member; Fitzgerald R - Non Judicial Member

CATCHWORDS: Unsatisfactory Professional Conduct - fail to comply with undertaking to Legal Services Commissioner

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Amendment Act 2004

Law Society of New South Wales v Konstantinidis [1999] NSWADT 109 CASES CITED: Law Society of New South Wales v Martin [2002] NSWADT 27 Law Society of New South Wales v Waterhouse [2002] NSWADT 204 Re Titmarsh [1999] 1 LPDR 18

APPLICANT L Muston, solicitor REPRESENTATION: RESPONDENT K J Pierce, barrister

ORDERS: 1. The Respondent is publicly reprimanded; 2. The Respondent is to pay a fine of $1,000 within three months of the date of these orders. If the fine is not paid within that time, his practising certificate is to be cancelled and no further certificate is to be issued until it is paid; 3. The Respondent is to pay the Commissioner's costs of these proceedings, as agreed or assessed.

REASONS FOR DECISION Introduction 1 On 25 May 2005, the Legal Services Commissioner ('the Commissioner'), as Applicant, filed in the Tribunal an Information under Part 10 of the Legal Profession Act 1987 ('the Act'), alleging that the Respondent, Martin Piper ('the Practitioner'), a legal practitioner within the meaning of s 128 of the Act, was guilty of professional misconduct while practising as a solicitor. 2 The Information contained one Ground, in the following terms: The Practitioner has breached his undertaking given to the Legal Services Commissioner in writing on 14 February 2002 that he would afford correspondence from this Office the highest priority and will respond to correspondence within a reasonable time. 3 The Information then stated: Particulars of the Practitioner's unsatisfactory professional conduct or professional misconduct in relation to this ground are set out in the First Schedule to this Information. 4 The Second Schedule to the Information set out the orders sought by the Commissioner. They included a finding that the Practitioner was guilty of unsatisfactory professional misconduct or professional misconduct, an order that he provide specified information and documents that the Commissioner had previously sought from him, orders by way of fine and reprimand and an order that he pay the Commissioner's costs in relation to the Information. 5 In his Reply, filed on 5 July 2005, the Practitioner stated as follows: 'The respondent denies that he would be likely to be found guilty of unsatisfactory professional conduct'. 6 The discrepancy between the opening words of the Information, in which professional misconduct alone was alleged against the Practitioner, and the subsequent allegations of professional misconduct and unsatisfactory professional conduct in the alternative, did not give rise to any comment at the hearing. There was similarly no comment about the fact that the Reply did not expressly deny, or otherwise refer to, the Information's assertion that the Practitioner had committed professional misconduct and that it failed in other respects to comply with Rule 27 of the Administrative Decisions Tribunal (Interim) Rules 1998. 7 These procedural defects might have caused some concern to us but for the fact that Ms Muston, who appeared for the Commissioner, indicated in her submissions that the Commissioner would not press for a finding of professional misconduct. Given that ultimately both parties treated the Commissioner's case as alleging unsatisfactory professional conduct only, we do not see how any unfairness could have arisen from these features of the documents filed by them. The Practitioner's undertaking 8 A letter from the Commissioner to the Practitioner dated 4 February 2002, sent to him at Budd & Piper, Solicitors, contained an outline of a determination by the Commissioner that he had been guilty of unsatisfactory professional conduct on account of matters alleged in each of three complaints. The Commissioner asked for his acceptance of a reprimand as the appropriate penalty to be imposed in each case under the Act. 9 With reference to one of these complaints, which had been initiated by the Commissioner, the letter stated: I also seek your undertaking that you will afford to this Office the highest priority in responding to communications and that you will make all responses to this Office within a reasonable time. 10 In a letter to the Commissioner dated 14 February 2002, the Practitioner acknowledged the Commissioner's letter of 4 February, gave his consent to 'the reprimand as proposed' and stated: I further undertake to afford correspondence from your office the highest priority and will respond to correspondence within a reasonable time. 11 This is the written undertaking that the Practitioner is alleged in the Information to have breached. The correspondence between the Commissioner and the Practitioner 12 The evidence tendered by the Commissioner principally comprised copies of correspondence between the Commissioner and the Practitioner. The Practitioner did not dispute this evidence. It was in conformity with the Particulars in the First Schedule to the Information. It outlined the following events. 13 On 27 November 2003, the Commissioner received from Mr Tony Macklin, a barrister, a complaint against the Practitioner. The Commissioner commenced an investigation into this complaint. It related to outstanding accounts that Mr Macklin had rendered to the Practitioner in proceedings brought by Ms Pee Loo Tan, a client of the Practitioner, against CIC Insurance Ltd and Alan Dudgeon Pty Ltd ('the Tan proceedings'). Mr Macklin had claimed from the Practitioner the payment of fees amounting to $3,637.50 and had asked whether the proceedings had been successfully concluded, in which event he claimed entitlement to further fees amounting to $10,796.25. 14 The Commissioner first conveyed the substance of this complaint to the Practitioner in a letter dated 9 December 2003. In his letter of reply, dated 19 December 2003, the Practitioner maintained that the former amount of $3,637.50 was not payable until the Tan proceedings had been determined and that this had not yet occurred. He said that he would attend to payment when this had occurred. 15 In a letter dated 19 January 2004 to the Practitioner, the Commissioner notified him that Mr Macklin had initiated two further complaints against him. An element of one of these complaints was an allegation that without informing Mr Macklin the Practitioner had briefed Mr Morris QC in the Tan proceedings. In a letter dated 17 February 2004, the Commissioner referred to yet another complaint by Mr Macklin. But in a letter to the Practitioner dated 29 March 2004, the Commissioner wrote that Mr Macklin had withdrawn this last complaint and that the Commissioner had decided not to accept the two complaints described in the letter of 19 January 2004, since they had been made out of time. 16 This letter of 29 March 2004 was headed 'Complaint by Mr Tony Macklin' and commenced as follows: I refer to this complaint and to our previous correspondence. In your letter to me dated 19 December 2003, you stated that the amount payable to the complainant was payable "on the determination of proceedings… those proceedings have not yet been completed". I ask that you now provide to me a short report as originally requested by Mr Macklin in his letter to you dated 22 August 2003 in which you set out why the proceedings have not yet been determined, a description as to their present status, a timeframe for their completion and information as to whether Mr Morris QC continues to hold the Brief in the matter and, if so, whether he has provided the advice sought from him. In my view, given the information I have been provided with, it is reasonable for the complainant to seek this further information. 17 In a letter dated 7 April 2004 to the Commissioner, headed 'Complaint by Tony Macklin', the Practitioner wrote as follows: We thank you for your recent correspondence. Mr Howard, Solicitor, is handling this matter at this time. To date Mr Morris has not provided the advice sought from him. I have requested Mr Howard to follow the matter up with Mr Morris as soon as possible. I will obtain instructions from our client in relation to correspondence from the insurers and obtain her permission to forward a copy to you which indicates the current status of the matter. 18 During the next ten months, the Commissioner sent five letters to the Practitioner requesting that he furnish this information, but received no response. The dates of the Commissioner's letters were 22 July, 11 August, 7 September and 23 December 2004 and 11 February 2005. 19 In the letter of 22 July 2004, the Commissioner reminded the Practitioner of his stated intention, in his letter of 7 April 2004, to obtain from his client (Ms Tan) both her instructions and her permission to forward to the Commissioner a copy of correspondence from her insurers. 20 In the letter of 7 September 2004, the Commissioner reminded the Practitioner of his undertaking of 14 February 2002, and also stated that if no response was received by 17 September 2004 a complaint would be initiated against him under s 134 of the Act on the ground of his apparent breach of the undertaking. 21 In the letter of 23 December 2004, the Commissioner advised that he had initiated such a complaint and requested the Practitioner to give his reasons, by 28 January 2005, for failing to respond to correspondence from the Commissioner's office within a reasonable time. 22 In the letter of 11 February 2005, the Commissioner requested the Practitioner to provide submissions, on or before 4 March 2005, as to why his apparent breach of the undertaking given on 14 February 2002 would not amount to professional misconduct or unsatisfactory professional conduct. The letter also reproduced the terms of s 155 of the Act. This provides, amongst other things, that the Commissioner, after investigating a complaint against a legal practitioner, is obliged to institute proceedings in the Tribunal 'if satisfied that there is a reasonable likelihood' that the Tribunal will find the practitioner guilty of professional misconduct or (subject to an exception) of unsatisfactory professional conduct. 23 The Practitioner replied to this letter by an undated letter, which the Commissioner received on 14 March 2005. In it, the Practitioner stated that he believed the Commissioner to have been referring in recent correspondence to a quite different complaint against him that had previously been resolved in the Tribunal. The Practitioner expressed surprise and anger that the Commissioner seemed to be trying to exact some form of 'retribution', through proposing to reprimand him on account of the conduct alleged in this complaint. He asserted that he had apologised for this conduct and still maintained that apology 'unreservedly'. 24 In this letter, the Practitioner also stated that in November 2004 his wife had been diagnosed with a particularly virulent form of cancer, in consequence of which he had had to spend a considerable amount of time assisting her and was in a state of extreme stress. 25 In a letter to the Practitioner dated 13 April 2005, the Commissioner explained that the matter now in issue between them was the complaint initiated by the Commissioner in December 2004, not the earlier complaint (by Ms McKenzie, a former client) that the Practitioner had referred to in his recent undated letter. 26 The Commissioner's letter of 13 April 2005 also outlined the correspondence since 29 March 2004, denied that any element of 'retribution' was present and reiterated the Commissioner's requirement that the Practitioner should supply the 'short report' initially requested in the letter of 29 March 2004. It asked also for an explanation by the Practitioner as to why he had failed to answer the correspondence set out in the Commissioner's complaint, in the light of his previous undertaking and 'his general obligation to co-operate with enquiries by this office'. 27 As at 23 May 2005, the date of the Information, the Practitioner had not provided the information requested. The Practitioner's affidavit 28 The only evidence tendered by the Practitioner was an affidavit sworn by him on 8 August 2005. He was not required for cross-examination. 29 In this affidavit, the Practitioner stated that he was 'aware of the complaint by' Mr Macklin. He gave reasons why in his view he was not liable to Mr Macklin for any outstanding fees relating to the Tan proceedings. He provided some explanation of his decision to brief Mr Morris in these proceedings. He then stated, in paragraph 10: In December 2003, the writer received the complaint from the Legal Services Commissioner in relation to Mr Macklin. We responded to that letter by the 19 December 2003 ( sic ). It is the writer's view that at this stage the Legal Services Commissioner should have ceased any further enquiry. It should have been evident to the Commissioner that there was no breach of any professional rules by Budd & Piper Solicitors. 30 The Practitioner's affidavit referred then to the two further complaints by Mr Macklin that had been described in the Commissioner's letter of 19 January 2004, and to the subsequent dismissal of these complaints. It then mentioned what it called the Commissioner's 'request', in the letter dated 22 July 2004, for permission from Ms Tan to provide information to the Commissioner. It commented on this 'request' as follows (in paragraph 13): I am not aware of what basis ( sic ) the Commissioner is entitled to seek confidential information from third parties over which it has no jurisdiction. That authority was refused by the client. 31 The Practitioner then deposed that around July 2004 his wife became seriously ill, that she was diagnosed with cancer in November 2004 and that over a period of about 8 months he had to spend significant periods of time rendering assistance to her, both while she was in hospital and while she was recovering from chemotherapy. He indicated that it was 'under these circumstances' that he 'did not follow up responding to the Commissioner', adding that Ms Tan had not been prepared to provide the information requested. 32 The Practitioner's affidavit concluded as follows: 17. The letter dated the 11 February 2005, from the Legal Services Commissioner did not identify the name of the matter to which it referred. The Response… [i.e., the Practitioner's undated letter, received by the Commissioner on 14 March 2005] clearly mistook the matter to which the Commissioner was referring to ( sic ). 18. The Deponent disputes that his behaviour amounted to unprofessional conduct having regard to the fact that the Commissioner had previously determined that the complaint had no basis. It is submitted that the Commissioner is not entitled to simply make further requests for information once determining that it had no jurisdiction to deal with the matter and that the complaint was not substantiated. The parties' submissions to us 33 Submissions on behalf of the Commissioner. Ms Muston argued that the Practitioner had breached the undertaking contained in his letter of 14 February 2002 to the Commissioner, and that this breach fell within s 171U of the Act. 34 This section provides, so far as is relevant here, that if a legal practitioner gives an undertaking to the Commissioner 'in the course of… investigating or dealing with' a complaint against the practitioner, a breach of this undertaking 'is capable of being unsatisfactory professional conduct or professional misconduct'. 35 Ms Muston pointed out that the Practitioner had given the undertaking in circumstances expressly contemplated by s 171U. As outlined above at [8 – 11], he had done so in responding to a request by the Commissioner that he consent to a reprimand as the appropriate penalty, following an adverse determination of a complaint that the Commissioner had initiated. 36 She argued that the Practitioner had clearly failed to respond to the Commissioner's letters within 'a reasonable time', as required by the undertaking. Equally, he had made no attempt to obtain a discharge from the undertaking. 37 His breach, she claimed, was 'egregious', for the following reasons. Between his letter of 7 April 2004, in which he had promised to take certain steps in order to obtain the information requested by the Commissioner on 29 March 2004, and his undated letter received by the Commissioner on 14 March 2005, there had been a gap of more than eleven months. The latter letter, moreover, was non-responsive, both to the Commissioner's request of 29 March 2004 and to the five follow-up letters sent to him between July 2004 and February 2005. Finally, after the Commissioner had replied on 13 April 2005, explaining why he appeared in this letter to have misunderstood the situation, he again failed to respond within the ensuing month. 38 Ms Muston submitted further that the information sought in the Commissioner's letter of 29 March 2004 was not subject to privilege and could have been obtained without any difficulty. It was, she said, quite clear from that letter and from the Commissioner's earlier letter of 9 December 2003 that Mr Macklin's complaint alleging non-payment of fees had been accepted by the Commissioner and had not been withdrawn or dismissed. 39 We will mention briefly three authorities cited by Ms Muston, dealing with breaches of undertaking by solicitors. In Re Titmarsh [1999] 1 LPDR 18 at 19, the Legal Services Tribunal held a solicitor to be guilty of professional misconduct through failing to comply with an undertaking to the Legal Services Commissioner to provide information within a specified time. This decision was cited with apparent approval by the present Tribunal in Law Society of New South Wales v Martin [2002] NSWADT 27 at [23]. In Law Society of New South Wales v Waterhouse [2002] NSWADT 204 at [12 – 13], the Tribunal held that when a solicitor gave an undertaking to a fellow-practitioner, the absence of relevant instructions from a client provided no excuse for non-compliance, since an undertaking by a solicitor gives rise to a personal obligation. The recipient of the undertaking is entitled to assume that the solicitor has taken all necessary steps to ensure that he or she is in a position to comply with it. 40 As indicated earlier, Ms Muston advised us that the Commissioner did not press its initial allegation of professional misconduct, but sought only a finding of unsatisfactory professional conduct. She indicated that, in part at least, this was in view of the stress to which the Practitioner had been subjected since July 2004, on account of his wife's serious illness. 41 She submitted that the appropriate orders by way of penalty were a reprimand and a fine. She made no submission as to the amount of any fine. She indicated also that the Commissioner sought an award of costs. 42 Ms Muston also submitted that, as requested in the Information, we should order the Practitioner to provide to the Commissioner the information and documents sought in the Commissioner's letter of 29 March 2004. She claimed that such an order could constitute an 'ancillary order' under s 171C(1)(i) of the Act, and that under s 171C(1)(b) and (c) we could and should order that if the information and documents were not provided by a specified date, the Practitioner's practising certificate would be cancelled and would not be reissued until they had been provided. Submissions on behalf of the Practitioner. 43 Mr Pierce, appearing for the Practitioner, contended that the Commissioner had not put forward sufficient evidence to show, to a sufficient degree of certainty, that the Practitioner had breached his undertaking of 14 February 2002. He relied on Law Society of New South Wales v Konstantinidis [1999] NSWADT 109 at [19 – 21] for the proposition that a high standard of proof was required in professional disciplinary proceedings. 44 In making this argument, Mr Pierce emphasised that the undertaking was that the Practitioner would respond to correspondence not immediately, but within 'a reasonable time'. He pointed out that until April 2004, the Practitioner's responses to the Commissioner's letters had been prompt. The delays that occurred subsequently were attributable to the heavy demands imposed on him by his wife's illness. It was relevant also that the Commissioner's earlier letters had mentioned three complaints by Mr Macklin that had been either dismissed or withdrawn. It was natural in these circumstances for the Practitioner to believe, as he said in his affidavit, that the information sought in the Commissioner's letter of 29 March 2004 was not in fact necessary for any investigation being conducted by the Commissioner. This information was, moreover, not easily accessible by the Practitioner. For all these reasons, Mr Pierce contended, it could not be said that the Practitioner had failed to respond 'within a reasonable time'. 45 Mr Pierce relied also on the Commissioner's failure, in the letter sent to the Practitioner on 11 February 2005, to specify the complaint with which the letter was concerned. In the light of the pressures then bearing on the Practitioner, his misunderstanding of this letter and the angry tone of his response were, in Mr Pierce's submission, entirely understandable. 46 On the particular issue of whether, as sought by Ms Muston, we should order the Practitioner to supply to the Commissioner the information and documents requested in the letter of 29 March 2004, Mr Pierce pointed out that compliance with any such order would be dependent on the Practitioner's obtaining Ms Tan's consent. This, he said, could not be guaranteed. 47 In summary, the position adopted by Mr Pierce on behalf of the Practitioner was that either (1) the single ground stated in the Information had not been made out or (2) any breach of the undertaking that did occur did not constitute unsatisfactory professional conduct on account of the Practitioner's personal circumstances at the time. 48 Mr Pierce added that if, contrary to these submissions, we made a finding of unsatisfactory professional conduct, we should rule that no order under s 171C(1) was required and that an apology by the Practitioner would be sufficient to deal with the matter. He pointed out that although the Commissioner has had occasion more than once in the past to administer a reprimand to the Practitioner following determination of a complaint, only one of these complaints has been on account of conduct of the type involved here, namely, the breach of an undertaking. Our conclusions Findings 49 In our opinion, the Commissioner has established to a sufficient degree of certainty that the Practitioner breached the undertaking given in his letter of 14 February 2002 and that this breach constituted unsatisfactory professional conduct. 50 In ruling that the Practitioner did in fact breach the undertaking, we take account of the important fact that the undertaking was not to comply fully with all requirements or requests communicated to him by the Commissioner, but only to 'respond to correspondence within a reasonable time'. We do not see how a failure to send any letter or other communication during a period of more than eleven months, despite receiving five letters repeating the relevant request for information, can be characterised as anything other than a breach of an express undertaking to 'respond… within a reasonable time'. 51 If, as the Practitioner alleged in his affidavit, he believed (a) that there were no grounds on which the Commissioner could require the information specified in the letter of 29 March 2004 and/or (b) that he was not in a position to obtain this information readily, a simple course of action was open to him. The despatch, within a reasonable time, of a letter from him in which either or both of these arguments were made would both advance what he saw to be his legitimate interests in the matter and comply with the undertaking. 52 It is important also that the Commissioner's letters of 7 September 2004, 23 December 2004 and 11 February 2005 all set out the terms of the Practitioner's undertaking and indicated that what increasingly concerned the Commissioner was the Practitioner's continuing failure, in evident breach of the undertaking, to provide any response at all to correspondence from the Commissioner. 53 By the same token, if (as the Practitioner also alleged) one or more of the letters from the Commissioner did not clearly specify which complaint was being referred to, the Practitioner could simply have requested that this be clarified for him. 54 In this connection, however, we do not see why the Practitioner should have been in any doubt as to which complaint was involved or as to what was required of him. The Commissioner's letter of 29 March 2004 referred in the first paragraph to the claim by Mr Macklin that 'an amount' was payable to him and to the Practitioner's response to this claim, as stated in the Practitioner's letter of 19 December 2003. It then described the 'short report' that the Commissioner now sought from the Practitioner. In his response of 7 April 2004, the Practitioner displayed a clear awareness of what was involved in preparing this report. Since the Commissioner's subsequent letters all included references to earlier letters, the Practitioner, merely by reviewing the file of this correspondence, could at any time have ascertained (a) that the complaint still being investigated by the Commissioner was Mr Macklin's complaint regarding fees allegedly due and unpaid and (b) that he was being asked for no more than a 'short report' on a relatively limited range of matters connected with this complaint. 55 After taking these matters into account, and also making due allowances for the distressing and stressful circumstances confronting the Practitioner from July 2004 onwards, we are bound to conclude that his delay of more than eleven months in dealing with the Commissioner's request for information, despite receiving five letters in the interim, constituted a failure to reply to correspondence from the Commissioner 'within a reasonable time' and therefore amounted to a breach of his undertaking. 56 We conclude also that this breach amounted to unsatisfactory professional conduct, as contemplated by s 171U of the Act. This provision, which was inserted by the Legal Profession Amendment Act 2004, did not come into operation until 15 August 2004. But in the light of two cases cited by Ms Muston, namely Re Titmarsh [1999] 1 LPDR 18 and Law Society of New South Wales v Martin [2002] NSWADT 27, we consider that under the general definition of unsatisfactory professional conduct contained in s 127(2) of the Act, this same characterisation would apply to the Practitioner's failure to respond to the Commissioner's correspondence prior to 15 August 2004. 57 In so holding, we take particularly into account two matters: (a) the considerable length (more than eleven months) of the main period during which the Practitioner failed to respond at all to letters from the Commissioner; and (b) the fact that, even after the Commissioner's letter of 13 April 2005 set out the terms of his undertaking and explained the nature of the 'short report' that was still required from him, he again failed to respond within the ensuing month. The penalty, if any, to be imposed. 58 In this connection, a matter of significant concern to us is the Practitioner's apparent failure to acknowledge at any time that he has been in breach of his undertaking. 59 The tone that he adopted in his undated letter received by the Commissioner on 14 March 2005 is explicable, up to a point, on account of his misunderstanding of the Commissioner's earlier letters and the stress that his personal circumstances placed upon him at the time. His affidavit of 8 August 2005 (see [28 – 32] above) referred again to these personal difficulties. But this affidavit, although sworn after the Information had been served upon him, was principally devoted to justifying the stance that he had adopted in his dispute with Mr Macklin, questioning the Commissioner's continued requests for information and criticising the Commissioner for not clearly identifying the complaint against him that was still being investigated. As we have said above at [54], the Practitioner could easily have identified the relevant complaint, merely by reviewing the past correspondence. 60 Neither in this affidavit nor by any other means has the Practitioner indicated to the Tribunal or (as far as we are aware) to the Commissioner that he recognises that the undertaking of 14 February 2002 imposed important professional obligations upon him and that he has failed to honour these obligations. 61 The circumstances in which he was previously reprimanded by the Commissioner for the breach of an undertaking are these. During the investigation of a complaint brought against him by Mr Fay, a former client, he undertook to forward a relevant file to Mr Fay within a specified period of time. On account of his failure to do this, the Commissioner initiated a complaint against him, then concluded after carrying out an investigation that a reprimand was appropriate. It was in the letter, dated 4 February 2002, asking for the Practitioner's consent to this and other reprimands (see [8 – 9] above) that the Commissioner sought the undertaking from him that has given rise to the present proceedings. 62 On account of these matters, we consider that a reprimand, such as was administered in February 2002 for a similar instance of unsatisfactory professional conduct, would be an insufficient penalty standing alone. We think that a fine is also warranted, though in view of the Practitioner's personal circumstances at the relevant time it should not be a heavy one. 63 Accordingly, our orders by way of penalty under s 171C of the Act are that the Practitioner should be reprimanded and that he should pay a fine of $1,000. Since this is a public reprimand, we direct the Registry that it is to be published in accordance with s 171C(3) of the Act. 64 Contrary to Ms Muston's submission on the matter, we do not think that we have the power to order that the Practitioner provide to the Commissioner the information and documents requested in the Commissioner's letter of 29 March 2004. There is no express provision in s 171C or elsewhere in the Act for orders of this nature, and we not believe them to be covered by the provision for 'ancillary orders' in s 171C(1)(i). We add only that this judgment should be enough of itself to make clear to the Practitioner that if he continues to fail to comply with his undertaking to the Commissioner, which as far as we are aware has not been discharged, the consequences for him are likely to be very serious indeed. Costs 65 Pursuant to s 171E of the Act, we order that the Practitioner is to pay the Commissioner's costs of these proceedings, as agreed or assessed.