CITATION: Legal Services Commissioner v Galitsky [2008] NSWADT 48 This decision has been amended. Please see the end of the decision for a list of the amendments. DIVISION: Legal Services Division APPLICANT Legal Services Commissioner PARTIES: RESPONDENT Serge Galitsky FILE NUMBER: 062022 HEARING DATES: 22 -23 August 2007 SUBMISSIONS CLOSED: 25 September 2007 DATE OF DECISION: 7 February 2008 BEFORE: McGuire J - ADCJ (Deputy President); Norton S SC - Judicial Member; Bennett C - Non Judicial Member CATCHWORDS: Barrister – Disciplinary application MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 Legal Profession Act 2004 CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 APPLICANT C Champion, barrister REPRESENTATION: RESPONDENT P W Neil SC, barrister ORDERS: 1. The application is dismissed. 2. The Tribunal orders the Applicant to pay the Respondent's costs as assessed or agreed. REASONS FOR DECISION 1 The Tribunal is considering an application (the Application) of the Legal Services Commissioner (LSC) which is in the following terms: ' Application 1. On 25 September 2006, the Legal Services Commissioner caused to be filed with the Administrative Decisions Tribunal an Application for a Decision under Part 4.8 of the Legal Profession Act 2004. 2. The Application seeks the following orders: (i) An order that this Disciplinary Application be joined with the Disciplinary Application against the instructed solicitor; (ii) A finding that the Respondent is guilty of professional misconduct; (iii) An order that the Respondent be fined; (iv) An order that the Respondent be publicly reprimanded; (v) An order that the Respondent pay the costs of and incidental to the filing and hearing of the information; (vi) Such other orders as the Tribunal sees fit.' Ground 3. The Respondent in the matters of Toufika Hussein v NSW Land and Housing Corporation, Fatemah Hussein v NSW Land and Housing Corporation and Mohamed Hussein v NSW Land and Housing Corporation deliberately charged grossly excessive amounts of costs. 4. The ground is particularised as follows:- Particulars 1.1 The Respondent simultaneously conducted three personal injury actions on behalf of the three members of the same family. Although the accidents giving rise to the injuries did not occur at the same time, all three matters were heard together before His Honour Judge Walmsley for 6 days commencing on 13 November 2001 and it was agreed that evidence in each would be evidence in the others. Particulars 1.2 The Respondent failed to apportion costs common to the three matters. Particulars 1.3 In particular, the Respondent charged each client the total costs of the hearing rather than dividing costs of the hearing so as to charge each client for that part of the hearing relating to their claim and/or apportioning such costs as to charge each client a proportion of the total costs of the hearing.' 2 The material before the Tribunal disclosed that the three Plaintiffs, members of the same family, sustained injuries in similar circumstances on different days. 3 Each Plaintiff commenced an action with the intention of the matters being heard separately. On 13 November 2001 the Respondent, Mr Galitsky, attended at the District Court with the three Plaintiffs apparently in the belief that their matters would be heard consecutively by an arbitrator. However, Judge Walmsley determined that the three matters would be heard together and proceeded to hear them. Apparently it was decided that the evidence in each matter would be evidence in the others. 4 The three Plaintiffs were each successful. Toufika Hussein obtained a judgment $98,005.00 together with costs, Fatemah Hussein obtained judgment for $35,050.00 plus costs and Mohamed Hussein obtained judgment for $27,446.45 plus costs. 5 The Defendant was ordered to pay the Plaintiffs' costs on a party/party basis until 9 January 2002 and on a solicitor/client basis from 10 January 2002. 6 Apparently it became necessary to tax party/party bills of costs. 7 Mr John McIntyre, Solicitor and Costs Assessor, concluded assessment in relation to party/party bills of costs. He sighted Counsel's Cost Agreement, the Solicitor's Cost Agreement and the Solicitor/Client Bill of Costs. 8 Mr McIntyre wrote to the Legal Services Commission on 22 December 2004 and observed: 'My examination of the solicitor/client bill of costs in each matter suggests that the solicitor and the barrister may have engaged in conduct which involves the deliberate charging of grossly excessive amounts of costs. There were numerous examples in the bill of costs where each client had been separately charged at the full agreed rate for attendances which were carried out simultaneously. For example, the total time spent at Court by the solicitor for the plaintiff instructing Counsel on the hearing was not divided between the three cases. The same applied to Counsel's fees. This resulted in the solicitor charging amounts up to $6,000 for one day in Court. The barrister also charged the three clients on the same basis. Whilst I did not assess the solicitor/client bill of costs, it was in my view readily apparently from an examination of the solicitor/client bill of costs in each matter that both the solicitor and counsel had failed to properly apportion the amounts claimed over the three matters when that clearly should have been done. I do not have sufficient information to determine whether or not the conduct was deliberate, but I am satisfied that there is sufficient information to require me to refer the matter to you pursuant to section 208Q of the Legal Profession Act 1987 and I so do.' 9 Mr Steve Mark, the Legal Services Commissioner, replied to Mr McIntyre on 20 January 2005 in the following terms: ' Complaint by the Legal Services Commissioner Costs Assessment numbers 92092, 92093 and 92094 of 2003 I refer to your letter dated 22 December 2004 and thank you for referring this matter to me. It is my normal practice when a matter is referred by a costs assessor pursuant to section 208Q of the Legal Profession Act to initiate complaint pursuant to section 134. I have done so in this case. I ask that you kindly provide to this office a copy of your certificate as to determination of costs and a copy of your reasons for decision along with any other documents that you think may assist with my assessment of the complaint. I have sought production of the solicitor/client bill of costs and the solicitor's costs agreements and disclosure directly from the practitioner. I will advise you of the outcome of my investigation in due course. I thank you for bringing this matter to my attention. Yours sincerely' 10 Mr Mark initiated a complaint on 20 January 2005: ' Legal Services Commission Record of Decision Initiation of a complaint pursuant to s134(2) of the Legal Profession Act 1987 I, Steve Mark, Legal Services Commissioner, hereby determine to initiate the following complaints in accordance with s134 of the Legal Profession Act against Mr Serge Galitsky, barrister. Complaints The barrister in the matters of Fatemah Hussein v New South Wales Land & Housing Commission, Toufika Hussein v New South Wales Land & Housing Commission and Mohamed Hussein v New South Wales Land & Housing Commission deliberately charged grossly excessive amounts of costs. Signed Dated: 20 January 2005' 11 Mr McIntyre in referring the matter to the LSC purported to act in accordance with his obligations under s 208Q of the Legal Profession Act 1987 (the Act) which provides: '(1) If a costs assessor considers that any conduct of a barrister or solicitor involves the deliberate charging of grossly excessive amounts of costs or deliberate misrepresentations as to costs, the costs assessor must refer the matter to the Commissioner. (2) For the purposes of this Act, the deliberate charging of grossly excessive amounts of costs and deliberate misrepresentations as to costs are each declared to be professional misconduct.' 12 It is clear that although Mr McIntyre examined the solicitor/client bill of costs in each matter, he did not assess such bills. He restricted himself to assessing the party/party bill of costs. 13 It would appear that at the time the application was made the only additional material available to the LSC was the affidavit of Mr Stephen Anthony Mark, Legal Services Commissioner, sworn 25 September, 2006. That affidavit relevant provides: 'On 25 September 2006, I Steven Anthony Mark, Legal Services Commissioner, of Level 15, 8-12 Chifley Square, Sydney, do solemnly, sincerely and truly affirm and declare that: 1. I am the Legal Services Commissioner appointed by the Governor of New South Wales pursuant to section 686 of the Legal Profession Act 2004 ('the Act'). 2. On 23 December 2004 I received a letter from Mr John McIntyre, Solicitor and Costs Assessor, dated 22 December 2004 referring to me conduct by a solicitor, Maria Bechara, and a barrister, Serge Galitsky, as conduct potentially involving the deliberate charging of grossly excessive amounts of costs or deliberate misrepresentations as to costs. The referral was made pursuant to section 208Q of the Legal Profession Act 1987 then in force. A copy of Mr McIntyre's letter of referral is annexed hereto and marked 'A' (pages 1-2). 3. On 20 January 2005, I initiated a complaint against Mr Galitsky pursuant to section 134 of the Legal Profession Act 1987. A copy of the complaint is annexed hereto and marked 'B' (page 3). 4. The person who investigated this complaint on my behalf is Ms Samantha Gulliver. 5. By letter dated 20 January 2005, I asked the Costs Assessor to provide copies of his Certificate as to Determination of Costs and accompanying Reasons. A copy of my letter to the Costs Assessor is annexed hereto and marked 'C' (page 4). 6. The complaint was forwarded to Mr Galitsky on 31 January 2005. A copy of my letter to Mr Galitsky is annexed hereto and marked 'D' (page 5). 7. By letter dated 1 February 2005, the Costs Assessor provided me with his Certificates as to Determination of Costs, Reasons and marked up bills. A copy of his letter together with enclosures, is annexed hereto and marked 'E' (pages 6-210). 8. Mr Galitsky responded to my complaint by letter dated 24 February 2005. Copies of this letter and enclosures are annexed hereto and marked 'F' (pages 211-222). 9. Further correspondence ensued between myself and Mr Galitsky. Copies of this correspondence are annexed hereto and marked: ' G ' Letter to Mr Galitsky dated 8 March 2005 with enclosure being Amended Record of Decision (pages 223-225). 'H' Letter from Mr Galitsky dated 5 April 2005 (pages 226-228). 'I' Second letter from Mr Galitsky dated 5 April 2005 (page 229). 10. On receipt of the Costs Assessor's referral, I had also initiated a complaint against the instructing solicitor, Maria Bechara. My investigation into the complaint about Ms Bechara proceeded concurrently. During the course of that investigation I obtained all available transcripts of the hearing. These are annexed hereto and marked ' SAM 1 '. 11. Having perused the transcripts and other evidence, I wrote to Mr Galitsky on 5 April 2006 inviting his submissions in relation to section 155 of the Legal Profession Act 1987, which applies to this complaint by virtue of clause 16 of Schedule 9 to the Legal Profession Act 2004. A copy of my letter is annexed hereto and marked 'J' (pages 230-2323). 12. Mr Galitsky responded by letter dated 3 Mary 2006. A copy of his letter is annexed hereto and marked 'K' (pages 233-236). 13. On 3 July 2006 I determined that there was a reasonable likelihood that Mr Galitsky would be found guilty of Unsatisfactory Professional Conduct or Professional Misconduct. My record of decision and my reasons for decision are annexed hereto and marked 'L' (pages 237-238). 14. Mr Galitsky is a legal practitioner to whom Part 10 of the Legal Profession Act 1987 applies. The certificate of his admission is annexed hereto and marked 'M' (page 239).' 14 That affidavit contained no additional evidentiary material relevant to the allegation that Mr Galitsky deliberately charged grossly excessive amounts of costs. 15 The observations contained in Mr McIntyre's letter of 22 December 2004 are later reflected in his affidavit of 3 August 2006 in which he sets out his qualifications. 16 That affidavit is in the following terms: 'On 3rd August 2007, I, John Eric McIntyre, Solicitor, of Chalet 9, 'Ski-In Ski-Out', Crackenback Drive, Crackenback Ridge, Thredbo Village say on oath: 1. I am a solicitor of the Supreme Court of New South Wales, admitted on 9 February 1973 and have held a practising certificate since that year. A copy of my curriculum vitae is annexed hereto and marked 'A'. 2. I have been provided with a copy of the Affidavit of Steven Anthony Mark affirmed on 25 September 2006 which annexes certain documents obtained during the course of his investigation. I will refer to some of those documents in this Affidavit, using the notation 'Mark Annexure 'A'' or as the case may be. I confirm such documents are the same as those contained in my file relating to the costs assessments and, where such documents emanated from me, adopt them as my own. 3. On 19 September 2002 I was appointed as a costs assessor by the Chief Justice of New South Wales under section 208S of the Legal Profession Act 1987 ('the Act'). I continue to hold that appointment. 4. Since my appointment I have undertaken approximately 150 party/party assessments of which approximately one third have involved personal injury matters. 5. On 31 December 2003, the Manager, Costs Assessment referred to me the following Applications for Assessment of Party/Party Costs. Costs Assessment File Number 92092/03 – Fatemah Hussein v NSW Land and Housing Corporation. Costs Assessment File Number 92093/03 – Mohamed Hussein v NSW Land and Housing Corporation. Costs Assessment File Number 92094/03 – Toufika Hussein v NSW Land and Housing Corporation. 6. The Party and Party Bill of Cost in each matters bears what purports to be the signature of Maria Bechara of Bechara and Company. 7. During the course of the assessments, I called for and sighted pursuant to section 208B of the Act, inter alia, the solicitor's costs agreement and the solicitor/client bill of costs. I was aware at that time that all 3 matters related to personal injury claims by three members of the same family against the same defendant which had been heard together by DCJ Walmsley. 8. My examination of the solicitor/client bill of costs in each matter revealed numerous examples in the bill of costs where each of the three clients had been separately charged at the full agreed rate for attendances which were carried out simultaneously. In particular, the total time spent at Court by the solicitor for the plaintiff instructing counsel on the hearing was not divided between the three cases. The same applied to counsel's fees, This resulted in the solicitor charging amounts up to $6,000.00 for one day in Court. The barrister also charged the three clients on the same basis. On the basis of that information I formed the opinion that the solicitor and the barrister involved in this litigation may have engaged in conduct involving the deliberate charging of grossly excessive amounts of costs. 9. Whilst I did not assess the solicitor/client bill of costs, it was in my opinion readily apparent from an examination of the solicitor/client bill of costs in each matter that both the solicitor and counsel had failed to properly apportion the amounts claimed over the three matters when that clearly should have been done in light of the nature of the claims and the fact that all three matters were heard together. I found, when considering the bills of costs prepared for the party/party assessment that again many items, although describing work which was only performed once, were in fact claimed three times, that is in each bill. In particular, there was again no apportionment of the time spent in court by both solicitor and barrister. 10. Following the aforesaid examination, I was satisfied there was sufficient information to require me to refer the matter to the Legal Services Commissioner under section 208Q of the Act and did so by letter dated 22 December 2004 (Mark Annexure 'A'). 11. I issued Certificates as to Determination of Costs and Reasons in each of the party/party costs assessments on 22 December 2004 (Mark Annexure 'E'). 12. To the best of my knowledge none of the plaintiffs in the proceedings sought a review of my Determination.' 17 Mr McIntyre was obliged to refer to the Commissioner conduct of a barrister which he considered to involve the deliberate charging of grossly excessive amounts of costs. 18 However, his letter of 22 December 2004 and his subsequent affidavit merely suggests that the barrister 'may' have engaged in such conduct. 19 He went on to say 'I do not have sufficient information to determine whether or not the conduct was deliberate'. 20 A serious question arises as to whether Mr McIntyre's reference to the LSC was valid. 21 Despite this entirely equivocal referral by Mr McIntyre, Mr Mark, the Legal Services Commissioner (LSC) responded by letter of 21 January 2005 wherein he stated: 'It is my normal practice when a matter is referred by a cost assessor pursuant to s208Q of the Legal Profession Act to initiate a complaint pursuant to s134. I have done so in this case'. 22 It will be seen from Mr Mark's Record of Decision that he determined to initiate complaints that the barrister deliberately charged grossly excessive amounts of costs. No such 'complaints' had been made by Mr McIntyre who had stated in his letter on the 22nd December 2004 'I do not have sufficient information to determine whether the conduct was deliberate'. 23 It took the LSC another 18 months to file the application for an original decision on 25 September 2006. 24 Apparently Mr Mark made no further enquiry of Mr McIntyre as to details of the conduct which prompted Mr McIntyre's referral. 25 It is to be noted that none of the plaintiffs made complaints as to the solicitor/client bills rendered to them, and as to any fees charged by Mr Galitsky. Mr McIntyre was not required to examine the solicitor and client bills. It is difficult to see how such bills were relevant to the task to which he was appointed, i.e. the assessing of the party/party bills of costs. 26 On his own account Mr McIntyre was not engaged in any assessment of the solicitor/client bills. 27 Clearly, the standards and considerations involved in a party/party bill are not necessarily those applied in a solicitor/client bill. 28 The Tribunal has further difficulty in detecting within s 208B of the Act any warrant or requirement obliging Mr McIntyre to call for the solicitor/client bills of costs. When the LSC responded to Mr McIntyre's letter requesting a copy of his reasons for decision – any such reasons could only have related to the party and party bills. 29 Mr Galitsky charged each plaintiff $2,000 a day during the subject hearing, i.e. his brief fee of $1,600 together with an uplift of 25%. This fee was in accordance with his cost agreement. There is no suggestion that the cost agreement was not provided to the plaintiffs. 30 It was his stance that he was not obliged to apportion his fees and to charge each plaintiff for that part of the hearing relating solely to his or her claim. 31 In his request for particulars this was made plain, yet the allegation 'That each plaintiff should be charged those fees solely referrable to their claim and/or a portion of fees common to all three claims' was not supported by any evidence as to the appropriate practice – the appropriate fees structures in similar situations. 32 He provided to the LSC persuasive opinions from highly qualified costs experts in rebuttal of the application. These were clearly expert reports, carefully reasoned and satisfying the criteria for their admissibility. 33 Counsel for the LSC contended that Mr Galitsky grossly overcharged all three equally. 34 It is alleged that he failed to apportion fees common to the three matters and he was obliged to do so in accordance with general equitable principles. Further that he should not be unjustly enriched and the clients not be unfairly burdened by charging each client the total fees of the hearing. 35 The assertion and the opinions expressed by Mr McIntyre in his said letter and affidavit were proffered as the evidence in support of the application. It was in effect contended that he was a costs expert and that his opinions constituted expert evidence which established the application and the particulars. 36 Whilst Mr McIntyre may well be qualified to give expert evidence with regard to some aspects of legal costs, his affidavit proffered as expert opinion evidence with regard to propriety of counsel's fees in this matter does not satisfy the tests which could qualify it as such. 37 The opinions expressed in his letter and affidavit do not meet the requirements of Administrative Decisions Tribunal Practice Note 14 which outlines the procedures that the Tribunal will follow in dealing with expert evidence and expert reports. 38 It is a requirement that the report of an expert witness must specify: The person's qualifications as an expert; The facts, matters and assumptions on which the opinions in the report are based; Reasons for each opinion expressed; Any literature or any other materials utilised in support of the opinions. 39 In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA laid out various criteria: 'The opinion proffered must be wholly or substantially based on the witness's expert knowledge. So far as the opinion is based on facts observed by the expert, they must be identified and admissibly proved. So far as the opinion is based on assumed or accepted facts, they must be identified and proved in some other way. It must be established that the facts on which the opinion is based form a proper foundation for it. The opinion of an expert requires demonstration or examination of the intellectual basis of the conclusions reached, i.e. the expert's opinions must explain how his field of specialised knowledge and on which his opinions are based applies to the facts assumed or observed so as to produce the opinion propounded.' 40 Mr McIntyre's affidavit discloses that he is a solicitor of the Supreme Court of New South Wales, admitted in 1973 and that he has been a costs assessor since 19 September 2002. 41 Since such appointment he has 'undertaken approximately 150 party/party assessments of which approximately one third have involved personal injury matters'. 42 He does not claim to have engaged in any assessments of solicitor client bills of costs and does not assert any prior experience in this regard. 43 In expressing his opinion that Mr Galitsky 'may have engaged in conduct involving the deliberate charging of grossly excessive amounts of costs', he makes no reference to any suggested appropriate scales of fees nor as to any principles or practice governing the charging of counsel's fees, in like matters. 44 There is no assertion that he has compared Mr Galitsky's fees with those charged in other matters in which he has examined the propriety of counsel's fees. Indeed, he does not state that he had ever considered what constituted an appropriate fee on a solicitor and client basis. He makes no reference to having ever encountered a situation where counsel represented more than one client when actions were being heard together. 45 Clearly, the task of counsel in representing three plaintiffs all with causes of actions based on a factual situation peculiar to each of them and with aspects of damage relating solely to each plaintiff was, if not unique, certainly unusual. 46 Seemingly, Mr McIntyre has failed to appreciate that Mr Galitsky was not providing the same legal service to each plaintiff, in that each of them had a claim containing features exclusive to him or her. 47 He had singular obligations to each of them, not merely an overriding common function. 48 There is no suggestion that Mr McIntyre examined the transcript of the six day hearing or that he had any knowledge of how the actions were conducted and what issues were raised in each of the matters. Nor whether counsel had the clear responsibility to ensure that each plaintiff was protected from any adverse effects by reason of the evidence adduced, or sought to be adduced, in another plaintiff's case. 49 He does not set out the factual basis to ground the assertion that '… counsel had failed to properly apportion the amounts claimed over the three cases when that clearly should have been done in the light of the nature of the claims and the fact that the three matters were heard together'. 50 Indeed, he does not demonstrate that he had any real concept of what was involved in establishing liability or damages, other than his statement indicating awareness that the three matters 'related to personal injury claims against the same defendant'. 51 In asserting that counsel had failed to properly apportion the amounts claimed over the three matters, Mr McIntyre does not identify the source of any obligation to apportion the fees in question. He does not refer to any rule of practice, any regulation, or any accepted principle in this regard. 52 Further, he does not demonstrate what would constitute a 'proper' apportionment, assuming such an obligation. 53 Would such an apportionment be related to the complexity of each matter, comparing one with the other, bearing in mind for example the ease or difficulty in establishing liability, the respective quantum of damages, the age and intelligence of each plaintiff, any issues such as contributory negligence, any distinction as to the duty of care and so on? 54 Plainly, if one of the subject plaintiff's actions was short and presenting simple issues, and another plaintiff's case presented greater difficulties, an equal apportionment would appear to be unfair. 55 Mr McIntyre was not qualified by the LSC to express any opinion – apparently no material was provided to him for comment. Indeed, he makes no reference to the response Mr Galitsky made to the LSC, in his affidavit. Presumably he was not provided with it, as clearly he should have been. 56 Whatever expertise Mr McIntyre possessed, seemingly, he made no effort to acquaint himself with full details of the conduct of the three actions, their respective complexity and issues involved. 57 Mr Galitsky provided to the LSC the opinions from Mr King SC to D S Vine-Hall which strongly supported Mr Galitsky's position. In the Tribunal's view, these were opinions which satisfied the criteria for expert opinions. 58 There is no utility in setting out the views of these experts. However, of concern to the Tribunal is that the LSC apparently did not deem it necessary or appropriate to have Mr McIntyre comment upon them, if indeed they were shown to him. 59 It is the firm view of the Tribunal that Mr McIntyre's observations could not be considered as expert evidence. 60 His letter and affidavits do not remotely satisfy the criteria which must be established if his views are to be received as an expert opinion. 61 Mr McIntyre has expressed views without demonstrating any real expertise or valid basis for his opinions. 62 As previously stated, those views were that whilst Mr Galitsky 'may' have deliberated charged excessive fees, he did not have sufficient information to determine whether the conduct was deliberate. 63 On one view, Mr McIntyre's letter was not a referral within the meaning of s 208Q of the Act but merely an expression of concern which should have prompted an investigation and the obtaining of an expert's opinion. 64 As stated, Mr Mark determined that a complaint had been made of deliberate charging of grossly excessive amounts of costs, when no such complaint had been made. 65 Without any further evidence or effort to obtain a valid expert opinion, the LSC instituted the complaint and brought this matter before the Tribunal on the equivocal opinion expressed by Mr McIntyre. Samantha Gulliver investigated the complaint on behalf of Mr Mark, however what, if anything, resulted from such investigation was not placed before the Tribunal. 66 The Tribunal is acutely aware that if allegations in the application are made out then a finding of professional misconduct could follow, with a resultant order that Mr Galitsky was not a fit and proper person to engage in legal practice (s 497 Legal Profession Act 2004). The Tribunal considers that the allegations are so serious and the possible consequences so grave, that it could only find the impropriety charged on the basis of evidence of such persuasive force that it could be comfortably satisfied, that Mr Galitsky's alleged impropriety had been established. 67 The standard of proof is that outlined in Briginshaw v Briginshaw (1938) 60 CLR 336. 68 Simply put, there is no persuasive evidence before the Tribunal which could ground any finding of professional misconduct on the part of Mr Galitsky. 69 It is a gravely serious matter to seek an order that a barrister is guilty of professional misconduct. The Tribunal is seriously concerned that the LSC filed the application and then proceeded with it on such flimsy grounds. Its case was ill conceived and ill prepared. 70 Mr Galitsky should not have been required to face the application and the hearing before this Tribunal. The Tribunal specifically excludes Ms Champion from any criticism as she valiantly represented her client with the deficient material available to her. 71 The Tribunal considers that the LSC did not fulfil the clear duty it owed to the profession, Mr Galitsky and the Tribunal itself in prosecuting this matter without a proper basis for so doing. Orders 1. The application is dismissed. 2. The Tribunal orders the Applicant to pay the Respondent's costs as assessed or agreed. 11/02/2008 - Incorrect spelling of words. 'initial' amended to 'initiate'. 'discloser' amended to disclosure'. - Paragraph(s) Paragraph 9 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.