Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Bar Association of NSW v Ward [2011] NSWADT 33 Hearing dates: 23, 24, 25, 26 November 2009 Decision date: 22 February 2011 Jurisdiction: Legal Services Division Before: W Robinson QC, Judicial Member S Norton SC, Judicial Member L Bubniuk, Non Judicial Member Decision: 1.The Application is dismissed Catchwords: Barrister - professional misconduct - unsatisfactory professional conduct- gross overcharging-vulnerable client Legislation Cited: Legal Profession Act 1987 Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 KB 750 Briginshaw v Briginshaw (1938) 60 CLR 336 D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR198 Leon Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 NSW Bar Association v Meakes [2006] NSWCA 340 Tsigounis v Medical Board of Queensland [2005] QDC 103 Tsigounis v Medical Board of Queensland [2006] QCA 295 Veghelyi v The Law Society of New South Wales (unreported) NSWCA 16 October 1995 BC9505459 Category: Principal judgment Parties: Council of the Bar Association of NSW (Applicant) Mervyn Ward (Respondent) Representation: M. McCulloch SC, T. Berberian (Applicant) M L Williams SC, S A Lawrance, (Respondent) Eakin McCaffery Cox (Applicant) Minter Ellison (Respondent) File Number(s): 082022 REASONS FOR DECISION OUTLINE 1Mervyn John Ward ("the Respondent") was admitted as a solicitor on 22 December 1982 and has practised as a barrister since 1995. He remains on the roll of Local Lawyers. On 25 May 2005 he commenced to act on behalf of Helen Tsigounis in connection with difficulties she was having with her application for registration as a medical practitioner in Queensland. In particular, Ms Tsigounis wished to appeal a decision of the Medical Board of Queensland which required her to undertake a prescribed internship under probationary conditions for a period of 1 year. Initially the Respondent advised his daily and hourly rates for the work proposed and estimated the work required in preparation of an appeal as "about 2 weeks work." The work was expected to be done with some assistance from an instructing solicitor, but from late August continuation of the preparation was on a "direct access" basis. 2The Respondent continued to act for Ms Tsigounis until 12 August when in connection with the anticipated preparation of an Outline of Submissions he reviewed (increased) his proposed charges for the future work, and made a fresh estimate of the work then proposed. Those charges were accepted by and on behalf of the client. By mid October, he had rendered fee notes totalling $51,140.00 and had charged for attendances on 48 separate days, though not all of that work was directly connected with the appeal. On 20 October 2005 he rendered a further memorandum of fees, charged at the increased rates for work undertaken between 5 September and 20 October 2005 in the sum of $100,100.00 inclusive of GST. It is this memorandum alone which is the subject of the Bar Council's allegation of gross overcharging. Shortly after the Outline was completed, the Respondent ceased to act for Ms Tsigounis and ultimately a number of other counsel were engaged both to advise and appear in the Appeal, which was unsuccessful. On 31 October 2005, Ms Tsigounis complained to the Legal Services Commissioner, in part concerning the fees charged by the Respondent barrister and subsequently the matter was investigated by the Bar Council. No application was ever made to have the costs in the Appeal assessed. In July 2008 the Bar Council resolved to refer the complaint to this Tribunal. The Application 3By an Application for Original Decision filed on 12 September 2008 the Council of the NSW Bar Association sought orders: 1) That Mervyn John Ward has engaged in professional misconduct. 2) In the alternative to 1, that Mervyn John Ward has engaged in unsatisfactory professional conduct. 3) Such further or other orders as are provided for in s.562 (2) (a)-(e) or s.562 (4) (a)-(j) of the Legal Profession Act 2004 as the Tribunal thinks fit. 4) An order that the decision in this matter be published. 5) That Mervyn John Ward pay the applicant's costs of the proceedings. 6) Liberty to apply. The sole Ground of the Application was: "Mervyn John Ward (the "Respondent" ) in acting as a barrister for Ms Helen Tsigounis ("Ms Tsigounis"), in the matter of Tsigounis v Medical Board of Queensland [2006] QCA 295 overcharged with respect to the provision of legal services as itemised in his memorandum of fees dated 20 October 2005." The Ground was elaborated by lengthy particulars which gave context to the subject memorandum of fees by chronologically charting the significant events in the course of conduct between Ms Tsigounis and the Respondent from their first meeting on 25 May 2005 until 24 November 2005 when he confirmed he no longer acted for her. They conclude shortly with matters concerning the appointment of other counsel, after the Respondent had ceased to act, the nature of further advice rendered to Ms Tsigounis and with the ultimate dismissal of the appeal by the Queensland Court of Appeal on 15 August 2006. Those particulars are factually uncontroversial and need not be reproduced in extenso here, but are substantially incorporated into the facts below. The one particular with which issue is taken is: "1.26 On 20 October 2005 the Respondent rendered his Seventh and final Memorandum of Fees in the sum of $100,100.00 (incl GST). The fees charged in this memorandum of fees equated to 194 hours and were grossly disproportionate to the time that should have been taken, and the value of the work done" 4By a Reply filed 17 December 2008, the barrister denied Ground 1 and in the particulars to that Reply claimed, in respect of the memorandum of fees dated 20 October 2005, that the rates were not excessive and were within range for counsel of comparable experience; that it was not unreasonable to charge a full daily rate when he had been required to set aside a number of weeks to complete the work; that rates were agreed and the client was under no disability. (We understand in this context that he meant no more than that she was able to litigate in her own right.) Further, he claimed that the time taken to prepare the Outline of Argument was not excessive, or unreasonable, or disproportionate to the time that should have been taken having regard to the volume, difficulty and complexity of the work together with difficulties of dealing with Ms Tsigounis and the absence of an instructing solicitor. In particular he denied that the fees charged in the memorandum of 20 October 2005 equated to 194 hours work. He also responds to the allegation that those fees were grossly disproportionate to the "value" of the work done by suggesting that it is necessary to have regard to Ms Tsigounis's instructions and the "fact" that had the appeal been put in the way advised by the Respondent the fees would have been lower. Background 5On 7 January 1998, Helen Tsigounis, then recently graduated from university, commenced a medical internship at Frankston Hospital in Victoria. The internship was suspended on 16 October 1998 because of concerns about patient safety and her "lack of insight." At the request of the Medical Practitioners Board of Victoria she was examined by a psychiatrist who reported that she did not "currently have any symptoms indicative of a major psychiatric disorder" but there was "evidence of significant personality problems" which raised serious concerns regarding her "ability to take responsibility and function adequately as a medical practitioner." Following further assessments, in February 1999 the Medical Practitioners Board of Victoria determined that she should complete a further 6 months internship and imposed a number of conditions on her registration including ongoing psychiatric review. Apparently Ms Tsigounis was not then able to obtain employment in Victoria and she then went to Greece where she had obtained employment and had further training, returning to Australia at the end of 2001. 6On 15 March 2002 she applied for general registration in Queensland and on 2 April obtained a position at Townsville Hospital in Queensland, however within a short period she was on leave without pay awaiting the outcome of her registration application. The Queensland Medical Board ("the Board") thus became aware of her earlier Victorian history. She was referred for a psychiatric examination and on 23 April 2002 was diagnosed as having a paranoid personality disorder. The Board registered Ms Tsigounis as a "general registrant" but imposed extensive conditions on her registration including work and psychiatric supervision, so that when she recommenced work at the Townsville Hospital in June 2002 it was as an intern. She later applied for general registration without conditions, but was not successful. 77 By May 2003 she had resigned from the Townsville Hospital and gave notice to the Board as to the completion of her internship and sought registration without conditions. However at about this time the Board became aware of a number of complaints about Ms Tsigounis's work performance whilst employed at the hospital, which again raised issues concerning her "insight" and these complaints were investigated. Her position then became more complex as her earlier registration expired on 30 September and she apparently did not apply to renew it. Suffice it for present purposes to say that by March of 2004, the Board had determined that Ms Tsigounis had not satisfactorily completed her internship requirements in that she had not reached the necessary level of competence to practice unsupervised and did not have the ability to practise medicine without undue danger to the public. 8Ms Tsigounis appealed to the District Court against the Board's March 2004 determination and on 23 August 2004 the matter commenced hearing before Judge Wall QC and after 3 days was adjourned until 31 January 2005. Once resumed Ms Tsigounis appeared unrepresented for the next 13 days, cross examining the Board's witnesses and putting her case in person. Some 22 witnesses were called and the hearing concluded on 7 April. On 11 May 2005, His Honour delivered his judgment, see: Tsigounis v Medical Board of Queensland [2005] QDC 103, in which he confirmed the decision of the Medical Board that Ms Tsigounis's internship had not been satisfactorily completed but the cancellation of her registration was set aside in favour of a direction to extend her probationary conditions of internship for one year, thus providing her with a further opportunity to meet practice standards. The principal considerations leading to this outcome involved His Honour in determining a number of factual disputes, either about the periods of time actually spent by Ms Tsigounis in various medical specialties during the required internship, or, consideration of a separate category of some 7 incidents raising questions of Ms Tsigounis's unsatisfactory performance during internship. A fuller account of the relevant history appears in the opening pages of that judgment. 99 On 25 May 2005 Ms Tsigounis and the Respondent first met and conferred for a full day. She gave him a copy of Judge Wall's decision of some 83 pages, annotated in her handwriting, commencing above the headnote of the first page with the inscription: "Severe manipulation of facts. This is a wich (sic) hunt by Judge Wall, out of touch with the totality of the evidence." The nature and form of these comments is characteristic of much of the extensive written communication emanating from Ms Tsigounis thereafter. On that occasion she also gave him a number exhibits from the proceedings and the Respondent was retained to advise on the prospects of an appeal from that decision to the Queensland Court of Appeal and the Respondent informed Ms Tsigounis that the services of a solicitor would be required. Further conferences followed on 26, 27 and 30 May. On 3 June 2005 the Respondent provided Ms Tsigounis with a fees agreement which specified rates of $2,800.00 per day, stated to be between 10am and 4 pm, and otherwise at a rate of $350.00 per hour plus GST at 10%. An estimate of 2 weeks work for preliminary investigations, reading, research, conferences and drafting a Notice of Appeal together with an estimate of $30,000.00 was provided for that part of the work. The Respondent requested that $15,000.00 be paid and that a further $6,000.00 be paid by 8 June 2005. 10On or about 6 June 2005 a Mr Philip Leach, Solicitor, of Gateway Lawyers was retained, he having acted previously for a time in the preparation of the proceedings before Wall DCJ. By 7 June 2005 a Notice of Appeal including an Application for Leave to Appeal had been prepared by the Respondent and was forwarded for filing in the Court of Appeal. On 9 June a letter of advice was forwarded to Mr Leach and on 10 June 2005 the Respondent rendered his first Memorandum of Fees in the sum of $15,510.00. We note at this juncture that Mr Leach's short evidence was to the effect that Ms Tsigounis was a rude and difficult client and that in Mr Leach's view the Respondent, who was apparently previously unknown to him, was both competent as a barrister and reasonable with regard to his charges, such that Mr Leach chose to brief him in an unrelated matter. 11On or about that same day, Ms Tsigounis separately instructed the Respondent to prepare supplementary submissions concerning costs orders to be made in the District Court proceedings, and these were prepared on or about 16 June and were followed on 17 June 2005 with the rendering of a second fee note for $6,930.00 (including GST) for these separate services, which were not directly related to the preparation of the appeal. Apparently at about this time, the Respondent became aware that Ms Tsigounis was an undischarged bankrupt and on 21 June the Respondent entered into a fees agreement with her father, Mr Dennis Tsigounis. On 29 June a third fee note was rendered in the sum of $3,520.00 including GST and the Respondent advised Ms Tsigounis's father "there can be no guarantee provided that an outcome will result in Helen obtaining general registration" On 30 June 2005 a fourth fee note was rendered for $6,160.00 including GST. 12On 3 August the Respondent appeared before His Honour Judge Wall QC via a telephone conference link and was successful in obtaining an order for reduced security for costs that had earlier been provided by her brother-in-law, Peter Konidaris. The following day, the Respondent provided an 11 page letter of advice forwarded to Mr Leach, reporting on the previous day's orders and advising that he would be reserving 4 weeks to prepare an Outline of Submissions. That correspondence also sets out an extended appraisal of the prospects for success of the Appeal. The Respondent adverted to as yet unconsidered possibilities for the introduction of fresh evidence, but in the overall advised on the prospects for success. Without reproducing the whole of that correspondence, it is sufficient an insight into his expressed view and knowledge of the matter by this date that he advised in part: "A problem of some significance which will be confronted in the Court of Appeal, is that the Court will be mindful that there was persuasive evidence before the Trial Judge which was relied upon in making the Court's findings that some further period of internship was necessary...........Whilst it has been acknowledged that a potential outcome in the Court of Appeal is that the Court may set aside the decision of Judge Wall QC refusing general registration, I am of the view that such an outcome is most unlikely................For these reasons I remain of the view which I previously expressed that it is most unlikely that the Court of Appeal will grant general registration" This letter also notes that Ms Tsigounis has already indicated her intention to go to the High Court should she not succeed in obtaining general registration in the Court of Appeal. 13Despite the rendering of clear advice indicating the lack of good prospects for success, it became plain Ms Tsigounis was determined to prosecute the appeal and extensive preparations continued. By letter dated 12 August 2005 addressed to both Ms Tsigounis and her father, the Respondent gave notice of his intention to increase his future fees as follows: "Hearing Fee I shall charge a fee of $3,000.00 plus GST for each day or part thereof which is reserved for appearances in Court, whether in person, by means of video-link or telephone link between court hours of 10 am and 4 pm. Otherwise, the hourly rate specified herein of $350 per hour will be charged for attendances outside of Court hours on a day which has been reserved. Estimate of fees - incidental attendances - Outline of Submissions ...I have previously stated , prior to receiving those documents [the paginated bundle and court record book]...that a period of not less than three and in all likelihood four weeks will be required for reading and preparation of the Outline of Submissions. Having given further consideration to the matter I consider that it will be necessary to reserve a period of four weeks. I shall charge the Usual Daily Fee for each day reserved, being a total of twenty days, together with any actual attendances outside of usual Court hours between 10am and 4pm, which attendances shall be charged at the hourly rate. On the basis that I reserve a period of four weeks, the sum of $60,000 plus GST of $6,000 in the total sum of $66,000 must be provided before I reserve the time." 14Consistent with this estimate an interim memorandum of fees was issued on 2 September for $66,000. A copy of the revised fees agreement was returned to the Respondent signed by both Ms Tsigounis and her father. In his affidavit of 28 February 2009, the Respondent swore that the rates incorporated in the letter of 12 August were the standard rates he was charging other clients at the time. He also made plain in both written and oral evidence before us that the daily rate was for a 5 hour day, as although stated to be from 10am to 4pm, he expected to have a 1 hour lunchbreak from 1pm to 2pm, consistent with normal court practice. 15Mr Leach's retainer was terminated in August so that the Outline of Submissions was prepared in absence of solicitor input, or perhaps more significantly in this case, without the filter between client and barrister that traditionally characterises appellate work of this type. In a letter of 8 September the Respondent makes clear, or repeats his requirements, that he expects a solicitor to be retained and that the payment of the estimate of $66,000.00 needs to be forthcoming if he is to set aside the estimated time. The Respondent makes it plain in this correspondence that he is prepared to return his brief should his conditions not be met. In fact no solicitor was ever appointed to replace Mr Leach and the absence of an instructing solicitor apparently led to repeated drafts and repeated occasions upon which Ms Tsigounis would seek to have inappropriate considerations incorporated into the submissions. It would appear that in respect of at least one allegation sought to be included by Ms Tsigounis the Respondent was forced to refuse point blank as a matter of observing ethical requirements. During this period the Respondent apparently sought the assistance of junior counsel to supplement his own efforts, and a Mr Foel was engaged and paid from the Respondent's own pocket. The detail and volume of this extra input is not in evidence, but its mere existence suggests the Respondent was not coping with the volume of work he considered was required. The Respondent finally completed the Outline on 21 October and forwarded it to Ms Tsigounis. An appeal of the kind requires leave of the Court and operates as a re-hearing but not a hearing de novo. The Outline prepared by the Respondent was prepared on the basis that the question of leave and the substantive appeal would be heard together. The substance of the Outline was that there was a denial of procedural fairness, the weight of evidence, which was examined in detail, did not support the findings of fact made, and the findings of fact fell short of the Briginshaw standard. 16No affidavit from Helen Tsigounis was tendered in these proceedings, nor was she called to give evidence before us. For the most part, the Bar Council relies on uncontroversial evidence substantially introduced by way of affidavit, including the evidence of formal matters given by Philip Alan Selth and the chronological documentation of the course of events as between Ms Tsigounis and the Respondent as adduced through the affidavit of Ms Rosemary MacDougal, Solicitor for the Applicant. The evidence the subject of controversy adduced on behalf of the Applicant was that of Michael Robinson, barrister at law, who was called as an expert before the Tribunal on matters relating to costs, and in particular to be cross examined on his affidavit sworn 27 May 2009, which became Exhibit C and C1. 17Mr Robinson was admitted as a barrister in NSW in 1959, in the ACT in 1963 and has continuously practised as a barrister since then, largely in areas of common law and personal injury. He has in addition, approximately 10 years experience as a District Court and Local Court Arbitrator to 2004 and more recently and relevantly as a Supreme Court Costs Assessor from 1995. In association with this experience he has been a Review Panellist since 1998 and has been appointed to the Costs Assessor's Rules Committee since 1998. Mr Robinson indicated in his Curriculum Vitae that he completed between 50 and 80 costs assessments and reviews per annum, most including a determination of whether counsel's fees were fair and reasonable. He was asked to bind himself by Schedule K to the Supreme Court Rules dealing with expert witnesses, to assume a chronology consistent with the facts of the Tsigounis matter and to provide a report covering the time taken and charges made by ordinarily competent barrister in the Respondent's circumstances. He had access (as have we) to the 17 volumes of transcript from the District Court case and relevant correspondence including the correspondence with legal advisors post-dating the Respondent's involvement. In all, he provided 4 reports to the Bar Council. 18Clearly Mr Robinson has vast experience and a respected expertise in the field of costs assessments, and his was the only evidence of that calibre placed before us. The very limited and largely irrelevant other evidence relating to rates of charge which was given by witnesses called by the Respondent lacked the weight and depth of experience provided by Mr Robinson's expertise as a costs assessor. Nevertheless we think it pertinent in the present circumstances to give full weight to the guidance given by decided cases concerning the nature of costs assessments in the context of disciplinary proceedings. That is because the fact that a costs assessor determines, or in this case opines, that a term or terms of a costs agreement is not fair or reasonable does not, and certainly in the individual circumstance need not equate to a finding of misconduct. Although expressed in the context of the Court's jurisdiction to set aside a costs agreement for unreasonableness, the comments of Ipp J in D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 are apposite and instructive in this context when His Honour said at 208: "The standards applied under the Court's duty to monitor taxation of bills of costs and costs agreements and the court's duty to supervise the disciplining of legal practitioners are not necessarily the same and do not serve identical purposes. A fee that a solicitor may seek to charge by way of a bill of costs may, upon taxation, be found to be unreasonable and therefore subject to appropriate reduction. It does not, however, necessarily follow that the fees so charged by the bill of costs are so excessive as to constitute a breach of ethics. The test for determining whether excessive or unreasonable overcharging constitutes professional misconduct would generally be more stringent than that which is applied when determining whether the amount claimed under a bill of costs or under...a costs agreement should be reduced, or whether the costs agreement should be cancelled. What is lawful may not necessarily be ethical, and, indeed, what is unethical may not necessarily be unlawful." Proof of a costs agreement is no bar to disciplinary proceedings involving complaints of overcharging, as in every case the relevant enquiry is whether the lawyer has charged fees grossly exceeding those that would be charged by lawyers of good repute and competency. It is not a question of whether particular mechanistic requirements have been followed - but a more global enquiry of the particular context and circumstances. In this case it is not part of the complaint before us that the Respondent has in any way failed to meet the requirements of the regulatory regime for disclosure and estimate in relation to the work proposed to be done. 19The Applicant's approach before us to the issues for determination, using the common law test is, did the Respondent's fees rendered as per the 20 October invoice amount to overcharging; if so was it gross overcharging? If gross overcharging is established, did the overcharging amount to professional misconduct or unsatisfactory professional conduct, the definitions in ss.496 and 497 of the Legal Profession Act 1987 ("the Act") being such that it may be either. Further, it was put to us that consistent with earlier authority it was open to the Tribunal to find that Ms Tsigounis was a "vulnerable" client and that if the charges were far beyond what is reasonable, that the conduct was more likely to be characterised as professional misconduct. 20The foundation submission for the Applicant is that the fees charged in that one invoice are "grossly excessive" and therefore constitute "gross overcharging." This allegation essentially has 2 components in context, namely that the $600.00 hourly rate charged within the "usual daily rate" of $3,000.00 for 5 hours work, is grossly excessive, and, that charges were made for an excessive number of hours. It was submitted and we accept, that the recent statement of the test is usefully found in Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 where Beazley JA stated (at 55-56) that overcharging involves a comparison of two figures: the amount in fact charged and the amount which was in all the circumstances reasonable to charge, followed by an evaluation of whether the overcharging was so excessive as to be characterised as "gross." Of further significance for this matter is the statement of the majority in the same case that for misconduct to be found, not only must the legal practitioner be found to have deliberately charged the relevant costs, in the sense that the relevant account had deliberately rather than accidentally been composed or forwarded an excessive amount, but that it is necessary also to demonstrate that the practitioner either knowingly or recklessly overcharged. 21In his evidence, Mr Robinson reviewed the relevant considerations stated in ss.208A, 208B and 208C of the Legal Profession Act 1987 (it being common ground in the proceedings that the conduct under consideration had occurred before the effective date of commencement of the 2004 Legal Profession Act) and presented the view that the initial costs agreement in this case was not unjust or unreasonable but that in his experience, $350.00 per hour plus + GST was a "top of the range" hourly rate for work of the kind. He gave evidence of his view that the final memorandum amounted to gross overcharging, criticising separately both the rates of charge pursuant to the 12 August agreement (calculating the new daily fee as representing $600.00 per hour) and the number of hours charged for to perform the work of preparing the Outline of Submissions. 22He also thought that as a good deal of the preliminary work had been done by 5 September, the Respondent must have been familiar with materials as he was then able to give the advice: "I consider strong grounds exist as to why leave should be granted." Mr Robinson also considered it relevant in this regard that the Respondent had already charged $51,040 in "familiarisation" work, that is to say the preliminary work charged for in the earlier fee notes. Particular reliance was placed on Mr Robinson's expressed view that it is impossible to conclude that the approximately 194 hours he calculated was charged for in that final memorandum, was a reasonable preparation time. He estimated, in light of the circumstances as he calculated them, that 100 hours was more than sufficient to complete the work undertaken and in his view this was a generous estimate, as he had in his own calculations allowed for the obvious reality that Ms Tsigounis was a difficult client who made constant interruptive demands on her legal advisor. Indeed in recognition of this problem, Mr Robinson said he had factored in 40 additional hours to take account of the extra time spent in dealing with the client. He incidentally made plain in this regard his view that the Respondent had failed in effect to exercise sufficient control over the lengthy client interruptions. We note that the 100 hour estimate is exactly the initial estimate made by the Respondent himself when outlining the need to set aside 4 weeks for preparation, that being the equivalent of 4 weeks at a minimum of 25 hours per week. 23In total, Mr Robinson presented the view that by his calculations the Respondent had charged for something of the order of twice a reasonable amount of time for the preparation. Additionally, we were invited to find that the charges were excessive having regard to the lack of "value" as judged by the lack of merit & utility of the work, in this regard criticism being made of the focus and emphasis given to factual matters in an appeal, together with the ultimate lack of utility of the submissions having regard to the outcome of the matter. By that time of course, the Respondent was no longer responsible for orally delivering the submissions which by then, had gone through and been much altered by the hands of other lawyers, so that there is a considerable disconnect between his work and what ultimately transpired before the Court of Appeal. 24It is well settled that the imposition of onerous duties on lawyers are in part a recognition that clients often place considerable trust in lawyers, including trust in relation not only to significant financial affairs, but in matters of emotion and conscience and by that circumstance lawyers are often in a position of considerable power over their clients' interests. In the submissions for the Applicant some emphasis was placed on the invitation for this Tribunal to find that Ms Tsigounis was a "vulnerable" client with regard to the subject charges, that submission being based on the passage in Vegheli v The Law Society of New South Wales concerning the trust reposed in solicitors in which it was said: "...Clients are, or may frequently be, in a vulnerable position vis--vis their solicitors; presumption of undue influence is, I think, based at least in part on the fact that when making decisions, clients ordinarily or at least frequently place their trust in their solicitors. They ordinarily are not in a position to know without investigation what work must be done; what charges are fair and reasonable; they ordinarily assume that the solicitor will make only such charges" In our view these considerations are not entirely applicable to Ms Tsigounis in the ordinary sense. We have not had the opportunity of direct observation of her; however the evidence before us indicates she is apparently a mature woman of high intelligence who has had a tertiary education, including a medical degree. She obviously has considerable personal fortitude, demonstrated by her taking on the litigation in the District Court in person having sacked the lawyers who had been appearing for her. Not only had she large personal experience of the conduct of the litigation, having appeared in person for a number of weeks, but she had a detailed knowledge of all of the factual matters within the litigation. She was involving herself literally day to day in the minutiae of the course that was being taken, to the extent that we strongly have the impression that it was she who was driving, or attempting to drive, the work performed by the Respondent, not the other way around. 25A further unusual aspect of the factual matrix we take into account is that Ms Tsigounis not only has a history of experience in the hiring and firing of legal advisors, well beyond the experience of most clients; she was also far from alone as regards her pursuit of the litigation. It is plain from the evidence before us that she had the benefit of her father's ongoing involvement, he being the principal source of ongoing funding of the litigation and a second mind in Ms Tsigounis's interest who received the benefit of the advice tendered from time to time. In addition, her brother-in-law, Mr Peter Konidaris, a solicitor and partner of PricewaterhouseCoopers was active in her interest, conferring with the Respondent and ultimately providing the lump sum to secure the very preparation time involved in the Outline of Submissions. Apart from these relatively close family members being active in Ms Tsigounis's interest in dealings with the Respondent, there is some evidence to suggest she was also receiving assistance from other lawyer acquaintances in this period. 26Having regard to the whole of the evidence, we are of the view that Ms Tsigounis was from their very first conference in May, known to the Respondent to be a person who had been assessed in the past as either having a psychiatric problem or a personality disorder. This much is plain from the documents under consideration from the outset and should have given rise to circumspection if not outright caution in dealing with her. We are also satisfied that it would have been evident from early in their association that she was obsessive in regard to the litigation and unwilling to take and sensibly act upon legal advice, or even to act so as to secure her own interests other than by means of litigation. This feature of her behaviour alone made it at the very least inappropriate, that she was ever accepted as a client on a direct access basis and we are alarmed that the Respondent was careless of both her and his own interests in that regard. However, there was no evidence from Ms Tsigounis herself, or, medical evidence referable to the period under consideration. Thus taking into account all of the aspects of her situation, experience and support recounted above, we are not satisfied that any vulnerability she may have had has been demonstrated such as imposed special obligations on the barrister in relation to the 20 October fee note, or such as need feature in our determination of the ultimate issues. 27Returning to the base question of the characterisation of the increased hourly rate of $600.00 as a component of the increased daily rate to $3,000.00, we have given particular consideration to a number of matters of context. First, the increase comes at a relatively late time in the fairly slow progress towards the actual hearing of the appeal, however we are not persuaded that this proposed increase was sought or imposed at a time so late in the preparation that Ms Tsigounis had no alternative but than to submit to the fresh agreement. Indeed, as events transpired, she subsequently made numerous changes to her representation before the actual hearing of the appeal. From the evidence before us it is plain that she consulted with Mr Charles Waterstreet, barrister, engaged for advice both Dr Sarah Pritchard and Mr Bret Walker SC and, ultimately, engaged and was represented at the hearing by Mr Morris QC and his junior, Mr Jurth. The history of the matter itself demonstrates to our satisfaction that there was no effective element of duress in the timing of the introduction of the new fees, and we are well satisfied that she had an alternative to accepting the Respondent's proposed agreement and was experienced in seeking advice and able to exercise that alternative. 28Secondly, the Applicant's case as propounded through the evidence of Mr Robinson is that the initial costs agreement containing rates of $350.00 per hour and $2,800.00 per day, was fair and reasonable. In regard to the revised fees, Mr Robinson speculates that had there been an Assessment of Costs, it might have been an option for Ms Tsigounis to argue that the agreement was unjust - however he acknowledges that this could well be met with the counter argument that she was well aware of that they were likely to run in the order of $60,000.00 plus GST. The added difficulty standing in the way of the Tribunal giving this any weight is that this point, however much born out of Mr Robinson's experience in these matters is in this case entirely hypothetical, since no costs assessment was ever applied for or performed and accordingly is not in evidence for consideration as a factor by the Tribunal in weighing the opposing points of view presented before us. 29It was repeatedly emphasised to us in submissions by the Applicant's Counsel that it was no part of the Applicant's case that the charges made in the memorandum of 20 October were fraudulent, in the sense that time was charged for periods not actually spent in performing preparation on behalf of Ms Tsigounis, and the documents reveal that on inspection of the Respondent's diaries, the Bar Council was satisfied that during the period covered by the 20 October memorandum, that he worked almost exclusively on Ms Tsigounis's matter. Necessarily the propounded vice must be found in the rates of charge themselves or in the numbers of hours charged. In examining the revised proposal, curiously, the hourly rate for partial days and hours outside the "usual daily rate" remained at the $350.00 previously charged. Mr Robinson has no quarrel with the $350.00 hourly rate as a maximum having regard to such factors as the seniority and experience of the respondent, together with the objective difficulty of the work to be undertaken. As the new fee proposal makes no change in that component, it seems to us it would be illogical to suggest it later was a charging rate which could amount to overcharging or be of itself a component of an excessive charge. 30Thus as we see it the component of the charges which grounds the Applicant's case is in reality solely the daily rate heralded by the letter of 12 August and actually charged for in the October fee note. This represents an increase of $200.00 per day for a 5 hour day over the fee regime which had been in place previously, about which no complaint is made. We do not understand Mr Robinson to characterise the rate thus by specific comparison with the earlier rate, but by a straightforward rejection of the appropriateness of an hourly rate of $600.00. Even if we were minded to accept this proposition for itself, given that we are urged, correctly in our view, to consider each of these components in context, we are at a loss to understand how an increase of $200 within a daily fee from $2,800.00 to $3,000.00 can be appropriately characterised as "grossly excessive," representing as it does less than a 10% increase in the daily rate. Even if an increase of that relatively low order of magnitude was to take an acceptable daily charge outside the permissible range and to a level which could be considered beyond fair and reasonable, or excessive, we are unable to see how such a small proportional increase could found a description of "grossly excessive." This is all the more so when the daily rate is the only component of the charges in fact increased and the hourly rate outside full 5 hour days is calculated in precisely the same rate and manner as previously. 31That leaves for consideration the issue of what was a reasonable time component of charge for the October memorandum. The principal consideration advanced here is that the work carried out by the Respondent was of little value, as, amongst other defects, the written submissions filed by Mr Morris QC who ultimately appeared bore little resemblance to those prepared by the Respondent. In addition to Mr Robinson's own calculations and expressed views on the number of hours charged for as discussed above, we note the criticism advanced in the advice of Mr Walker SC that the submissions were far too long and advanced purely factual arguments inadmissible or inappropriate to a statutory appeal of this type. In this regard, specific reference is made to s.119 (1) of District Court Act (Queensland) and the usual proviso to which prohibits the Court of Appeal from drawing inferences of fact inconsistent with findings of fact made by the judge. These observations were of course in the context of his exhortations to Ms Tsigounis not to expend money on further legal fees and to get on with accepting conditions which may have led to her registration. We have already made note of the Respondent's similar urgings to his client. We also observe that it is not uncommon in the hearing of appeals for advocates to "dress up" issues of fact as questions of law where there is a sense of unease engendered by uncomfortable facts. 32Commencing with the terms of the relevant memorandum, we dissect its charges as made up of 24 days of 5 hours charged at the $3,000.00 daily rate being a total of 125 hours added together with a further 38 hours charged at the lesser rate of $350.00 per hour, whether charged as an addition to the "usual daily rate" or referable to days where the Respondent did not charge for a full day. This gives a total of 163 hours charged at a mixture of the "acceptable" and "unacceptable" rates and is somewhat short of the calculation made by Mr Robinson, and objected to, correctly in our view, by the Respondent. Certainly even if we were to accept in its entirety Mr Robinson's approach, this falls well short of an overcharge which is a multiplier of the appropriate fee, as for example that cited by the Court of Appeal in paragraph 79 of NSW Bar Association v Meakes [2006] NSWCA 340 where on Mr Robinson's evidence the charge made was 4 times what was appropriate. It still exceeds considerably the benchmark 100 hours Mr Robinson urged us to allow for the tasks undertaken, but falls considerably short of a doubling of his permissible figure. 33As regards the consideration of the outcome of the matter, it is appropriate to note that at all times in his written advices, the Respondent was realistic and correct in his assessment and advice to the client that the appeal was of limited merit and unlikely to bring about the desired result. It has not and could not fairly be said that he encouraged the litigation, though Mr Robinson has made criticism that the Respondent was insufficiently strident in his efforts to have her take an alternative course. We understand the sense of frustration that lies at the base of this criticism and have some sympathy for that view, but do not consider it appropriate to take such a failing into account in our overall assessment. 34We also find it difficult to give any appropriate effect to Mr Robinson's suggestion that existing "familiarity" due to the previous work undertaken should be factored into the assessment of the appropriate times spent in the performance of this aspect of the work. We are cognisant that there is some legitimacy in this view, though it is not a factor easy to quantify. From our own experience we would say that it is one thing to have a broad experience of and familiarity with the subject matter of a client's litigation, but it is another altogether to be required to examine in detail and draft afresh from a large volume of material not of a lawyer's own making. In this case the source material also suffers from the inevitable deficiencies of litigation conducted in person by a lay client and we take into account the Respondent's assertion, corroborated by Mr Leach, that his client could not be relied upon to provide factually correct information as she pressed for the incorporation of her views into the submissions, and he was constantly obliged to check outside her instructions. Moreover, that ultimately Ms Tsigounis's appeal was rejected on a basis not argued by the participants and not apparently considered or advised on by any of those who advised Ms Tsigounis following the termination of the Respondent's retainer seems to us to make this aspect of the outcome singularly inappropriate to lay solely at the Respondent's door in a proceeding of this nature. 35In coming to our final conclusions we bear in mind the standard of proof required in matters such as the present and the considerations identified in Briginshaw v Briginshaw (1938) 60 CLR 336 that the matters should be proved to the reasonable satisfaction of the Tribunal having regard to the seriousness of the allegations made against the Barrister, the inherent unlikelihood of conduct of this nature occurring and the gravity of the consequences flowing from our findings. 36Ultimately, we have come to the view that many of the considerations urged upon us have been constructed with the benefit of hindsight, rather than with an appropriate analysis of the factors that drove the professional relationship between Ms Tsigounis and the Respondent and which saw the subject fee note come into being. It is our view that in the overall, the Respondent went beyond what might objectively be considered fair and reasonable charges in the final memorandum and a Cost Assessor might well have quantified that excess by reference to other criteria. As indicated above, for present purposes, we are not satisfied that the relatively marginal increase in the Respondent's charges affected by the August fee agreement and sounding in the charges made in the October 20 fee note are such that by comparison with the earlier unchallenged charges they can of themselves be properly characterised as "grossly excessive". 37Although at first blush a preparation fee totalling $100,100.00 inclusive of GST appears a figure of concern for the preparation of submissions on an appeal from the District Court, for all the reasons discussed above, including the broad accuracy of the estimate for this work provided by the Respondent in advance, we are not comfortable that the Applicant has demonstrated to the required standard of comfortable certainty that that this was a "grossly excessive" amount such as would support an adverse disciplinary finding. While we look to Mr Robinson's 100 hour assessment as a sound starting point for an appropriate period to be spent in preparation of the submissions, including the difficulties of client management, Mr Robinson was not subject to the actual demands of Ms Tsigounis and we are unable, on the whole of the evidence to be comfortable that the discrepancy between his benchmark 100 hours and the 163 levied by the Respondent as we calculate them are "grossly excessive." First, they were substantially contemplated by the advance estimate given, second they were significantly short of a doubling of Mr Robinson's standard, and not all were calculated at the higher rate. 38Nor are we satisfied from the evidence as a whole or the demeanour of the Respondent as it emerges from the written material or his appearance before us that the Respondent deliberately sought to overcharge, or was reckless as to the formulation of excessive overcharges, but rather that he saw himself as entirely vindicated by his efforts on her behalf. Whilst we do not agree with that viewpoint, we nevertheless remain unconvinced of key issues in the Applicant's complaint. Given that even the well known formulation of the common law test in Allinson v General Council of Medical Education and Registration [1894] 1 KB 750 is one formulated on the maintenance of high professional standards, but not of perfection. 39In charging of excessive costs in connection with the conduct of a legal practice can be unsatisfactory professional conduct or professional misconduct. Statutory Provisions 40Section 496 of the 2004 Act defines "unsatisfactory professional conduct" to include: "Conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner". 41Section 497 of the 2004 Act defines "professional misconduct" to include: "(a)Unsatisfactory professional conduct where the conduct is such that it involves a substantial .... failure to reach reasonable standards of competence and diligence". 42Section 498 provides that without limiting Sections 496 or 497, charging of excessive legal costs in connection with the practice of law is conduct capable of being unsatisfactory professional conduct or professional misconduct. Section 498(1)(b). 43The submissions of the applicant in this case referred only to the common law test inviting us to determine that the overcharging was gross and that the issue would be whether it constitutes professional misconduct or unsatisfactory professional conduct (para 35). 44We have considered the statutory provisions and the cases to which we were referred by the applicant in particular Nikolaidis v Legal Services Commissioner (2007) NSWCA 130 and New South Wales Bar Association v Meakes (2006) NSWCA 340. We note that the Court in Meakes confirmed that the common law test is whether the conduct would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency. We accept that the fact that there was a properly made cost agreement is not a bar to a complaint of overcharging but we find it is a relevant factor to be considered. For the reasons outlined above we decline to make the declarations sought by the applicant and accordingly the application is dismissed. ORDERS Application is dismissed. ********** 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. Decision last updated: 28 February 2011