Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v Fitzgibbon (No. 4) [2012] NSWADT 145 Hearing dates: 4 July 2012 Decision date: 24 July 2012 Jurisdiction: Legal Services Division Before: S Norton SC, Judicial member R J Wright SC, Judicial member R Fitzgerald, Non-Judicial member Decision: The Tribunal orders that: i.The Respondent pay to the Complainant by way of compensation the sum of $13,500. ii.The Respondent cannot recover from the Complainant the sum of $3,800 in respect of which the Respondent rendered a tax invoice for legal services, but which sum remains unpaid. iii.The balance of the Application for Compensation be dismissed. The Respondent pay one half of the Complainant's costs of and incidental to this Application. Catchwords: Disciplinary action Barrister - claim for compensation by Complainant. Legislation Cited: Legal Profession Act, 2004 (NSW). Cases Cited: Council of the New South Wales Bar Association v Fitzgibbon (2012) NSWADT 56 Law Society of New South Wales v Vaughan (No. 2) (2011) NSWADT 260 Council of the Law Society of New South Wales v Doherty (No. 3) (2011) NSWADT 284 Law Society of New South Wales v Hill (2002) NSWADT 190 Legal Services Commission v Giovanni Pietro Bussa (2005) LPT 005 (QLD) Category: Consequential orders Parties: Bernard Hardt (Complainant) David Claude Fitzgibbon (Respondent) Representation: Counsel M S Jacobs QC (Respondent) T A Williams (Complainant) Carneys Lawyers (Respondent) File Number(s): 092042 REASONS FOR DECISION THE PROCEEDINGS 1LEGAL SERVICES DIVISION (S NORTON SC (JUDICIAL MEMBER), R J WRIGHT SC (JUDICIAL MEMBER), R FITZGERALD (NON JUDICIAL MEMBER). This is the fourth decision to be delivered by the Tribunal in relation to proceedings against the Respondent David Claude Fitzgibbon ("the Barrister") and it relates to a claim for compensation bought by the Complainant Mr Bernard Hardt against the Barrister. 2On 27 March 2012 the Tribunal handed down its decision in Council of the New South Wales Bar Association v Fitzgibbon (2012) NSWADT 56 and made the following relevant findings: "i. The Tribunal makes a finding of unsatisfactory professional conduct by the Respondent with respect to the matters contained in Ground 1 of the Application. ii. Ground 2 of the Application is dismissed." 3The Tribunal conducted a further hearing with respect to protective orders on 4 July 2012 and made the following orders: "The Tribunal orders that: i. That the Barrister be publicly reprimanded with respect to the unsatisfactory professional conduct found in relation to the first ground in the application. ii. Should the practitioner be issued with a practising certificate in the future it shall be subject to the following condition: The barrister shall not advise with respect to, or appear in: a. Any appeal from the Local Court, District Court, Supreme Court or Federal Court; b. Any matter in the Land & Environment Court; c. Any matter in the Court of Appeal or Court of Criminal Appeal; and d. Any matter in the High Court, without being led by senior counsel and this condition is to be disclosed to any prospective client and instructing solicitor. iii. The barrister is to pay the Applicant's costs of and incidental to the interlocutory application which was dismissed, Council of the New South Wales Bar Association v Fitzgibbon (2010) NSWADT 291, and 75% of the Applicant's costs, as agreed or assessed, of and incidental to the balance of these proceedings." 4On 4 July 2012 we conducted a hearing in relation to the compensation claim made by Mr Hardt pursuant to Part 4.9 of the Legal Profession Act 2004 (NSW) (the "LPA"). 5At that hearing the barrister tendered a bundle of relevant documents which became Exhibit 1 on the Application. 6The Complainant handed up a schedule showing the disbursements of money out of the trust account of Ms Daphne Kennedy. 7The Complainant relied on Written Submissions dated 4 July 2012 and filed in the Tribunal on the same day. The Barrister relied on Written Submissions dated 11 June 2012 and filed in the Tribunal on 18 June 2012. No oral evidence was called in relation to the claim for compensation although Mr Hardt had given evidence and been cross examined in the substantive proceedings. 8We then heard oral argument from both parties. 9In the Written Submissions prepared on behalf of the Barrister there was a complaint made that the request for compensation contained within the Application for Compensation which was dated 4 June 2012 was out of time and improper. In response to this submission the Solicitor for Mr Hardt orally requested the Tribunal to grant the Complainant leave to make the request. RELEVANT LEGISLATIVE PROVISION 10The following provisions of the LPA are relevant: 570 Request by complainant for compensation order: A complainant may request a compensation order in respect of loss suffered by: the complainant, or (b) another person who is a client of the law practice to which the Australian legal practitioner concerned belongs, (or both) because of the conduct the subject of the complaint. The complainant, or other person, suffering the loss is referred to in this Part as an aggrieved person. A complainant who makes such a request must describe the loss suffered by the aggrieved person and the relevant circumstances. Such a request may be made in the complaint. The request may also be made by notice in writing to the Commissioner or the relevant Council, at any time after the making and before the disposal of the complaint. However, such a request may not be made after proceedings have been commenced in the Tribunal with respect to the complaint unless the Tribunal grants the complainant leave to make the request. Such a request may only be made within 6 years after the conduct that caused the loss is alleged to have occurred. 571 Compensation Orders A compensation order is an order, made in respect of a complaint against an Australian legal practitioner, to compensate the aggrieved person for loss suffered because of conduct that is the subject of the complaint. A compensation order consists of one or more of the following: an order that the practitioner cannot recover or must repay the whole or a specified part of the amount charged to the aggrieved person by the practitioner in respect of specified legal services. an order discharging a lien possessed by the practitioner in respect of a specified document or class of documents. an order that the practitioner pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount. A compensation order under subsection (2)(a) preventing recovery of an amount is effective even if proceedings to recover the amount (or any part of it) have been commenced by or on behalf of the practitioner. A compensation order under subsection (2)(a) requiring repayment of an amount is effective even if a court has ordered payment of the amount (or an amount of which it is part) in proceedings brought by or on behalf of the practitioner. A compensation order under subsection(2)(c) requiring payment of an amount exceeding: $25,000, except where paragraph (b) applies, or $10,000 where the order is made by: (i) the Commissioner or a Council under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) or section 573(3) (Making of compensation orders), or (ii) the Commissioner under section 545 (Decision of Commissioner on review) is made unless the complaint and the practitioner both consent to the order. 572 Prerequisites to making of compensation orders Unless the complainant and the Australian legal practitioner concerned agree, a compensation order is not to be made unless the person or body making it is satisfied: that the complainant has suffered loss because of the conduct concerned, and that it is in the interests of justice that the order be made. A compensation order is not to be made in respect of any loss for which the complainant has received or is entitled to receive. compensation received or receivable under an order that has been made by a court, or compensation paid or payable from a Fidelity Fund of any jurisdiction, where a relevant claim for payment from the Fund has been made or determined. 573 Making of compensation orders If the Tribunal has found that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct in relation to a complaint, the Tribunal may: make a compensation order, or refer the matter to the Commissioner for the making of a compensation order. The Commissioner may make a compensation order if the Tribunal has referred the matter to the Commissioner for the making of a compensation order. A compensation order made under this subsection is taken to have been made by the Tribunal for the purposes of section 729A (Appeals against orders and decisions of Tribunal). The Commissioner or relevant Council may: where proceedings are not proposed to be commenced in that Tribunal with respect to the complaint concerned - make a compensation order referred to in: (i) section 539 or 540 (n the case of the Commissioner or Council), or (ii) section 545 (in the case of the Commissioner) or where proceedings are proposed to be commenced in the Tribunal with respect to the complaint concerned - make a compensation order before the proceedings are commenced, if the Commissioner or Council is satisfied that the Australian legal practitioner against whom the complaint is made is likely to be found to have engaged in unsatisfactory professional conduct or professional misconduct. To avoid any doubt, subsection (3)(b) extends to the making of a compensation order referred to in section 545, where proceedings are proposed to be commenced in the Tribunal with respect to the complaint concerned. If the Commissioner or relevant Council decides to make a compensation order against an Australian legal practitioner under subsection (3)(b), the practitioner may apply to the Tribunal for a review of the decision. The review is to be undertaken by the Tribunal: when conducting a hearing with respect to the complaint, or if the matter does not proceed to a hearing or the proceedings with respect to the complaint are terminated - during separate proceedings with respect to the application for review. If: the Commissioner or relevant Council makes a compensation order, and proceedings are subsequently commenced in the Tribunal with respect to the complaint concerned, the Tribunal may make a further order under subsection (1), but the order, if requiring payment of an amount (when added to the amount in the original order) exceeding $25,000, is not to be made unless the complainant and the Australian legal practitioner both consent to the order. A compensation order may specify the person to whom monetary compensation is payable, whether to the aggrieved person or to another person on behalf of the aggrieved person. 575 Other remedies not affected The recovery of compensation awarded under this Part does not affect any other remedy available to an aggrieved person, but any compensation so awarded is to be taken into account in any other proceedings by or on behalf of the aggrieved person in respect of the same loss." 11At LPA section 495 the following definitions appear: "Compensation order" means an order under Part 4.9 (Compensation). "Complaint" means a complaint under this chapter. "Conduct" means conduct whether consisting of an act or omission. "Loss" means loss of a pecuniary nature, but does not include non economic loss within the meaning of the Civil Liability Act 2002. 12The power to award costs to a complainant is to be found in LPA Section 566(1). Leave granted 13During the course of oral submissions the Tribunal indicated to the parties that it was minded to grant leave in accordance with s570(4). It was at that time indicated that reasons would be given as part of the reasons dealing with the issue of compensation. 14The Barrister's argument was that the complaint as set out in the pro forma document completed by Mr Hardt and supported by a declaration dated 13 July 2009 did not as required by the Act "describe the loss suffered by the agreed person and the relevant circumstances". 15An Application for Compensation was filed in the Tribunal on 4 June 2012 which was after the proceedings had been commenced in the Tribunal. Thus it was argued the request for compensation was "out of time and improper" under section 570(4). 16On behalf of Mr Hardt it was indicated that he had crossed the box indicating that he was hoping to receive financial compensation when he completed the complaint form dated 13 July 2009 and did provide some details of complaints in that form. It was conceded that the form did not contain details of the compensation sought but the Tribunal was directed to a letter contained within Exhibit 1 (page 25) which indicated that the solicitors acting for Mr Hardt on 26 March 2009 had sent a letter to the Bar Association indicating that the client sought compensation in the sum of $40,000 for legal fees incurred. 17The document at page 21 of Exhibit 1 is a letter from the same solicitors to Ms Daphne Kennedy who instructed the barrister with respect to the proceedings in the Court of Criminal Appeal. That letter indicated that Mr Hardt wished to investigate the conduct of those representing him "This will be the intent of forwarding the matter to the appropriate governing bodies for investigation and reimbursement of the client's legal costs". The exhibit also contains a letter dated 26 May 2009 from the same solicitors to the Office of the Legal Services Commissioner indicating that Mr Hardt would be seeking a compensation order against Ms Daphne Kennedy and Mr David Fitzgibbon with respect to legal costs paid to them in the matter (page 28). 18The Application for original decision filed on 18 December 2009 indicated that an order would be sought that the Respondent pay compensation to Mr Bernard Hardt. 19There was no suggestion that at any time up until 20 April 2012 the Barrister requested particulars of the claim for compensation. The Tribunal notes that at the commencement of the hearing counsel appearing for the Council of the New South Wales Bar Association indicated that there was a claim for compensation being made by Mr Hardt but that this would be dealt with at the conclusion of the substantive hearing. Mr Hardt gave evidence in the substantive proceedings and did not file any further evidence with respect to the compensation proceedings. He was not required for cross examination at the hearing of this Application. It appears to us that at all relevant times, the Barrister was aware that a claim for compensation under the LPA was being made against him by Mr Hardt and was generally aware of the nature and extent of the claim. 20Counsel for the Barrister could not point to any prejudice which flowed from the manner in which this claim has proceeded nor any prejudice which would flow from leave under section 570(4) being granted. In the circumstances the Tribunal finds it was appropriate to grant leave to Mr Hardt to rely on his Application for Compensation filed on 4 June 2012, to the extent that such leave may be necessary. SUBMISSIONS OF THE PARTIES 21On behalf of Mr Hardt it was submitted that he was entitled to compensation because: a) none of the grounds of appeal was arguable; b) that should have been appreciated by the Barrister; and c) both the written submissions and oral submissions made in support of those grounds of appeal were inadequate. 22The Tribunal notes that there was no ground contained within the Bar Council's Application for Determination which related to the preparation of the grounds of appeal. The Tribunal's finding in its principal decision in this matter was to the effect that the Barrister had been guilty of unsatisfactory professional conduct in relation to the preparation: a) Between May and July 2007, of written submissions in support of the grounds of appeal; and b) In September and October, of written submissions in reply to submissions from the respondent to the appeal. 23Mr Hardt's Application for Compensation sought the following orders: "1. An order pursuant to s571(2)(a) that the Respondent pay to the Applicant for compensation the sum of $27,000 paid by the Applicant for fees to the Respondent in respect of legal services. 2. An order under s571(2)(a) that the Respondent cannot recover from the Applicant for compensation the sum of $3,800 in respect of which the Respondent rendered a tax invoice for legal services, but which sum remains unpaid. 3. An order pursuant to s571(2)(c) that the Respondent pay to the Applicant for compensation by way of monetary compensation for the loss of the sum of $13,000 paid by the Applicant for compensation to Daphne Kennedy solicitor in respect of legal services. 4. An order pursuant to s571(2)(c) that the Respondent pay to the Applicant for compensation the sum of $3,489.36 owed by the Applicant for costs to Daphne Kennedy solicitor in respect of legal services". 24It was submitted, especially in respect of order 1, that it was no answer to the claim that Mr Hardt had given instructions for the appeal to be taken as those instructions were not informed instructions. 25Submissions filed on behalf of the Barrister suggested that the claim "is so wrong in law, as to amount to an abuse of the process of this Tribunal". This was in part because of it being out of time (which was addressed by the grant of leave under section 570(4) referred to above). It was also in part because there was said to be no causal link between the unsatisfactory professional conduct found and the alleged loss and thus there was no basis recognisable in law for such a claim. This latter basis was said to turn upon the fact that the Barrister's contact was with the solicitor not the lay client, Mr Hardt. Further it was said that a lack of success cannot be equated with a total lack of consideration and Mr Hardt had not shown that if the submissions had been better the outcome would have been different. 26With respect to order 2 it was submitted that the Barrister had no claim against Mr Hardt because the contract was not between the Barrister and Mr Hardt and therefore the order was unnecessary. With respect to orders 3 and 4 it was pointed out that although Mr Hardt had made complaints against Ms Kennedy those complaints had been dismissed by the Legal Services Commissioner and the Tribunal was referred to a letter from that office dated 22 December 2009 (Exhibit 1 P41). In written submissions the Barrister claimed that orders 3 and 4 bordered on the bizarre and that Mr Hardt had no basis on which to recover from the Barrister monies which had been paid to Ms Kennedy. 27In oral submissions the Barrister raised two preliminary points which he contended meant the claim was not maintainable. 28The first contention was that there was no contract between the Barrister and Mr Hardt and thus the Barrister had not "charged" Mr Hardt any sum in accordance with s571(2)(a) of the Act. 29The second preliminary point related to the timing of the Application. As noted above the Tribunal in the course of the hearing granted leave for the making of this claim thus rendering this point inapplicable. 30With respect to the first preliminary point it was not submitted that the Barrister had not received funds from Ms Kennedy in payment for tax invoices he rendered in the Hardt matter. On behalf of Mr Hardt it was submitted that the statute provided the basis for the claims made in the Application for Compensation and consequently those claims did not turn necessarily upon whether there was a contract between Mr Hardt and the Barrister. 31The tax invoices themselves are included in the bundle of documents. The first is dated 29 June 2007 and provides as follows: "Re: Bernard Hardt To my professional fees re: Preparing appeal documents and Notice of Appeal. Checking replies to above notices as received. Researching appeal material. Attending Court on your behalf $15,000.00 GST $1,500.00 Total $16,500.00" 32There is a handwritten notation on that tax invoice recording that it was paid on 4 July 2007 (Exhibit 1 on Application P18). 33The next tax invoice is dated 16 October 2007 and provides: "Re: Bernard Hardt To my professional fees re: Preparing notice of a constitutional matter. Preparing appeal documents and Notice of Appeal. Checking replies to above notices as received. Researching appeal material. Attending Court on your behalf $5,000.00 GST $500.00 Total $5,500.00" 34That invoice bears a handwritten notation indicating it was paid on 17 October 2007 (Exhibit 1 P19). 35A third tax invoice is dated 28 November 2007. It provides: "Re: Bernard Hardt To my professional fees for research, conferences and Court attendances for the period 17 October 2007 to 26 November 2007 fees: $8,000.00 GST $800.00 Total $8,800.00" 36That invoice does not bear any notation indicating whether or not it was paid. 37The hearing in the Court of Appeal in this matter took place on 29 November 2007. 38Documents tendered by the Barrister thus show an amount of $22,000 was received by him with respect to the preparation of Mr Hardt's matter up to 16 October 2007 and a further memorandum was rendered on 28 November for fees up until 26 November. It appears to be common ground that there is an amount of $3,800 which has not been paid to the Barrister. This suggests that an amount of $5,000 was paid with respect to the final invoice and thus the Barrister received the sum of $27,000 with respect to work done on Mr Hardt's matter. 39The Barrister's cost agreement (Exhibit 1, page 16) shows that the Barrister's hourly rate was $400. The Barrister thus claimed for almost 70 hours work in preparing Mr Hardt's matter for hearing and not including the hearing. What is the scope of the "loss" for which compensation is payable 40The Tribunal was referred to two decisions which touched on this matter. The first was the Council of the Law Society of New South Wales v Vaughan (No. 2) (2011) NSWADT 260 and the second the Council of the Law Society of New South Wales v Doherty (No. 3) (2011) NSWADT 284. Those cases themselves made reference to the case of Law Society of New South Wales v Hill (2002) NSWADT 190 particularly at paragraphs 83 and 88 to 90. 41In none of those cases was a legal practitioner ordered to pay compensation comprised of costs he had been charged by the practitioner. The solicitor appearing for Mr Hardt pointed out that the definition of compensation had been widened in the 2004 Act as compared to the 1987 Act. 42The Tribunal was also referred to the matter of Legal Services Commission v Giovanni Pietro Bussa (2005) LPT 005 (QLD). That case does suggest that costs of this nature could be regarded as pecuniary loss and dealt with by a compensation order under s288 of the Queensland Legal Profession Act 2004. There was an order in that case that the legal practitioner pay an amount of compensation which represented costs (P9, L40). 43The determination of this issue depends on the construction of the relevant section of the Legal Profession Act 2004. 44Section 571 provides that: (1) A compensation order is an order, made in respect of a complaint against an Australian legal practitioner, to compensate the aggrieved person for loss suffered because of conduct that is the subject of the complaint. (2) A compensation order consists of one or more of the following: (a) an order that the practitioner cannot recover or must repay the whole or a specified part of the amount charged to the aggrieved person by the practitioner in respect of specified legal services, (b) an order discharging a lien possessed by the practitioner in respect of a specified document or class of documents, (c) an order that the practitioner pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount. 45Given that a compensation order is an order "to compensate ... for loss suffered because of conduct that is the subject of the complaint" and it can consist of an order under section 571(2)(a) "that the practitioner cannot recover or must repay the whole or a specified part of the amount charged to the aggrieved person by the practitioner in respect of specified legal services", it must follow that the amount so charged is a "loss" for the purposes of these provisions. 46Section 571(2)(c) deals with monetary compensation for loss other than amounts charged by way of fees for legal services and subsection (5) places a monetary limit on the amount of that loss. 47On behalf of the Barrister it was submitted that Mr Hardt could not recover compensation under subsection (a) as he had not "charged" Mr Hardt anything for the services. It was submitted that the contract that the Barrister had was with Ms Kennedy and there was no privity of contract between the Barrister and Mr Hardt. 48"Charged" is defined in the Fifth Edition of the Macquarie Dictionary to include: "1. To put a load on or burden on or in ... 12. To hold liable for payment: enter a debit against ... 31. A pecuniary burden, encumbrance, tax or lien, cost, expense: liability to pay ..." The Barrister clearly forwarded to Ms Kennedy tax invoices which referred to fees payable "Re: Bernard Hardt". In the circumstances, it appears to us that meaning 12 is the most relevant. "Charged" includes in this sense charged to the account of. Given the nature of the relationship between a barrister, his solicitor and the lay client, the reality is that a barrister charges the client through the solicitor. Looked at from the client's perspective, sums paid by the solicitor to the barrister in respect of the client's matter are disbursements by the solicitor on the client's behalf. That, of course, is not to deny that depending on the terms of the contract between the barrister and the solicitor the barrister may be entitled to recover his fees from the solicitor, whether or not the solicitor has been paid by the client. Moreover, given the scope and purpose of provisions such as sections 570 to 575 of the LPA, to hold that "charge" in this context is limited to circumstances where there is a direct contractual right of recovery by the barrister against the client would restrict a client's ability to recover compensation for fees paid to a barrister through a solicitor to such an extent that it is unlikely to have been the Parliamentary intent. Accordingly, the Tribunal is of the view that the word "charged" in section 571(2)(a) includes the incurring of barristers fees indirectly by a client through a solicitor as well as fees directly incurred by a client who has a contract with the barrister and not through a solicitor. 49The Barrister's fees agreement was tendered as part of Exhibit 1 (P16 to 17). The solicitor for Mr Hardt pointed out that paragraph 6 of that agreement had been crossed out as not applicable. In its unaltered form it provided "the solicitor's obligations are personal and do not depend on there being put in funds by any person". Mr Williams also pointed out it would make a mockery of the Act if the Tribunal were to ignore that the source of all funds which were paid to the Barrister was Mr Hardt. 50We find that Mr Hardt paid a sum of $40,000 to Ms Kennedy and that sum was placed in a trust account no doubt in his name. When the Barrister rendered tax invoices to Ms Kennedy she paid them out of that account. We find that the reality of the arrangement was that Mr Hardt paid the Barrister's fees and that in the wording of the section the fees paid were "part of the amount charged to the aggrieved person by the practitioner in respect of the specified legal services". 51It appears from the tax invoices that the amounts charged do not relate to the oral hearing which took place in the Court of Criminal Appeal and thus have no relation to the ground which was dismissed. We also note the finding made in the substantive proceedings that Mr Hardt did instruct the Barrister to pursue a full appeal in the Court of Criminal Appeal despite being advised that the appeal may not be ultimately successful (paragraphs 36 and 37). 52Section 572 of the Legal Profession Act provides that an order for compensation should not be made unless the Tribunal is satisfied: "a. The Complainant has suffered loss because of the conduct concerned, and b. That it is in the interests of justice that the order be made". 53We find that the Barrister charged Mr Hardt for almost 70 hours work at $400 per hour for work which was not up to the standard which could be expected of a reasonably competent legal practitioner. For the reasons given above, we do not believe there has to be any privity of contract or a total failure of consideration before compensation can be ordered under the terms of the section. 54In all the circumstances we find that Mr Hardt suffered loss because of the conduct concerned. He paid more than he should have paid for the services that were provided to him by the Barrister. Although it is difficult to quantify the amount of the charge which should be recovered, we take into account that Mr Hardt did want a full appeal run despite the caution expressed by the Barrister as to its prospects of success. In all the circumstances, we believe it is in the interests of justice to order the Barrister to repay one half of the amount claimed in ground 1 of the Application. 55With respect to order 2 we order that the Barrister cannot recover the amount of fees outstanding in the sum of $3,800.00. 56With respect to orders 3 and 4 we note it is claimed that they should be made because the amounts paid to and due to Ms Kennedy amount to loss within the meaning of subsection (c) of s571(2) Legal Profession Act. 57The amount paid to and claimed by Ms Kennedy related to work done by her. There is no evidence before the Tribunal to allow us to conclude that Mr Hardt suffered a loss equal to that amount because of the conduct of the Barrister. Further we do not think it is in the interests of justice to make the orders sought. We therefore decline to make orders 3 and 4 as sought in the Application for Compensation. COSTS OF THIS APPLICATION 58The Application for Compensation does not seek an order that the Barrister pay Mr Hardt's costs of the Application but the written submissions in support of that Application include a claim for "costs for his representation in relation to the making of the claim". 59In written submissions the Barrister sought that the complaint be dismissed with "an appropriate order for costs". 60Costs orders in proceedings under Chapter 4 of the Legal Profession Act 2004 are regulated by s566 of that Act: "(1). The Tribunal must make orders requiring an Australian legal practitioner whom it has found to engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the Complainant), unless the Tribunal is satisfied that exceptional circumstances exist". 61The Tribunal has found the Barrister to have engaged in unsatisfactory professional conduct and found that a compensation order should be made and thus we are required to make a costs order in favour of Mr Hardt, the Complainant for these purposes, unless we are satisfied that exceptional circumstances exist. 62The Barrister did not direct our attention to any such exceptional circumstances. We note, however that the Complainant has been only partially successful with respect to this Application and we therefore think it appropriate to order the Barrister to pay one half of the Complainant's cost of this Application. ORDERS 63We therefore make the following orders: i. The Respondent pay to the Complainant by way of compensation the sum of $13,500. ii. The Respondent cannot recover from the Complainant the sum of $3,800 in respect of which the Respondent rendered a tax invoice for legal services, but which sum remains unpaid. iii. The balance of the Application for Compensation be dismissed. iv. The Respondent pay one half of the Complainant's costs of and incidental to this Application. ********** 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: 24 July 2012