Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hawkins v Council of the NSW Bar Association [2019] NSWCATOD 148 Hearing dates: 11 – 13 March, 27 June and 22 November 2019 Date of orders: 28 November 2019 Decision date: 28 November 2019 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member P Durack SC, Senior Member M Bolt, General Member Decision: 1 In so far as they concern the applicant's conduct set out in paragraphs 170, 200 and 206 of the reasons for this decision, affirm the decisions of the Council of the New South Wales Bar Association concerning the applicant made on 22 February 2018, as set out in paragraph 12 of the reasons for this decision, which found that the applicant engaged in unsatisfactory professional conduct and reprimanding the applicant in respect of such conduct. 2 Otherwise, set aside the decisions of the Council of the New South Wales Bar Association referred to in Order 1. 3 Affirm the decision of the Council of the New South Wales Bar Association concerning the applicant made on 22 February 2018, as set out in paragraph 12 of the reasons for this decision, which ordered the applicant to reduce her fees in her invoice dated 11 June 2015 and refund the amount of $22,500 to Harry Griffiths, save that such amount is to be refunded to Harry Griffiths within 21 days of this decision. 4 Costs reserved. Catchwords: LEGAL PROFESSION – barrister's disciplinary matter – administrative review of decisions of the NSW Bar Council – unsatisfactory professional conduct – pressure applied to third party funder/relative to pay fees – charging for unnecessary work – reprimand – order to refund portion of fees Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Criminal Code Act 1899 (Qld) (Queensland Criminal Code) Electronic Transactions Act 2000 (NSW) Jury Act 1995 (Qld) (Queensland Jury Act) Justice Legislation Amendment Act (No 2) 2019 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Uniform Law 2015 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Bushell v Repatriation Commission (1992) 175 CLR 408 Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209 De Pardo v Legal Practitioners Complaints Committee [2003] WASCA 274 Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154 Playford v The Queen; Griffiths v The Queen [2014] HCATrans 20 R v Griffiths [2013] QCA 120 Veghelyi v Law Society of New South Wales (Court of Appeal (NSW), 6 October 1995, unrep) Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 Category: Principal judgment Parties: Dymphna Hawkins (Applicant) Council of the NSW Bar Association (Respondent) Representation: Counsel: S Prince SC and F Graham (Applicant) D McLure SC (Respondent) Solicitors: Moray & Agnew (Applicant) Norton Rose Fulbright (Respondent) File Number(s): 2018/00093345 Publication restriction: Nil REASONS FOR DECISION Overview 1. By these proceedings, the applicant, who is a barrister practising in the field of criminal law, seeks to overturn two decisions of the respondent concerning findings made by the respondent that she had engaged in unsatisfactory professional conduct. 2. Shortly after the parties were notified in late September this year that our decision in this matter was about to be issued, we were informed by the respondent's solicitors that a threshold issue about the validity of the respondent's decisions had been identified which had not been previously brought to our attention. As a consequence, we withheld our decision, written submissions were received from the parties about the new issue and a date was set to hear argument about it. 3. For present purposes, there is no need for us to expand upon the nature of the new issue because it no longer arises as a result of the passing of the Justice Legislation Amendment Act (No 2) 2019 No 20. This Act was assented to on 22 November 2019. Under that legislation, the delegation from the Legal Services Commissioner to the Bar Association, under which the Bar Council had proceeded to make its decisions now under review, was prescribed to be operative as a delegation to the Bar Council; clause 1.16 of Schedule 1. As is agreed by the parties, that legislation has cured the problem that may have meant that the respondent's decisions were invalid. 4. The applicant was admitted as a lawyer on 10 October 1997. She commenced practice as a barrister on 17 February 2003. 5. The application is for administrative review of the merits of these two decisions. In respect of such review, the Tribunal's task is to determine what is the correct and preferable decision on the material presented to the Tribunal. We are not concerned to examine whether there was challengeable error in the process or reasoning by the respondent, although parts of the grounds for the application as lodged in the Tribunal appear to proceed on this basis. 6. The decisions were made on 22 February 2018. They concerned distinct aspects, identified as Grounds A and C, of the conduct of the applicant in acting for Trevor Griffiths, who was in jail near Brisbane as a result of a conviction for murder. 7. In 2012, Trevor Griffiths had been convicted in the Supreme Court of Queensland of the murder of two men during a drug purchase. Trevor had unsuccessfully appealed his conviction to the Queensland Court of Appeal (see R v Griffiths [2013] QCA 120), and had been unsuccessful in seeking special leave to appeal to the High Court of Australia (see Playford v The Queen; Griffiths v The Queen [2014] HCATrans 20). 8. In early 2015, following the exhaustion of his appeal rights, the applicant was retained to act for Trevor, as a direct access matter, in respect of his conviction. She had not previously been involved in the matter. On the applicant's recommendation, Ms Elamrousy, a solicitor then practising in New South Wales, was also retained by Trevor. 9. Trevor Griffiths' father, Harry Griffiths, paid the applicant's fees and disbursements charged by her in two invoices issued in February 2015 and June 2015 in respect of the work she carried out for Trevor Griffiths in 2015 until the time when her retainer came to an end in September 2015. 10. Our findings as to the salient facts are set out below. 11. For the reasons set out below, we have decided to affirm the decisions of the respondent in this disciplinary matter except in limited respects. The decisions under review 1. At a meeting held on 22 February 2018 the respondent resolved as follows: …… that in respect of Grounds A and C of the complaint made against Dymphna Hawkins by Melissa Griffiths [Trevor Griffiths' wife] on behalf of Trevor Griffiths, find that Hawkins has engaged in unsatisfactory professional conduct and determine the disciplinary matter by making orders: a pursuant to s 299(l)(b), that Hawkins be reprimanded for the conduct alleged in Grounds A and C; and b pursuant to s 299(l)(d), that Hawkins reduce the fees charged for the work the subject of her invoice dated 11 June 2015 by 75%, and refund the sum of $22,500 to Harry Griffiths within 90 days. 1. At the hearing before us, the conduct in Ground A was stated to be that the applicant engaged in unsatisfactory professional conduct by pressuring Harry Griffiths, Trevor Grifiths' father, to pay her $5,000.00 on 24 or 25 February 2015, by threatening to cancel her visit to the jail to see Trevor if he did not pay these monies [our emphasis]. 2. The conduct in Ground C was that the applicant engaged in unsatisfactory professional conduct by charging Harry: 1. For some unnecessary and unreasonable disbursements in a 25 February 2015 invoice. 2. $30,000.00 for unnecessary and unreasonable work done the subject of a 11 June 2015 invoice. 1. The conduct in Ground A that was the subject of the decision of the Bar Council was somewhat less specific than as relied upon at the hearing. It was said to be: Hawkins refused to visit Mr Griffiths in prison unless she was paid $5,000 (which should be taken to include a complaint that Hawkins accepted trust money otherwise than in accordance with the applicable rules). 1. The reason for this difference appears to be that before the respondent, but not before us, reliance was placed upon statements from other members of Trevor Griffiths' family, namely Trevor Griffiths, Anne Potts and Melissa Griffiths, in addition to Harry Griffiths, about the applicant refusing to visit unless a payment of $5,000.00 was made. 2. Although, as will be seen below, we are not concerned with examining whether there was error in the reasons of the respondent, aspects of the reasons of the respondent for these decisions assist in understanding the real issues between the parties in these proceedings. In saying this, we are mindful that the case presented to us was not exactly the same as the material put before the respondent. 3. The reasons of the respondent included the following (see paragraph 3 of the statement of reasons pursuant to s 318 of the Legal Profession Uniform Law 2015 (NSW) (the LPUL) dated 23 February 2018): Ground A of the Griffiths complaint …. 75 Turning then to the threatened refusal to visit Trevor in prison unless the sum of $5,000 was paid is concerned, the Committee considers that the Bar Council may form the opinion that that conduct was unsatisfactory professional conduct, for the following reasons: a Even on the assumption that Hawkins was entitled to charge, and be paid, the amount claimed in the invoice, the demand for payment was made before the invoice was issued. The situation is thus that Hawkins was insisting on a transfer of funds without having issued an invoice in support of that demand. b While a barrister is entitled to be forceful in insisting that their invoices be paid, there will come a point at which the circumstances cross the line to impermissible and unprofessional pressure. Here, the demand for payment was made in circumstances where Hawkins had arrived, unannounced, in Brisbane to visit Trevor in prison. (Hawkins contends that the visit was not unannounced. She says that she had been in repeated contact with Trevor in the weeks leading up to the visit. Nevertheless, he appeared to be unaware that she might be visiting on 24 February until informed on that day by Melissa. Even if the general idea of a visit was known to Trevor and/or his family, the evidence clearly indicates that the precise date was not known to them in advance). Payment of the money was said to be a condition precedent to Hawkins travelling lo the prison to see Trevor. Trevor and his family were all, for obvious reason, eager for him to meet with Hawkins to progress his case. The unexpected urgency of the situation created by the unannounced arrival of Hawkins and the very short deadline for payment, combined with the obvious desire of Trevor to meet his legal representative, meant that the threat of returning to Sydney if money was not immediately transferred crossed the line into unprofessional conduct. c On the view of the facts outlined above, the professional charges related, at the very least in substantial part, to future work. Even if Hawkins was, as a general proposition, entitled to demand payment in advance of the provision of legal services, the fact that she had created an unnecessary urgency for such payment made the demand unreasonable, and placed unfair pressure on the Griffiths family. d Also on the view of the facts outlined above, the disbursements related, at least in substantial part, to liabilities incurred in travelling to Brisbane to meet Trevor. Having already incurred most of the disbursements, which would be wasted if the visit did not proceed, and which, according to Trevor's account at least, would be visited upon the Griffiths family in any event, once again, it placed unfair pressure on the Griffiths family to produce the money in a very short timeframe. …. Ground C of the Griffiths complaint 78 Insofar as the February invoice is concerned, for the reasons given above, the Committee considers that the Bar Council may form the opinion that Hawkins charged unnecessary and unreasonable disbursements at least to the extent that she: a incurred accommodation and rental car costs for two nights, when the trip could have been comfortably achieved in a single day; b incurred the extra expense of a "luxury" rental car, in the absence of any disclosure to or agreement with her client that she may do so; c charged excessive "self-drive" costs for the trips to Beerwah and Bilpin. In particular: i in the absence of any disclosure or agreement, it may be doubted that Hawkins was entitled to charge any amount for driving herself to these meetings; ii the rate charged per kilometre ($0.66) appears high, and is certainly not limited to the recovery of the cost of petrol; d charged for photocopying, at the rate of $1 per page, in the absence of any disclosure or agreement that she was entitled to do so. …. 80 Insofar as the June invoice is concerned, it charged an amount of $30,000. Hawkins now contends that only $6,500 of that amount was directly referable to the preparation of the opinion. A further $17,500 is, however, said to have been for reading the brief and relevant case law and so is at least indirectly referable to the preparation of the opinion (although Hawkins also submits that "reading the material and becoming aware of its contents was a necessary component of the entire basis of Ms Hawkins' retainer, namely to consider and draft an application on behalf of Mr Griffiths''). 81 Whatever view is taken in relation to the general work of reading the brief and performing legal research, a significant amount of money was charged for an opinion. Furthermore, in relation to the general work, the reasonableness of undertaking such a detailed review of the trial and appeal record must be considered in the particular context of Hawkins' retainer (which was not to advise in relation to an appeal, but in relation to post-conviction relief). To determine the question of over-charging it is thus necessary to consider the scope of the retainer, the purpose of the advice, the work undertaken, and the advice itself. ….. 83 The advice commences with the observation that Hawkins cannot advise properly on the prospects of any application(s) based on fresh evidence until the fresh evidence is obtained. It concludes with the same observation. It is an observation that is self- evidently correct, that applies to the retainer as a whole, and which indicates the lack of utility in incurring significant costs in advance of actually obtaining whatever the allegedly significant fresh evidence was….. ….. 87 Overall, the Committee considers that the Bar Council may form the opinion that Hawkins engaged in over-charging in relation to both the February and the June invoice. The former contains disbursement items that were unreasonably and unnecessarily incurred, without any disclosure to or agreement with the client. The latter charges a substantial fee for the preparation of an "advice" that was of no practical utility, and which did not advance the client's case at all. In those circumstances, the Committee considers that the Bar Council may form the opinion that Hawkins' conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. ….. 140 By reason of the more serious nature of the conduct the subject of Grounds A and C, the Committee considers that the Bar Council may form the opinion that Hawkins should be reprimanded in relation to that conduct. 141 The Committee also considers that the Bar Council may form the opinion that it was appropriate, under s 299(1)(d), to order Hawkins to waive or reduce the fees charged pursuant to the June invoice by 75%, and accordingly refund the sum of $22,500 to Harry. That is to say, the Committee considers that the Bar Council may form the opinion that Hawkins was entitled reasonably to perform some work in familiarising herself with the trial and appeal records for the purposes of performing the retainer, and in providing preliminary advice to her client on the course to be pursued, but that an appropriate charge for such work would be no more than $7,500. 1. As it was entitled to, the respondent determined these complaints for itself: s 299(1) of the LPUL. At the hearing, we were told that this application is the first of its kind, namely an application for administrative review of these decisions, as provided for in s 314 of the LPUL. Nature of the Tribunal review and applicable law 1. The following was uncontroversial: 1. the proceedings were for administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADRA) of the decisions under s 299 of the LPUL by the respondent as the designated local regulatory authority: s 126 of the Legal Profession Uniform Law Application Act 2014 (NSW). 2. Accordingly, s 63 of the ADRA applied so that the Tribunal was required to decide what was the correct and preferable decision concerning these complaints, having regard to the material then before it, including any relevant factual material. This is a review on the merits: Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154 at [8]. 3. The Tribunal is empowered to make any of the decisions set out in s 63(3) of the ADRA. In addition, it may make any order it considers appropriate on the review: s 314(2) of the LPUL. 4. The rules of evidence do not apply to the proceedings since they do not involve a question of professional misconduct: s 38 and Schedule 5, Division 4, cl 20 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act); s 301(3) of the LPUL. 5. Fact finding is to the civil standard, namely upon the balance of probabilities. In view of the seriousness of the allegations, the Tribunal should apply the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 to its fact finding. 6. The LPUL, in particular Part 5.4 of Chapter 5, was the applicable law to be applied in relation to the conduct and the making of the disciplinary orders even though the conduct in issue occurred before that legislation came into operation, provided that the disciplinary action was no more onerous than the disciplinary action that could have been taken under the old legislation: cl 27 of Schedule 4 of the LPUL. 1. Competing submissions were made about an onus of proof. Mr Prince SC, who appeared for the applicant, submitted that although in "pure" administrative review cases neither party bears an onus, in disciplinary cases the regulator bears the evidentiary onus: see, for example the comments of Priestley JA in Veghelyi v Law Society of New South Wales (Court of Appeal (NSW), 6 October 1995, unrep at page 9). Mr McLure SC, who appeared for the respondent, disagreed by reference to various authorities and submitted that the respondent did not bring before the Tribunal an allegation it must prove. Rather, the Tribunal stood in the shoes of the respondent and should consider whether an order under s 299 of the LPUL should be made. He submitted that the proceedings considered in Veghelyi were distinctly different from the present proceedings. Mr McLure SC also submitted that the controversy was more apparent than real because the Tribunal would not make orders under s 299 unless it was satisfied that the applicant had engaged in unsatisfactory professional conduct. 2. We agree with the respondent's submissions about onus, save to say that we would not make orders unless we were satisfied "having regard to the material then before [the Tribunal]" that the applicant had engaged in unsatisfactory professional conduct (as specified in s 63 of the ADRA). 3. In particular, we see the following passage from the decision of Brennan J (as he then was) in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-5 as applicable to our review: …Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T. may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. The issues 1. Without proceeding to deal with each of these issues in turn, it is, nevertheless, convenient to have regard to the following list of issues prepared by the respondent for the purpose of closing oral submissions. It was prepared following the provision of written submissions by the parties. In saying this, we recognise that this was not an agreed list of issues and that the applicant had some criticisms of them: Respondent's Submissions (RS) [6] 1 Does either party have the onus of proof Applicant's Submissions (AS) [15] Respondent's Reply (RR) [3] 2 GROUND A RS [40] – [41] Did Ms Hawkins engage in unsatisfactory professional conduct by pressuring Harry to pay her $5,000 on 24 and 25 February 2015, by threatening to cancel her visit to the jail to see Trevor if he did not AS [45] 3 Does Chapter 5 of the Uniform Law apply to the conduct the subject of ground A? AS [49] – [59] RR [12] – [20] 4 Is the question whether Ms Hawkins engaged in unsatisfactory professional conduct to be determined objectively, or by reference to her subjective beliefs at the time? AS [23] RR [6] RS [25] – [37] 5 By the time Ms Hawkins sent her invoice of 25 February 2015 to Harry, had she previously sent him a costs disclosure as required by the LPA? AS [22] – [36] RR [5] – [8] RS [38] 6 Did Ms Hawkins tell Harry she was travelling to Queensland on 23 February 2015 any time before she demanded $5,000 from him on 24 February 2015? AS [37] – [42] RR [9] – [10] RS [39] 7 Did Ms Hawkins tell members of Trevor's family on 24 or 25 February 2015 that she would not go ahead with the visit to the jail to see Trevor unless she was first paid $5,000? AS [43] – [44] RR [11] GROUND C 8 Did Ms Hawkins engage in unsatisfactory professional conduct by charging for certain disbursements in the 25 February 2015 invoice RS [45] AS [72] – [73] RS [46] – [56] 9 Did Ms Hawkins engage in unsatisfactory professional conduct by charging $30,000 for the work the subject of the 11 June 2015 invoice AS [74] – [92] RR [21] – [25] 10 DISCIPLINARY ORDERS Should the Tribunal affirm, vary, or set aside the Council's decision and make a decision in substitution of it, or remit the matter to the Council RS [57] – [60] 11 Does the power under s 299(1)(d) include a power to order the reduction of fees already paid? AS [93] – [102] RR [26] 12 Is the reprimand and the fee reduction excessive Applicant's ground 2 RS [61] – [63] 1. We have already dealt with issue 1. 2. Issue 3 is an issue about jurisdiction, first raised by the applicant in closing written submissions. The issue is whether the respondent had, and the Tribunal has, jurisdiction to deal with Ground A given that, according to the applicant, the alleged conduct took place in Queensland. 3. Usefully, in response to this jurisdiction point, the respondent, in written submissions in reply, specified the conduct the subject of Ground A, along with shorthand references to evidence, as follows (at [18]): The conduct the subject of ground A was Ms Hawkins' communications to Harry on 24 and 25 February 2015, which had the effect of pressuring him to pay her $5,000. The communications consisted of: (a) a telephone call on 24 February: HG [16] – [17]; (b) text messages: HG pgs 14, 15, 18, 19; (c) an email attaching an invoice: Vol 1, tab 9B, pg 100, 113; DH pg 24 – 26. 1. It can be seen that Ground A is concerned with the standards required of a barrister in dealing with a close relative of a client about payment of fees, not with direct dealings between a barrister and a client. There has been no suggestion that the matter is not capable of falling under the umbrella of unsatisfactory professional conduct as a consequence of this feature. Outline of the parties' positions 1. (Throughout these reasons, for convenience, we refer to Harry Griffiths as Harry and to Trevor Griffiths as Trevor. We mean no disrespect to them in doing so.) 2. Apart from the jurisdiction issue just referred to, the applicant's position concerning these complaints, as revealed in closing written and oral submissions, can be fairly summarised as follows. 1. So far as Ground A was concerned, the applicant may have placed Harry under some pressure to pay the $5,000.00 but considering the totality of the evidence, her conduct fell short of applying undue or inappropriate pressure and to suggest that her conduct was unsatisfactory professional conduct involves a level of calculation by the applicant that she did not have. 2. In particular, at the time of the alleged telephone conversation with Harry on 24 February 2015, which the applicant accepted had, possibly, occurred, the applicant had no reason to believe that Harry had not received her Costs Agreement or found it to be unacceptable. In fact, the applicant genuinely believed Harry had the necessary documents concerning his funding of the costs, documents which clearly indicated that some money would be paid in advance, and that he had no objection to them. 3. So far as the alleged conversation with Harry on 24 February 2015 was concerned, the applicant accepted that she had said to him that Ms Elamrousy refused to go to visit Trevor in jail without being paid but the applicant did not admit that she had said that she refused to visit him unless $5,000.00 was paid. 1. As to Ground A, the respondent, essentially, sought to uphold the finding of unsatisfactory professional conduct for the reasons set out in the statement of reasons dated 23 February 2018 which we have extracted above. As to the applicant's beliefs, the respondent's position was that whatever her beliefs may have been about the provision of her Costs Agreement to Harry, at the critical time, she had no basis for thinking he agreed to its terms or to making a payment in advance of invoice. Furthermore, it was not necessary for the Tribunal to find that the applicant pressed Harry to pay knowing he had not received the Costs Agreement or knowing he had not agreed to it or that the applicant otherwise intentionally applied inappropriate pressure to Harry. 2. As to Ground C, the applicant denied that any overcharging had been established, but that even if it had, the mere fact of charging more than a fair and reasonable amount (as provided for in s 298(d) of the LPUL) did not necessarily indicate unsatisfactory professional conduct. 3. The applicant had various responses to the complaints about the disbursements in the 25 February 2015 invoice, including explanations given by the applicant in cross-examination. 4. As to the 11 June 2015 invoice, the applicant's submissions included that the complaint misapprehended the task, as supported by the applicant's evidence in cross-examination that she was really required to go "looking for, literally, a needle in the haystack". The applicant did not agree that the advice was of no practical utility. In any event, such a conclusion was akin to saying that because the applicant did not find error she had no need to spend such a long time looking for error. Furthermore, the respondent had not served any expert evidence to enable the Tribunal to conclude on the Briginshaw standard that there was overcharging. 5. The applicant also submitted that there was no power under s 299 to order a refund of fees in the circumstances of this case where to do so, effectively, would require the Tribunal to place itself in the position of being a costs assessor. 6. Again, in relation to Ground C, in essence, the respondent sought to uphold the finding for the reasons set out in the statement of reasons dated 23 February 2018. In closing written and oral submissions the respondent focussed, principally, upon the 11 June 2015 invoice, including a submission that the applicant appreciated that she needed to see the statements from the three potential witnesses before she could advise upon the three issues Trevor had raised. This meant that 48 hours spent on reading the record and writing an opinion was excessive in circumstances where that work would be of little or no use if the statements were not produced. There was no complaint about the applicant's rates. Rather, the complaint was about overservicing. The relevant disciplinary provisions 1. The most pertinent provisions of the LPUL concerning this matter are: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer 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 lawyer. ….. 298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct— ….. (d) charging more than a fair and reasonable amount for legal costs in connection with the practice of law; ….. 299 Determination by local regulatory authority—unsatisfactory professional conduct (1) The designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer or a legal practitioner associate of the respondent law practice has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any of the following orders— …… (b) an order reprimanding the respondent or a legal practitioner associate of the respondent law practice; ….. 314 Right of appeal or review of decisions of local regulatory authority (1) A respondent lawyer or a legal practitioner associate of a respondent law practice may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by the designated tribunal of, a determination of the designated local regulatory authority under— ….. (b) section 299. (2) The designated tribunal may make any order it considers appropriate on the appeal or review. 1. These provisions are contained in Chapter 5 of the LPUL, the objectives of which include: 260 Objectives The objectives of this Chapter are— ….. (b) to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and (c) to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession. Evidence at the Tribunal hearing 1. The documentary evidence tendered by the respondent consisted of three volumes of documents (Exhibit 1), along with a copy of the decision of the Supreme Court of Queensland Court of Appeal concerning the conviction of Trevor in R v Griffiths [2013] QCA 120 (Exhibit 2). 2. The applicant tendered the transcripts of nine telephone conversations to which Trevor was a party whilst he was in jail on 23, 24 and 25 February 2015 (Exhibit A). 3. The respondent called Harry to give evidence. He deposed to the correctness of an affidavit sworn by him on 21 January 2019 (Exhibit 3). Annexed to that affidavit was a Statutory Declaration declared by Harry on 27 September 2016. Also annexed to that affidavit were copies of screenshots of a number of text messages between Harry and the applicant during the period from 16 January 2015 to 11 June 2015. 4. Harry was cross-examined. 5. The applicant gave oral evidence at the hearing. She deposed to the correctness of an affidavit she had sworn on 2 November 2018 (Exhibit B). A number of documents were annexures to the affidavit, including a costs disclosure document and a costs agreement document in relation to Trevor's matter, and copies of some text messages and emails. Exhibited to the affidavit was a copy of what she described as the brief she had received from Trevor's mother on or about 9 January 2015 (Exhibit DH-1). This consisted of the appeal books in an appeal to the Queensland Supreme Court of Appeal against Trevor's conviction. 6. The applicant was cross-examined. 7. There was no real attack in cross-examination on, or challenge in submissions to, the credit of either of these witnesses, except in relation to some evidence the applicant gave about the supply of the above costs agreement to Ms Elamrousy, a solicitor, for onward provision to Harry. In relation to that evidence, we were not invited to find that the applicant had lied in the evidence she gave about this in the witness box. Rather, we were invited to decide that the evidence was unreliable. 8. There was a faint suggestion that we should not accept the evidence of Harry in two respects. First, as to the key telephone call with the applicant on 24 February 2015 about making the payment of $5,000.00 and, secondly, as to some evidence he gave about receiving the costs agreement. 9. We found Harry to be an honest witness who, at all times, attempted to give truthful evidence to the Tribunal according to the best of his recollection. He made it clear that there were deficiencies in his recollection about some of the events. However, he was firm and clear about many of the more important events. 10. As will be seen below, we have accepted as correct much of the evidence given by the applicant, although in some respects we consider that her recollection was unreliable. 11. Virtually all of the facts that we now set out as our findings on the facts to the requisite Briginshaw standard were either unchallenged or were clearly established on the material supplied to the Tribunal. Having said this, the material presented to us at the hearing included a substantial amount of material that proved to be irrelevant to the resolution of the real issues between the parties. The salient facts – chronologically 1. The parties provided the Tribunal with a combined chronology cross- referenced to the evidence. We have been assisted by that chronology in setting out the facts, although the chronology covered considerably more events than we have found it necessary to deal with. 2. On 30 March 2012, Trevor and Gerry Allen Playford were convicted of two counts of murder in the Supreme Court of Queensland. On 21 May 2013, Trevor's appeal against conviction was dismissed by the Queensland Court of Appeal. On 14 February 2014, Trevor's and Mr Playford's application for special leave to the High Court was dismissed. 3. In the latter half of 2014, the applicant had a number of telephone calls with Trevor during which he said to her that he had been convicted of murder, his appeals were unsuccessful but he had some new evidence he wished to run in reopening the case. The applicant asked him how he was going to fund the appeal and he said that he had spoken to his father about this and he was trying to organise this (DH 7, which is a reference to para 7 of the applicant's affidavit sworn on 2 November 2018 – the references below adopt this style of referencing). 4. In early January 2015, the applicant and Trevor spoke again (DH 8). He told her he wanted her to "run my appeal". He said he had spoken to his father, who had agreed to pay the applicant's fees, and his mother (Anne Potts) had the original barrister's brief and she could get the brief to the applicant. The applicant said she would accept instructions to represent Trevor. At the instigation of the applicant, they also talked about engaging a solicitor that the applicant said she needed, including to take any witness statements. The applicant recommended Ms Elamrousy. 5. As will be seen below, by 19 January 2015 Ms Elamrousy had become involved. Nevertheless, direct arrangements were or came to be made with the applicant rather than an engagement of the applicant by Ms Elamrousy on behalf of the client, under which Ms Elamrousy was responsible for the payment of the applicant's fees. 6. A text message from the applicant to Melissa Griffiths, Trevor's wife, on 7 January 2015 refers to the applicant having spoken to Trevor yesterday and that she needed to contact his father. She asked to be given the father's number. 7. On 9 January 2015, the applicant met Ms Potts in the car park at Australia Zoo at Beerwah, Queensland (transcript 12 March 2019, p 12, line 1). Ms Potts gave the applicant a short briefing about the matter and delivered the brief (Exhibit DH-1) to the applicant (DH 11). The documents delivered were contained in six volumes and consisted of the appeal books for the appeal against conviction to the Queensland Court of Appeal (an index to those documents is in vol 3 of Exhibit 1 at Tab 6). 8. On 19 January 2015, having been in contact with Harry to arrange a meeting, the applicant and Ms Elamrousy travelled to Bilpin and met Harry there (DH 13 and 14; HG 5 - 10). During the meeting at Bilpin, there was discussion about paying the legal fees. There is little controversy about what was said at this meeting. The conversation proceeded on the basis that Harry would be funding the work. Harry said he had a small amount of money and that he would be applying for a loan from his bank to cover the fees. When asked, the applicant gave an estimate of about $60,000 for her fees and said she would be sending a fees agreement and disclosure notice. 9. Harry says, and the applicant did not deny, and he was not challenged about this in cross-examination, that he said at the Bilpin meeting that he wanted to review and approve the applicant's costs proposals before making any payment. Consistently, he said, substantially the same thing in his Statutory Declaration declared on 27 September 2016. We accept his evidence. 10. Harry denied that the applicant said at the meeting that it would be ideal if he could pay a smaller amount now so that she could continue working in the short term (DH 14; HG 9). It is unnecessary for us to make any finding about this difference in their evidence because nothing was made about the alleged statement in the applicant's submissions. Indeed, it is difficult to see how the statement assists the applicant in any way. 11. The applicant's version of the conversation at the Bilpin meeting on 19 January 2015 included that she said to Harry that she and Maggie (Ms Elamrousy) were planning to visit Trevor in jail as soon as possible. In his affidavit, Harry did not deny that this was said. What he did depose to was that at no time during the meeting did the applicant or Ms Elamrousy inform him that they would be visiting Trevor in jail on 25 February 2015. We accept this evidence from the applicant about telling Harry that they planned to visit Trevor in jail as soon as possible. That is so despite the fact that her lawyers' (Moray & Agnew) letter to the NSW Bar Association dated 8 December 2017 made no reference to any conversation with Harry in which the applicant told him of plans to visit Trevor in jail (in para 17) – a matter that was put to the applicant in cross-examination. The applicant resisted the suggestion that she did not have a reliable memory about this. We also note that the paragraph of the draft report by the PCC that her lawyers were responding to (para 15) did not, plainly, invite a reference to a general statement about planning to visit Trevor in jail of the nature the applicant deposed to. It was a paragraph referring to a proposed finding that the visit in late February for the purpose of visiting Trevor did not appear to have been communicated to Trevor or any other member of his family. 12. It was made clear at the hearing that the applicant did not contend that she told Harry of the planned visit to Trevor on 24 or 25 February 2015 before she travelled to Queensland for that purpose (see transcript, 12 March 2019, page 35, line 33). 13. In her affidavit, the applicant deposed that to the best of her recollection, her costs disclosure and costs agreement were "sent" on 9 February 2015 (DH 15). The documents were annexed to her affidavit ("A"). The costs disclosure notice was dated 9 February 2015 and the costs agreement was dated 2 February 2015. Each is addressed to Harry. 14. As appears below, we find that these costs documents of the applicant were not, in fact, sent to Harry on 9 February 2015 or at any time before 27 February 2015. 15. In her affidavit, the applicant did not identify the basis for her somewhat tentative assertion that the documents were sent on 9 February 2015. During the hearing, a call was made of the applicant for any email to Harry attaching these documents (Harry had explained that he could not find any email sending the documents to him – he had not received a hard copy; transcript 11 March 2019, p 92, line 1 and p 94, line 18). 16. In response to the call, no such document was found (transcript 12 March 2019, p 2, line 36). The applicant's inquiries included speaking to Ms Elamrousy about whether she had any emails attaching the costs documents (transcript, 12 March 2019, p 53, line 41). There was no record amongst Ms Elamrousy's documents that the applicant's costs documents had been sent to Harry (Exhibit 1, vol 2, Tab 13B). 17. What then occurred was that the applicant came to give evidence in her cross-examination that she physically gave printed copies of her costs disclosure and costs agreement to Ms Elamrousy, shortly after they were compiled or downloaded, for on-delivery to Harry (transcript, 12 March 2019, p 52, line 38 to p 53, line 24). Her evidence to this effect was open to criticism as unreliable on the basis that if she truly had a sufficient recollection of doing this, it would have been referred to in her affidavit. Furthermore, when she was first asked about this subject in cross-examination, she made no reference to taking such a step and her answers suggested she had no actual recollection about providing the documents to Harry (transcript, 12 March 2019, p 47, lines 13 – 34). 18. We should say that we do not accept the criticism of her evidence about this founded upon her failure to previously mention it in correspondence with the Bar Association. This is because the correspondence shows that it did not, obviously, arise for remark given that Harry had said that he had received the documents by email around the dates that the documents bear. 19. Nevertheless, whilst it may be that the applicant's evidence about this was a reconstruction of the events, that this is what indeed occurred at some point prior to 27 February 2015 is consistent with an email sent by the applicant to Harry on that day (see further below) which includes a reference to her understanding that the costs agreement had been sent to Harry "via Maggie". 20. For the purposes of this matter, it is sufficient that we accept that by 17 February 2015, and on 24 and 25 February 2015, the applicant did believe that her costs agreement and, probably, also her costs disclosure notice had been provided to Harry. 21. We so find because a text message from the applicant to Harry sent on 17 February 2015 includes: ….If u can just send the costs agreement by fax or email that's easier for you. Also I have sent my bank details on my agreement but I need to give you a different account…. 1. Despite what she said to him in this text message, and despite not receiving the costs agreement and, probably, also the costs disclosure until after the events of 24 and 25 February 2015, prior to those events, Harry did not disabuse the applicant of her belief that these documents had been provided to him. 2. We are satisfied that Harry did not receive the applicant's costs agreement or costs disclosure before 27 February 2015 because of the specific documentary evidence at the time about these documents which is contrary to other less reliable material referred to below in support of the contention that the documents were sent to Harry at an earlier point in time before 24 February 2015. 3. The specific documentary evidence is the following exchange of emails between the applicant and Harry on 27 February 2015. 4. In an email from the applicant that day at 4:52pm she said: I don't know if you had received the costs agreement sent via Maggie from me. I shall attach it to this email for your perusal… 1. In an email in reply on 27 February 2015 at 7.07 pm, Harry said: I still haven't been sent anything on costing from Maggie…. 1. In his affidavit, responding to the applicant's statement that the costs documents were sent on 9 February 2015, Harry said that he did not recall receiving or reviewing the documents prior to 27 February 2015. His Statutory Declaration is consistent with receipt of the costs agreement after the important telephone conversation with the applicant on 24 February 2015 about paying $5,000.00, referred to below. He does not give a date for the receipt but in the narrative given in the declaration he places this event after the conversation (he did not give a date for that event either). 2. In a letter from him to the Bar Association dated 8 September 2017, Harry said that he received the applicant's costs documents that he asserted were sent on 2 and 9 September 2015 "around those dates by email". As he explained in re-examination, he had not been able to find any emails attaching the documents before he made that statement. When asked what he relied upon to make that statement in the letter, the best he could do was to say that he honestly thought the applicant's and Ms Elamrousy's costs documents had been emailed and that he had asked for Ms Elamrousy's to be emailed to him. 3. Earlier in cross-examination, he had agreed that what he said in the letter dated 8 September 2017 about when they were received was the truth (transcript, 11 March 2019, p 50, line 15) and he accepted that he did receive them around those dates. However, no basis for the accuracy of these admissions was established and he was not taken in his cross-examination to the contradictory statement by him in the above 27 February 2015 email. Later in his cross-examination he revealed his uncertainty about when he received the applicant's costs documents: transcript, 11 March 2019, p 82, line 31 – answer "I can't recall what date I actually got these documents". 4. The contention that Harry received the applicant's costs documents before 24 February 2015 does not sit well with his evidence of a telephone conversation with the applicant sometime after 9 February 2015 but before 24-25 February 2015 in which he said "I will not take out a loan until I know how much these proceedings are going to cost" (para 14 of his affidavit) and the absence of any suggestion in his evidence that he received the applicant's costs documents after that conversation but before 24 February 2015. He adhered to that evidence of the telephone conversation in cross-examination: transcript, 11 March 2019, p 51, line 13. 5. In the period after 9 February 2015 and before she travelled to the Gold Coast on 23 February 2015, the applicant called Harry a number of times to ask whether funding arrangements were in place to cover her fees – one of these conversations was that referred to in the previous paragraph: [DH 16]. However, it is common ground that at no time in these conversations did the applicant mention that she would be visiting Trevor in jail on 24 or 25 February 2015. 6. In the evening of Monday 23 February 2015, the applicant flew to the Gold Coast with a view to travelling to Brisbane the following day and from there, to visit Trevor at the Southern Queensland Correctional Centre (SQCC). The applicant stayed overnight in a hotel on the Gold Coast. By then, Ms Elamrousy was living on the Gold Coast and on Tuesday 24 February 2015, they drove together to Brisbane. 7. Ultimately, on 24 February 2015, a booking was made with the SQCC for the applicant and Ms Elamrousy to see Trevor at 1:30pm on Wednesday 25 February 2015. 8. Their plan had been to visit Trevor in the afternoon of 24 February 2015 (email from the applicant to SQCC sent at 8:07am that morning). However, this was delayed because a procedure needed to be completed to obtain security clearance for Ms Elamrousy (DH 24 and 25: transcript, 13 March 2019, p 61). Before travelling to Queensland, the applicant had not appreciated that Ms Elamrousy was not registered for jail visits there: transcript, 13 March 2019, p 61, line 42. 9. Prior to making that arrangement, the applicant had spoken to Trevor about the visit (DH 19). 10. It is uncontroversial that the applicant did not tell Harry that she was travelling from Sydney to visit Trevor during the week commencing 23 February 2015. As we set out below, we find that the first that Harry heard of such a visit was in a telephone call that he received from the applicant on 24 February 2015. 11. Following the delay in the visit to Trevor, the applicant stayed a night in a hotel in Brisbane. The cost of that stay was charged to Harry in the applicant's first invoice referred to below. Telephone call between the applicant and Harry on 24 February 2015 1. We accept Harry's evidence that on 24 February 2015 he received a telephone call from the applicant in which she said words to the effect (HG 16): I am in Brisbane with Maggie Elamrousy to visit Trevor, but we will not proceed to visit Trevor unless you pay us each $5,000. 1. This evidence was consistent with his Statutory Declaration sworn on 27 September 2016 in which he declared: …I received an unexpected phone call from [the applicant] demanding $5,000 be paid into her account and also Maggie Elamrousy's account to cover expenses to see my son in gaol or we will be catching the next flight out of Brisbane without seeing him… 1. In the cross-examination of Harry it was not suggested that no such conversation as deposed to in his affidavit occurred or that he was or may have been mistaken about what was said. He was taken to the text message at 3:23pm that day set out below and he agreed that the applicant was telling him that Ms Elamrousy would not move without money in trust (transcript, 11 March 2019, p 87, lines 15 to 36). However, he was not taken to the above conversation he deposed to in para 16 of his affidavit and challenged about it. 2. Furthermore, in the applicant's cross-examination she accepted that she had, possibly, spoken to Harry in these terms before her visit to see Trevor, although she could not recall doing so: transcript, 13 March 2019, p 51, line 42 to p 52, line 41. She also said that on 24 February 2015 her position was that she wanted an indication from Harry that he was going to put money into her bank account (transcript, 13 March 2019, p 44, line 38 to p 45, line 2), although she denied that her position was that she would refuse to go to the jail unless he did put money into her account: transcript, 13 March 2019, line 7. 3. This conversation with Harry on 24 February 2015, probably occurred before 3:23 pm on 24 February 2015 because there is a text message from the applicant to Harry at that time which suggests that they had recently been in communication. The text message is in terms: Hi Harry when u get a chance send the receipt for deposit for the accounts as they sent an email from the gaol and will allow us in tomorrow to see Trevor and the solicitor won't move without $ in trust 1. The same text message is recorded as having been sent again at 9:29am on 25 February 2015. The likelihood is that the applicant sent it again that morning: transcript, 13 March 2019, p 54, line 22 to p 55, line 6. 2. The reference in the text message to the solicitor's position only does not dissuade us from our acceptance of Harry's evidence of this conversation, bearing in mind that it was not suggested to Harry in cross-examination that he was mistaken in deposing that the applicant said that "we" will not proceed with the visit, and having regard also to our favourable impression of Harry's evidence on significant matters and the above "possible" concession by the applicant. 3. In respect of the events during this period (not just in relation to a telephone call between the applicant and Harry on 24 February 2015), both parties sought to rely upon parts of transcripts of telephone recordings on 23, 24 and 25 February 2015 produced by SQCC (Exhibit A). None of these were of telephone calls to which either Harry or the applicant was a party. They were conversations between Trevor and members of his family, including his wife and mother. Hearsay statements were made in these conversations about what had been said by the applicant or to or by Harry. We are not prepared to give any weight to such statements in circumstances where none of these persons have given evidence about them in these proceedings or have been made available for cross-examination and where we know nothing about the reliability of what these persons have said. 4. For example, the respondent sought to support a finding that the above conversation between Harry and the applicant occurred by reference to the transcript of a call at 11:41am between Trevor and his wife (Melissa) on 24 February 2015 in which Melissa said the applicant had said to Trevor's mother that morning that unless we hear from Harry after lunch "we're not going, and we'll be shelving the thing". For the above reasons, we are not prepared to give any weight to such evidence or to first-hand hearsay as to what Trevor's mother said to Trevor she had been told by the applicant about not visiting until the money was paid: call at 14:09 on 24 February 2015, line 19. 5. Nothing contradicts Harry's evidence that the telephone call from the applicant on 24 February 2015 was the first time he was aware that the applicant and Ms Elamrousy required an up-front payment of $5,000.00 prior to any visit and we accept that evidence (HG 17). 6. We also accept Harry's evidence that the first he knew of the visit to Trevor that week was in this telephone call from the applicant: transcript, 11 March 2019, p 53, line 7. There was no evidence of any other communication to him of the pending visit other than a hearsay assertion by Trevor to his mother on 24 February 2015 that Harry "knew all this, he was supposed to call them two weeks ago": Exhibit A, Tab 3, line 23. We are not prepared to give any weight to this latter evidence, as we have already explained. 7. Harry gave unchallenged evidence, which we accept, that he felt pressured by the applicant to transfer the $5,000 to the applicant and Ms Elamrousy and that, on the basis of the conversation he had with the applicant, he believed that the visit to Trevor would not go ahead if he did not do so (HG 19). Payment on 25 February 2015 and visit to Trevor in jail 1. In the morning of Wednesday 25 February 2015, Harry arranged with his branch of the ANZ in Lithgow to transfer the two amounts of $5,000.00: text message from Harry to the applicant at 10:16am. Harry accepted in cross-examination that it followed from this text that his evidence that he made this arrangement in the afternoon of 24 February 2015 was incorrect (HG 20). 2. As appears below, the arrangements to pay these two amounts were made before Harry had received any invoice from the applicant. 3. Harry sent an email to the applicant at 12pm, New South Wales time, on Wednesday 25 February 2015 saying that the amount of $5,000 each had been deposited into the bank accounts as requested. Because of the effect of daylight saving, this was sent at 11am Queensland time. 4. Subsequent to that email, at 11:48am, Queensland time, on 25 February 2015, the applicant sent an email to Harry attaching an invoice for the sum of $5,170 inclusive of GST. The invoice stated that $5,000 had been paid and, accordingly, the balance due was $170. Prior to this email, there had been a text message from the applicant to Harry at 10:04am that day which said they were going there [to the jail] that day and asking if he "put the fees in yet". Harry responded by text and said that he was on his way back from Sydney and would get to his bank around 11:00am. The applicant responded by text and said she would await his advice confirming deposit and that he should not forget the solicitor's fees too. The applicant's first invoice, 25 February 2015 1. The applicant's invoice (addressed to Trevor c/- Harry) was made up of 6 hours concerning "Supreme Court advice and visit gaol" and an amount of $1,700 for "Disbursement travel return Sydney to visit gaol". 2. We accept the applicant's evidence that, despite the reference in the charge to visiting jail, the charge of 6 hours did not include a charge for the visit to the applicant in jail on 25 February 2015: transcript, 13 March 2019, p 55, line 31. Whilst there was some cross-examination of the applicant arising from this fact, nothing was made about this in submissions. 3. The charge of 6 hours covered the meeting with Ann Potts (incorrectly dated 17 January 2015) and the conference with Harry on 19 January 2015. It also included 4 hours on 1 February 2015 for reading decisions in the Court of Appeal and High Court in relation to Trevor's conviction. 4. The invoice did not provide any breakdown of the figure for disbursements. It was uncontroversial that the amount of $1,700 was made up as follows (see the applicant's response to a s 371 notice): 1. An amount of $192.50 for "return travel from Noosa Courthouse to Beerwah for conference and document collection" from Ms Potts on 9 January 2015 calculated at a rate of $0.66/km over 180km; 2. An amount of $93.72, for "return travel from Sydney to Bilpin NSW for conference" with Harry on 19 January 2015, calculated at a rate of $0.66/km over 142km; 3. An amount of $343 for photocopying documents on 2 February 2015; 4. An amount of $192.50, paid to Jetstar, for a flight from Sydney to Gold Coast on 23 February 2015; 5. An amount of $290.41, paid to Europcar, for a rental car (a Mercedes Benz C200 Sedan for which she paid a premium of $100.00) from 23 February 2015 to 25 February 2015; 6. An amount of $100, paid to the Mantra Hotel on the Gold Coast, for accommodation for the night of 23 February 2015; 7. An amount of $415.00, paid to the Stamford Plaza Hotel in Brisbane, for accommodation for the night of 24 February 2015; and 8. An amount of $73 for photocopying documents on 25 February 2015. The meeting with Trevor in jail on 25 February 2015 1. The applicant and Ms Elamrousy met with Trevor at the SQCC at about 1:45pm that day for about 45 minutes (DH 33). They discussed the case at some length. The applicant saw some other prisoners on the same occasion. 2. Trevor explained to them the grounds upon which he sought to challenge his conviction. This was the first occasion he had done so, other than what he had said to the applicant in the above telephone call in late 2014: transcript, 13 March 2019, p 64, line 41 to p 65, line 1. 3. Trevor told them there were three grounds. First, there was an expert by the name of Ian Diamond who could give an opinion about sleep deprivation. Second, was the avenue of an affidavit from the co-offender, Gary Playford. Third, there was a juror who had come forward regarding an irregularity: transcript, 13 March 2019, p 65, line 6. 4. Trevor did not give them any further information as to what Ian Diamond might say: transcript, 13 March 2019, p 65, line 22. The plan was for Ms Elamrousy to be responsible for obtaining a report from him: transcript, 13 March 2019, p 66, line 6. At no time before the letter from the NSW Bar Association dated 14 September 2015 notifying her of a complaint from Trevor's wife did she receive any more information about what Mr Diamond might be able to say: transcript, 13 March 2019, p 67, line 10. It was when she received that letter from the NSW Bar Association that she considered her brief from Trevor had been withdrawn. 5. At the meeting they did not discuss the content of what Mr Playford might say. The plan was for Ms Elamrousy to get a statement or affidavit from him: transcript, 13 March 2019, p 67, lines 27 – 36. By September 2015, the applicant had received only some vague information from Ms Elamrousy about Mr Playford's thinking about defences of duress or self-defence Trevor could have run at trial but she never received any details about this: transcript, 13 March 2019, p 68, lines 13 – 45. 6. As to potential evidence from the juror, it was unclear whether they received the information at the meeting or in a subsequent telephone call with Trevor. However, the applicant learnt from Trevor that, according to Trevor's understanding, the juror was saying that the jury came to a conclusion about motive to kill partly because of evidence from Trevor's father-in-law concerning cash flow issues; transcript, 13 March 2019, p 69, line 29 to p 71, line 4. At all times during the period of her retainer, the information she had was that Trevor believed there had been an irregularity but she didn't know what it was except that it had something to do with this evidence about cash flow issues: transcript 13 March 2019, p 80, line 16. 7. The plan at the end of the conference on 25 February 2015 was for Ms Elamrousy to obtain a statement from the juror; transcript, 13 March 2019, p 72, line 45. She never received any such statement before 14 September 2015. 8. At the meeting, along with a discussion about Harry funding the fees, the applicant said to Trevor (DH 33): We can get cracking on this straight away. It shouldn't be a long process. I will prepare a written advice and Maggie will attend to obtaining statements, and she will talk to George Thomas and obtain the documents from his brief, if they are relevant… 1. George Thomas was Trevor's barrister at his trial. 2. Prior to the jail visit on 25 February 2015, the applicant had read the decision of the Queensland Court of Appeal in Trevor's appeal (R v Griffiths [2013] QCA 120, Exhibit 2) and the transcript of his unsuccessful application for special leave to appeal to the High Court: transcript, 13 March 2019, p 64. The applicant's costs disclosure notice and costs agreement 1. The applicant's costs disclosure notice was addressed to Harry (annexure A to her affidavit). It was not modified for a third-party funding situation – it referred to Harry as the client. It was generic in nature in its description of the legal services to be provided (see paras 1 and 2) and does not, therefore, assist in the identification of the tasks the applicant was retained to carry out. 2. The notice provided an estimate of costs of $54,000 plus GST. 3. The notice said that it was to be read in conjunction with a direct costs agreement. 4. The applicant's costs agreement was addressed to Harry on behalf of Trevor (also part of annexure A to the applicant's affidavit). Again, it was generic in nature as to the work to be carried out. It did not direct itself to the costs of preparing an advice as a part of the retainer. 5. The costs agreement included the following: 1. It said that the applicant would do the following work (cl 1): All work up to and including the conclusion of the criminal or employment/industrial proceedings and any sentencing proceedings, save those tasks normally performed by a solicitor. 1. It provided daily and hourly rates and gave the same estimate as in the costs disclosure notice (cl 2). 2. It provided that sufficient money would be paid in advance of the proceedings commencing such as to cover the estimated costs of the work (cl 4). 3. It provided that the applicant would begin the work promptly when notified of acceptance of the agreement by signing and delivering the agreement to the applicant. It also provided that if the agreement was not returned in signed form within 14 days, the applicant would presume the terms of the agreement had been adopted by continuing to instruct the applicant and not notifying her in writing of any disagreement with the terms. 1. Harry never signed the applicant's costs agreement but he had no problem with it and the applicant's costings set out in the agreement were acceptable to him: Statutory Declaration by him dated 27 September 2016; transcript, 11 March 2019, p 50, line 34. Events after February 2015 1. For a lengthy period after 27 February 2015 the applicant did not hear from Harry at all (DH 35). 2. During this period, Trevor rang the applicant on a couple of occasions and asked about the advice the applicant was preparing. She told him she had done some work on it but she had not heard from Harry about payment of her fees (DH 38). 3. In an email exchange between the applicant and Harry on 4 May 2015, the applicant was informed that Harry would be arranging funding for the applicant that week. Harry asked in the email for the case topics to be used in Trevor's defence. 4. After clarification, the applicant responded in an email on 5 May 2015 in terms: As you know it's my intention to run an argument of fresh evidence not available at trial such as the co-accused and the juror as well as this expert on sleep deprivation regarding the third record of interview but I need to read the transcripts and discuss his case with the other barristers again also. I also need the statements from the witnesses. There may be further points to come but I cannot tell you until this is all done then I will be in a better position to definitely say what points we are definitely going ahead with. I await your email or text regarding the funding at your earliest convenience. 1. In cross-examination, the applicant agreed that at this point in time, she needed to see statements from three potential witnesses, Mr Playford, the sleep deprivation expert and the juror: transcript, 13 March 2019, p 75, line 19. 2. By this time (5 May 2015), from reading the decision of the Queensland Court of Appeal, the applicant was aware that Trevor had unsuccessfully sought to have his third record of interview excluded on the basis that it was involuntary or unfair because of sleep deprivation and that his appeal from that ruling had been unsuccessful in the Court of Appeal and in obtaining special leave to appeal to the High Court: transcript, 13 March 2019, p 75, line 26 to p 77, line 13. 3. As appears below, in the period from 11 May 2015 to 21 May 2015, the applicant proceeded to spend a large amount of time reviewing the brief and preparing a written advice (see also, DH 36). She did so despite the fact that she did not have the potential new evidence that had been discussed with Trevor. 4. On 21 May 2015, Harry sent the applicant an email from his bank setting out an approval for an increase in borrowing of $46,500.00. 5. On 1 June 2015, Harry sent a text message to the applicant saying that the money has finally come through. He also asked to be advised as to her next move towards Trevor's defence. The applicant's document of preliminary advice, 9 June 2015 1. By 9 June 2015, the applicant had produced a 16 page document which was headed as follows (p 140, Tab 9B, volume 1, Exhibit 1): Preliminary Advice in the matter of Trevor Harry Griffiths Based upon a summary of material supplied to Counsel prior to obtaining statements and expert opinions Application to re-open the matter on a basis of fresh evidence from the Co-offender via AG Qld or Justices Act Qld Application to the Supreme Court of Queensland under the Jury Act. 1. The document is important to the overcharging complaint. 2. In cross-examination, the applicant explained that the legal pathways she saw as, possibly, being available to challenge the conviction were an application to the Attorney-General under the Queensland Criminal Code to have the appeal re-opened in the Court of Appeal and an application in relation to a jury irregularity under the Queensland Jury Act: transcript, 13 March 2019, p 79, line 6 and p 84, line 20. 3. Under the heading "Introduction" the document stated: Any advice at this early stage as already stated to Mr Griffiths and Mr Griffiths senior (Harry Griffiths) cannot take the matter any further without the fresh evidence being obtained and reviewed as to where it may assist Mr Griffiths in having the matter re-opened. As already stated in verbal advice as a result of reading the material in six volumes provided to Counsel, there is no prospect for the matter progressing until fresh evidence is obtained and on that basis Counsel gives a summary of what evidence could be brought on behalf of Mr Griffiths to combat the evidence at trial. 1. There followed sections of the document under the topics "Instructions on fresh evidence", "The case before the jury", "Evidence at trial", "Trial Directions", "Records of Interview", "The Jury's Decision Being Overturned Under An Application Under The Jury Act", "Application To The Attorney- General/Supreme Court – Fresh Evidence Of Playford And The Expert On Sleep-Deprivation", "Sleep Deprivation", "Conclusion". 2. The conclusion stated: There is evidence to convict Griffiths with or without the record of interview sought to be excluded under section 590AA. If the jury it is discovered did not make a decision upon anything other than then evidence of Richards stating that Griffiths had issues with one company about cash. The admissions made on behalf of Griffiths by Playford in the same trial as a minimum attest to that and this issue would have to be carefully canvassed with Playford in the fresh evidence. Until that fresh evidence is obtained Counsel cannot make any proper decisions about whether the fresh evidence would assist Mr Griffiths as stated to Mr Griffiths and his father previously. The applicant's invoice, 11 June 2015 1. The applicant's second invoice (addressed to Trevor c/- Harry) was dated 11 June 2015 (p 98, Tab 9B, vol 1, Exhibit 1). 2. The invoice was for the sum of $30,000, inclusive of GST. It included a charge of $27,250 for "Preparation for application Jury Act and Criminal Code Qld Trevor Griffiths v Regina". This was stated to be made up of 54.5 hours at the rate of $500 an hour. The invoice is marked as having been paid. 3. It is uncontroversial that making up most of this charge was 42 hours with respect to reading the brief and case law during the period from 11 May 2015 to 20 May 2015 and 6 hours with respect to preparation of advice, further case law, legislation research and finalising advice carried out on 21 May 2015 (see para 19 of the applicant's Statutory Declaration dated 19 August 2016 at p 248, Tab 12C, vol 1, Exhibit 1). The reference to "reading the brief" was a reference to reading the appeal books for the appeal to the Queensland Court of Appeal. 4. Other work the subject of the invoice totalling 6.5 hours was done on 25 February, 11 March, 29 April and between February to June 2015. 5. In cross-examination the applicant disagreed that in circumstances where she had not received the statements it was unnecessary for her to spend all or most of the 48 hours referred to above reading the brief: transcript, 13 March 2019, pages 86 to 88. The following exchange occurred: Q. Will you accept that in circumstances where you would 10 form the view that you couldn't form any evaluation of 11 Trevor's prospects of challenging his conviction until you 12 received the statements from the expert Mr Diamond, 13 Mr Playford and the juror -- 14 A. Yeah. 15 16 Q. -- that it was unnecessary for you to spend all or 17 most of that 48 hours reading the brief? 18 A. No. 19 20 Q. Why not? 21 A. Because, as I said to you earlier, this is a case 22 you're looking for a needle in a haystack. He gave 23 instructions. There were cases run - sorry, the trial was 24 run. There were appeals. But with respect to reading it, 25 that means that I had to go right through it and see if 26 there was something else that I saw that other people 27 didn't see, and prepare it so as if we're ready to run it 28 with respect to the documents that were coming. 29 30 Q. Won't you accept that your reading of all of that 31 material, if not pointless, was at least not very valuable 32 until such time as you had seen the statements from the 33 three witnesses we've been discussing? 34 A. No. 35 36 Q. Why is that? 37 A. I think it was very valuable. I think it was 38 extremely valuable. 39 40 Q. Well, isn't one way of determining whether or not it 41 was valuable to look at what you said in your opinion of 42 9 June 2015? 43 A. 9 June, yeah. 44 45 Q. Because didn't you - didn't you say in your opinion of 46 9 June 2015 -- 47 .13/03/2019 86 D HAWKINS xx (Mr McLure) ……. 7 MR McLURE: Q. Do you see in the first paragraph on 8 page 140 you said -- 9 A. That's the beginning. 10 11 Q. I'm sorry - say again? 12 A. Yeah, at the beginning; yes. 13 14 Q. Yes. Do you see in the first paragraph -- 15 A. Mmm-hmm. 16 17 Q. -- which commences: "Any advice at this early 18 stage" -- 19 A. Yeah. 20 21 Q. You say you cannot take the matter any further without 22 the fresh evidence being obtained and reviewed; do you see 23 that? Do you see that? 24 A. Yes, I do. 25 26 Q. Do you see in the next paragraph you say: 27 28 There is no prospect for the matter 29 progressing until the fresh evidence is 30 obtained. 31 32 Do you see that? 33 A. That's right. 34 35 Q. And you say similar things throughout your opinion, 36 don't you? 37 A. Yeah. 38 39 Q. That you were in no position at all to evaluate the 40 prospect of Trevor challenging his conviction until you saw 41 the new statements? 42 A. Although I do say throughout the - throughout the 43 document - which I might add is preliminary advice - but I 44 do say throughout the document what I think about the 45 different issues that I came across when I was reading the 46 material. 47 .13/03/2019 87 D HAWKINS xx (Mr McLure) 1 Q. That's true. Now, could you answer my question? 2 A. Oh, I'm sorry, I thought I did. What was -- 3 4 Q. You accept, don't you, that you say throughout the 5 opinion, both at the beginning - and if you just look at 6 the last paragraph -- 7 A. Yes. 8 9 Q. -- page 156. The final paragraph - do you want to 10 have a look at that? 11 A. I know what it says. 12 13 Q. It says: 14 15 Until that fresh evidence is obtained 16 counsel cannot make any proper decisions 17 about whether the fresh evidence will 18 assist Mr Griffiths. 19 20 A. Obviously. 21 22 Q. In view of the conclusions you yourself reached in 23 your opinion of 9 June 2015, do you accept that it was 24 unnecessary or excessive for you to have spent 48 hours 25 reading the brief and writing an advice about it -- 26 A. No. 27 28 Q. -- before you received the statements? 29 A. No, I don't. ……. MR McLURE: Q. You agree, don't you, that neither Trevor 39 nor Harry were pressing you to write an opinion in these 40 circumstances? 41 A. Yes; Mr Griffiths was, the client. 42 43 Q. Which one? 44 A. Trevor. 45 46 Q. So what did Trevor say to you? 47 A. He was pressing me. .13/03/2019 88 D HAWKINS xx (Mr McLure) 1 2 Q. He was pressing you for? 3 A. For advice. 4 5 Q. Was he pressing you for a written advice to be 6 provided prior to the statements being obtained from the 7 witnesses? 8 A. Yes. He kept pressing me, yes. 9 10 Q. Did you tell him at any point that it would not be 11 productive - by that I mean it would not be useful for you 12 to write a written advice about his case before you 13 provided -- 14 A. No. 15 16 Q. -- before you received the written statements? 17 A. No. Because I didn't believe that to be the case, and 18 I don't believe that to be the case still. In fact, I 19 believe that I've saved them money. Because once 20 statements came - after I've done all that reading and all 21 that preparation, once the statements came then I would be 22 ready either to slot it in, which means that I would have - 23 I've got all my notes there, all the notes that I can refer 24 to, all the different points in the five or six volumes, 25 and then I could just slot that in and we could do it very 26 quickly. It would be very cost effective. Otherwise that 27 would be it and they could cut and run, and they wouldn't 28 have to pay any more money. See, I was saving them money. 29 30 Q. Did it ever occur to you that all of that work could 31 prove to be useless if those statements were never 32 obtained? 33 A. The statements were going to be obtained. I had no 34 doubt that the statements were going to be obtained. And I 35 believe that Maggie obtained a statement from Playford. Melissa Griffiths' complaint 1. A complaint about aspects of the applicant's conduct in the matter was first made in an email from Trevor's wife (Melissa) sent on 23 August 2015 to the NSW Bar Association. The complaint included, but was not confined to, the issue of the payment of $5,000 before the visit to Trevor in jail and about overcharging. 2. By letter dated 28 August 2015 from the Office of the Legal Services Commissioner to the NSW Bar Association, the complaint about the applicant was referred to the Professional Conduct section of the Bar Association for assessment. 3. The applicant's brief was withdrawn by Trevor in about September 2015. 4. On 9 March 2017, the Bar Council resolved to make its own complaint against the applicant on four grounds. 5. Ultimately, through the processes of the Bar Association in relation to a disciplinary matter, the Bar Council made the resolutions on 22 August 2018 following the report of the Professional Conduct Committee dated 7 February 2018. Ground A – Consideration Jurisdiction 1. As we have said, in closing submissions the applicant submitted that the finding of unsatisfactory professional conduct the subject of Ground A and the reprimand must be set aside because the NSW Bar Association had no jurisdiction to deal with that ground of complaint. 2. We do not agree with this submission for the reasons now set out. 3. The applicant's submission was premised upon the contention that "the alleged conduct in relation to Ground A took place in Queensland" ([50], written submissions dated 11 June 2019). 4. From there the applicant submitted that Chapter 5 of the LPUL does not apply to the conduct of a lawyer which occurred in Queensland (which was a non-participating jurisdiction) unless either the "corresponding authority" of Queensland consents, or the complainant and the lawyer consent to the conduct being dealt with under the LPUL, and that there was no evidence of either of these conditions being satisfied. 5. The applicant submitted that this was a consequence of Clause 12, Part 4, Schedule 3 of the LPUL, which Schedule set out provisions applying in relation to non-participating jurisdictions. That clause provides: Part 4 Dispute resolution and professional discipline 12 Non-application of Chapter 5 to certain conduct of lawyer occurring within non-participating jurisdiction or outside Australia (1) Chapter 5 as applied in this jurisdiction does not apply to— (a) conduct of a lawyer that has occurred within a non-participating jurisdiction, unless consent is given as referred to in subclause (2); or (b) conduct of a non-participant legal practitioner or non-participant registered foreign lawyer to the extent that the conduct has occurred outside Australia, unless— (i) the conduct is part of a course of conduct that has occurred within a participating jurisdiction; or (ii) the conduct is part of a course of conduct that has occurred within a non-participating jurisdiction and consent is given as referred to in subclause (2). (2) For the purposes of subclause (1), consent is given in relation to conduct of a lawyer that has occurred within a non-participating jurisdiction if— (a) the lawyer was admitted to the Australian legal profession by the Supreme Court of a participating jurisdiction or was at the relevant time the holder of an Australian practising certificate, or Australian registration certificate, granted in a participating jurisdiction; and (b) either— (i) the corresponding authority of the non-participating jurisdiction consents to the conduct being dealt with under this Law as applied in this jurisdiction; or (ii) the complainant and the lawyer consent to the conduct being dealt with under this Law as applied in this jurisdiction. 1. The applicant submitted that the factual situation squarely matches that which was considered by the Tribunal in the context of the Legal Profession Act 2004 (NSW) in Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209. As outlined below, we do not agree. We are concerned with particular conduct which is quite different to the conduct in Asuzu that raised the jurisdiction issue. 2. As the respondent pointed out, Ground A is entirely concerned with communications by the applicant, whilst she was in Queensland, to Harry in New South Wales. It is not concerned with any communication by the applicant, whilst in Queensland, to any other member of Trevor's family in Queensland. 3. So far as each of the communications were concerned, we agree with the respondent that such conduct occurred where the communications were directed and received: by analogy with the reasoning in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at 567-8 where the plurality said: In some cases an act passes across space or time before it is completed. Communicating by letter, telephone, telex and the like provide examples. In Diamond v. Bank of London and Montreal (1979) QB 333 Lord Denning M.R. stated (at p 346) that a representation or a statement effected by telephone or telex takes place "where the message is received - wherever it is heard on the telephone by the receiver or tapped out by the telex machine in the receiver's office". In the view of Stephenson L.J. (at pp 349-350) the situation was like the publication of a defamation or the act charged as an offence in D.P.P. v. Stonehouse (1978) AC 55 in that although initiated outside the country it "operates on persons and property in this country". …. If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to attention in some third place. But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers, where, in substance, the act took place. 1. In addition, as the respondent submitted, the text messages and the email are deemed to be despatched from the applicant's place of business, which was her chambers in Sydney: Electronic Transactions Act 2000 (NSW), s 13B. 2. Accordingly, we find that the relevant conduct the subject of Ground A all took place within New South Wales. Hence, Chapter 5 of the LPUL applies in relation to that conduct. Whether unsatisfactory professional conduct 1. We have set out above the definition of unsatisfactory professional conduct in s 296 of the LPUL. 2. It is uncontroversial that the conduct in issue was conduct occurring in connection with the practice of law. 3. The only question is whether the conduct in issue was "unsatisfactory" professional conduct within the meaning of s 296. 4. We think that what was "unsatisfactory" conduct was the pressure that the applicant applied to Harry, by what she said to Harry in the telephone call she made to him on 24 February 2015, to make a payment to her before she visited Trevor in jail, in the circumstances outlined below. 5. In our opinion, it was unsatisfactory within the meaning in s 296, in the sense that it fell short of the standard of competence that a member of the public is entitled to expect from a reasonably competent lawyer. 6. The conduct created an unwarranted, apparent, urgency about the payment of legal costs by a third-party funder. 7. This is because a reasonably competent lawyer would not have made the call that the applicant did without first: 1. Checking with Harry in advance of making any arrangements to travel to Queensland that he approved of the applicant's Costs Agreement before seeking a payment of $5,000.00 on the basis that such sum needed to be paid before a visit to Trevor could proceed. The applicant knew that Harry had wanted to approve such a document before he made a payment. 2. Checking with Harry in advance of making any arrangements to travel to Queensland that he agreed to pay the cost of her to travel to Queensland for the purpose of the visit to Trevor, including her accommodation there, before seeking the payment of $5,000.00 on the basis that such sum needed to be paid before a visit to Trevor could proceed. 3. Sending Harry an invoice for costs incurred to date, and giving him a reasonable time to consider and pay such invoice, before seeking the payment of $5,000.00 on the basis that such sum needed to be paid before a visit to Trevor could proceed. 1. We do not find, and the respondent did not contend, that this conduct by the applicant was carried out with any particular state of mind other than that she wished to press ahead with the work that Trevor wanted her to do and wanted a modest instalment of her likely costs to be paid before this occurred. 2. However, in our opinion, what occurred was, objectively assessed, in the circumstances as we have found them, including what was known and understood by the applicant, conduct that fell short of the standard set out in s 296. 3. It is apparent from what we have just said that we consider that whether or not there has been unsatisfactory professional conduct is determined by an objective assessment of the facts and not according to the applicant's subjective beliefs and views in relation to her conduct (Issue 4). The applicant's knowledge may be an aspect of those facts. Her beliefs may be relevant if they are reasonably based. 4. We accept that it is not uncommon for a lawyer to apply pressure for costs to be paid or a payment to be made on account of costs by refusing to carry out work unless such a payment is made. However, this case has the features set out above that distinguish it from what can be termed the norm. 5. In the circumstances we have outlined, we accept the respondent's characterisation of the pressure exerted by the applicant as "inappropriate", although we disagree with the respondent's submission that one aspect of this was that it, effectively, deprived Harry of his right to dispute the invoice. As the applicant points out, those rights remained whether or not the bill is paid: s 350(3) of the Legal Profession Act 2004. 6. For these reasons, in our opinion, the correct and preferable decision is that the applicant did engage in unsatisfactory professional conduct by pressuring Harry to pay her $5,000 on 24 February 2015, by threatening to cancel her visit to the jail to see Trevor if he did not. Ground C – Consideration Overcharging 1. Prominent in our consideration of this part of the case is s 298(d) of the LPUL (set out above) and the question whether the charges in issue exceeded a fair and reasonable amount. It follows from that section, in conjunction with s 296, that charging in excess of a fair and reasonable amount falls short of the standard of competence that a member of the public is entitled to expect from a reasonably competent lawyer. 2. We apply that test, noting that the test is not whether we characterise the charges in issue as amounting to gross overcharging, as some of the applicant's submissions might suggest. 3. The applicant submitted otherwise, and said that we were constrained by the absence of expert evidence concerning the charges. We disagree. We are a specialist Tribunal constituted for the purpose of dealing with a barrister's disciplinary matter. Furthermore, as will become apparent from our analysis below, we do not see the issues raised as requiring specialised knowledge in the field of costs assessments or criminal law. 4. In determining the issues we have focussed upon the question whether the charges (whether for disbursements or work done) exceeded a fair and reasonable amount because the charges were for unnecessary work or expenses or work or expenses that it was unreasonable for the applicant to have carried out or to have incurred. 5. As the respondent submitted, overcharging may take various forms, including charging for unnecessary work: De Pardo v Legal Practitioners Complaints Committee [2003] WASCA 274 at [19], [42]. For example, in De Pardo it was found that the preparation of an opening and cross-examination was unnecessary at the point when it was done. The June 2015 invoice 1. We deal first with the case concerning the June 2015 invoice – this was the overcharging matter that received the most attention from the parties at the hearing. 2. The complaint about the charges in the June 2015 invoice is, in essence, one of over-servicing by the carrying out of unnecessary work. There is no complaint about the reasonableness of the rates. 3. As explained above, by the time the work charged in the June 2015 invoice was carried out, the applicant had already read the Court of Appeal and High Court decisions and she had charged and been paid for doing so. 4. The respondent's core submission was that after conferring with Trevor and reading the Court of Appeal's judgment, further time reading Trevor's appeal books was unnecessary or unreasonable to do unless and until some striking new evidence was obtained from the prospective witnesses concerning the three areas of sleep deprivation, new evidence from Mr Playford and from a juror about an irregularity. 5. We agree with that submission. 6. It was apparent from the passage of the applicant's cross-examination set out above, that central to the applicant's justification for her June 2015 charges was her view that her retainer required her to carry out a very extensive review of all the material in the appeal books for the Queensland Court of Appeal with a view to seeing if she could find that "needle in a haystack" that might be sufficient to justify a challenge to Trevor's conviction despite the exhaustion of his appeal rights. 7. In the applicant's written submissions it was said (at [79]): The task before Ms Hawkins in accepting the brief was far more onerous than even an appeal brief. Nor was it simply a matter of advising as to the correctness of the decisions in the appeals to that time. Rather, it involved consideration of lines of review which might provide relief if it could be demonstrated that the evidence which had led to the convictions was unsound, and sufficiently so to enable a successful application under statute for a review. To do so required a meticulous and thorough examination of the evidence at trial, and how that may be impugned to a sufficient degree to enliven rights of review. Ms Hawkins referred to this in her evidence as involving 'looking for, literally, a needle in the haystack.' 1. It was also submitted that (at [83]): The thrust of Ms Hawkins' advice was, in essence, that although a definitive view could not be provided until the fresh evidence had been finalised, the prospects were slim that the conviction could be successfully overturned. 1. In her cross-examination the applicant also appeared to justify the carrying out of the work charged on the basis that if or once the statements came in they would be ready to run with the challenge. It seems that it was for this reason that she regarded all the reading in as being very valuable. She said that she had no doubt that the statements would be obtained. 2. We accept that a client in Trevor's position, in conjunction with any funder, might retain a barrister to proceed to consider and search for any conceivable point that might warrant a challenge to his or her conviction, in which event it would be necessary to carry out such work. However, it would be expected of a reasonably competent lawyer that clear instructions to embark upon such a task would be obtained before doing so. 3. The evidence in this case is that the applicant was not retained to do this and, in any event, had no clear instructions to do so. All the applicant could say in her evidence (in cross-examination) was that Trevor was pressing for a written advice of some unspecified kind before the statements were made. That does not amount to the clear instructions to carry out the work which she did, to which we have just referred. 4. Rather, such specific instructions as there were to the applicant were about pursuing discrete aspects concerning potential new evidence. 5. Nor was the applicant instructed to advise about the merits of obtaining such potential evidence before it was decided to incur the costs of doing so. 6. In her written submissions, the applicant submitted that the preliminary advice had value because it may have caused Trevor or Harry to form the view that they did not wish to pursue a possible challenge to the convictions in light of the apparently dim prospects of success revealed by the applicant's analysis. 7. However, even if the advice had some speculative value of such a nature, this provides no answer to the question whether what the applicant did was unnecessary work at the point in the retainer when it was done. 8. In any event, there was no evidence that the advice did have any such objective. On the contrary, the applicant's evidence was that the value of her work was to ensure that they would be ready to proceed with a challenge once the statements were obtained. 9. We do not regard that as a satisfactory explanation for carrying out the work. In the first place, it was uncontroversial (as identified above) that the applicant had no idea what the prospective witnesses would come to say in any statements that were obtained. For all she knew, the statements would be of no significance. Secondly, despite the applicant's confidence that statements would be forthcoming, there was always a risk that this would not eventuate. 10. The applicant also submitted that the charges now challenged were entirely consistent with the costs agreement which gave an estimate of $54,000, plus GST, which charges Harry had accepted. Harry had not sought to have the costs assessed and the Tribunal should be slow to intervene to alter the bargain struck. 11. However, the costs agreement provides no assistance to the assessment of any overcharging by carrying out unnecessary work. It provided a global figure for the whole retainer without any specification of the stages of work and the amount to be attributed to any such stages. It also provided no assistance in identifying what the applicant was really retained to do. The fact that Harry did not have the costs assessed is of no, or little weight, to the objective assessment that is required. 12. The applicant also submitted that whilst the written advice might not resemble that produced by a commercial silk or a senior junior instructed by a well‑resourced firm of solicitors, it was nonetheless a good piece of work that showed deep and careful analysis of an exceedingly large volume of material, with a critical eye, in pursuit of a point on which her client might challenge his convictions. It was submitted that the fact that there was no material or argument discovered to undermine the double murder convictions by the time Ms Hawkins' retainer was withdrawn, does not diminish the good faith and diligence with which she approached the task through which the conclusion was reached. 13. As to this, the first point is that an assessment of the quality of the advice is not to the point. Even if the written advice had been of the highest quality this would not overcome the problem that it was unnecessary or unreasonable to carry out the work which it reflected. 14. The second point is to repeat what we have already said about the applicant's retainer and the absence of any specific instructions to examine whether there was any conceivable ground of challenge (see paragraphs 186 and 187 above). 15. The third point is that the issue here is not whether the work was carried out in good faith and with diligence. 16. The fourth point is that, in any event, the applicant was dealing with a client who had been convicted of double murder, who had already unsuccessfully appealed to the Queensland Court of Appeal and had unsuccessfully sought leave to appeal to the High Court. His ability to have his conviction overturned was severely circumscribed. His costs were being funded by his father. The applicant should have proceeded on the basis that her client and his father were unsophisticated in dealing with legal issues. The only possible basis for any legal challenge that the applicant had disclosed to them relied on the production of fresh evidence which was not available at the time the applicant had undertaken this work. To the extent that the question whether the work should have been carried out at that stage and how much time she was going to spend doing it were matters within her discretion, the exercise of her discretion should have been informed by a consideration of the advantage that she enjoyed over her client and his father by reason of her expertise as a barrister professing to have expertise in the area of criminal law and their lack of such knowledge. She alone was in a position to determine whether it was appropriate and desirable that she performed the work that she did at the time that she did so. Her decision to undertake that work on the basis that Harry would be paying for it should have been made on a most conservative basis, at least until such new evidence as existed had been provided to her for evaluation. As we have already said, there may be circumstances where a lawyer will be given instructions to examine every conceivable aspect of a matter to determine whether a client might have any rights, by "looking for a needle in a haystack" but those instructions will in most cases need to be specifically given by a client with knowledge of the likely range of fees. This is not one of those cases. We are most critical of the applicant in having embarked on the course of reading extensive material at a cost of $500 per hour in the absence of specific instructions to do so and without alerting this client and his father that she was going to do so. Furthermore, the applicant should have appreciated that the resultant written advice would have justified her in refraining from embarking on this work at that stage. 17. For these reasons, in our opinion, the correct and preferable decision is that the applicant did engage in unsatisfactory professional conduct by charging $30,000 for the work the subject of the 11 June 2015 invoice. Disbursements in the 25 February 2015 invoice 1. We have already set out the breakdown of the disbursement figure charged in the 25 February 2015 invoice (paragraph 106 above). 2. Presumably, because of the size of the amount involved in this issue there was a sparsity of evidence and submissions on the subject. 3. We were told that the respondent's case was as set out in the report dated 7 February 2018, namely that (at [78]): Insofar as the February invoice is concerned, for the reasons given above, the Committee considers that the Bar Council may form the opinion that Hawkins charged unnecessary and unreasonable disbursements at least to the extent that she: a incurred accommodation and rental car costs for two nights, when the trip could have been comfortably achieved in a single day; b incurred the extra expense of a "luxury" rental car, in the absence of any disclosure to or agreement with her client that she may do so; c charged excessive "self-drive" costs for the trips to Beerwah and Bilpin. In particular: (i) in the absence of any disclosure or agreement, it may be doubted that Hawkins was entitled to charge any amount for driving herself to these meetings; (ii) the rate charged per kilometre ($0.66) appears high, and is certainly not limited to the recovery of the cost of petrol; d charged for photocopying, at the rate of $1 per page, in the absence of any disclosure or agreement that she was entitled to do so. 1. We did not understand the respondent to present a case that the applicant engaged in unsatisfactory professional conduct by failing to itemise the disbursements charged in the invoice. 2. The applicant did not address Ground C of the complaint in her affidavit evidence or in her oral evidence in chief. The respondent did not present any evidence in chief about the excessiveness of the costs. Such limited cross-examination as there was on this issue was confined to the reasons for incurring two nights of accommodation costs and for hiring a Mercedes rental car. 3. Nevertheless, for the reasons which follow, we conclude that the applicant did engage in unsatisfactory professional conduct in the following respects: 1. Charging for two nights of hotel accommodation (one night at the Gold Coast and the other night in Brisbane) in respect of the visit to Trevor Griffiths in jail on 25 February 2015 in circumstances where the costs of the first night of accommodation were unnecessarily incurred. 2. Charging for travel time in driving to Beerwah and Bilpin without such a charge being specifically agreed with Harry Griffiths. 1. As to the first of these two conclusions, we have already found that the jail visit near Gatton in Queensland occupied 45 minutes and took place at 1.45pm on 25 February 2015. The jail is about 94 km west of Brisbane. 2. On the face of it, there was no justification for the applicant, travelling from Sydney, to incur disbursements of two nights of hotel accommodation and two days of hire car in respect of such a visit. In the normal course of things, a member of the public would expect a reasonably competent legal practitioner based in Sydney to arrange for such a visit to occur without any need to stay overnight in Queensland and to incur hire car costs of no more than one day. 3. The applicant submitted (at [73](e)(i)): As explained in her evidence, the trip could not have been undertaken in a single day – which would involve travelling to Brisbane, driving to Gatton, undertaking the visit and returning. The need for a second night's accommodation was also explained in the evidence, namely the involvement of Ms Elamrousy and the need for her to obtain security clearance; 1. The evidence to which this submission referred is not identified. 2. In her cross-examination the applicant gave evidence that: 1. The first night of hotel accommodation charged as a disbursement was in the Mantra at the Gold Coast because she went there as a convenience so she could drive Ms Elamrousy to the jail because Ms Elamrousy did not have a drivers licence (transcript, 13 March 2019, pages 24-26). Ms Elamrousy was now living on the Gold Coast. She had no explanation for why Ms Elamrousy did not meet her in Brisbane after catching a train from the Gold Coast other than that they made the arrangement to drive together from the Gold Coast (page 25, line 44). Gatton jail is nearer to Brisbane than the Gold Coast. 2. She stayed a night in Brisbane because she discovered on the day before the jail visit, having already travelled to Queensland, that Ms Elamrousy was not registered to visit the jail and so the visit had to be deferred so that Ms Elamrousy could obtain the necessary registration. She had assumed that because Ms Elamrousy was now living on the Gold Coast and did crime she would have obtained the required registration (transcript, 13 March 2019, pages 61-63). 1. There was no challenge to the correctness of this evidence from the applicant and we accept it. 2. Incurring the cost of the hotel accommodation in Brisbane ought to have been avoided. However, it was occasioned by Ms Elamrousy's omission rather than by any fault of the applicant. The applicant's assumption that Ms Elamrousy would be registered was not an unreasonable one to make. We note that we are not concerned with any complaint against the applicant concerning any issue about disclosure of these circumstances to Harry or Trevor. 3. However, there was no adequate explanation for the cost of the first night at the Gold Coast being charged as a disbursement. This was incurred to suit Ms Elamrousy's convenience rather than being a necessary cost of the jail visit. In our opinion, a member of the public would not expect a reasonably competent practitioner to charge this to the payer of the legal costs. 4. As to the second of these two conclusions, it is significant that the costs agreement that we have found the applicant had provided to Harry before the 25 February invoice contained the following term concerning the costs that would be charged (clause 2): ….Hourly rate of $500.00 for court mentions, preparation, conferences, travel time to and from court from the office and associated work… 1. No provision was made for a charge in respect of travel of the kind that was included in the 25 February 2015 invoice. There was no suggestion that the applicant and Harry had reached some separate agreement about charging for travel time of this nature. 2. Accordingly, in our opinion, a member of the public would not expect a reasonably competent practitioner to include a charge for travel time of the nature contained in this invoice. 3. The only submission made by the applicant about this complaint was that (at [73](e)(iii)): The criticism as to necessary or reasonable was as to the rate charged of $0.66 per kilometre. This was precisely the figure allowed for by the ATO for travel at the relevant time. 1. This did not address the point that that we have found against the applicant. 2. We are not persuaded that the other complaints made against the applicant in respect of the 25 February 2015 invoice should be upheld. The disbursement charge for the hire of the Mercedes C200 car may appear to be excessive but there was no proof that this was materially more expensive. The applicant also gave unchallenged evidence, which we accept, of a particular reason for hiring such a car as a consequence of a previous accident she had been involved in (transcript, 13 March 2019, page 27). Whilst we do not accept that such a particular factor would necessarily warrant a sizeable extra expense for which a funder was responsible, in the absence of specific agreement with the funder, in this instance, we are not prepared to conclude that the charge amounted to unsatisfactory professional conduct in circumstances where we do not know the measure of the extra cost. 3. Finally, so far as the photocopying charges are concerned, we do not uphold the complaint. Whilst the amount involved was not insignificant and there was no provision for payment of such charges in the costs agreement, we think that some charge for photocopying could reasonably be expected by Harry in the circumstances of this case and we are not persuaded that what was actually charged was sufficiently out of the ordinary to warrant a finding of unsatisfactory professional conduct. Disciplinary orders 1. We did not understand the applicant to make any submission against the order of reprimand if findings of unsatisfactory professional conduct were made by us. 2. We think a reprimand in respect of each finding of unsatisfactory professional conduct is appropriate. 3. The submission of the parties concerning the making of disciplinary orders focussed entirely upon the order for a refund of 75% of the fees charged in the June invoice amounting to the sum of $22,500.00. 4. In closing written and oral submissions the applicant submitted that there was no power to order a refund of fees because the refund power in s 299(1)(d) was confined to cases where there was a finding about the quality of work – it did not extend to an overcharging complaint. 5. In this regard, the applicant submitted that it was not intended to vest the Bar Association with powers of a costs assessor and that the Association does not have the power to provide an assessment service to complainants under the guise of the disciplinary process. 6. In this connection it was also submitted that to construe the power in s 299(1)(d) otherwise was inconsistent with the limited power concerning the making of a costs assessment given to the Bar Association in respect of consumer matters in s 292 of the LPUL. It was said that the Bar Association is only empowered to make a costs determination where the amount in dispute is less than $10,000.00. 7. We do not agree that there is any such inconsistency. Section 292 is part of a regime set out in Part 5.3 of the LPUL concerning the subject of "consumer matters". As the legislation makes clear, this is a subject that is distinct from "disciplinary matters" dealt with in Part 5.4 of the LPUL in which Part s 299 is found. 8. We see no reason why a legislative intention as to the role of the Bar Association in one area (consumer matters) should necessarily or sensibly extend to a quite different area (disciplinary matters), all the more so where the power given in the disciplinary field contains no express restrictions of the kind provided for with respect to consumer matters. 9. Even if the disciplinary matter was only concerned with a quality of work issue, s 299(1)(d) envisages that there would be a costs assessment element in the orders that the Bar Association might make. 10. We see no warrant for construing s 299(1)(d) in the narrow way for which the applicant contends. In our opinion, to construe s 299(1)(d) in the way in which it was applied is consistent with an objective of the LPUL to enhance the protection of clients and the public generally (s 3(c)) and the objective of Chapter 5 to provide a scheme for the discipline of practitioners for the protection of clients and the public generally (s 260(b)). 11. From the closing oral submissions, we understood that the applicant did not press an earlier point that the power to reduce fees in s 299(1)(d) did not apply when the fees had already been paid. We also understood that a point that the power to "reduce" fees did not permit a refund was maintained by the applicant. The point was not elaborated upon in oral submissions, except that Mr Prince indicated that he saw the force in the respondent's submission to the effect that "how else do you achieve "reduce" without a refund". 12. In the circumstances, we think it is sufficient for us to say that, in relation to these two points, we agree with the respondent's submissions about them. 13. Finally, we note that the applicant did not submit that, even if she was wrong and there was unsatisfactory professional conduct by overcharging, the quantity of the reduction was excessive. In the circumstances, we have no reason to doubt the correctness of the size of the refund imposed by the Bar Association. Indeed, we are of the opinion that the amount awarded by way of refund is appropriate in all the circumstances. Orders 1. For the above reasons, we order as follows: 1. Affirm the following decisions of the Council of the New South Wales Bar Association made on 22 February 2018 in so far as they concern the applicant's conduct set out in paragraphs 170, 200 and 206 above: that in respect of Grounds A and C of the complaint made against Dymphna Hawkins by Melissa Griffiths on behalf of Trevor Griffiths, find that Hawkins has engaged in unsatisfactory professional conduct and determine the disciplinary matter by making orders: a pursuant to s 299(l)(b), that Hawkins be reprimanded for the conduct alleged in Grounds A and C 1. Otherwise, set aside the decisions referred to in Order 1. 2. Affirm the following decision of the Council of the New South Wales Bar Association made on 22 February 2018, save that the amount of $22,500 is to be refunded to Harry Griffiths within 21 days of this decision: pursuant to s 299(l)(d), that Hawkins reduce the fees charged for the work the subject of her invoice dated 11 June 2015 by 75%, and refund the sum of $22,500 to Harry Griffiths within 90 days. 1. Costs reserved. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 12 June 2020 - Typographical error in paragraph 20 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: 12 June 2020