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[2026] NSWCA 166
respondent. The appeal was dismissed with costs. The Tribunal’s conclusion that the appellant engaged in unsatisfactory professional conduct and its caution remained in place: [97]-[98].
The Court of Appeal dismissed a solicitor’s appeal against a finding of unsatisfactory professional conduct. The solicitor had told a costs assessor that a judge had noted there was no doubt his client had capacity. The hearing transcript showed that capacity remained in dispute and that the judge allowed further expert evidence. Although the solicitor said he honestly remembered the judge making the statement, he had no transcript or contemporaneous note when he wrote. The Court held that the letter’s wording, read in context, was an unqualified and potentially misleading account. Dishonesty was not required: the question was whether the solicitor’s conduct, assessed in its circumstances, fell below the competence and diligence reasonably expected of a lawyer. The Court considered the Tribunal’s use of “reckless” imprecise, but read it as meaning careless. A conceded error about whether the letter needed an express qualification did not affect the result. The appeal was dismissed with costs.
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11 cited instruments linked from this judgment.
The appeal concerned one sentence in a solicitor’s letter to a costs assessor. Farshad Amirbeaggi acted for a client whose financial affairs were under the management of the NSW Trustee and Guardian. The Client’s capacity to manage her own affairs was being considered in Supreme Court proceedings. Separately, the NSW Trustee had applied for assessment of the legal costs charged in proceedings conducted for the Client.
On 15 April 2019, Lindsay J heard directions in the financial management proceedings. The Client’s senior counsel argued that Professor Watson’s report established present capacity and that this should resolve the issue. The transcript records Lindsay J expressing reservations about the report’s qualifications, discussing the risks associated with the Client’s chronic pain and medication, and permitting further expert evidence on capacity [44], [46]-[48]. The judge’s directions treated capacity as a live issue rather than a resolved one.
On 15 May 2019, Amirbeaggi wrote to the costs assessor seeking to have the costs assessment held in abeyance for 12 weeks. He said: “At the last Directions Hearing on 15 April 2019, His Honour noted that there is no doubt that [the Client] has capacity” [52]. He linked that account to the Client’s expected return of property and possible discontinuance of the costs assessment. At the time he wrote, he did not have the transcript or a contemporaneous note. He obtained the transcript on 23 July 2019 [49].
The Council of the Law Society found that the letter amounted to unsatisfactory professional conduct under s 296 of the Legal Profession Uniform Law 2014 (NSW), and issued a caution under s 299 [58]-[60]. The Tribunal affirmed that decision. On appeal, the solicitor challenged the finding on multiple grounds, including whether the letter departed from what the judge said, whether his recollection was reasonable, whether the letter could mislead, and whether the Tribunal’s description of his conduct as “reckless” was appropriate [30], [66].
The Court of Appeal dismissed the appeal with costs [98]. Mitchelmore JA gave the principal reasons. Price AJA agreed, and Leeming JA agreed with additional reasons [1], [99].
The Court focused on what the letter communicated to its recipient, read against the hearing and the letter’s purpose. It was not enough to isolate the word “noted” or to treat the sentence as a narrow statement about present capacity. The letter was sent to a costs assessor who had no personal knowledge of the proceedings, as part of an effort to pause the assessment [68]-[71].
The transcript showed that senior counsel, not Lindsay J, said that there was “no doubt” the Client currently had capacity. The judge responded that capacity in the protective jurisdiction involved consideration of more than the “here and now”, and expressed concern about pain, medication, and future vulnerability [44], [47]. He also permitted further expert evidence directed to whether the Client was capable of managing her affairs [48], [78]. Mitchelmore JA concluded that the letter’s statement conveyed an unequivocal opinion by the judge that capacity was not in doubt. “Noted” did not make the assertion less absolute [77].
The Court also considered the solicitor’s recollection. The Tribunal accepted that he genuinely recalled Lindsay J making the statement, but rejected that he could reasonably have recalled those particular words as coming from the judge [91]. The appeal judgment explains that the solicitor’s recollection did not determine the statutory question. The issue was whether writing the letter, in the circumstances, fell below the competence and diligence reasonably expected of a lawyer [72], [91], [96].
The absence of a transcript and note was relevant context. The judgment does not establish that every solicitor must always obtain a transcript before describing a hearing. It does establish that an honest recollection does not automatically make an unqualified account professionally adequate. The Court considered the discrepancy between the letter and the transcript, the letter’s purpose, and the importance of the capacity issue in the surrounding proceedings [77]-[79], [91], [96].
The Court rejected the suggestion that later events cured the letter’s potential to mislead. The NSW Trustee’s solicitor responded with the Record of Proceedings and offered to provide the transcript; the appellant later sent another letter. Those events might bear on what the costs assessor actually understood, but they did not change the nature of the first letter when it was sent [84]-[88]. The Tribunal did not need to find that the assessor was in fact misled [85].
Finally, the Court addressed the Tribunal’s use of “reckless”. Mitchelmore JA considered the word infelicitous because lawyers ordinarily associate it with indifference or wilful disregard. Read with the Tribunal’s later description of the conduct as careless or inadvertent, however, it did not mean more than careless [93], [95]. Careless conduct can still satisfy s 296 if, in its circumstances, it falls below the statutory standard [96].
Leeming JA emphasised the context: the solicitor’s request concerned an assessment of substantial fees charged by his firm, and the course he advocated was to his immediate financial advantage [12]-[13], [23]-[24]. The Court did not need to find deliberate deception or material financial damage. The relevant question was whether the inaccurate communication, given the conflict and the circumstances in which it was prepared, fell below the required standard [24]-[26].
The judgment applies the statutory definition in s 296 of the Uniform Law. That section includes conduct connected with legal practice 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” [59]. The Court did not purport to reformulate the statutory test or create a new offence or professional rule. It applied the existing standard to a particular communication.
The decision’s practical contribution is its treatment of context. A solicitor’s inaccurate account of a judicial exchange is not assessed solely by asking whether the solicitor intended to mislead. The Court considered the account’s wording, its recipient, its purpose, the transcript, and the solicitor’s circumstances when writing [69]-[79], [91], [96]. In this case, a statement that the judge had “noted” there was “no doubt” about capacity was understood as conveying an unequivocal judicial view, notwithstanding the solicitor’s later explanation and the choice of verb [77].
The decision also separates three questions that may otherwise be conflated. First, was the account accurate? Secondly, was it capable of misleading when sent? Thirdly, did the conduct fall below the s 296 standard? The Court answered the first two in the affirmative and upheld the Tribunal’s conclusion on the third [79], [84]-[85], [96]-[97]. Actual deception was not a prerequisite to the finding.
The Court cited BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 at [98]-[100] for the proposition that the professional standard is assessed in the particular circumstances [96]. It also referred to A.C.N. 627 087 030 Pty Ltd v Poche [2025] NSWCA 252 in discussing the history of the entities associated with the law practice [8]. The latter reference was part of the procedural and corporate background, not the basis of the professional conduct holding.
The appeal judgment does not describe a prior rule requiring every solicitor to qualify a recollection in correspondence, nor does it impose a general obligation always to secure a transcript. Indeed, the respondent conceded error in the Tribunal’s statement that the appellant needed to qualify the letter as his best recollection [87]-[88]. The decision should therefore be read as a contextual application of s 296, not as a categorical rule about all recollections of hearings.
At [59], the judgment sets out s 296: unsatisfactory professional conduct includes legal work falling short of the competence and diligence the public is entitled to expect from a reasonably competent lawyer. In plain English, the statutory standard is objective and concerns professional performance. It does not depend only on whether a practitioner intended to do something wrong.
At [77], Mitchelmore JA says the letter, read in context, conveyed an “unequivocal opinion” that the judge considered capacity beyond doubt. The word “noted” did not soften the message. In plain English, a court will consider the impression created by the whole communication, not just a word selected in isolation.
At [78]-[79], the Court compares that impression with what happened at the hearing. The judge rejected the position that Professor Watson’s report settled capacity, expressed concern about its conditions, and permitted further expert evidence. In plain English, the procedural outcome and the judge’s recorded comments were inconsistent with the letter’s account.
At [84]-[85], the Court explains that a later response or an opportunity to correct the letter does not determine whether the original communication was capable of misleading. The costs assessor did not have to be proved actually misled. In plain English, the question was the potential effect of the letter when received, not whether the assessor ultimately accepted it.
At [91], the Court explains why the appellant’s recollection did not resolve the issue. The Tribunal’s concern was whether the words recorded in the letter were actually said by the judge, and whether issuing the letter in the circumstances met the professional standard. In plain English, sincerity and professional care are distinct questions.
At [95]-[96], the Court treats “reckless” as an imprecise label, reading the Tribunal’s reasons as finding carelessness. It then asks whether that carelessness fell below the s 296 standard in the particular circumstances. In plain English, the finding did not require proof of deliberate or dishonest conduct.
At [23]-[26], Leeming JA highlights the solicitor’s conflict between self-interest and obligations to the Client. He notes that the letter sought a course potentially advantageous to the solicitor while the Client’s capacity and informed consent were central issues. In plain English, the professional context heightened the importance of accuracy in describing what the judge had decided.
The decision is most directly relevant where a lawyer communicates an account of a judicial hearing to a third party who was not present, and that account is material to a request or argument. It is particularly relevant where the account attributes a clear view or conclusion to a judge, but the transcript or procedural orders indicate that the issue remained unresolved [52], [68]-[79].
It may also be relevant where a lawyer relies on personal recollection without a contemporaneous note or transcript. The judgment does not make that circumstance inherently improper. Instead, it shows that the absence of a record may matter when assessing the accuracy and care of a material, unqualified statement [49], [72], [86]-[91].
The circumstances of the communication matter. Here, the letter was intended to persuade a costs assessor to postpone an assessment of the solicitor’s own firm’s charges, and the solicitor’s financial interest was part of the context considered by Leeming JA [13], [23]-[24], [69]-[71]. Comparable conflicts or personal interests may therefore be relevant to an assessment under s 296, though the judgment does not state a general rule about all such situations.
The case is less directly informative where the statement is clearly expressed as an uncertain recollection, concerns an immaterial exchange, or is supported by a contemporaneous record. The Court did not decide those hypothetical scenarios. Nor did it decide whether every inaccurate description of a hearing amounts to unsatisfactory professional conduct. Its conclusion depended on the seriousness of the discrepancy and the particular circumstances [21]-[26], [77]-[79], [96].
The supplied judgment reports no later judicial treatment of Amirbeaggi. It is the decision itself, dated 20 August 2026, and the provided text does not identify any subsequent cases applying, distinguishing, or criticising it.
The judgment does identify its own use of BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146, citing [98]-[100] for the proposition that whether conduct falls below the professional standard is assessed in its particular circumstances [96]. It also mentions A.C.N. 627 087 030 Pty Ltd v Poche [2025] NSWCA 252 at [12] and [16] in connection with the corporate entities associated with the legal practice [8]. The text does not describe Poche as establishing the professional conduct principle decided in this appeal.
Accordingly, any account of how later courts have treated Amirbeaggi would need sources beyond this judgment. On the supplied material alone, no later treatment can be stated.
The judgment does not specify what degree of qualification would be sufficient when a lawyer recounts a hearing from memory. The respondent conceded that the Tribunal erred in requiring the appellant to state that the account represented his best recollection [87]-[88]. The Court therefore did not decide what wording, if any, would have been appropriate in this letter or in other circumstances.
It also does not establish a general requirement to obtain a transcript before writing about a hearing. The absence of both a transcript and a contemporaneous note formed part of the context, but the Court’s conclusion turned on the discrepancy between the letter and the recorded exchange, as well as the purpose and circumstances of the communication [49], [77]-[79], [91], [96].
The judgment did not decide whether the costs assessor actually relied on the letter or was misled. It held that actual misleading was unnecessary to the relevant finding [85]. Nor did it quantify any practical effect on the assessment, which proceeded after the request for a stay was refused [55]. Leeming JA noted that the inaccurate letter caused no material damage in the circumstances, but considered that this did not prevent a finding of unsatisfactory professional conduct [25]-[26].
Finally, although the Court referred to the solicitor’s financial interest and potential conflict, it did not determine any separate breach of fiduciary duty or conflict rule. The appeal concerned the statutory finding under s 296 and the caution, not a broader determination of the solicitor’s conduct in the underlying proceedings [23]-[26], [97]-[98].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Amirbeaggi v Council of the Law Society of New South Wales [2026] NSWCA 166
Hearing dates: 26 June 2026
Date of orders: 20 August 2026
Decision date: 20 August 2026
Before: Leeming JA at [1]
Mitchelmore JA at [27]
Price AJA at [99]
Decision: The appeal is dismissed, with costs.
Catchwords: OCCUPATIONS — legal practitioners — solicitors — misconduct and discipline — where Tribunal found unsatisfactory professional conduct — where solicitor attributed statements to a judge in letter to costs assessor — where letter was prepared without transcript or contemporaneous note — where letter seriously departed from exchange recorded in transcript — whether 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
Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 63
Civil and Administrative Tribunal Act 2013 (NSW), ss 64, 65, cl 29 of Sch 5, cl 14 of Sch 6
Legal Profession Uniform Law 2014 (NSW), ss 267, 296, 299, 314
Legal Profession Uniform Law Application Act 2014 (NSW), s 126
NSW Trustee and Guardian Act 2009 (NSW), s 41
Supreme Court Act 1970 (NSW), s 75A
Cases Cited: A.C.N. 627 087 030 Pty Ltd v Poche [2025] NSWCA 252
BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146
Texts Cited: Nil.
Category: Principal judgment
Parties: Farshad Amirbeaggi (appellant)
Council of the Law Society of New South Wales (respondent)
Representation: Counsel:
M Izzo SC and O Jones SC (appellant)
N Evans (respondent)
Solicitors:
YPOL Lawyers (appellant)
Law Society of New South Wales (respondent)
File Number(s): 2025/00472126
Publication restriction: Nil.
[This headnote is not to be read as part of the judgment]
In November 2020, the respondent, the Council of the Law Society of NSW, received a complaint regarding the appellant, Farshad Amirbeaggi, a practising solicitor. The client in respect of whom the complaint was made (the Client) had been the subject of a financial management order made by the NSW Civil and Administrative Tribunal (Tribunal), pursuant to which the NSW Trustee and Guardian (NSW Trustee) had been appointed to manage the Client’s finances. The appellant commenced a number of proceedings on behalf of the Client in the Supreme Court, including, relevantly, proceedings seeking a determination that the Client was capable of managing her own financial affairs (financial management proceedings).
In April 2019, the financial management proceedings were listed for directions (April directions hearing). By this time, Professor John Watson had prepared a report on the question of the Client’s capacity. The transcript of the April directions hearing recorded an exchange between Lindsay J and senior counsel for the Client, in which senior counsel pressed for a hearing on the question of capacity, submitting there was “no doubt” that the Client currently had capacity given Professor Watson’s report, and that the defendants should not be permitted to file further expert evidence. His Honour did not accept those submissions and made directions permitting the defendants to seek leave to file further expert evidence on the question of the Client’s capacity.
Separately, the NSW Trustee filed for an assessment of the appellant’s costs in the various Supreme Court proceedings. In a letter to the costs assessor seeking a stay of the assessment, the appellant stated that his Honour had noted at the April directions hearing that there was no doubt that the Client had capacity (the Letter). At the time, the appellant did not have the transcript of the April directions hearing or a contemporaneous note of what occurred.
The complaint against the appellant was that he attempted to have the costs assessment stayed by inaccurately representing to the costs assessor that Lindsay J had expressed an unqualified positive opinion about the Client’s capacity. In July 2024, the respondent concluded that the appellant had engaged in unsatisfactory professional conduct within the meaning of s 296 of the Legal Profession Uniform Law 2014 (NSW). The appellant applied to the Occupational Division of the Tribunal for review of the respondent’s decision. The Tribunal affirmed the respondent’s decision, finding that the appellant’s 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: HJJ v Council of Law Society of New South Wales [2025] NSWCATOD 150.
The appellant appealed from the Tribunal’s determination on the ground that the Tribunal erred in finding that he had engaged in unsatisfactory professional conduct. In particular, the appellant challenged the Tribunal’s findings in respect of: (1) the existence of a disparity between the Letter and what was said at the April directions hearing, (2) the reasonableness of the appellant’s recollection of what was said at the April directions hearing, (3) the capacity of the Letter to mislead the costs assessor, and (4) the “recklessness” of the appellant’s use of language in the Letter. Although the respondent conceded error insofar as the Tribunal concluded that the appellant needed to qualify the Letter, it contended that the appeal should nevertheless be dismissed.
The Court (Mitchelmore JA, Price AJA agreeing, Leeming JA agreeing with additional reasons) held, dismissing the appeal:
Disparity between the Letter and what occurred at the April directions hearing
(1) The impugned statement in the Letter, considered in context, conveyed an unequivocal opinion on Lindsay J’s part that the Client had capacity. The use of “noted” in the statement did not render the statement any less absolute: at [77] (Mitchelmore JA).
(2) There was a disparity between the impugned statement and the transcript of the April directions hearing, which recorded that his Honour rejected senior counsel’s submission and instead expressed a view that the Client’s capacity remained in issue: at [14], [16]-[18], [21] (Leeming JA); [78]-[79] (Mitchelmore JA).
Reasonableness of the appellant’s recollection
(3) The Tribunal accepted the appellant’s evidence as to his recollection of what occurred at the April directions hearing but rejected that he could have an actual recollection that the words attributed to Lindsay J in the Letter were actually said by his Honour. The reasonableness of the appellant’s recollection was not determinative of the Tribunal’s conclusion: at [22], [24] (Leeming JA); [72], [91] (Mitchelmore JA).
(4) In any event, the absence of any challenge to, or criticism of, the appellant’s recollection did not support the conclusion that it was either accurate or reasonable: at [82]-[83] (Mitchelmore JA).
Capacity of the Letter to mislead the costs assessor
(5) The opportunity for the NSW Trustee to correct the Letter, the availability of the transcript to the costs assessor, and the appellant’s issuance of a subsequent letter were irrelevant to the question of whether the Letter was capable of misleading the costs assessor at the time it was sent. The Tribunal was correct to conclude that it was. It was unnecessary to find that the costs assessor had in fact been misled: at [84]-[85], [88], [92] (Mitchelmore JA).
“Recklessness” of the appellant’s use of language
(6) Read in context, the Tribunal’s use of the term “reckless” was not intended to characterise the appellant’s conduct as more than “careless”. On that basis, the question for determination by the Tribunal was whether the appellant’s carelessness fell short of the standard of competence and diligence a member of the public is entitled to expect of a reasonably competent lawyer: at [25] (Leeming JA); [95]-[96] (Mitchelmore JA).
(7) The Tribunal was correct to find that the appellant’s conduct fell short of that standard. Considering the circumstances in which the Letter was written, it was incumbent upon the appellant to be assiduous in making statements in respect of the Client’s capacity: at [23], [26] (Leeming JA); [96]-[97] (Mitchelmore JA).
BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146, considered.
LEEMING JA: I agree with the entirety of Mitchelmore JA’s reasons, and with the order her Honour proposes. As Mitchelmore JA explains, this appeal arises out of a letter written by Mr Farshad Amirbeaggi to a costs assessor on 15 May 2019 describing the effect of a directions hearing on 15 April 2019. The Occupational Division of the Civil and Administrative Tribunal of New South Wales found that what Mr Amirbeaggi said was wrong albeit not deliberately so, and departed from the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer so as to amount to unsatisfactory professional conduct, and warranted censure. It was conceded that one aspect of the Tribunal’s reasoning was erroneous, but the respondent maintained the error was not material.
The essential question for this Court, hearing and determining an appeal by way of rehearing to which s 75A of the Supreme Court Act 1970 (NSW) applies (by reason of cl 29(1)(e), (2)(b) and (4)(a) of Part 6 of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW)), is whether this Court should, on the entirety of the evidence before the Tribunal, conclude that Mr Amirbeaggi has engaged in unsatisfactory professional conduct, and if so, what further order, if any, should be made. Neither side contended that the proceedings should be remitted to the Occupational Division if material error were found. That was an appropriate approach to adopt, in circumstances where no aspect of the reasoning turned on adverse assessment of the evidence, including Mr Amirbeaggi’s cross-examination before the Tribunal.
The starting point, then, is the position which obtained at the directions hearing on 15 April 2019, and when the letter dated 15 May 2019 was sent to the costs assessor. Ultimately, it will be seen that the substance of the position is not complex. However, it bristles with procedural complexity, not assisted by difficulties concerning the identity of parties. I shall deal with all of this, in order that it may be put to one side.
Mr Amirbeaggi had been retained in around February 2018 to act for his client. Very substantial costs were incurred in the ensuing months; indeed, these were at the heart of the dispute.
There were proceedings in the Guardianship Division of the Tribunal concerning Mr Amirbeaggi’s client. She cannot be named (by reason of s 65 of the Civil and Administrative Tribunal Act) and will be referred to as the Client.
There was a deal of confusion as to the identity of the disputants. First, through administrative error (acknowledged in the Law Society’s letter of 5 June 2024), the complaint was stated to have been made on behalf of the Client. In fact, the complaint was made by the Client’s brother.
Secondly, in June 2018, an application was made for the appointment of the financial manager over the affairs of the Client, and on 9 July 2018, the Tribunal appointed NSW Trustee and Guardian as her financial manager for a period of six months. Very promptly thereafter, on 11 July 2018, the Client commenced proceedings in the Supreme Court by way of appeal from those orders. Clause 14 of Part 6 of Schedule 6 of the Civil and Administrative Tribunal Act confers a qualified right of appeal, and cl 14(5) provides that subject to any interlocutory order made by the Supreme Court, an appeal “operates to stay the decision under appeal”. No doubt with that regime in mind, on 1 and 30 August 2018, Lindsay J made orders (to which Mitchelmore JA has referred) continuing the NSW Trustee and Guardian in the office of protected estate receiver for the Client.
Thirdly, it appears that a number of entities were involved in providing legal services to the Client. Mr Amirbeaggi’s disclosure letter identifies the incorporated law practice as “STRUT MASTER NO.2 PTY LIMITED ABN 54 278 630 521 TRADING AS YATES BEAGGI LAWYERS”. Subsequent correspondence between the Court and the law practice and the costs assessor, including the critical letter of 15 May 2019, is under a heading which commences “STRUT MASTER NO.2 PTY LTD”. However, the footer of the practice’s letter of 15 May 2019 identifies “A.C.N. 627 087 030 PTY LIMITED ATF THE YBL TRUST A.B.N. 36 417 292 174 TRADING AS YATES BEAGGI LAWYERS”. A print out of the practice history maintained by the Law Society contained in the appeal books records that ACN 627 087 030 Pty Limited conducted the practice after 1 October 2018, and that it in turn was superseded by A.C.N. 640 543 979 Pty Limited on 14 May 2020 and A.C.N. 674 955 287 Pty Ltd on 1 March 2024. The position may be rather more complicated, having regard to what appears in A.C.N. 627 087 030 Pty Ltd v Poche [2025] NSWCA 252 at [12] and [16].
Throughout this history, the different corporate entities all traded as “Yates Beaggi Lawyers”, and it seems as though all proceeded on the basis that nothing turned upon that. The position would be different if the assessment had proceeded and the incorporated law practice were entitled to an assessor’s certificate or sought to enforce the charge which was contained in the disclosure letter from Strut Master No.2 Pty Ltd.
Consistently with the stance adopted by the Client, no tutor was appointed to act for her in the appeal brought from the interim financial management order. Fairly shortly thereafter, on 30 August 2018, Lindsay J made a series of notations reflecting the procedural issues before him. They included a note that the Client “seeks to have a judicial determination of whether she presently has capacity to manage her own affairs”. The appeal from the Tribunal was confined to a question of law subject to the grant of leave. However, there were two other available sources of jurisdiction: s 41 of the NSW Trustee and Guardian Act 2009 (NSW) and its inherent jurisdiction. Both permitted the determination of the critical issue of the Client’s capacity by reference to up to date and different evidence from that which had been before the Tribunal. Hence the second notation made by Lindsay J was “subject to formal confirmation, counsel for all parties to the proceedings anticipate agreement for that determination to be made upon an exercise of the Court’s inherent protective jurisdiction in these proceedings or by reference to s 41 of the NSW Trustee and Guardian Act 2009 (NSW)”. A further order was made that the Court should appoint Professor John Watson to produce a report as to whether the Client was capable of managing her own affairs.
At the same time, the Client had commenced two other proceedings, in substance against her brothers but as a matter of form involving companies in which she had formerly held office as director, or which were trustees of a trust in which she claimed an interest. That is to say, save for one thing, in all three proceedings, the contest was between legal practitioners appearing for the Client, and practitioners appearing for, or on the instructions of, her brothers. The exception was that in the case of the proceeding which had started life as an appeal from the orders made by the Tribunal, NSW Trustee and Guardian was a necessary party and on a number of occasions appeared by its employed solicitor, Mr Greg Mackey, including at the critical directions hearing on 15 April 2019.
Finally, in April and May 2019, there was a pending application for costs assessment. It had been filed on 19 March 2019 by NSW Trustee and Guardian as the Client’s financial manager. It was not wholly reproduced in the appeal books, but a supporting affidavit of Mr Mackey made on 19 June 2019 identified costs exceeding $1.2 million, based on invoices dated between 16 March and 5 September 2018, with further invoices from $90,000 in the period until 30 May 2019. It included an amount in excess of $700,000 paid on 18 June 2019 (after the appointment of NSW Trustee and Guardian). The aspect of the complaint made against Mr Amirbeaggi concerning gross overcharging was dismissed, following a deed of settlement being entered into, the terms of which are not known.
It was in that context that the particular issue which arose on 15 April 2019 may now be described. Mr Amirbeaggi wished not to proceed with the assessment of the Client’s costs which had been commenced by NSW Trustee and Guardian. His position was that if, as he contended was the case, the Client had full capacity, then the orders appointing NSW Trustee and Guardian as receivers to her property would be set aside, and the result would be that the costs assessment would not proceed. The practical reality, or at least (it may be inferred) Mr Amirbeaggi’s hope, was that he would be paid by the Client more, and more swiftly, and without having to prepare bills of costs and justify the amounts charged. But that depended upon a curial determination of the Client’s capacity, and as at 15 April 2019, that would not occur until after the period stated by the costs assessor for response expired.
Mr Amirbeaggi retained Mr Ashhurst SC to appear for the Client. On 15 April 2019, the position advanced on behalf of the Client was to seek to obtain a final hearing of the question of her capacity as soon as possible. Mr Ashhurst made submissions based upon the report of Professor Watson, which by then had been obtained, to the effect that it established her capacity. Lindsay J expressed a different view. Senior counsel who appeared for the brother, Mr Condon SC, contended that he should be permitted to adduce evidence of her capacity. Ultimately directions were made for further expert evidence as to capacity to be adduced on a relatively brief timetable, and for the proceedings to be brought back before Lindsay J on 23 May 2019 for directions.
The transcript of the directions hearing on 15 April 2019 occupies 13 pages. The first two pages are occupied by Mr Ashhurst’s contentions that Professor Watson’s report resolved the issue of capacity. Commencing on page 3, Mr Condon supplied a timetable which incorporated his client serving further evidence concerning the Client’s capacity. Opposition by Mr Ashhurst to the brother being permitted to adduce further evidence occupies most of pp 4, 5, and 6 of the transcript, concluding with the grant of leave on p 7 to Mr Condon to adduce expert evidence, but subject to the proviso that the Client was not going to be compelled to have any further examination. The remainder of the hearing concerned the implementation and details of that timetable which were made on pp 11, 12, and further debated on p 13.
Throughout the hearing, it is plain that Lindsay J did not accept that Professor Watson’s report resolved the question of the Client’s capacity. That is evident from his rejection of Mr Ashhurst’s contention that the matter should be set down for a final hearing without further ado, and certainly without further evidence being permitted to be led by the brother. It is also evident from his Honour’s repeated statements that her capacity remained in issue. Those statements include the following:
“The doctor who looked at this went so far and then he expressed qualification. Those qualifications are not small qualifications” (T5.43);
On 12 March 2019, Professor Watson filed his report with the Court, with a finding that [the Client] has full capacity.
At the last Directions Hearing on 15 April 2019, His Honour noted that there is no doubt that [the Client] has capacity. The proceedings were otherwise given a timetable to progress towards final hearing, with a final hearing expected in 2019.
The letter stated that Mr Amirbeaggi was instructed that “once the Court determines the proceedings / issue to be tried and returns [the Client’s] property to her that she will discontinue the Application for Assessment, and will thereafter consider initiation of proceedings against those who caused wastage of her property”. He requested the assessment to be held in abeyance for 12 weeks so that the proceedings might be determined.
At the level of substance, the critical sentences of Mr Amirbeaggi’s letter are a substantially distorted description of the contested directions hearing on 15 April 2019. Even if it be the case that somewhere in Professor Watson’s report is the statement that the Client has full capacity, it is quite plain that there were significant qualifications, principally relating to the effect of her need for pain-killing medication. The whole point of the directions hearing was to resolve doubts about the Client’s capacity, and to that end, leave was granted to adduce further evidence, over the opposition of counsel instructed by Mr Amirbeaggi. Far from there being “no doubt that [the client] has capacity”, that was the whole point of the contest at the hearing and the orders which emerged. On that contest, Mr Amirbeaggi’s counsel was unsuccessful.
Now true it is that Mr Amirbeaggi claimed to have a “clear” recollection of the directions hearing of 15 April 2019 when he affirmed his affidavit of 20 December 2024, more than five and a half years later, despite the absence of a note being taken. And he said that he had a clear recollection of Lindsay J saying, “there is no doubt that [the Client] has capacity, what we don’t know is whether she will continue to have capacity”. Mr Amirbeaggi’s evidence as to his recollection was accepted by the Tribunal.
Even so, it is to be borne in mind that when Mr Amirbeaggi wrote to the costs assessor, he was in a position of direct conflict between self-interest and his obligations to his Client. The course he urged upon the costs assessor was to Mr Amirbeaggi’s immediate financial advantage – he was seeking not to have to prepare submissions justifying the over $1.2 million he had by that time charged his Client. Mr Amirbeaggi’s ability to ask, on behalf of his Client, to stay the process of that assessment presupposed that the Client had given her fully informed consent to a course which was in his interest and at least arguably contrary to her own. That consent turned upon her capacity. In those circumstances, it was incumbent upon Mr Amirbeaggi to be assiduous in his statements of his Client’s capacity.
It must be accepted, consistently with the Tribunal’s finding, that Mr Amirbeaggi genuinely recollected that Lindsay J had said there was no doubt about his Client’s capacity. Proceeding to write to the costs assessor in those terms, without qualification was, as the Tribunal found, a serious departure from the standards to be expected from a practising solicitor. There are at least two aspects to this. The first is that even if Mr Amirbeaggi recollected the words he attributed to Lindsay J, he must also have known that the application made by his senior counsel at the hearing had failed, and that instead the other side had obtained orders permitting further expert evidence. The second is that he must also have been acutely conscious of his own conflict between duty to the Client and self-interest.
“The [appellant] attempted to have a Costs Assessment stayed by suggesting to the Costs Assessor that there was ‘no doubt’ as to [the Client’s] capacity when this was not an accurate representation.”
The Tribunal affirmed the decision of the respondent to issue the appellant with a caution, pursuant to s 299(1)(a) of the Uniform Law.
In its published reasons, the Tribunal anonymised the appellant’s name, as well as the name of the client in respect of whom the complaint was made (Client) and the names of various members of her family (including the complainant), pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The appellant commenced the present appeal using the pseudonym the Tribunal had allocated. Although he initially sought to continue the anonymisation, relying on s 8(1)(a) and s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), he did not ultimately press that application. At the hearing of the appeal, the Court made an order noting that the Tribunal’s order pursuant to s 64 of the CAT Act did not apply to proceedings in this Court insofar as it prohibited the disclosure of the appellant’s name.
The appellant advanced two grounds of appeal. The first ground was in general terms, contending that the Tribunal erred in concluding that the appellant had engaged in unsatisfactory professional conduct. The second ground particularised ten errors on the part of the Tribunal in reaching that conclusion. The respondent accepted that the Tribunal made one of the alleged errors, but contended that the appeal should nonetheless be dismissed.
The appellant has been practising as a solicitor for over 24 years and is the principal of an incorporated legal practice.
The appellant acted on behalf of the Client in 2018 and 2019. The complainant is the Client’s brother.
The complainant and another brother of the Client were directors of a company which, in around the middle of 2017, became the trustee of a discretionary trust that was established in about 2013 (Trust). It was the Client’s position that around the same time as the company became the trustee of the Trust, the majority of the Client’s assets, apart from her house and a vehicle, were transferred into the Trust.
In about November 2017, the Client sought advice from a solicitor with the Inner-City Legal Centre, Hilary Kincaid. On around 27 November 2017, Ms Kincaid sent an email to the complainant, asking whether he would be willing to facilitate transferring management of the Client’s finances to the NSW Trustee and Guardian (NSW Trustee). The complainant agreed.
In early December 2017, Ms Kincaid confirmed with the complainant that she had received instructions to file a financial management application. However, in early February 2018, the Client informed Ms Kincaid that she did not wish to pursue the application.
On 6 February 2018, Ms Kincaid sent an email to the appellant’s firm, Yates Beaggi Lawyers (YBL), seeking a referral for some urgent paid advice on a trusts and family property matter. On 14 February 2018, the appellant was formally retained by the Client.
In March 2018, the appellant commenced two proceedings on behalf of the Client in the Supreme Court. In broad terms, one proceeding concerned the Client’s shareholding in a family company, while in the other the Client sought to recover assets formerly belonging to her that had allegedly been transferred into the Trust.
In around June 2018, the Client’s mother and brothers applied to the Tribunal for financial management orders with respect to the Client. On 9 July 2018, the Tribunal made an interim financial management order for a period of six months, requiring that the Client’s estate be subject to the management of the NSW Trustee.
On 11 July 2018, the appellant commenced further proceedings on behalf of the Client in the Supreme Court, seeking, among other things, that the Tribunal’s decision of 9 July 2018 be quashed and that the Court determine whether the Client was capable of managing her financial affairs (the financial management proceedings).
On 1 August 2018, Lindsay J made an order in the financial management proceedings the effect of which was to continue the role of the NSW Trustee as the protected estate receiver for the Client pending resolution of the issues in dispute. On 30 August 2018, at a further directions hearing, his Honour made a series of notations and orders, including, relevantly for present purposes:
“1. NOTE that the [Client] seeks to have a judicial determination of whether she presently has capacity to manage her own affairs.
- NOTE that, subject to formal confirmation, counsel for all parties to the proceedings anticipate agreement for that determination to be made upon an exercise of the Court’s inherent protective jurisdiction in these proceedings or by reference to s 41 of the NSW Trustee and Guardian Act 2009 NSW.
- NOTE that, subject to clarification of his terms of reference and the materials which are to accompany his instructions, all parties to the proceedings agree that the Court should appoint Professor John Watson to enquire into, and to report to the Court upon, the question whether the [Client] is capable of managing her own affairs.
…
- NOTE that, pursuant to orders made by the Court in these proceedings, the NSW Trustee continues in the office of protected estate receiver for the [Client].”
Professor Watson prepared a report in relation to the Client. The report, dated 12 March 2019, was not in evidence before the Tribunal and was not before this Court. In the reasons of the Professional Conduct Committee of the respondent (Committee) regarding the complaint, the Committee recorded Professor Watson’s opinion that “there was no obvious disease of the brain to affect [the Client’s] cognition” and no evidence of disability. However, according to the Committee’s reasons (at [81]), Professor Watson noted that there had been a strong element of chronic pain and, at times, drug-seeking behaviour and abuse of major psychoactive drugs, on the basis of which it was possible to conclude that there had been times when the Client likely had impaired cognitive function. Professor Watson observed that the Client was able to go about life in a self-reliant way, but considered that if she were to revert to a situation in which she was using and abusing high quantities of drugs, the intervention of a suitable agent to protect her estate in her own interests would likely be required.
According to the Committee’s reasons (at [82]), at a directions hearing on 18 March 2019, Lindsay J stated:
“You can read Professor Watson’s report as being a complete vindication case of [the Client’s] capacity to manager her affairs. You can also read it as almost the contrary …
… [T]he problem we are dealing with [is that] [the Client] on this report appears to be mentally with it provided she is physically with it.
The problem that she has had in the past might well be that there has been no guarantee she could be physically with it because the very sad fact is that she is living with chronic pain and while ever she is living with chronic pain and unable to manage the pain, there is a risk that she can’t manage her affairs”
On 15 April 2019, the financial management proceedings were listed for further directions before Lindsay J (April directions hearing). The Client was represented on that occasion by senior counsel, junior counsel and the appellant. The defendants in the financial management proceedings (the mother and brothers of the Client) were also represented by senior counsel and solicitors. As the Client’s protected estate receiver, the NSW Trustee also appeared, represented by an acting senior legal officer, Greg Mackey.
The transcript of the April directions hearing records the following exchange between his Honour and Mr Ashhurst SC, who appeared for the Client:
“ASHHURST: For our part as we understand it the Court appointed expert has handed down his report.
HIS HONOUR: I think that is common ground.
ASHHURST: For our part we want what we say are consequential orders based on that report.
HIS HONOUR: The difficulty I have with the report which I have mentioned is that on one reading it actually says there is no problem with capacity. But it is conditional. So on the last occasion the proceedings were stood over so that Mr Condon's side at the very least could work out what if anything they want to do with that.
ASHHURST: In relation to that we are in a position to say that the plaintiff has contacted ability 1 and we can serve an affidavit explaining that ability 1 has agreed to carry out certain on-going checks in case there is any difficulty that arises in the future. But at the moment we would say that the plaintiff has capacity and that really should be the end of the issue.
HIS HONOUR: If she has capacity why involve ability 1?
ASHHURST: We have done that for an abundance of caution.
HIS HONOUR: This is the problem. Let's just stand back and have a look at it …
HIS HONOUR: My impression is that [the Client] is a highly intelligent woman. But the problem is that she has to endure constant pain which would test anybody. How do you deal with that? The medical report which I have not looked at since last time seems to say well, she's got that intellectual capacity but whether she is able to manage her affairs in the future depends upon whether she can endure the pain and what the other medical considerations are. Now, it is a highly unusual case but at the end of the day we have to look at all of it.
ASHHURST: Yes, your Honour. With respect that is not quite how we would read that report. We would say it is reasonably clear that she currently has capacity. There is a question as to what may occur in the future but there is no doubt that she currently has capacity.
HIS HONOUR: The problem with that is that the protective jurisdiction, when you look at questions of capacity and the protective jurisdiction, it is involved with not only the here and now but the future and there is an element of risk management. At the end of the day you might be entirely right but it is that area that I think we need at least to hasten slowly with.
ASHHURST: For that reason what we seek is a hearing of the notice of motion.
HIS HONOUR: That is the question about capacity?
ASHHURST: Yes, your Honour.
HIS HONOUR: That may well be the way forward. If there's a contest at some point it has to be dealt with.
ASHHURST: We seek as early a hearing date for that as possible.”
The notice of motion to which Mr Ashhurst SC referred towards the end of the above extract was filed on 10 April 2019. According to the appellant’s evidence in the Tribunal, the purpose of the motion was to seek judgment on the matter of the Client’s capacity, on the basis of Professor Watson’s report.
In the course of the April directions hearing, the defendants’ senior counsel foreshadowed an intention to call an expert in addition to Professor Watson. Mr Ashhurst SC objected, submitting that there was a court appointed expert and that the parties have leave to ask him further questions. In that context, the transcript records the following exchange:
“ASHHURST: I’m not saying your Honour does not have the power. What I’m saying is there is a reason why there are Court appointed expert particularly in circumstances where--
HIS HONOUR: The doctor who looked at this went so far and then he expressed qualifications. Those qualifications are not small qualifications.
ASHHURST: In which case, your Honour, the expert can be asked additional questions.
HIS HONOUR: I’m not going to go down that path …”
“I think the crux of the question, if it was a question, on Professor Watson’s report, is how do you deal with somebody who has excruciating constant pain and needs to control that. And that may lead to all sorts of vulnerability beyond the fact of cognitive state. That seems to me to be the issue.
Let it be assumed that she has got no problem with cognition. She still has this vulnerability: I’m inclined to narrow the issues to that, going forward. So, I am not wholly against the things that you have said to me, but I don’t want to shut out some light that might be thrown on that question.”
In addition to the notation his Honour made foreshadowing the defendants’ seeking leave to adduce additional expert medical evidence, the notations and orders that his Honour made on that occasion included that the parties invited the Court to entertain, as soon as practicable, a hearing of the Client’s notice of motion filed 10 April 2019.
The appellant did not take any contemporaneous notes of the April directions hearing. He obtained a copy of the transcript on 23 July 2019. On 1 August 2024, the appellant requested an audio recording of the April directions hearing and was informed that no recording was available.
On 19 March 2019, the NSW Trustee filed an application for assessment of the appellant’s costs. According to an affidavit of the appellant affirmed 12 June 2019 in the financial management proceedings, to which I will turn shortly, the application sought assessment of YBL’s costs and disbursements in acting for the Client in the three Supreme Court proceedings. According to a responsive affidavit of Mr Mackey, sworn 19 June 2019, the application related to 12 invoices issued between 16 March 2018 and 4 December 2018. The total of those invoices, the first seven of which (totalling $916,713.75) had been paid, was $1,247,498.91.
By letter dated 3 May 2019, John McGruther, solicitor, notified the parties of his appointment as the costs assessor. He requested written submissions from the parties within 14 days of the date of his letter.
On 15 May 2019, the appellant sent a letter to the costs assessor, copied to the legal representative of the NSW Trustee, Zucker Legal (the Letter). Given its centrality to this appeal, I have reproduced the contents of the Letter below, omitting the formalities and emphasising the key sentence that formed the basis for the complaint that the respondent and the Tribunal found was substantiated:
“Thank you for your letter dated 3 May 2019 (received 9 May 2019).
As noted within the Application, the NSW Trustee & Guardian acts in a capacity of Financial Manager for [the Client] with Order appointing it made by the NSW Civil and Administrative Tribunal (NCAT) on 9 July 2018.
An Appeal was filed from the decision of the NCAT to the Supreme Court of New South Wales on 11 July 2018.
On 30 August 2018, His Honour Justice Geoff Lindsay in his protective jurisdiction ordered that an expert of the Court determine [the Client’s] capacity. Accordingly, Professor John Watson was briefed by the parties by Order of the Court.
On 12 March 2019, Professor Watson filed his report with the Court, with a finding that [the Client] has full capacity.
At the last Directions Hearing on 15 April 2019, His Honour noted that there is no doubt that [the Client] has capacity. The proceedings were otherwise given a timetable to progress towards final hearing, with a final hearing expected in 2019.
The Application for Assessment made by the NSW Trustee and Guardian is made against knowledge of the above circumstances and made against the express instructions / wishes of [the Client].
We are instructed that once the Court determines the proceedings / issue to be tried and returns [the Client’s] property to her that she will discontinue the Application for Assessemnt [sic], and will thereafter consider initiation of proceedings against those who caused wastage of her property.
In the circumstances, might we suggest that the Application for Assessment be held in abeyance for a period of 12 weeks so that the present proceedings before the Court may be determined.
Might we have your early advice with respect to the above. We otherwise invite you to contact the writer might he be of further assistance to you.”
(Emphasis added.)
In his responsive letter on behalf of the NSW Trustee, dated 16 May 2019, Christopher Zucker, of Zucker Legal, enclosed a copy of the Record of Proceedings for the April directions hearing and stated that whilst he would obtain a copy of the transcript if the costs assessor so directed, the notations and orders spoke for themselves. Mr Zucker further stated that “the matter before the Court is whether the [Client] … is capable of managing her own affairs” and that “[m]edical evidence is but one element of the issues to be considered by the Court in determining that question”. His instructions were to oppose the costs assessment application being held in abeyance, stating that the NSW Trustee continued to manage the Client’s financial estate until and unless the Court directed otherwise.
On 21 May 2019, the appellant sent a further letter to the costs assessor, stating that he (the costs assessor) would benefit from having a copy of the transcript and recommending that Mr Zucker provide it “if he has it”. The appellant enclosed with the letter a copy of an affidavit affirmed 12 April 2019 that he had filed in the financial management proceedings, together with its exhibit. He wrote:
“From the transcript and or affidavit you will observe that the Professor’s report (Court Appointed Expert) finds that [the Client] has capacity to manage her own financial affairs. That is the very issue to be tried in the proceedings.
However her opponent brothers / mother who are defendants against her in two other significant sets of proceedings (claims brought by [the Client] against them for sums exceeding $5mil) have every reason to continue a contest against [the Client] and to keep her estate under protection, and with that objective wish to serve further non Court appointed evidence as to possible future matters.
We, and [the Client], say those future matters are not relevant to the proceedings / issue to be tried, and have pressed for a final hearing.
The relevant matter for this assessment is a likelihood that [the Client] will succeed and have her property returned to her, and if that is so then this application for assessment will be withdrawn.
The final hearing is in our opinion imminent, hence the request for an abeyance of what will otherwise not be a cheap and quick process of costs assessment.
We note that if the assessment is to proceed then a period of some 6-8 weeks will be sought by the Cost Respondent to engage an expert Cost Consultant to review the bills, files, and prepare a report for the purposes of the assessment and any later proceedings. The files are significant in volume and presently contained within approximately 45 lever arch folders.”
On 11 June 2019, the appellant caused a notice of motion to be filed on behalf of the Client in the financial management proceedings, seeking, inter alia: (i) release of funds to pay a tax invoice issued by YBL on 11 June 2019; and (ii) a stay of the costs assessment application. The appellant’s supporting affidavit, affirmed 12 June 2019, exhibited, among other documents, a copy of the Letter.
On 27 June 2019, Lindsay J heard the notice of motion, having identified at a directions hearing a week earlier that the evidence before the Court included the appellant’s supporting affidavit. In his ex-tempore judgment delivered on the same day as the hearing, his Honour relevantly dismissed the Client’s application for a stay of the costs assessment.
In November 2020, the complainant made a complaint about the appellant to the Legal Services Commissioner pursuant to s 267 of the Uniform Law, in which he made seven allegations. The complaint the subject of this appeal was numbered “Allegation 7” in the Committee’s reasons. On 19 July 2024, the Committee notified the appellant of its dismissal of all of the allegations save for Allegation 7, in respect of which it concluded that he had engaged in unsatisfactory professional conduct and determined to caution him pursuant to s 299(1)(a) of the Uniform Law.
Section 296 of the Uniform Law defines “unsatisfactory professional conduct” as follows:
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.
“[207] The Committee is satisfied that the conduct the subject of Allegation 7 involved the provision of a misleading account, in a letter to a Costs Assessor, of the position that was only recently expressed by a judicial officer regarding [the Client’s] capacity. A reasonable reader would be left with the impression that the Court was of the view that [the Client’s] capacity was not in doubt, when it was in dispute.
[208] The Committee further notes that the [appellant] made this representation while pursuing his own interests. In the Committee’s opinion, it was in the [appellant’s] interest that the fees charged by his firm to [the Client] would not be subjected to costs assessment (by reason of [the Client’s] incapacity to manage her financial affairs). As noted above, [the Client’s] capacity in this connection was a central controversy in the Financial Management Proceedings and was a matter with which the [appellant] was or should have been familiar.
[209] The Committee is satisfied that the [appellant’s] letter dated 15 May 2020 [sic] fell short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent lawyer …”
The Committee had earlier rejected the appellant’s submission that his statement in the Letter was the product of a misunderstanding of his Honour’s comments: at [186]. It considered that he was advocating a position that was favourable to him, representing that the view of the Court was that there was no doubt about the Client’s capacity when that was not the case, in circumstances where her capacity was: (i) a central controversy in the financial management proceedings; (ii) a potentially relevant factor in the costs assessment process; and (iii) a matter with which the appellant was or should have been familiar: at [187]-[188]. The Committee also did not accept the appellant’s emphasis on his use, in the Letter, of the word “noted” rather than “stated”, finding that when read as a whole, the Letter incorrectly conveyed that his Honour stated that there was no doubt as to the Client’s capacity: at [189]. The Committee concluded that the impugned statements in the Letter did not provide a fair and accurate account of Lindsay J’s observations during the April directions hearing, and that it should have been apparent to the appellant that they had the capacity to mislead the costs assessor: at [190].
The appellant applied to the Tribunal for review of the Committee’s determination, pursuant to s 314(1)(b) of the Uniform Law. Section 126(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) provides that such a review is “an administrative review under the Administrative Decisions Review Act 1997 (NSW)”. Section 63(1) of the Administrative Decisions Review Act provides that in determining an application for an administrative review under that Act, the Tribunal is to decide “what the correct and preferable decision is having regard to the material then before it”.
In an affidavit in the Tribunal proceedings affirmed 20 December 2024, the appellant stated (at [9]):
“I was present at the directions hearing on 15 April 2019. I instructed Mr Mark Ashhurst of Senior Counsel who appeared on behalf of [the Client]. I did not take a note of the hearing. During the hearing, I recall that there was a discussion as to what should occur in light of the opinions expressed in Professor Watson’s report as to [the Client’s] capacity. It is my clear recollection that during the hearing, his Honour Justice Lindsay stated (words to the effect): ‘There is no doubt that [the Client] has capacity, what we don’t know is whether she will continue to have capacity’.”
“I did not attempt to have the Costs Assessment stayed by making an inaccurate statement to Mr McGruther about [the Client’s] capacity. As I have explained above, my understanding was that his Honour had stated that [the Client] had capacity at present, albeit there might be some doubt about the future position. I did not consider the future position to be relevant to the present question, at that time, of whether [the Client] had capacity.”
“Q. Are you telling the tribunal that when you left the directions hearing on 15 April 2019 in your mind you understood the Court to have essentially concluded the question of capacity?
A. When I left court on that day, to give some context to matters, the order that was sought in the proceedings was to determine [the Client’s] present capacity and my understanding in dealing with capacity matters and guardianship matters, having conducted maybe half a dozen of them, was that the test of capacity as at the present moment, not prospectively, and very difficult to determine capacity by reference to dates that have passed, so the term of the order that’s ordinarily made in these sorts of proceedings is to determine present capacity.
His Honour in court on that day, being whatever the date of the transcript was, to my recollection, and why I asked for the sound recording of the official record – if I can just go back to page 154. This is why I responded to you differently when you asked me about it, at page 151, being the transcript of 15 April 2019, top right-hand corner, page 151, at line 26 where it ascribes to Mr Ashhurst the last sentence there is a question as to what may occur in the future but there is no doubt that she currently has capacity. My recollection and my recollection still, my view now is that those are words spoken by his Honour, pronounced by his Honour, that have been incorrectly ascribed to Mr Ashhurst and that is why when we received the transcript we asked to order a copy of the sound recording and were told that it no longer existed.
So the answer to your question is there was two issues. One is that I’m dealing in that letter with an issue of here’s the order, there’s a report that’s been published and his Honour’s noted that she has capacity. And that’s informed by two things: one, the scope of the order and the determination made by Professor Watson. And secondly, my recollection of what his Honour had said.”
As noted above, in ground 2 of his notice of appeal the appellant particularised ten errors that the Tribunal allegedly made in reaching its conclusion. It is convenient to address those errors at the same time as working through the Tribunal’s dispositive reasons. Paragraph references below are to the reasons.
The Tribunal described its task as “deciding whether the language contained in the Letter constitutes conduct 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”: at [65]. The appellant did not take issue with the Tribunal’s formulation of its task.
The addressee of the Letter was the costs assessor, whom the Tribunal described as performing an important function, “namely the adjudication of costs to be paid by the Client as a consequence of legal services provided and invoices for costs having been rendered by the [appellant]”: at [69]. As the Tribunal further noted, the costs assessor had no knowledge of the facts referred to in the Letter: at [69].
The Tribunal’s reference to these matters properly recognised that although the complaint was directed at a specific part of the Letter, the surrounding context of the Letter and the circumstances in which it was written were important. As the Tribunal stated at [66], the purpose of the Letter was to persuade the costs assessor to hold the costs assessment application with respect to the appellant’s costs in abeyance for 12 weeks “so that the present proceedings before the Court may be determined”. The appellant did not take issue with this description of the Letter’s purpose, which was reflected in the penultimate sentence of the Letter, which commenced with the words, “In the circumstances, might we suggest …”, and thereby picked up the preceding content.
The Tribunal referred to the following statements that the appellant made in the Letter as made for the purposes of persuading the costs assessor of the appropriateness of postponing the costs assessment:
“(1) The Court had appointed an expert to determine the Client’s capacity, namely Professor John Watson.
(2) On 12 March 2019 Professor Watson filed his report with the court ‘with a finding that [the Client] has full capacity’.
(3) At the directions hearing on 15 April 2019, Lindsay J ‘noted that there is no doubt’ that the Client ‘has capacity’.”
I pause at this point to note that those three statements form part of a chronological sequence. At the outset of the Letter, the appellant referred to the interim financial management order that the Tribunal made on 9 July 2018, the “appeal” filed from that decision on 11 July 2018 (which, by this time, had been superseded by an order of the Court in its protective jurisdiction), and Lindsay J’s order of 30 August 2018 that “an expert of the Court determine [the Client’s] capacity”, with the joint briefing of Professor Watson. The next event in the sequence that the appellant referred to in the Letter was the receipt of Professor Watson’s report on 12 March 2019, “with a finding that [the Client] has full capacity”, before the impugned statement, describing what Lindsay J “noted” “[a]t the last Directions Hearing on 15 April 2019”. The appellant deployed this chronology:
firstly, to describe the NSW Trustee as making the costs assessment application “against knowledge of the above circumstances and made against the express instructions / wishes of [the Client]” (emphasis added); and
secondly, to support his instructions that “once the Court determines the proceedings / issue to be tried and returns [the Client’s] property to her that she will discontinue the Application for Assessemnt [sic], and will thereafter consider initiation of proceedings against those who caused wastage of her property”.
As the Tribunal noted, the uncontradicted evidence was that the appellant wrote the Letter based on his recollection of what had occurred at the April directions hearing, without the benefit of any contemporaneous notes or a transcript: at [68]. In the appeal, the appellant placed significant reliance on the impugned statement in the Letter as reflecting an honest recollection on his part of what he recalled at the April directions hearing. His recollection was not relevantly challenged in the Tribunal, and it was not challenged on appeal. However, as the respondent submitted, what the appellant could or could not recall was not determinative of the issue that the Tribunal was considering, which was whether the appellant’s writing what he did in the Letter to the costs assessor constituted conduct that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
The Tribunal compared what Lindsay J said during the April directions hearing, as recorded in the transcript, with the language in the Letter, and found the following disparities (at [70], omitting transcript references):
“(1) His Honour stated that Professor Watson’s report is conditional and whether the Client is able to manage her own affairs in the future depends upon whether she can endure the pain and what the other medical consideration are. It seems to us that the Letter was not justified in stating that Lindsay J ‘noted that there is no doubt’ that the Client ‘has capacity’. There was clearly resistance by His Honour to the submissions of Mr Ashurst [sic] SC who sought to persuade His Honour that because the Client had present or current capacity ‘that really should be the end of the issue’.
(2) It is clear that His Honour was of the opinion that the protective jurisdiction of the Court required the Court to consider the Client’s capacity in the future. However, the Letter stated that His Honour ‘noted that there is no doubt that the Client has capacity’. There is a clear disparity between that sentence in the Letter and what His Honour in fact said, as evidenced from the transcript.”
The appellant took issue with the Tribunal’s reliance on these disparities. He submitted that the transcript was irrelevant since he did not have it at the time he wrote the Letter. I do not accept that submission. To the contrary, that the appellant did not have the transcript at the time he wrote the Letter rendered it highly relevant to the allegation in the complaint, that he had made an inaccurate representation to the costs assessor about what Lindsay J had said at the April directions hearing.
The appellant contended that in any event, the Tribunal was wrong to conclude that there was a disparity between the language he used in the Letter and what Lindsay J said at the April directions hearing as recorded in the transcript (ground 2(a)). The appellant placed particular reliance on the exchange between Mr Ashhurst SC and his Honour, in which, following Mr Ashhurst SC’s statement (as recorded in the transcript) that “there is no doubt that she currently has capacity”, his Honour said the problem with that statement was that questions about capacity in the protective jurisdiction involved “not only the here and now but the future”. The appellant submitted that in circumstances where Lindsay J agreed with the submission put by senior counsel for the Client about her present capacity, there was no disparity between his statement in the Letter and what his Honour said at the April directions hearing (ground 2(b)). Although his Honour also flagged in this exchange the broader concern of the protective jurisdiction, his Honour’s apparent agreement with senior counsel that the Client currently had capacity was consistent with the appellant’s recollection of what occurred at the directions hearing and what he wrote in the Letter.
The appellant emphasised in this context his use of the word “noted” in the Letter, which was said to be “commonly understood as a reference to something which does not constitute a definitive finding” (emphasis in original). The appellant submitted that he was not purporting in the Letter to address what Lindsay J had said about what might occur in the future, and did not need to do so, describing the Client’s position on future matters in the letter of 21 May 2019 as “not relevant to the proceedings / issue to be tried”.
As to the larger challenge to the factual correctness of the disparities that the Tribunal found, the appellant relied on a distinction between the Client’s present capacity, said to be the sole relevant consideration in determining whether the costs assessment should be paused, and her capacity more generally. The distinction is of little moment in the present circumstances. First, it has to be borne in mind that the Letter was written to a third party with no personal knowledge of the proceedings. Read in context, the statement that his Honour, who had ordered the expert report, “noted” following receipt of that report that there was “no doubt that [the Client] has capacity”, conveyed an unequivocal opinion on his Honour’s part on this issue. The use of “noted” did not render the statement any less absolute.
“[75] In the absence of a contemporaneous note, or of the transcript, it was not reasonable, in our view, for the [appellant] to have written the Letter using language recording what His Honour had said without appropriately expressed qualifications as to the fact that the Letter represented the [appellant’s] best recollection of what was said.
[76] Nor do we think it was reasonable for the [appellant] to have formed the view that the words attributed in the transcript to Mr Ashurst [sic] (‘there is no doubt that she currently has capacity’) were recalled by the [appellant] to have been expressed by His Honour. That recollection is inconsistent with the clear concerns expressed elsewhere by His Honour as recorded in the transcript. His Honour states that there is more to be considered than whether [the Client] currently has capacity. In other words, we do not accept that the [appellant] could reasonably have recalled that the words attributed to Mr Ashurst [sic] were words that in fact came from His Honour.
[77] In short, it is our opinion that the Letter was inaccurate and contained language which was likely to mislead the cost assessor.
[78] The [appellant] referred to the letter that he wrote to the costs assessor on 21st May 2019 (in response to the letter from Zucker Legal dated 16th May 2019) for the purpose of submitting that he was clear in stating that capacity had not been determined. We do not agree with that submission. That letter states that the other parties wish to put in issue evidence concerning “future matters” and that the [appellant] and the Client say that future matters are not relevant. This letter does not undo the misleading nature of the Letter which implied that His Honour’s view aligned with the [appellant’s] view when in fact His Honour had stated that future matters were relevant.”
The appellant submitted that the Tribunal erred in [75] in finding that, in the absence of the transcript or a contemporaneous note, he was obliged to say in the Letter that what he recorded represented his best recollection. In circumstances where he signed the Letter, and it was “clear from the letter of 21 May 2019 that he did not have a transcript of the hearing”, the appellant submitted that a “reasonable person would conclude that the letter did in fact represent the appellant’s best recollection of what had occurred in the absence of a transcript”. The appellant submitted that the Tribunal was wrong to conclude that he needed further to qualify the Letter (ground 2(g)).
The respondent conceded that the Tribunal had erred in the manner particularised in ground 2(g). In oral submissions, counsel for the respondent submitted that it was not necessarily a reasonable requirement that a solicitor express qualifications of the nature that the Tribunal referred to in [75]. Accepting the terms of the concession, however, it does not follow, as the appellant submitted, that a reasonable person would conclude that the Letter in fact represented no more than the appellant’s best recollection of what occurred. That submission was premised on the appellant making it clear, in his subsequent letter, dated 21 May 2019, that he did not have the transcript. The content of the subsequent letter cannot logically bear upon the capacity of the Letter to mislead at the time it was sent.
In relation to [76], the appellant submitted that in circumstances where his recollection was unchallenged and the Tribunal accepted, at [79], that it was not dishonest, it was an error for the Tribunal to concern itself with whether that recollection was “reasonable” (ground 2(h)). The appellant submitted that his recollection was either correct or incorrect, and no question of reasonableness arose. In oral submissions on this ground, senior counsel for the appellant accepted that the Tribunal was able to reason that, in its view, on the balance of probabilities, the words in question were said by Mr Ashhurst SC rather than Lindsay J; and if that had been the only finding, the appellant could not have complained about it. The difficulty, he submitted, was that something more was required to find unsatisfactory professional conduct. He submitted:
“It’s that second element that is problematic, because the second element is to say that, in light of the finding objectively made that this is not likely to have been said by the trial judge, it is unreasonable for a solicitor to recollect otherwise. The difficulty with that finding is that it is, with respect, incoherent to describe a recollection as reasonable or otherwise. Someone either recollects something in a particular way, or they don’t. In this case, not only did the appellant recollect it in a particular way, he was accepted to have done so.”
The appellant relatedly submitted that, in any event, the Tribunal was in no position to assess what a “competent and diligent” or “reasonable” solicitor would or would not have recalled about the April directions hearing when it only had a transcript, which:
did not record many of the matters that may be relevant to a person’s recollection of what occurred, for example the intonation, speed and volume at which things were said;
not uncommonly contains errors or omissions; and
did not indicate the extent to which the listener was paying direct attention to the words being spoken at any particular time.
It is important to understand the structure of the paragraphs of the Tribunal’s reasons reproduced at [86] above, considered against the background of the question for the Tribunal, namely, whether the appellant’s conduct, in the circumstances, fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. The conduct in issue was the appellant’s writing the Letter containing the statement that Lindsay J had recently expressed an unqualified positive opinion about the Client’s capacity. As the Tribunal stated at the beginning of [75], the appellant wrote the Letter, and the impugned statement, “[i]n the absence of a contemporaneous note, or of the transcript”. Its conclusion, at [77], was that “the Letter was inaccurate and contained language which was likely to mislead the costs assessor”. Before reaching that conclusion, the Tribunal needed to address the appellant’s evidence that, contrary to the transcript (which was put to him), his Honour said the words that he recorded in the Letter. Properly understood, that is all that the Tribunal is doing in [76], namely, rejecting that the appellant had an actual recollection that the words attributed to Mr Ashhurst SC were said by his Honour. So much is apparent from the last sentence in [76]: “In other words, we do not accept that the [appellant] could reasonably have recalled that the words attributed to Mr Ashurst [sic] were words that in fact came from His Honour”. None of the general transcription issues to which the appellant referred relevantly affected the Tribunal’s finding, which rested primarily on the inconsistency between what the appellant said he recalled and the clear concerns his Honour expressed, as recorded in the transcript.
The appellant contended that the Tribunal was wrong to conclude that his subsequent letter of 21 May 2019 was not relevant to the question of whether he had engaged in unsatisfactory professional conduct (ground 2(i)). He submitted that he made it clear in that letter that the Client’s position was that future matters were not relevant to the issue to be tried, and that this clarified that the statement in the Letter went to the Client’s current capacity. However, the Tribunal did not conclude that the later letter was not relevant but, rather, that it did not undo the misleading nature of the Letter, “which implied that His Honour’s view aligned with the [appellant’s] view when in fact His Honour had stated that future matters were relevant”: at [78].
“[79] We are not satisfied that the [appellant] intended to mislead the costs assessor or that he was dishonest. However, we are comfortably satisfied that the [appellant] was reckless in the use of language contained in the Letter and that in the circumstances, the issue of the Letter by the [appellant] constitutes conduct 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.
[80] Having determined that we are in agreement with the Respondent’s submissions that the correct and preferable decision is to affirm the resolution of the [Committee] that the conduct of the [appellant] constitutes unsatisfactory professional conduct, we turn to the question of what protective order should be made.
[81] We are of the opinion that the [appellant’s] conduct could be fairly described as careless or inadvertent and it involved a single event (namely the issue of the Letter), rather than conduct of a continuing nature. It is also relevant that the costs assessor did not acquiesce in the request made in the Letter but rather determined that the costs assessment should continue. In the circumstances we are of the opinion that the appropriate protective order is a caution and that the [Committee] was correct to make such an order. In coming to this view, we are mindful of the fact that a member of the public is entitled to expect that a reasonably competent lawyer would be careful not to mislead in correspondence and that therefore a caution would act not only as a deterrent to the [appellant] but also act more generally to members of the profession to exercise the appropriate level of care and diligence in the issue of communications.
[82] In conclusion, it is our view that the correct and preferable conclusion is that which was reached by the [Committee] in the Decision. It follows that the Decision should be affirmed. It also follows that the [appellant’s] request for costs is dismissed.”
The appellant submitted that in circumstances where the Tribunal accepted that he did not intend to mislead the costs assessor and was not dishonest (at [79]), it “must follow” that the Tribunal also accepted that his recollection of what occurred at the April directions hearing was his honest recollection. The appellant submitted that in those circumstances, the Tribunal was wrong to conclude that his honest recollection was not an adequate foundation for the impugned statement in the Letter (ground 2(j)). The appellant further submitted that in light of the Tribunal’s finding that he did not intend to be dishonest or to mislead the costs assessor (at [79] and [81]), the further finding, that his issuing a letter containing this recollection was “reckless”, “careless” or “inadvertent”, was erroneous. He put this submission on the basis that it was not unreasonable, in the absence of a transcript or contemporaneous note, for solicitors to set out their honest recollection of what transpired in correspondence.
The Tribunal’s use of the word “reckless” was infelicitous. Legal practitioners ordinarily associate that word with acting from a position of indifference or in wilful disregard, and it was not put to the appellant in cross-examination that his conduct was of that character. However, given the later statement of the Tribunal at [81], I do not consider that in using the word the Tribunal intended to convey that the appellant’s conduct went beyond careless. In any event, it should be construed that way, favourably to the appellant.
On the basis that the appellant’s conduct was careless, the question for determination was whether the 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, which has to be assessed in the particular circumstances: see eg BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 at [98]-[100]. Contrary to the appellant’s submissions, his conduct in writing the impugned statement in the Letter, even if based on his recollection, was capable of falling below the standard to which s 296 of the Uniform Law refers. For the reasons expressed above by reference to the Tribunal’s reasons, the appellant’s conduct did fall below that standard.
The Tribunal’s conclusion that the appellant had engaged in unsatisfactory professional conduct was correct. The appellant did not separately challenge the penalty that the Tribunal determined, being the least severe penalty for which s 299 of the Uniform Law makes provision.
It follows that the appeal should be dismissed. The respondent sought its costs. Accordingly, I propose the following order:
The appeal is dismissed, with costs.
PRICE A****JA: I agree with Mitchelmore JA and the additional reasons of Leeming JA.
**********
Amirbeaggi
Council of the Law Society of New South Wales
The appeal was dismissed with costs. The Tribunal’s conclusion that the appellant engaged in unsatisfactory professional conduct and its caution remained in place: [97]-[98].
“It seems to me in large measure the issue about capacity which exists might probably be able to be dealt with within the parameters of the existing report. But I can see that it may be that there might be some assistance obtained from somebody with a different sort of speciality” (T6.7-10);
“I’m just looking at Dr Watson’s report just to remind myself about what the areas of uncertainty might be” (T7.6-7);
“[T]he area, it seems to me, for concern, on the report of Professor Watson, is let it be assumed she has, to quote him, no cognitive impairment that is obvious, but acknowledging that she has a very severe exposure to pain, for which she has taken drugs, and may in the future take drugs, because of that pain, what are the risks?” (T9.4-7);
“I think the crux of the question, if it was a question, on Professor Watson’s report, is how do you deal with somebody who has excruciating constant pain and needs to control that. And that may lead to all sorts of vulnerability beyond the fact of cognitive state. That seems to me to be the issue” (T9.38-42).
The fact that his Honour granted leave for additional expert evidence to be adduced is consistent only with a view that the issue of capacity remained in issue.
If the instructing solicitor were not fully understanding the details of the matters debated, the gravamen of the hearing was clear. The goal of an early hearing without further evidence was rejected. The brother was granted leave to adduce evidence. The timetable saw the matter coming back before the Court for further directions. The primary judge repeatedly expressed concerns about the issue of capacity.
Following that directions hearing, the costs assessor by letter dated 3 May 2019 directed Mr Amirbeaggi and the Client to provide submissions within 14 days. The critical letter which has given rise to the disciplinary proceedings was Mr Amirbeaggi’s response of 15 May 2019. The critical sentences of that letter were:
Let it be assumed that the inaccuracy was merely due to carelessness, and fell short of reckless indifference let alone deliberate misrepresentation of what happened. The error was nonetheless a serious departure from the substance of what occurred at the directions hearing. It did not cause any material damage, because the application was not acceded to. Ultimately, a further application was made to the Court to stay the process of the costs assessment, and that application was dismissed by Lindsay J, although an order was made that $75,000 be paid towards the legal costs of Mr Amirbeaggi’s firm and counsel retained.
Many isolated acts of carelessness cause no material harm and warrant neither a caution nor a finding of unsatisfactory professional conduct. However, when the entirety of what occurred is placed in context, I agree with the result reached by the Tribunal, and that the error conceded on appeal was immaterial.
MITCHELMORE JA: The appellant, Farshad Amirbeaggi, appeals from a decision of the NSW Civil and Administrative Tribunal (Tribunal). The Tribunal found that the appellant had engaged in unsatisfactory professional conduct within the meaning of s 296 of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law) in relation to a complaint that the respondent, the Council of the Law Society of New South Wales, summarised as follows:
Secondly, it is clear from the transcript of the April directions hearing that his Honour was not making any such distinction in relation to the matter in issue, being the Client’s capacity to manage her financial affairs:
Senior counsel for the Client sought to persuade his Honour that Professor Watson’s report was determinative of the issue of the Client’s capacity (being the position the appellant put in the Letter), such that his Honour should not entertain the defendants’ application for further expert evidence.
His Honour rejected those submissions and, in doing so, expressed concern that Professor Watson’s opinion about the Client’s capacity was conditional, including in direct response to senior counsel for the Client’s submission that there was no doubt about her capacity.
Ultimately, his Honour acceded to the defendants’ application for further expert evidence, making the notation that the evidence would be directed to “whether the [Client] is capable of managing her own affairs having regard to: (a) her history of a need for pain management; (b) her history of association with drugs; and (c) any ongoing risks associated with those histories” (emphasis added).
As the respondent submitted, it was apparent from what his Honour said in the course of the April directions hearing that the Client’s capacity to manage her financial affairs was a live issue. The Tribunal did not err in concluding that there was a disparity between the impugned statement in the Letter and what Lindsay J in fact said, in circumstances where his Honour rejected the submissions of senior counsel for the Client and explicitly referred to the need to consider both present and future circumstances when determining questions of capacity.
In so concluding, the Tribunal rejected the appellant’s submission that “one should consider the Letter less critically than might otherwise be the case” given the NSW Trustee (through Zucker Legal) did not suggest that the Letter was inaccurate, nor did Lindsay J pass comment on it (noting that the Letter was put before him as an exhibit to the appellant’s supporting affidavit of 12 June 2019): at [71]. The Tribunal stated that even if Zucker Legal’s letter did not, in terms, assert that the Letter was inaccurate, it nonetheless implied that the issues before the Court were different to the issue the appellant identified; and it did not endorse the description of those issues in the Letter: at [72]. As to the absence of any comment on the Letter by Lindsay J, the Tribunal did not place any weight on that matter in circumstances where it was not suggested that the Letter was expressly drawn to his Honour’s attention, or that it would have been relevant for his Honour to comment on: at [73].
The appellant took issue with what the Tribunal said in [72] and [73] (grounds 2(c) and 2(d)), although, ultimately, he did not press his complaint about [73]. As to [72], senior counsel for the appellant submitted that while perhaps not a lot of weight needed to be placed on the response of Zucker Legal, the fact that Zucker Legal did not specifically take issue with the accuracy of the impugned statement in the Letter should have carried some weight. Senior counsel submitted in this context that the only point of disagreement that Zucker Legal expressed was a limited one, namely, that medical evidence was not the only element to consider on the question of capacity.
I do not accept that the point of disagreement in the letter from Zucker Legal was so limited. The main point of the (brief) letter, supported by the attached Record of Proceedings, was that the issue of the Client’s capacity, about which the Letter recorded Lindsay J having noted there was no doubt, was yet to be determined and was not resolved by medical evidence alone. True it is, as the Tribunal accepted, that the Letter was not the subject of direct criticism in the Zucker Legal letter. Nonetheless, Zucker Legal’s letter was directed at contextualising, if not correcting, the impression that the Letter might have otherwise conveyed about the proceedings, and opposing what the Letter suggested in terms of holding the costs assessment in abeyance.
There was an additional particular in ground 2 which alleged that the Tribunal erred in failing to refer to or place weight on the fact that no other party involved in the litigation contended that anything said in the Letter was inaccurate or misleading (ground 2(e)). The appellant submitted in writing that in circumstances where the Letter was copied to all parties’ representatives, and each party was represented at the April directions hearing, the absence of any challenge to his recollection therein suggested that it was at least reasonable, and that any inaccuracy, if there was one, was not so obvious or important as to merit a response. I do not accept that submission. The Letter does not appear to have been copied to the defendants in the proceedings (it was copied to Zucker Legal for the NSW Trustee, which was the costs applicant). In any event, the Letter was exhibited to the appellant’s affidavit in support of the stay application but its accuracy or otherwise was not relevant to that application.
The Tribunal expressed the conclusion that the Letter “did not record an accurate representation of what His Honour Lindsay J had said at the April directions hearing” and “had the capacity to mislead the costs assessor”: at [74]. That conclusion was correct. The appellant sought to challenge that finding with ground 2(f), advancing three particulars. The first particular repeated the submission that the Letter accurately reflected the effect of Lindsay J’s observations about the Client’s current capacity, which I have addressed above. The second and third particulars referred to the inevitability that “Zucker Legal would respond … and thus have the opportunity to correct anything that had the potential to mislead”, and that Zucker Legal’s offer to provide the transcript could have been taken up by the costs assessor in the event of any uncertainty created by the statement in the Letter. Those matters might bear on whether the statement in the Letter was in fact perceived to be inaccurate or as having the capacity to mislead, but do not affect the question of whether the Letter was of that character and/or had that capacity.
There is a similar answer to the appellant’s submission in writing that the Tribunal’s conclusion in [74], which was reiterated in [77] (extracted below), was erroneous in circumstances where the costs assessor was an experienced solicitor and received the Letter in response to requests for submissions for the purposes of the costs assessment, and where there was nothing to suggest that he was misled by the statement in the Letter. The Tribunal did not go so far as to find, in [74] or [77], that the costs assessor was in fact misled, and it was unnecessary for it to do so.
The Tribunal’s reasons continued as follows:
The Tribunal concluded: