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[2014] NSWCATOD 115
NCAT Occupational
2014-07-07
Original judgment source is linked above.
Introduction 1This decision relates to an application by a solicitor, Anne Kazas-Rogaris, for review of a decision by the Respondent, the Council of the Law Society of New South Wales ('the Law Society'), to reprimand her pursuant to section 540 of the Legal Profession Act 2004 ('the LP Act'). 2This decision was reached by the Professional Conduct Committee of the Law Society on 21 March 2013. It was based on a complaint that Michelle Hyun Ja Youm, who was then a client of Ms Kazas-Rogaris, had made to the Legal Services Commissioner on 20 March 2009. The Committee's resolution was in the following terms:- 1. The Committee is satisfied that: (i) there is a reasonable likelihood Anne Kazas-Rogaris ("the legal practitioner") would be found by the Tribunal to have engaged in unsatisfactory professional conduct; and (ii) the legal practitioner is generally competent and diligent; and (iii) the taking of action is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the legal practitioner. 2. The Committee hereby reprimands the legal practitioner. (Section 540(1) and (2)(b) of the Legal Profession Act, 2004). Reasons for decision 1. Breach of Section 255 of the Legal Profession Act, 2004 The Committee finds evidence supporting a breach of Section 255 of the Legal Profession Act, 2004 (the Act). Funds held by way of matrimonial property settlement between October 2007 and December 2007 were transferred in circumstances where the solicitor had not established that the transfers were in accordance with directions expressly given by the complainant. On 26 February 2009, the solicitor disbursed funds remaining in trust for the complainant in payment of an account rendered in September/October 2008. At this time, the liability of the complainant to pay the account, in part or at all, was under investigation by Legal Aid NSW. The solicitor knew that the complainant disputed the solicitor's entitlement to appropriate the monies in payment of the account. The solicitor nevertheless failed to inform the complainant and seek authorisation prior to effecting the transfer. Legal Aid NSW did not finalise its decision in relation to the solicitor's entitlement to charge costs until about May 2009. 2. Breach of Section 41 of the Legal Aid Commission Act, 1979. Legal Aid NSW has made a determination that, in all the circumstances, no costs were to be rendered by the solicitor to the complainant for her children and matrimonial property matters for the period 15 September 2006 to 22 January 2007. There was a grant of aid for this period for the complainant which covered 5 hours of negotiations and a conference. The extent of the work performed exceeded the hours prescribed by the grant but the grant covered the field in these matters until it was extended or finalised. The solicitor was bound by the Legal Aid legislation and policies and unable to charge for the work. There is no evidence that the grant was formally finalised prior to 22 January 2007 by way of appropriate disclosures to the complainant with a costs agreement or costs notice. The evidence in relation to when it was finalised is unclear but the Committee relies on the finding by Legal Aid NSW that 22 January 2007 is the relevant date and that the complainant did not instruct the solicitor to apply for an extension of legal aid thereafter. The solicitor breached Section 41 of the Legal Aid Commission Act, 1979. 3For present purposes, the relevant parts of section 540 of the LP Act, pursuant to which the Committee passed this resolution, are as follows:- 540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions (1) This section applies if: (a) either: (i) the Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or (ii) the report of an independent investigator is given to the Commissioner, and (b) the Commissioner or Council (as the case requires): (i) is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and (ii) is satisfied that the practitioner is generally competent and diligent, and (iii) is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner. (2) The Commissioner or Council may do any or all of the following: (a) caution the practitioner, (b) reprimand the practitioner, (c) make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint, (d) determine that a specified condition be imposed on the practitioner's practising certificate. (4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint. (5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. 4In a letter dated 27 March 2013, the Law Society notified Ms Kazas-Rogaris of the decision set out in the Committee's resolution. On 1 May 2013, she applied to the Administrative Decisions Tribunal ('the ADT') for a review of this decision. In her application, she set out these reasons for seeking a review: 'The findings of breaches resulting in reprimand are not supported by the evidence and are bad in law.' 5On 3 June 2013, the Law Society filed documents relating to its decision in accordance with section 58 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). This was the statute then governing applications for review. 6On 11 October 2013, Ms Kazas-Rogaris filed an affidavit that she had sworn on 11 October 2013 and an affidavit sworn on the same day by Lena Pace. At all material times, Ms Kazas-Rogaris has been the principal and sole director of an incorporated legal practice called KR Lawyers and Consultants Pty Ltd ('KR Lawyers'). Ms Pace stated that since September 2006 she had worked for this legal practice on a contract basis. 7On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). These proceedings thereupon became 'unheard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013. Clauses 7(1) and 7(3)(b) of this Schedule stipulate that such proceedings are to be heard by NCAT but determined as if that Act had not been enacted. 8On 4 February 2014, the Law Society filed an affidavit sworn on an unspecified date in that month by Mary Whitehead. Ms Whitehead is a solicitor and the Director of the Grants Division of Legal Aid NSW ('Legal Aid'). 9The hearing of the application for review took place before us on 7 July 2014. Mr Stanton of counsel appeared for Ms Kazas-Rogaris and Mr Barnes of counsel for the Law Society. Ms Kazas-Rogaris attended and was cross-examined. 10As indicated in section 540(5) of the LP Act, these are proceedings for administrative review of the Law Society's decision, not an appeal against it. Accordingly, for reasons set out in the Court of Appeal's judgment in Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154, the question that we must address when considering the first (and most significant) of the three matters listed in section 540(1)(b) of the LP Act is not whether the conduct that we find Ms Kazas-Rogaris to have engaged in, having regard to the material now before us, amounted to unsatisfactory professional conduct. Instead, it is whether we are satisfied that there is a reasonable likelihood that she would have been found by the ADT to have engaged in unsatisfactory professional conduct. 11This is the outcome of the following aspects of the provisions of the ADT Act governing review proceedings: (a) section 63(1) states that our task is to 'decide what the correct and preferable decision is' having regard to the material now before us; (b) under section 63(2), we may, for this purpose, 'exercise all of the functions that are conferred or imposed by any relevant enactment' on the Law Society; and (c) under section 66(2), if any decision by us 'varies, or is to be in substitution for' the Law Society's decision (as is permitted by section 63(3)), our decision is taken to be the decision of the Law Society (other than for the purposes of a review under the ADT Act). 12In our judgment, the correct and preferable decision is that the Law Society's decision, including the reprimand administered to Ms Kazaris-Rogas, should be set aside, for the reasons that follow.
Outline of evidence 13On 19 September 2006, Simone Green, a solicitor employed by KR Lawyers and supervised by Ms Kazas-Rogaris, lodged an electronic application for legal aid for Ms Youm, the complainant, to institute family law proceedings against her husband, Sung-Soo Kim, in the Federal Magistrates Court. The application stated that the proceedings for which legal aid was sought would concern both the children of the marriage and property, comprising a jointly-owned matrimonial home and land of which her husband was a co-owner. 14In paragraph 29, under the heading 'What matters does this application concern?', the completed application stated as follows:- Principal matter Matter Group CHILDREN Matter Type Live With Matter 2 Matter Group [PROPERTY] Matter Type Property Settlement Married 15In paragraph FC2, under the heading 'Please advise what orders you are seeking and how you fit in within the legal aid property guidelines', the application stated:- WIFE IS SEEKING 75% OF THE PROPERTY. SHE CANNOT SELL THE MARITAL HOME BECAUSE SHE HAS JOINT TENANCY WITH THE HUSBAND... SHE CANNOT RAISE THE MONEY FOR LEGAL FEES FOR A PROPERTY SETTLEMENT. 16In an email message on 12 October 2006, responding to a request transmitted two days earlier, Ms Green advised Shane Neagle, an employee of Legal Aid, as to the property orders being sought by Ms Youm and the submissions that she would make under sections 75(2) and 79 of the Family Law Act 1975 (Cth). 17In letters dated 13 October 2006, Legal Aid notified Ms Youm and Layla Doumit (another solicitor employed by KR Lawyers and supervised by Ms Kazas-Rogaris) that Ms Youm's application for legal aid had been granted. Ms Doumit was named as the assigned practitioner. The letter to her was sent to her at KR Lawyers. 18In these letters, the grant, which henceforth we will call 'the first grant', was stated to be effective from 19 September 2006. The text of each letter had the following heading:- Legal Matter: PROPERTY SETTLEMENT MARRIED Court: Parramatta Federal Circuit Court LEGAL AID GRANTED 19Under the heading 'Approved Matters - work covered by the grant', the following passage appeared:- Aid is granted for representation in the Federal Magistrates Court to the conclusion of the directions stage (Stage 2(ab)). This stage includes, but is not limited to:
Whether section 41 of the LA Act was contravened 74Legislation. For the purposes of this discussion, sections 38(1) and 41 of the Legal Aid Commission Act 1979 should be quoted:- 38 Variation of grant of legal aid (1) The grant of legal aid to a person may, at any time, be varied by the Commission so as to: (a) terminate the provision of the legal aid, (b) alter the nature or extent of the legal aid, (c) make the provision of the legal aid subject to a condition or an additional condition (including a condition of the kind referred to in section 36 (1) (a)), or (d) alter a condition (including a condition of the kind referred to in section 36 (1) (a)) to which the provision of the legal aid is subject. 41 Demand for or receipt of certain payments prohibited (1) Despite any Act or law to the contrary, a private legal practitioner is not entitled to charge or recover from a legally assisted person any amount: (a) by way of costs in respect of work assigned by the Commission to the private legal practitioner on behalf of that person, or (b) by way of disbursements incurred on behalf of that person in connection with that work, except with the approval of the Commission. (2) A provision of any agreement (whether in writing or not and whether entered into before or after the commencement of this section): (a) under which the operation of this section is excluded, modified or restricted, or (b) which has the effect of excluding, modifying or restricting the operation of this section, is void. 75The parties' submissions. In relatively brief submissions on this aspect of the case, Mr Stanton argued that if Ms Kazas-Rogaris's interpretation of the first grant of legal aid was correct, she had not contravened section 41 of the LA Act. Ms Kazas-Rogaris had maintained that this was a grant to initiate proceedings in the Federal Magistrates Court. It followed, Mr Stanton maintained, that no breach had occurred because KR Lawyers did not proceed with the matter in this Court. 76As an alternative to this argument, Mr Stanton submitted that this grant was formulated in a 'confused and convoluted' way. Accordingly, Ms Kazas-Rogaris's conduct in acting on an interpretation that she had adopted in good faith could not provide grounds for a finding of unsatisfactory professional conduct. 77Mr Stanton also submitted that Ms Kazas-Rogaris could not be held at fault for failing to seek clarification of the first grant because at the times when she sent bills of costs to Ms Youm she did not know of its existence. She was only aware of the second grant, which was expressly limited to the costs of a 'round table conference'. It was clear that, contrary to the position adopted by both Legal Aid and the Law Society, this grant did not relate to the whole of the period between 15 September 2006 and 22 January 2007. 78Mr Barnes argued that 'at the very least' Ms Kazas-Rogaris's conduct in billing Ms Youm for the work done by KR Lawyers in relation to property matters between 23 October 2006 and 22 January 2007 was a 'clear breach' of section 41. In support of this argument, he referred to the answers given by Ms Green to questions 29 and FC2 of the application for the first grant (see paragraphs [14 and [15] above) and to the use of the term 'property settlement' in the heading of the letters of 13 October 2006 notifying Ms Doumit and Ms Youm that the application had been granted (see [18]). 79A copy of the itemised bill of costs that Ms Kazas-Rogaris sent to Ms Youm on 22 September 2008 formed part of the material filed by the Law Society under section 58 of the ADT Act. Within this bill, Mr Barnes identified items 21-53, relating to the period between 23 October 2006 and 22 January 2007, as items which 'at the very least' were covered by the first grant and should therefore not have been included in the bill. 80Mr Barnes also maintained that by virtue of the second grant, relating to the planned conference aimed at settling both the property and the children's matters, KR Lawyers were forbidden by section 41 to charge Ms Youm for any work done by them with respect to the children. They should, he said, have obtained authorisation to do this from Legal Aid or sought to withdraw from representation. Citing paragraph 2 of Ms Whitehead's affidavit, which is reproduced above at [70], he claimed that 'this was the way in which Legal Aid worked'. 81With reference to both grants of legal aid, Mr Barnes relied also on the statements by Ms Green, appearing on the invoice that she sent to Legal Aid on 22 January 2007, that the proceedings between Ms Youm and her husband had not concluded and that the 'property issue' would 'proceed to litigation'. 82Discussion and conclusions. In our judgment, Mr Stanton's primary argument should be accepted, for the following reasons. 83Under section 41(1) of the LA Act, the costs that a private legal practitioner is not entitled to charge or recover from a legally assisted person is defined as amounts: '(a) by way of costs in respect of work assigned by the Commission to the private legal practitioner on behalf of that person' and '(b) by way of disbursements incurred on behalf of that person in connection with that work', except with the approval of the Commission (emphasis added). 84The subsection expressly draws attention to the 'work' that has been 'assigned' by the grant to the relevant legal practitioner. The prohibition against the recovery of costs or disbursements by the practitioner only applies to costs and disbursements incurred in respect of, or in connection with, that 'work'. 85As is clearly indicated in the passages within the first grant quoted above at [19] and [20], this grant covered property matters only and was 'for representation in the Federal Magistrates Court to the conclusion of the directions stage'. This was 'the work assigned by the Commission' to Ms Doumit, the nominated legal practitioner. Although the heading of each of the letters to Ms Doumit and Ms Youm notifying them of the grant used the phrase 'Property settlement married' (see [18]), it also specified a court - the Parramatta Federal Circuit Court. 86We do not see how legal 'work' defined in this way could be regarded as including the representation of the aided party in negotiations designed to achieve a settlement of her property dispute with her husband, in circumstances where these negotiations took place without any step being taken by or on behalf of the nominated legal practitioner towards initiating the court proceedings on her behalf that were envisaged in the grant of aid. 87We have examined items 21-53 in the itemised bill of costs issued on 22 September 2008 and are satisfied that none of them describes 'work' of the type 'assigned' to Ms Doumit by the first grant, having regard to our interpretation of the terms of this grant. As we said at [60], 'none of the itemised services rendered between 15 September 2006 and 22 January 2007 related to the institution of legal proceedings on Ms Youm's behalf, either in the Federal Magistrates Court or in any other court'. 88When the second grant is examined in the same light, the outcome, in our opinion, is that (a) the 'work' that it 'assigned' to Ms Doumit comprised only the representation of Ms Youm at the proposed conference and (b) the prohibition in section 41 on charging costs applied to this 'work' only. 89The evidence does not establish clearly whether or not the work for which costs were charged in items 21-53 of the bill of 22 September 2008 included any of the work, relating to the proposed conference, that was assigned to Ms Doumit by the second grant. The two final paragraphs of Ms Pace's affidavit - to which Mr Barnes did not refer in his submissions - suggested that the invoices sent out by her late in 2007 may have included the costs of this work. But in the itemised bill dated 22 September 2008 no costs were claimed for any work done between 28 October 2006 and 17 November 2006. Ms Kazas-Rogaris, in her letter of 25 March 2009 to Ms Hawes (see [67]) stated that the conference was held on 3 November 2006. 90On this question, as on another that we shall mention shortly, there is no definitive evidence. In such situations, we believe that we should (to put it broadly) give Ms Kazas-Rogaris the 'benefit of the doubt'. 91The grounds for this belief are twofold. First, for reasons explained above at [10 - 11], our task includes determining (with reference to section 540(1)(b)(i) of the LP Act is concerned) whether there is a 'reasonable likelihood' that the ADT would have made a finding of unsatisfactory professional conduct against Ms Kazas-Rogaris. Secondly, if the ADT had in fact been called on to decide whether such a finding should be made, it would have been mindful of the established principle that in disciplinary proceedings before it alleging unsatisfactory professional conduct under the LP Act, the Law Society or other prosecuting authority bore the onus of proof. 92We realise that in interpreting section 41(1) in the manner set out above we appear to be in disagreement with the approach taken by senior officers of Legal Aid. If having regard to this consideration and/or for any other reasons our interpretation of the subsection is incorrect, we would still not regard Ms Kazas-Rogaris as being at fault to the extent required to justify the finding required by section 540(1)(b)(i) of the LP Act. 93Even if her view (with which we concur) as to the scope of application of the prohibition in section 41(1) to the circumstances of her case was incorrect, it was at least a reasonable one. Despite her repeated requests for advice from Mr Tudor, the contrary view taken by Legal Aid was not explained to her until 19 March 2009. This was nearly six months after she had sent the itemised bill of costs to Ms Youm and sixteen days after she transferred the amount of these costs from the trust account to her office account. 94On the assumption, therefore, that section 41 applied to the circumstances of this case to the extent maintained by Legal Aid, we would still not be satisfied that there was a reasonable likelihood that Ms Kazas-Rogaris would have been found by the ADT to have engaged in unsatisfactory professional conduct.
Whether section 255 of the LP Act was contravened 95Two separate instances of contravention of section 255 were cited in the resolution of the Professional Conduct Committee. They involved Ms Kazas-Rogaris's withdrawals of money from funds held in trust for Ms Youm during the period from October to December 2007, and her subsequent withdrawal on 26 February 2009, in order to pay costs and disbursements claimed by her. We will call these instances of transferring funds from KR Lawyers' trust account to their office account 'the earlier transfers' and 'the later transfer' respectively. 96Legislation. The provisions of importance in this context are sections 255 and 261 of the LP Act and clause 88 of the LP Regulation. So far as relevant, these state:- 255 Holding, disbursing and accounting for trust money (1) A law practice must: (a) hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received, and (b) disburse the trust money only in accordance with a direction given by the person. 261 Dealing with trust money: legal costs and unclaimed money (1) A law practice may do any of the following, in relation to trust money held in a general trust account or controlled money account of the practice for a person:... (b) withdraw money for payment to the practice's account for legal costs owing to the practice if the relevant procedures or requirements prescribed by this Act and the regulations are complied with,... (2) Subsection (1) applies despite any other provision of this Part but has effect subject to Part 3.2 (Costs disclosure and assessment). 88 Withdrawing trust money for legal costs-section 261 (1) (b) of the Act (1) This clause prescribes, for the purposes of section 261 (1) (b) of the Act, the procedure for the withdrawal of trust money held in a general trust account or controlled money account of a law practice for payment of legal costs owing to the practice by the person for whom the trust money was paid into the account. (2) The trust money may be withdrawn in accordance with the procedure set out in either subclause (3) or (4). (3) The law practice may withdraw the trust money: (a) if: (i) the money is withdrawn in accordance with a costs agreement that complies with the legislation under which it is made and that authorises the withdrawal, or (ii) the money is withdrawn in accordance with instructions that have been received by the practice and that authorise the withdrawal, or (iii) the money is owed to the practice by way of reimbursement of money already paid by the practice on behalf of the person, and (b) if, before effecting the withdrawal, the practice gives or sends to the person a request for payment, referring to the proposed withdrawal. (4) The law practice may withdraw the trust money: (a) if the practice has given the person a bill relating to the money, and (b) if: (i) the person has not objected to withdrawal of the money within 7 days after being given the bill, or (ii) the person has objected within 7 days after being given the bill but has not applied for a review of the legal costs under the Act within 60 days after being given the bill, or (iii) the money otherwise becomes legally payable. (5) Instructions mentioned in subclause (3) (a) (ii): (a) if given in writing, must be kept as a permanent record, or (b) if not given in writing, must be confirmed in writing either before, or not later than 5 working days after, the law practice effects the withdrawal and a copy must be kept as a permanent record. 97The parties' submissions. Mr Stanton argued that in the case of all of the transfers Ms Kazas-Rogaris complied with the conditions stipulated in section 261(1)(b) and clause 88(4). 98In the alternative (as we understood his submissions), he maintained that if in the case of the earlier transfers Ms Kazas-Rogaris could not rely on these provisions because the invoices were sent by Ms Pace to an incorrect address, she should still not be regarded as culpable. The reason for this was that as soon as she became aware of this mistake by Ms Pace she transferred the funds that had been withdrawn from the trust account back into this account. 99With regard to both the earlier transfers and the later one, Mr Barnes argued that section 255 was infringed because they all contravened section 41 of the LA Act. 100He argued also that Ms Kazas-Rogaris did not have any authority from Ms Youm to make the earlier transfers. He pointed out that Ms Youm claimed never to have received the tax invoices on which these transfers were based. He also acknowledged, however, that it was to Ms Kazas-Rogaris's credit that she put the amounts transferred back into the trust account when Mr Connor queried her entitlement to them. 101Mr Barnes' additional submission regarding the later transfer was that, even if it did not involve contravention of section 41 of the LA Act, the fact that Ms Kazas-Rogaris knew of Ms Youm's claim not to be liable for any costs by virtue of this provision was sufficient to prevent her invoking section 261 of the LP Act as a defence to liability under section 255. 102Discussion and conclusions. In so far as Mr Barnes's argument in this context was based on the proposition that the transfers of funds effected by Ms Kazas-Rogaris involved breaches of section 41 of the LA Act, it must be rejected. We have held that the evidence does not establish any such breaches. 103In our opinion, the available evidence, when carefully examined, gives rise to the following conclusions. First, Ms Kazas-Rogaris had reasonable grounds for believing that the earlier transfers were permissible under section 261(1)(b) of the LP Act and clause 88(4) of the LP Regulation. Secondly, the later transfer was in fact permissible under these provisions. 104So far as Ms Kazas-Rogaris was aware, Ms Pace sent to Ms Youm the bills of costs on which the earlier transfers were based. The evidence does not disclose any objection by Ms Youm. Indeed, Ms Kazas-Rogaris gave uncontradicted evidence that on 24 September 2007 Ms Youm agreed during a telephone conversation with her that she could make withdrawals from funds held in trust to pay her costs (see [35] and [37]). By virtue of the onus of proof borne by the Law Society in disciplinary proceedings (see above at [91]), it must be assumed in Ms Kazas-Rogaris's favour that the transfers were not made until more than seven days (as stipulated in subclause (4)(b)(i)) after the date when Ms Youm would have received the bills if they had been sent to the correct address. 105To put the matter shortly, Ms Kazas-Rogaris could reasonably have believed that the requirements of clause 88(4) had been satisfied. Her evidence that she did not know of Ms Pace's error until 14 February 2008 was not challenged. It was in fact on the next day that she remitted to the trust account the amounts that had been transferred. 106By virtue of these considerations, we are not satisfied that on account of Ms Kazas-Rogaris's conduct in making the earlier transfers there is a reasonable likelihood that the ADT would have made a finding of unsatisfactory professional conduct against her. 107As Mr Barnes emphasised, the evidence clearly showed that at the time when she made the second transfer Ms Kazas-Rogaris knew that Ms Youm objected to paying any of the costs involved, on the ground that she was a legally aided client. For this reason alone, he said, Ms Kazas-Rogaris's conduct in making this transfer constituted a breach of section 255. 108We agree that at the relevant time this was the stance adopted by Ms Youm and communicated to Ms Kazas-Rogaris. This was the case even though during June 2008 Ms Youm appeared to have accepted some degree of liability to pay costs (see [47] above). 109On a strict reading of section 261(1)(b) and clause 88(4), however, we do not believe that the conclusion urged by Mr Barnes follows from Ms Kazas-Rogaris's awareness of Ms Youm's objection. Even if Ms Youm should be taken to have objected within seven days of receiving the itemised account sent to her on 22 September 2008 (cf subclause (4)(b)(i) of clause 88 of the LP Regulation), she did not apply for a review of the costs being charged within 60 days (cf subclause (4)(b)(ii)). After this was pointed out to her in Ms Kazas-Rogaris's letter to her dated 3 March 2009 (see [62 - 63]), she did not contest it. 110The terms of the latter subclause, in particular, suggest that the primary concern of clause 88 is to give to clients an opportunity to object to the amount of any costs of being charged. The clause, read with section 261(1)(b), does not appear to prohibit withdrawals from trust funds when the client has claimed not to be liable to pay any costs at all, but this claim is not justified. 111We have concluded that the ground on which Ms Youm made a claim of this nature has not been made out. It follows, in our judgment, that what we have called the later transfer was authorised under section 261(i)(b) of the LP Act and clause 88(4) of the LP Regulation and that it did not involve any breach of section 255.
Conclusion 112For the foregoing reasons, we are not satisfied, having regard to the material before us, that there is a reasonable likelihood that the Applicant, Ms Kazas-Rogaris, would have been found by the Administrative Decisions Tribunal to have engaged in unsatisfactory professional conduct. 113The decision of the Respondent, made on 21 March 2013, to reprimand the Applicant is therefore set aside. 114Pursuant to a request by the Law Society, we make the following direction regarding the costs of these proceedings. Any application for costs by the Applicant must be filed and served, with supporting submissions, within 21 days. The Respondent is to file and serve its submissions within a further 21 days. The question of costs will then be decided 'on the papers', pursuant to section 76 of the ADT Act, unless we consider that a hearing is required. 115In conclusion, we wish to draw attention to an aspect of section 540 that we regard as unsatisfactory. In its present form, it can produce the outcome that a legal practitioner is reprimanded (or is subjected to one or more of the other lesser penalties listed in subsection (2)) even though it has not been affirmatively shown that he or she engaged in unsatisfactory professional conduct. The lower threshold set out in subsection (1) - that of a 'reasonable likelihood' of such a finding - applies both when the Legal Services Commissioner or a Council chooses to invoke the section and when administrative review of an adverse decision is sought by the legal practitioner concerned. By contrast, if the matter proceeds by way of a disciplinary application to NCAT (which is now the relevant tribunal), an order by way of penalty will only be made if unsatisfactory professional conduct is proved to NCAT's satisfaction.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2014
Kazas-Rogaris
Council of the Law Society of New South Wales