1. on 29 October 2016 the practitioner engaged Mr Stephen Davies SC (Mr Davies) to act as senior counsel for the client in the strata proceedings;
2. on 31 October 2016 Mr Davies provided the practitioner with an offer to enter a costs agreement (costs agreement), the terms of which provided, relevantly:
   1. "Your firm will be liable for payment of all bills even if your firm has not received funds from its client to pay the bill" (clause 9);
   2. "Payment of each bill is due within 30 days" (clause 10);
   3. "This offer may be accepted in writing or by conduct namely by continuing to instruct me after the receipt of this letter" (clause 12);

1. thereafter, and on the practitioner's instructions, Mr Davies prepared for and attended hearings in the strata proceedings on 3 and 9 November 2016;

1. on 21 November 2016 Mr Davies provided the practitioner with an invoice for his fees in the sum of $23,100 inclusive of GST (Fees),

the practitioner failed to pay any or all of the Fees, which conduct was in breach of clauses 9 and 10 of the costs agreement and the practitioner's professional obligations pursuant to rule 26 of the Legal Profession Conduct Rules 2010 (WA).

That the practitioner between on or about 7 April 2017 and on or about 9 May 2017 engaged in professional misconduct, within the meaning of sections 403 and 438 of the LP Act, in that his conduct fell short by a substantial degree of the standard of professional conduct approved and observed by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that he:

1. made and maintained a complaint to the Western Australian Bar Association (WABA) against Mr Davies (WABA complaint), without any reasonable basis and solely in response to:

1.1 a complaint made by Mr Davies to the applicant (LPCC) against the practitioner (as particularised in (b) below) (LPCC complaint);

1.2 proceedings commenced in the Magistrates Court by Mr Davies against the practitioner for payment of the Fees (as particularised in (c) below) (MC proceedings);

1. by email to Mr S, who had been engaged as junior counsel for the client in the strata proceedings, on 20 April 2017, offered to withdraw the WABA complaint if Mr Davies agreed to withdraw the LPCC complaint and the MC proceedings,

1. by email to Mr Davies on 10 February 2017, and in response to an email from Mr Davies the same day, the practitioner stated that if Mr Davies made a complaint to the LPCC regarding the practitioner's non-payment of the Fees, the practitioner "will be left with no alternative other than to lodge a formal complaint with WABA" about both Mr Davies and Mr S;
2. on 8 March 2017 Mr Davies made the LPCC complaint regarding the practitioner's non-payment of the Fees and his email of 10 February 2017;

1. on or about 17 March 2017 Mr Davies caused to be filed in the Perth Registry of the Magistrates Court a Form 3 general procedure claim against the practitioner for payment of the Fees, thereby commencing the MC proceedings;

1. on 7 April 2017 the practitioner made the WABA complaint, which related to Mr Davies' expertise and conduct of the strata proceedings;
2. by letter dated 9 May 2017, the President of WABA informed the practitioner that the President considered that the conduct the subject of the WABA complaint was not within the range of matters about which a complaint could be made to the WABA Disciplinary Committee and, accordingly, no further action would be taken in relation to the WABA complaint;
3. on or about 17 July 2017, and while the MC proceedings were still on foot, the practitioner sought to engage Mr Davies to act for the client in a new matter (as particularised in Ground 4).

That the practitioner on or about 24 May 2017 engaged in professional misconduct, within the meaning of sections 403 and 438 of the LP Act, in that his conduct fell short by a substantial degree of the standard of professional conduct approved and observed by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that he prepared and filed, alternatively caused to be prepared and filed, in the MC proceedings a Form 21 statement of defence (Form 21) which relevantly stated that:

1. it was an express term of the retainer between the practitioner and Mr Davies that any bills rendered by Mr Davies would be payable by the practitioner upon the exercise by the practitioner of his rights under a caveat registered against the title to a property owned by the client (alleged term; Caveat);
2. the alleged term was orally agreed to by Mr Davies in the course of a telephone discussion with the practitioner on 29 October 2019 (sic 2016) (discussion);
3. the alleged term was not, but ought to have been, included in the costs agreement;
4. Mr Davies was not entitled to payment of the Fees because as at the commencement of the MC proceedings the practitioner had not exercised his rights under the Caveat,

which statements were false and misleading in material respects, as, in truth, at no time during the discussion, or subsequent to the discussion and prior to the completion of the retainer by Mr Davies, did:

(a) the practitioner raise the alleged term with Mr Davies; or

and the practitioner knew the statements were false and misleading in material respects and intended that the Magistrates Court rely on and be misled by the statements, alternatively the practitioner was recklessly indifferent as to whether the statements were false and misleading in material respects and as to whether the Magistrates Court would be misled by the statements.

That the practitioner on or about 17 July 2017 engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act, in that his conduct fell short by a substantial degree of the standard of professional conduct approved and observed by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that, and in circumstances where he had made and maintained the WABA complaint the MC proceedings were still on foot, and in the Form 21 he alleged that, relevantly, Mr Davies had made misleading and deceptive representations as to his experience, he sought to engage Mr Davies to act for the client in a new matter.

That the practitioner between on or about 21 and 23 August 2017 engaged in professional misconduct within the meaning of sections 403 and 438 of the LP Act, in that his conduct fell short by a substantial degree of the standard of professional conduct approved and observed by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that:

1. in the course of a pre-trial conference (PTC) in the MC proceedings before a Registrar, and in circumstances where terms of settlement of the MC proceedings had been agreed by the parties, the practitioner stated that he would not sign a Form 49 memorandum of consent orders unless it included an additional term of settlement that Mr Davies would withdraw the LPCC complaint;
2. following the PTC, by email to Mr Davies' solicitor in the MC proceedings (which email attached the Form 49 signed by the practitioner), the practitioner requested that Mr Davies withdraw the LPCC complaint.
3. The applicant lodged a statement of facts and contentions, and Mr Goldsmith lodged a response (later amended), to which the applicant lodged a reply.

1. Professional misconduct is defined in the LP Act as follows:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.[1]

1. The LP Act departed from the terms of its predecessor, the Legal Practice Act 2003 (WA) (2003 Act), by distinguishing between unsatisfactory professional conduct[2] and professional misconduct. Previously, under the 2003 Act, behaviour which fell short of relevant standards was described as 'unsatisfactory conduct', which was defined to include unprofessional conduct on the part of the legal practitioner, whether occurring before or after admission. The term 'unprofessional conduct' is not used in the LP Act.
2. The definition of professional misconduct in s 403 of the LP Act now includes conduct that would not previously have been regarded as 'unprofessional conduct' under the 2003 Act. But the legislative intention appears to have been to expand the scope of behaviour open to sanction, not to restrict it. The legislature did not apparently intend to exclude conduct which previously would have been characterised as 'unprofessional conduct', as that term was understood in this State.
3. In Western Australia, the meaning of unprofessional conduct was considered in Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115, (1999) 21 WAR 56 (Kyle) at 71 - 72 where Parker J said:

... The notion of unprofessional conduct first found its place in s 20 of the Act when it was enacted in 1893. This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a Practitioner of the Supreme Court [1927] SAStRp 9; [1927] SASR 58; see for example In re a Practitioner, unreported; FCt SCt of WA (Wallace, Brinsden and Smith JJ); Library No 4989; 18 July 1983. It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to "professional conduct".[3]

1. The applicant called two witnesses: Stephen Michael Davies SC, a barrister practising at the Western Australian Bar, and Jonathon Peter Cook, solicitor, who acted for Mr Davies in proceedings against Mr Goldsmith in the Magistrate's Court. Each witness provided a witness statement.
2. Mr Davies attached a large volume of documents to his witness statement, in effect the whole of his file for the proceedings in which he was briefed by Mr Goldsmith, and the emails between them in 2016 and 2017. The applicant also relied on a book of documents, some of which duplicated the documents provided by Mr Davies.
3. Mr Goldsmith gave evidence, and provided a witness statement and a supplementary statement. He also tendered three volumes of documents.
4. Mr Davies and Mr Goldsmith gave oral evidence, in chief, about their conversation on 29 October 2016 ­ a conversation central to the allegations against Mr Goldsmith and on which their accounts differed. Otherwise, the witness statements stood as evidence in­chief.

1. Much of the evidence was documentary and, for that reason, largely uncontroversial. The primary areas of factual dispute were:

(1) what was said or agreed in the conversation between Mr Goldsmith and Mr Davies on 29 October 2016;

(2) what did Mr Goldsmith believe about what had been agreed;

(3) did Mr Goldsmith believe the substance of the complaints that he made against Mr Davies; and

(4) did Mr Goldsmith make those complaints solely in response to the complaint by Mr Davies and the proceedings to recover fees.

1. A preliminary point may be made. Mr Goldsmith contended strongly that the Tribunal should apply the standard of proof explained in authorities such as Briginshaw v Briginshaw.[4]
2. The Tribunal is an administrative tribunal. It is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply.[5]
3. The procedure in disciplinary proceedings under Pt 13 of the Legal Profession Act 2008 is, in substance, adversarial. The allegations against Mr Goldsmith are serious. It is appropriate to apply rules relating to the standard of proof that would apply to the proof of such matters in civil proceedings. To adapt the Briginshaw principles to the present matter, the Tribunal must have regard to the nature and consequence of facts sought to be established, the seriousness of the allegations made against Mr Goldsmith, the inherent unlikelihood of an experienced practitioner behaving in the manner alleged, and the gravity of the consequences that might flow from a finding of professional misconduct.[6]
4. While the evidence in this case includes the direct testimony of Mr Davies and Mr Goldsmith, the applicant's case relies substantially on inferences which it says are to be drawn, in particular from the conduct of Mr Goldsmith. In Palmer v Dolman, Ipp JA set out principles that have become well established in determining, in civil proceedings, whether an inference of fraud or other serious misconduct may be drawn from circumstantial evidence. [7] Adapting those principles to the present matter:

(1) The Tribunal must consider the weight which is to be given to the united force of all the circumstances put together.

(2) The standard of proof is to be applied at the final stage of the reasoning process.

(3) The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful.

(4) Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved.

1. In this case, the Briginshaw principles should be applied in determining whether, in all of the circumstances, the Tribunal should draw the inferences for which the applicant contends and which would lead to findings of misconduct.

1. Mr Goldsmith is an Australian legal practitioner within the meaning of section 5(a) of the LP Act. He was admitted to legal practice in New South Wales in 1982, and, from 1984 until 2021 practiced as the principal of a firm. At times relevant to this application, Mr Goldsmith was practising as Goldsmiths Lawyers which operated from offices in each of Perth, Brisbane, Melbourne and Sydney.
2. In or about August 2016 the practitioner was instructed by Ms Aikman in relation to a proposed claim against a strata company and others in respect of a strata property situated at Dolphin Drive, Mandurah. Ms Aikman was the proprietor of a lot in the strata scheme.
3. The practitioner already acted for Ms Aikman in defamation proceedings in the Supreme Court of Western Australia in which she was the defendant. The defamation proceedings had been commenced on 9 July 2015 by the corporate manager of the strata company and two other proprietors in their capacity as a director and an employee of the strata manager.
4. The defamation proceedings were listed for a 5 day trial commencing on 23 November 2016.
5. On 9 September 2016, Ms Aikman commenced proceedings in the Supreme Court (the strata proceedings) against five defendants: the strata company (first defendant), the members of the council of the strata company (second defendants), the plaintiffs in the defamation proceedings against her (third and fourth defendants), and the solicitors acting for the plaintiffs in the defamation proceedings (fifth defendants).
6. The strata proceedings were commenced by originating motion.
7. On 13 October 2016, Pritchard J (the case manager for the action) ordered that the strata proceedings proceed on pleadings as if commenced by writ. A statement of claim was filed on 18 October 2016. It had been amended twice by 27 October 2016.[8]
8. Ms Aikman's concern in the strata proceedings was that, as a result of resolutions passed in 2015 and 2016, the funds of the first defendant (which included contributions levied from her as a proprietor) had been used by the strata company to fund the defamation proceedings brought against her by the third and fourth defendants.[9] Ms Aikman sought orders for the monies paid by the first to fourth defendants to the fifth defendants to be repaid to the first defendant; and an order restraining the first and second defendants from paying or authorising any monies to be paid in connection with or for the purposes of the defamation claim from any fund held by the first defendant.
9. Ms Aikman brought an interlocutory application by chamber summons dated 26 October 2016.[10]
10. At a directions hearing on 27 October 2016, Pritchard J listed the summons for hearing at a special appointment on 3 November 2016 and made orders for the filing of responsive affidavits and submissions.[11]
11. On 28 October 2016, pursuant to O 30 r 5 of the Rules of the Supreme Court 1971, Mr Goldsmith served notices to produce documents on the solicitors for the first to fourth defendants,[12] and on the fifth defendant.[13] In substance, the notice called on the defendants to produce documents concerning the engagement of the fifth defendant to attend the 2015 Annual General Meeting (AGM) of the first defendant, the retainer of the fifth defendant to act in the defamation proceedings, and documents (including invoices) relating to the payment of the fifth defendant.

1. In his evidence in chief at the hearing, Mr Goldsmith said that he spoke to Ms Aikman, advised her that counsel was needed, and gave her the option of junior counsel or senior counsel. Ms Aikman expressed a preference for senior counsel 'against a backdrop of her financial ­ of her having explained to me her financial situation and my being fully aware of it'.[14] This evidence is not consistent with his later complaint to WABA where he stated that he only briefed senior counsel when left with no practical alternative, and where '[it] had not been my intention, or my instructions, to retain Senior Counsel'.[15] It is one of many inconsistencies in his evidence.
2. On 29 October 2016, a Saturday, Mr Goldsmith approached Mr Davies and asked for his availability to appear at the hearing listed for two hours on the afternoon of 3 November 2016.[16] The approach was by email which was sent at 5.10 am, Western Standard Time (WST).[17] Mr Goldsmith had initially approached Martin Cuerden SC and had been referred by Mr Cuerden to Mr Davies.
3. Mr Davies and Mr Goldsmith gave different accounts of the sequence of events that morning, and of the conversation which took place between them.

1. Mr Davies' evidence was that he received an email from Mr Goldsmith, which said that he had been referred to Mr Davies by another barrister and that he told Mr Goldsmith, by reply email, that he was available on the relevant day, asked some preliminary questions regarding the state of preparation, and suggested Mr Goldsmith ring him.[18] Mr Davies' email was sent at 8:08 am.
2. Mr Goldsmith testified that he and Mr Davies spoke only after he had sent Mr Davies further emails containing documents relevant to the application. Although Mr Davies did not appear certain in his recollection, he believed the documents were sent only after he and Mr Goldsmith had spoken.[19]
3. Mr Goldsmith was adamant that, before he spoke to Mr Davies, on the basis of the email from Mr Davies advising that he was available, he decided that the easiest thing to do was send Mr Davies the 'core documents' for him to read for himself before they spoke.
4. Mr Goldsmith gave this account of the conversation:

I phoned him, and I said to him - I can't verify this, but, naturally, I would have said, "I assumed that you've got the documents I sent you," but I acknowledge that I haven't said that in my statement. But those are the words I would naturally have used. I then said to him, "Stephen, I've had [junior counsel] acting. I am very unhappy with what [junior counsel] has prepared. We have a strong case that proprietors' funds are being used to fund the defamation action. We must stop this. Stephen, I really need a barrister who is experienced in fiduciary duty claims and similar. This is a claim based in equity, and I really need an experienced barrister." Mr Davies then said, straight to the point, "Who is going to pay me?" I said, "Stephen, I do not have funds. I have a caveat over Ms Aikman's property. She is trying to sell assets, and I am to get paid as soon as she disposes of her assets and realises funds or, at the latest, if I exercise my rights under the caveat." And I said something like, "That is the deal." Mr Davies said something along the lines of, "Oh." He was extremely brief, and my assessment then and now was that he was very much a man in a rush.[20]

1. Mr Goldsmith's evidence about the sequence of events is inconsistent with the response he initially filed in the Tribunal, in which he stated that he telephoned Mr Davies following the receipt of the email (timed at 8:08 am) and provided Mr Davies with a summary of the matter that was listed for 3 November 2016. The response further stated that, in that conversation, Mr Goldsmith advised Mr Davies that he would email to him copies of the relevant court documents.[21] The response did not refer to any later telephone conversation after the documents had been sent.
2. Mr Goldsmith filed an amended response on 8 March 2022 in which he contended that the telephone conversation with Mr Davies was after he had sent him copies of the relevant court documents. His testimony at the hearing was consistent with the amended response.
3. Mr Goldsmith provided to Mr Davies, by email, relevant documents including the pleadings, the chamber summons, and an affidavit sworn by Ms Aikman in September 2016. The email was received by Mr Davies about 90 minutes after the first email, at 9.38 am WST.[22] The several documents combined came to approximately 300 pages.
4. At about the same time, Mr Goldsmith sent a further email with a copy of the associate's record of proceedings on 27 October 2016.[23]
5. Approximately four minutes later, at 9.42 am, Mr Goldsmith sent another email with a second affidavit of Ms Aikman, and his submissions regarding expedition.[24] Ms Aikman's affidavit and attachments were more than 130 pages.
6. There is no doubt that the emails were sent. The only dispute is whether that was before or after the conversation in which fees were discussed.
7. In our opinion, it is less likely that such a volume of documents would be sent to counsel simply on his saying that he was available, without any discussion about whether he would accept the brief. Sending more than four hundred pages by email, with little time for counsel to read and analyse the material, does not accord with common sense. Mr Davies had asked about the state of preparation in his email of 8.08 am (WST), but had not asked for all material to be sent to him.
8. For these reasons we are of the view that those emails were sent after Mr Davies and Mr Goldsmith discussed the matter. The content of that discussion is also the subject of disagreement.

1. Mr Davies was not sure how long they spoke, but said the conversation could have been 30 to 45 minutes, perhaps longer. He gave his account of that part of the conversation that dealt with the arrangements for his fees, attempting to avoid matters that might be the subject of legal professional privilege held by Ms Aikman. [25]
2. Mr Davies' evidence continued.

I want to ask you in general terms, was there a discussion about the amount of work that the brief would require?---There was.

Were you told or given to understand how many days in court the matter would require, or was listed for?---Yes.

And what were you told?---Well, what happened was (indistinct) a phone call, Mr Goldsmith gave like a full sort of rundown of the background of the matter. I mean, Mr Goldsmith talked - he sort of talked and talked, talked about the whole background of the whole thing, the defamation proceedings, and so forth. I already knew that the matter was listed for a hearing, I think it was a day, which I suppose I would have thought was half a day. There wasn't any discussion as to, if you like, how long the work would (indistinct) that nature. The real question that we were discussing - the issue that was being talked about to the extent of that issue was, was the thing ready? Was it prepared? Because he had brought the application, it was on foot. So my question was really, is it all ready, is it ready to go?

And did you say anything to Mr Goldsmith about that in connection with either your capacity to do it or the fees that you - or your estimate of fees?---I didn't make an estimate of fees in the telephone call.

Okay?---I said, all right, I said in effect that I could - I could rearrange - it became apparent that there was going to be a fair bit of work ahead. And I said, all right, well, I suppose I can arrange things so I can do that, so I can take the brief.

All right. Now, coming then to the question of fees, what if any discussion about that subject was there?---Well, the reason this - the discussion about fees came in a context, and the reason it came up was because after Mr Goldsmith had told me all about the background to the matter, the defamation matter, and then also told me about this application being brought, I made some remarks about - I made some remarks about the wisdom, or the strategic wisdom of the application.[26]

At that point, I said, well - I said, "Have you got money in trust? Who's going to pay for this?" And it was - that's the context in which I raise it.

Okay?---Because I say, "Okay. You think this is very important. Who's going to pay for it?" And - then there was (indistinct) he said something like, "I don't have money in trust. The client is paying me some small instalments towards the defamation action. I don't know - I can't remember exactly (indistinct) said, but what was certainly said - when he said to me - when it was made clear to me that he didn't have money in trust, the client really couldn't afford the action, I said, "Who's going to pay for it?" And he said, "I will pay for it myself".

Now, was there further conversation about the issue of your fees?---Not after that. As soon as he said that, I - he must think it's important.

And was there any discussion in the telephone call about your rates?---I believe there would have been discussion about me saying I would send a cost agreement. But - because I always use the cost agreement. And when I - when it - this was the first time I had dealt with Mr Goldsmith, so I certainly would have said there will be a cost agreement coming, which will have my terms. So it will have the term.[27]

Do you have an actual recollection in this conversation, where you mentioned the cost agreement for a cost agreement?---I do not have a recollection of mentioning the cost agreement, but the conversation - yes. I don't recall, but it would have happened after the question of costs came up. So it would have been after - when we're closing that (indistinct) I've paid myself and there would have been a - it would have been my practice to say, "All right. Well, I will send the cost agreement".

All right. And did you send a cost agreement?---I did on Monday morning, I believe. I told Lorraine Healey, who was then my secretary, to send to Mr Goldsmith a standard form cost agreement, save that I reduced the fees. I say I reduced the fees I would normally charge.[28]

1. In cross­examination, Mr Davies said that he did not definitely recall any discussion about sending a costs agreement, but said that he believed he would have said that he would do so because it was his practice. He agreed that there was no discussion about his rates, or estimated fees.[29]
2. He was also challenged on his evidence that Mr Goldsmith would agree to pay, without any indication of the amount likely to be charged. He replied:

I'm just saying what happened in the phone call. And - and what happened in the phone call ... was the context in which that issue came up was me saying in effect, "Hey, this is satellite litigation. I don't think it's likely to achieve what you think it's going to achieve. Haven't you - haven't you got bigger fish to fry?" And you said, "No, this is so important that we do this because, you know, it will stop [the fifth defendants] doing this, that and the other," and I had said to you, "I don't think it's going to have that effect," but you said, "It's so important." I said, "Okay". I said, "Okay, look" - well, I said, "All right. You're saying it's so important." I said, "Okay. Has the client got funds?" because my instinct was that the client would - would not have funds being an individual person embroiled in this defamation issue. I said, "Has the client got funds?", and you said, no. So I said, "Okay. Well, who's going to pay for it?", and you said, "I will pay for it myself," or implicitly, "It's so important that I will pay for it myself," and I thought to myself, "Fine; you know what you're doing. If it's that important and you - that's your view. I'm new to the case. You're the guy on the ground. Fine; all right." I thought to myself, "Gee, if it's that important if he's prepared to do that, well, then, okay, let's press on."

... the question of costs came immediately after - the issue of who's going to pay for it came immediately after I had given you that advice, or strategic observations that it was satellite litigation. I didn't think that - I thought you had bigger fish to fry, and I didn't think your client could afford it. That's what I was saying.[30]

1. Mr Goldsmith's evidence as to the content of his discussion with Mr Davies is set out at paragraph [50] above. In addition, he testified that, when he spoke to Mr Davies, he had recently agreed with Ms Aikman and counsel who was appearing in the defamation trial that payment of fees would be secured by a caveat. He said that, when he spoke to Mr Davies, 'this caveat issue was front and centre of my mind'.[31]
2. Mr Goldsmith was positive that he would never blindly agree to pay fees himself, without an estimate or a quote as to costs. He described Mr Davies' evidence of the conversation as 'untruthful' and 'ridiculous'.[32] He complained that Mr Davies was purporting to make him personally liable for his fees and said:

My version of the conversation disagrees with that. Subsequently, on 31 October the documentation from Mr Davies purports to make me liable and my evidence I've given is that that - those documents at 31 October are arguably post-contractual terms sought to be unilaterally introduced.[33]

1. Despite that evidence, however, Mr Goldsmith did not, in fact, dispute that he agreed he would be personally liable for counsel's fees. His dispute with Mr Davies was as to timing. In his telling of it, he did not agree to be immediately liable. He said:

My agreement with Mr Davies on 29 October is that - was I will pay you but I will not be able to pay you until Ms Aikman has realised some of her assets or I have exercised my rights. That did not include any statement to - any statement that he would not be paid - excuse me - unless I was paid. ...It was a timing issue rather than a sort of denial of entitlement.

The effect of the conversation was, "I will pay you, Stephen," therefore denoting my commitment to personally paying him, "But I will not be able to pay you until one of those events occurs." [34]

1. We will return, later in these reasons, to whether Mr Davies' account of the conversation should be accepted, having regard to the challenges to the evidence of each witness, and, in particular, the documents that later passed between Mr Davies and Mr Goldsmith.

1. Irrespective of whether the conversation between Mr Goldsmith and Mr Davies occurred before or after the emails sent around 9.38 am (WST), it is agreed that at 11:37 am (WST), after the conversation had occurred, Mr Goldsmith forwarded the notice to produce he had served on the first to fourth defendants on 28 October 2016.[35]
2. The notice relied on O 30 r 5(3), pursuant to which a party may serve on another party 'a notice requiring him to produce at the trial or hearing the documents specified in the notice'. The notice did not, in fact, specify particular documents but, rather, it sought production of 'documents concerning or relating to' matters including the engagement to attend at the first defendant's 2015 AGM and the retainer of the fifth defendants in the defamation proceedings; invoices, memorandum of costs and disbursements, accounts and accompanying documents relating to work done by the fifth defendant, including in relation to the defamation proceedings; payment by any of the defendants of the fifth defendant's invoices; and any minutes, resolutions, decisions, notes of other documents authorising or relating to the payment.
3. On 30 October 2016, Mr Goldsmith forwarded the notice to produce that he had served on the fifth defendant.[36] The notice was to similar effect to that served on the other defendants and in equally broad terms.
4. Mr Goldsmith said that he told Mr Davies that the documents sought by the notices were very important documents.[37] He told the Tribunal that the notices to produce were 'absolutely critical'. It will be necessary to return to the notices and their significance in due course.

1. By letter dated 31 October 2016, sent by email that day, Mr Davies provided an offer to enter into a costs agreement and retainer on terms that included:
   1. My retainer will be by Goldsmiths Lawyers.

1. I may render a bill upon completion of particular instructions, at the end of each calendar month and/or after the conclusion of any hearing.

1. Your firm will be liable for payment of all bills even if your firm has not received funds from its client to pay the bill.
2. Payment of each bill is due within 30 days.
3. I may charge interest at the rate prescribed... if a bill is unpaid for 30 days after your firm was given the bill...
4. This offer may be accepted in writing or by conduct namely by continuing to instruct me after the receipt of this letter.[38]
5. At the same time, by a separate letter, Mr Davies provided initial disclosure for the purposes of s 261 of the LP Act. Section 261(2) required Mr Davies, as a law practice retained or to be retained by Goldsmith Lawyers (another law practice) to disclose to Goldsmith Lawyers the information necessary for Goldsmith Lawyers to meet its disclosure obligations to Ms Aikman.
6. Mr Goldsmith forwarded the costs agreement to his client and requested her approval to sign it.[39] He advised Mr Davies he had done so, and further advised that he had existing authority to agree to rates to $6000 per day, a rate less than that proposed by Mr Davies, and asked whether Mr Davies would be prepared to accept the brief on the basis of:
   1. A daily fee of $6000 + GST + an hourly rate of $600 + GST; and
   2. if we are successful, then I will endeavour to recover your fees at the rates set out in the attached?[40]
7. Mr Davies replied, acknowledging that Mr Goldsmith said his client had costs constraints, and offering to reduce his rates to $750 plus GST and $7,500 plus GST per day. He proposed that he would charge for work actually done, and not charge the day rate for the day of the hearing.[41] Mr Goldsmith replied, 'Yes please, and thanks'.[42]
8. None of the emails on 31 October 2016 referred to any agreement for the deferral of Mr Davies' fees, or any arrangement based on Ms Aikman charging a property to Mr Goldsmith as security for fees.

1. The claim brought by Ms Aikman, as set out in the Further Amended Statement of Claim filed 26 October 2016, and sent to Mr Davies, alleged:

(1) that the fifth defendant had provided legal advice and assistance to the other defendants in connection with the defamation proceedings and other defamation matters, and the 2015 Annual General Meeting;

(2) breaches of fiduciary duties, in particular by failing to disclose information as to the use of proprietor contributions for the benefit of the third and fourth defendants, and the use of proprietor contributions for the benefit of those defendants;

(3) that the payment of legal costs and expenses from proprietor funds was ultra vires, because they had been made in breach of the first defendant's powers and duties conferred by the Strata Titles Act 1985 (WA);

(4) that the fifth defendants had a conflict of interest or potential conflict of interest in attending the Annual General Meeting and enacting and continuing to receive payment of its legal costs and expenses;

(5) the plaintiff had suffered and would continue to suffer loss and damage by reason of those matters and other causes of action pleaded.

1. In substance, the chamber summons sought three orders: that the hearing of the strata proceedings be expedited, with the intention that it be determined before the trial of the defamation proceedings; that all monies paid to the fifth defendant by the other defendants be repaid or paid into a joint account in the names of the solicitors for the parties within two working days; and an order restraining the first to fourth defendants from making any further payments.
2. Further emails were exchanged as preparation continued.[43] In particular, on 1 November 2016 (at 12:49 pm WST) Mr Davies asked Mr Goldsmith to issue a request pursuant to s 43 of the Strata Titles Act 1985 (WA) for the strata company to produce invoices and other documents.[44] It does not appear that this was done.
3. The first to fourth defendants filed two affidavits by their solicitor, Mr Getta. The fifth defendant also filed an affidavit of a solicitor employed by them, Ms Taylor.[45]
4. On 1 November 2016, Mr Goldsmith forwarded the first affidavit of Mr Getta, noting the admission in it that costs were paid by 'the Strata Plan',[46] and the affidavit of Ms Taylor.[47]
5. Relevantly, in his affidavit of 1 November 2016, Mr Getta deposed that the second defendant (the strata company) was satisfied that it was obliged to indemnify the third defendant (the corporate manager of the strata company) in the defamation proceedings and provided evidence as to the costs incurred to date and anticipated costs of those proceedings, and included a table of invoices issued by the fifth defendant and redacted copies of the invoices.[48]
6. In her affidavit of 1 November 2016, Ms Taylor included a copy of an offer to enter into a costs agreement between the fifth defendant and the third defendant, and copies of accounts issued and remittances received by the fifth defendant. Ms Taylor further deposed that the fifth defendant had not issued any accounts to, or received any remittance advices from, any party to the proceedings other than those annexed.[49]
7. On 2 November 2016, Mr Goldsmith forwarded the submissions filed on behalf of the first to fourth defendants. Relevantly, the defendants submitted that the second defendants (the strata company) had resolved that it (the strata company) would indemnify the third and fourth defendants (the corporate manager and its director and employee) in the defamation action against the plaintiff.[50]
8. On 2 November 2016, Mr Goldsmith also forwarded to Mr Davies two letters that he had written to the solicitors for the defendants regarding the affidavits filed in the proceedings.
9. In his letter to the fifth defendant, Mr Goldsmith referred to the documents that had been attached to the affidavit of Ms Taylor and wrote:

...our client requires you to produce, tomorrow, a copy of your firm's itemised time listing recording any time spent and costs charged for any such attendance, and any work associated with that attendance.... Should you fail to produce your listing tomorrow, we shall bring this matter to the attention of her Honour, unless you confirm to us, in the meantime, that your firm did not charge for your time in attending the AGM.[51]

1. The letter to the solicitors for the other defendants referred to the discrepancy in the invoices that had been exhibited to the affidavits of Mr Getta and Ms Taylor.[52]
2. Also on 2 November 2016, Mr Goldsmith forwarded the submissions filed on behalf of the fifth defendant.[53]
3. In a later email that day, Mr Goldsmith instructed Mr Davies to make clear to the Court that the plaintiff would not pursue expedition of the trial if interim orders were made.[54]
4. Early on the morning of 3 November 2016 (in an email received in Perth at 4:10 am), Mr Goldsmith forwarded comments on the submissions that had been prepared for the hearing that day. In further comments, Mr Goldsmith referred to the retainer agreement and invoices that had been filed by the fifth defendant, and said 'They have excluded their activity listings (up to you if you want to call upon them) but it is clear that they were charging no doubt from about the middle of May'.[55]
5. It is not in dispute that Mr Davies did not call on the notices to produce at the hearing, did not advise Mr Goldsmith before the hearing that he would not or seek his instructions in that regard, and did not tell him after the hearing that he had not called on them.
6. The application was not completed on 3 November 2016. Following the hearing, Mr Davies sent an updated estimate of costs, updating the time estimate to 22 hours.[56]
7. The second day of hearing was on 9 November 2016. At the conclusion of the hearing, Pritchard J dismissed the application for an expedited trial, and reserved on the injunction application.[57]
8. Mr Davies provided some further advice on 10 November 2016. It is material to the present proceedings only to the extent that it touched further on questions of fiduciary duty that had been raised in court the day before, and included a proposed letter to the solicitors for the first to fourth defendants. Mr Goldsmith advised that he did not propose to send it.[58]
9. On 10 November 2016, Mr Davies advised Mr Goldsmith that the time spent the previous day was six hours and he updated his 'estimate' to 28 hours. Mr Davies further asked whether Mr Goldsmith wanted him to appear on the delivery of the decision, and if not 'I will send you a fee note now'.[59]

1. On 19 November 2016, Pritchard J published comprehensive reasons for dismissing both applications. In her reasons, Pritchard J set out the orders sought by Ms Aikman.[60] While the substance of the relief remained unchanged, the proposed orders were noticeably more comprehensive than those in the chamber summons.
2. In summary, her Honour found that the strength of Ms Aikman's case overall was 'merely reasonable' and her claims of breach of fiduciary duty were weak.
3. On the claim for repayment of money already paid, her Honour found that Ms Aikman had not demonstrated she would suffer irreparable harm or prejudice if interlocutory relief were not granted or that damages would not be an adequate alternative remedy. Her Honour further commented that the grant of injunctive relief would have the effect of giving Ms Aikman the final relief she sought without the defendants having had the opportunity to advance a defence at trial.[61]
4. On the claim for an injunction to restrain the strata company from paying any further legal fees, Pritchard J characterised the claim that the payment was beyond power as 'reasonably strong' but not strong enough to warrant the grant of an injunction when the balance of convenience factors weighed against the grant of relief.[62]
5. A significant consideration against the grant of interlocutory relief arose from her Honour's finding regarding delay. Her Honour found that the evidence strongly supported the conclusion that Ms Aikman knew, or should have known, that the legal fees were to be paid from strata company funds from as early as 2015, but did not commence her action until September 2016. Her Honour further found that it was within Ms Aikman's power[63] to have required the strata company to provide her with information and to permit her to inspect the books of account or other records of the first defendant bearing on any payment to the fifth defendant to confirm the true position, but had failed to do so.[64]
6. Because of the prominence given by Mr Goldsmith to the issue of notices to produce, it is relevant that Pritchard J observed:
   1. There is no dispute that the legal fees incurred by the third and fourth defendants for the legal services performed by the fifth defendants in the defamation proceedings (the Legal Fees) have been paid out of the funds of the first defendant. ...
   2. There also does not appear to be any dispute that at the annual general meeting of the first defendant on 4 June 2015 (the 2015 AGM) it was resolved that there should be included in the budget for the first defendant's operations for the following year an allocation of $25,000 for 'Admin - Legal and Debt Collection Fees' (the 2015 Resolution). It does not appear to be in dispute that an identical resolution for expenditure in the following year (the 2016 Resolution) was passed at the annual general meeting of the first defendant on 16 June 2016 (the 2016 AGM).
7. In discussing Ms Aikman's delay in seeking interlocutory relief, her Honour commented that while there was evidence that Ms Aikman's solicitor had asked the first and fifth defendants to provide copies of the invoices from the fifth defendant, there was no evidence as to when that request was made and it did not appear to have been a request made in the exercise of Ms Aikman's statutory right of inspection.[65]
8. Her Honour observed that, while Ms Aikman initially sought 'first and foremost' the order for an expedited trial, that application was only faintly pressed and the injunction was the primary relief sought.[66] Her Honour further observed that the expedition sought required a timetable that was a 'practical impossibility'.[67]

1. On 21 November 2016, by his personal assistant, Mr Davies provided an invoice for his fees in the sum of $23,100 inclusive of GST.[68] Mr Goldsmith did not respond.
2. On 24 November 2016, Mr Goldsmith emailed regarding an issue raised by Mr Davies about submissions made at the hearing. He did not refer to Mr Davies' invoice.[69]
3. On 21 December 2016, by his personal assistant, Mr Davies provided a statement of fees owing with a copy of the original invoice.[70] Mr Goldsmith did not respond.
4. On 25 January 2017, by his personal assistant, Mr Davies sent an email reminder that fees remained outstanding and that the costs agreement required payment within 30 days of the fee note being issued.[71] Mr Goldsmith did not respond.
5. On 6 February 2017, Mr Davies sent an email, saying:

I would be grateful if you could pay my outstanding fee note. My secretary tells me she has followed up a couple of times but it is still outstanding.[72]

1. Mr Goldsmith did not respond.
2. On 8 February 2017, Mr Davies sent a further email, referring to the lack of response from Mr Goldsmith, and saying:

I am sorry to trouble you again, but I have a tax bill to pay and I need to get outstanding fees in.

Could you please I (sic) confirm that the fee note will now be paid.[73]

1. On 9 February 2017, Mr Goldsmith replied to both Mr Davies, and to the junior counsel in the action. Relevantly, Mr Goldsmith said:

... the dismissal of the application for interlocutory relief has caused enormous problems for the plaintiff and has caused enormous complications in the relationship between the plaintiff and myself. In saying that we "lost the unlosable", I have "been around" long enough to know that, in a two horse race, there is only one winner, and to acknowledge that both my client and I have appreciated that, ultimately, we were at the discretion of the Judge.

Having said that, both my client and I have enormous concerns about the presentation of the case by both of you on her behalf. I will endeavour to minimise my comments because, realistically, I see no particular benefit in lengthy or protracted correspondence between us.[74]

1. Those comments about presentation of the case were made having commented upon Mr Davies' written submissions before they were filed, without having been present at the hearing, without the benefit of transcript, and without having spoken to either Mr Davies or junior counsel about what had occurred at the hearing.
2. Mr Goldsmith then made a series of blunt allegations regarding the expertise of junior counsel and contended that the work of Mr Davies 'did not reach the level expected of senior counsel who professed expertise in matters of equity'. He continued:

I am conscious of the fee notes that you have both rendered. They have been forwarded to my client and, needless to say, she was alarmed.

The hearing of the defamation case was concluded and judgment has been reserved. In the meantime, directions have been made in the case against the Strata Company, including a direction as to the filing of the material in relation to the costs of the interlocutory application. Put bluntly, it is absolutely essential that my client avoid an order that she pay the cost of that application and I will be submitting, strongly I hope, that costs should either be reserved to trial or should be costs in the cause.

Assuming that we win the defamation trial, then I am hopeful that we will be able to reach a settlement of the proceedings against the Strata Company. If I can avoid an order for costs being made against my client, hopefully any settlement will involve an order that the defendants, or some of them, pay my client's costs. At that time, hopefully, we will be able to recover your fees. Until that time, I am simply not in a position to do anything about your fees and I can assure you that my client is incredibly disturbed by what happened.

I trust that you will recognise the position in which I find myself. Further correspondence will, put simply, not produce any different position or response to what I have written above.[75]

1. In his evidence, Mr Goldsmith said that when he wrote the email he was agitated and provoked by what he perceived as Mr Davies resiling from their agreement for deferred payment of fees.[76] The email does not, however, refer to an agreement to defer fees, or to any security held by Mr Goldsmith, but only to Mr Goldsmith's hope that fees may be recovered on settlement of the action.
2. On 10 February 2017, Mr Davies responded. Relevantly, he said:

On 29 October 2016 in our first telephone conversation in relation to this matter (a Saturday) I asked you whether you had funds from the client for my fees.

You said you did not have funds in trust, that the client had limited resources, and was paying you a nominal amount in instalments towards the cost of the defamation proceedings.

I then asked you who would pay my fees. Your reply was: "I will pay them myself".

In the event that my outstanding fees are not paid in full by next Thursday:

(1) The necessary steps will be taken to recover the fees from you.

(2) I will draw the conclusion that you do not intend to honour your professional obligation to pay my fees, and I will lodge a complaint of professional misconduct against you with the LPCC.

(3) In accordance with that conclusion, I will cause the WABA, in accordance with its practice, to circulate your name to members of the WABA as a practitioner who has not met his obligations to counsel.

As to the content of your email, it has been sometime since I have seen a piece of correspondence so full of falsehood and inconsistency. And that was not correspondence written by a legal practitioner.[77]

1. On 10 February 2017, Mr Goldsmith replied. Although in his email of the same date Mr Davies had both given his account of the conversation of 29 October 2016, and given notice that he intended to take steps to recover the fees, Mr Goldsmith still did not refer to any agreement with Mr Davies, or to the security he now says that he held. He wrote:

Your invoice will not be paid by Thursday. If you make a complaint against me, then I will be left with no alternative other than to lodge a formal complaint with WABA about both you and [junior counsel].

I have advised you that I am conscious of your outstanding fees. I will do as much as I can, and as quickly as I can. However, the delay in delivery of the judgment in the defamation case is delaying any pro­active movement in the case against the Strata Company.[78]

1. On 13 February 2017, Mr Davies gave notice that interest would be charged.[79]
2. On 14 February 2017, Mr Goldsmith replied, including:

...it is clear that we are both going to spend some significant time in pursuing our respective complaints and responding to the complaint of the other. No doubt, it will also take some time for decisions to be made by the relevant body.

May I propose that you hold­off for a period of one month. Whilst I have no factual basis for expressing this, I am (quietly) hopeful that the judgment in the defamation matter will be delivered within that time. If it is, then hopefully progress can be made in all respects with the claim against the Strata Company, including in relation to outstanding fees and costs.[80]

1. On 24 February 2017, Mr Davies replied that he regarded the email of 10 February 2017 and that of 14 February 2017 'as a threat to make a complaint against me that you know to be baseless in order (1) to deter me from making a complaint against you to the LPCC and (2) to deter me from taking steps to recover fees die (sic) to me from you'. Mr Davies continued:

I am going to give you an opportunity to withdraw that threat and to state unequivocally that you have no complaint about me of any type in any way arising from the matter.

If you wish to avail yourself of that opportunity please do so by 4 pm WST on Monday 27 February 2017.[81]

My correspondence does not contain threats. It contain (sic) statements of my intentions but whether or not I implement those intentions depends upon your decisions.

Your conduct and, even more so, the conduct of [S] are matters of considerable concern. Having said that, I do not particularly want to spend endless hours in responding to a complaint by you against me or in pursuing a complaint against you (and [S]). I have been around long enough to know that those exercises will likely just take up a huge amounts of time and, in reality, not produce any real benefit for either of us.

I have simply asked, even proposed, that you adopt a practical, sensible and commercial approach. It is a matter for you if you wish to. Personally, I prefer to spend my time and my energy in fighting "the real enemy". On that front, I am currently spending hours in preparing written submissions in opposition to the applications for costs made by the defendants. The task is a detailed and lengthy one. For your information, in their written submissions, the 1st - 4th defendants make a submission that clearly supports the concern (one of them) that the client and I have about your performance.[82]

1. On 8 March 2017, Mr Davies made a written complaint to the LPCC regarding the failure of Mr Goldsmith to pay his fees and the email of 10 February 2017. The LPCC wrote to Mr Goldsmith regarding that complaint on 13 March 2017.[83]
2. On 17 March 2017, Mr Davies commenced proceedings to recover the fees in the Magistrates Court of Western Australia.

Mr Goldsmith's Complaint to the Bar Association

1. On 18 March 2017, Mr Goldsmith wrote to both Mr Davies and junior counsel, advising that he was 'in the course of finalising complaints about both of [them] to WABA'. He 'invite(d)' them to answer whether they had called on the two notices to produce at the hearing before Pritchard J, apparently to avoid the cost of transcript of the hearing.[84]
2. On 21 March 2017, junior counsel answered that invitation and advised by email that the notices to produce had not been called upon.[85] It was not, therefore, until after Mr Goldsmith decided to pursue his complaint that he became aware that the notices had not been called upon at the hearing.
3. On 22 March 2017, Mr Goldsmith wrote to junior counsel, copied to Mr Davies:

I have now finished my 5 paged letter of complaint, about both you + Stephen, to WABA + it will be sent today.

On a personal level, I very much regret the need to do this but Stephen has both sued me and made a complaint about me to the LPCC and, in reality, I am left with no alternative.[86]

1. Mr Goldsmith's complaint to WABA was made by letter dated 7 April 2017.[87] It set out four complaints against Mr Davies. The first was a 'general complaint' that Mr Goldsmith had 'serious reservations' about Mr Davies' professed experience and skills in matters of equity. The three specific complaints were: Mr Davies made submissions that went beyond the pleaded case and failed to ensure that further amendments were made to the statement of claim to fully plead the case before the interlocutory hearing; that he failed to call on the notices to produce at the hearing which related to documents Mr Goldsmith contended were highly relevant to the hearing; and that his conduct in sending the email of 10 February 2017 was intimidatory in asserting that he could influence WABA and cause it to circulate his name in the manner Mr Davies had suggested.
2. Mr Goldsmith further wrote: 'Mr Davies SC has not been paid for the reasons referred to in this letter, and for other reasons that will be canvassed elsewhere'. He wrote that he would withdraw the general complaint if Mr Davies could demonstrate, through reported judgments, that he had experience in equity and was not, in fact, 'Common Law Counsel'. He complained that by representing equity as an area of practice, Mr Davies was 'suggesting detailed, almost extensive, experience and skills in that area'. [88]
3. On 19 April 2017, junior counsel wrote to Mr Goldsmith and said that he would take steps to tax his bill.[89] Mr Goldsmith responded by email on 20 April 2017, including:

If you want to take steps to tax your bill, then I anticipate that proceedings will be commenced against you for having engaged in misleading and deceptive conduct, and similar (if that is what you want, so be it). I am not going to be bullied by you, or by Stephen. I have responsibilities.

I have made abundantly clear that I do wish to try and resolve, sensibly, your claims for fees and that commitment remains on my part.

I am, upon a without prejudice basis, willing to withdraw my complaint against you to WABA, and withdraw the complaint against Stephen, if he will withdraw his complaint against me, and withdraw the Magistrate Court proceedings that he has commenced against me, so that matters can then be addressed commercially and sensibly.[90]

1. On 9 May 2017, the WABA President advised Mr Goldsmith that the conduct he had complained of was not within the range of matters about which a complaint could be made to WABA's Disciplinary Committee under its' Constitution.[91]
2. On 15 May 2017, Mr Goldsmith replied, querying the response to his complaint. His letter is expressed in terms which suggest that the complaint is on behalf of Ms Aikman. It is significant for two reasons: First, Mr Goldsmith maintained his complaints against Mr Davies, including that he had misrepresented his skills and experience; second, Mr Goldsmith makes no complaint that Mr Davies was demanding payment of his fees in a manner that was contrary to an agreement to defer them.[92]

1. On 12 May 2017, Mr Goldsmith wrote again to junior counsel, copied to Mr Davies. He wrote that he found the response from the WABA to be 'wholly inadequate and unsatisfactory'. He continued:

You and Stephen should be aware that my client has previously raised with me her wish to refer all relevant matters to the media ...[including] so far as you and Stephen are concerned, your relevant experience in equity matters and your failure to call upon the very important notices to produce at the hearing.

Put mildly, I doubt very much that the response from the WABA will discourage my client from taking that course of action, that she has already contemplated. [93]

1. Mr Goldsmith then referred to the position of Ms Aikman, and to his intention to give her notice that, 'absent a substantial payment', he would commence proceedings to recover costs and disbursements. He offered the opportunity for both counsel to comment before he gave Ms Aikman notice, concluding 'I do wish you to be aware of what I am doing, proposing to do and possible adverse consequences'.
2. Again, in this email, Mr Goldsmith did not mention the caveat or any agreement to defer payment.

1. Mr Davies had commenced proceedings on 17 March 2017. Mr Goldsmith filed his statement of defence in the Magistrates Court proceeding on 24 May 2017. In that statement, for the first time, Mr Goldsmith asserted that his contract with Mr Davies included express terms or conditions, contained in a telephone conversation of 29 October 2016. Mr Goldsmith pleaded:

The defendant would be liable for payment of the bill rendered by the claimant [Mr Davies] because he had registered a caveat against the title to a properly owned by Susan Aikman, the defendant's client, and with Ms Aikman's consent, and for whom legal services were to be provided by the claimant, such that the defendant had a form of security for payment of the claimant's fees and the defendant's own costs.

The bills rendered by the claimant would be payable, if Ms Aikman did not pay them sooner, upon the exercise by the defendant of his rights specifically pursuant to the registration of the caveat.[94]

1. Mr Goldsmith pleaded that the costs agreement omitted to include the express terms when it should properly have done so.[95]
2. Mr Goldsmith further pleaded allegations of negligence in the conduct of the interlocutory proceedings, and breaches of consumer law relating to Mr Davies' representations that he had considerable experience in matters of equity.
3. The defamation proceedings against Ms Aikman were dismissed on 12 June 2017.
4. On 17 July 2017, Mr Goldsmith wrote to Mr Davies, through Mr Cook, regarding possible proceedings to be brought by Ms Aikman against the Strata Manager and others. He asked whether Mr Davies would be willing to act for Ms Aikman in the new matter.[96]
5. On 2 August 2017, Mr Cook replied on behalf of Mr Davies, refusing the instructions.[97]
6. The proceedings in the Magistrates Court went to a pre-trial conference on 21 August 2017. Mr Cook and Mr Davies attended the conference in person. Mr Goldsmith attended by telephone.[98]
7. It is not in dispute that an agreement was reached at the pre-trial conference for Mr Goldsmith to pay Mr Davies' fees in three instalments. In the event that the instalments were paid, the parties would take steps to file orders to dismiss the proceedings with no order as to costs.
8. At that point Mr Davies left the conference, while the registrar prepared the consent orders. Mr Davies authorised Mr Cook to sign the orders on his behalf.[99]
9. Mr Goldsmith also terminated his phone call to the conference at this point.
10. While there is some dispute as to whether there had been agreement reached at this point, which merely needed to be formalised, or whether no agreement had been reached at this point at all,[100] it is uncontentious that when the registrar rang Mr Goldmsith back about the orders, Mr Goldsmith said that he was not prepared to sign them without an additional term that Mr Davies withdraw his complaint to the LPCC about Mr Goldsmith's conduct. That was the first time that the possibility of such a term had been raised.
11. Although Mr Goldsmith had insisted that he would not sign the orders without that term, on 23 August 2017 he emailed signed consent orders.[101] In that email he requested that Mr Davies withdraw his complaint, but it was not a condition of the agreement.
12. It is not in dispute that, having signed the consent orders on 23 August 2017, Mr Goldsmith complied with them and paid the three instalments that had been agreed.

1. Ground 1 is based on the allegation that Mr Goldsmith failed to pay any or all of Mr Davies' fees, 'which conduct was in breach of clauses 9 and 10 of the costs agreement'.
2. The applicant contends that the agreement between Mr Davies and Mr Goldsmith arose on Mr Goldsmith continuing to instruct Mr Davies and thereby accepting the terms of the costs agreement, and perhaps on his agreeing Mr Davies' proposed rate. The failure to pay in accordance with the costs agreement was a breach, unless its terms had been modified by an oral agreement.
3. There is no doubt that Mr Goldsmith did not pay Mr Davies' fees in accordance with the terms of the costs agreement, and only paid following proceedings in the Magistrates Court.
4. That does not, however, determine the result on the first ground. There is a substantial factual dispute about when Mr Davies' fees were due and payable. Mr Goldsmith contends that the costs agreement of 31 October 2016 must be read with what he says was an earlier oral agreement reached on 29 October 2016 in which he says Mr Davies agreed that his fees would only be payable upon Ms Aikman paying him, which would require Ms Aikman to release some of her assets or Mr Goldsmith exercising his rights under a caveat.
5. The determination of that dispute turns on what was said in the conversation between Mr Goldsmith and Mr Davies on 29 October 2016.
6. The Tribunal is not only concerned with what, objectively, the parties agreed. In the context of these proceedings, the Tribunal must also consider whether it has been shown that Mr Goldsmith did not believe that an agreement had been made in the terms he described. His subjective belief is relevant to whether his subsequent reliance on his conversation with Mr Davies would defeat a finding that his behaviour was professional misconduct of the kind alleged.
7. In both cases, that is, in both the objective and subjective case, the differing accounts of Mr Davies and Mr Goldsmith may be assessed against the objectively established facts, including their later conduct, the emails sent between them, and the inherent probabilities of each account.
8. In both his cross-examination of Mr Davies and in his submissions, Mr Goldsmith strongly challenged the credibility of Mr Davies and it is true that there were areas in which Mr Davies recollection of the conversation on 29 October 2016 was not certain - for example, he could not recall saying that he would send a costs agreement, although it was his normal practice to do so. But, when all of the circumstances are considered, the Tribunal does not doubt that his evidence was truthful. There are several reasons for reaching that conclusion.
9. First, and importantly, Mr Goldsmith accepted that he told Mr Davies that he would pay him, 'therefore denoting [his] commitment to personally paying [Mr Davies]'.[102] While he said in his witness statement that it was a 'ludicrous proposition' that he would have agreed to personally pay Mr Davies an unspecified or non-defined amount, and maintained that argument in his final submissions, that is what he did. Mr Goldsmith could not explain how the 'caveat agreement' could possibly affect the quantum of his liability in addition to the question as to when payment was due.
10. Second, Mr Goldsmith received the costs agreement forwarded by Mr Davies without comment, despite his claim that 'the caveat issue was front and centre of my mind' when he spoke to Mr Davies.[103]
11. Third, Mr Goldsmith forwarded the costs agreement to Ms Aikman, asking her authority to sign it, but not referring to the absence of any agreement to defer liability for fees.[104]
12. Fourth, Mr Davies' conduct in sending invoices and requesting payment, and his emails to Mr Goldsmith, were consistent with there being no collateral agreement.
13. Fifth, Mr Goldsmith did not raise the agreement he now relies on in response to Mr Davies' repeated requests for his fees to be paid. At first he did not respond at all. When he did eventually reply, he made no mention of any agreement to defer payment. Two particular occasions stand out: Mr Goldsmith's email of 9 February 2017, which he said was written when he was agitated and provoked by Mr Davies asking for payment; and his reply to the email of 10 February 2017 in which Mr Davies set out his account of what had been said on 29 October 2016.
14. Sixth, when Mr Goldsmith complained to the WABA on 7 April 2017, one of his complaints was that Mr Davies had said he would cause WABA to circulate his name as a practitioner who has not met his obligations to counsel. Despite that specific complaint, and his statement that he prided himself on his practice of promptly paying all counsel 'all fees to which they were due',[105] Mr Goldsmith said nothing to the effect that Mr Davies was demanding fees that were not yet due.
15. Seventh, Mr Goldsmith first referred to the oral agreement in his statement of defence in the Magistrates Court proceedings on 25 May 2017, about six months after Mr Davies first invoice. There is no evidence of any event or other matter since that first invoice which might have changed Mr Goldsmith's belief or understanding about what had been said when he first spoke to Mr Davies.
16. Mr Goldsmith's conduct, at least from November 2016 when Mr Davies first sent an invoice, is inconsistent with what he now says occurred. We do not accept Mr Goldsmith's explanation as to why he did not refer to the 'caveat agreement' earlier. Mr Goldsmith said that he initially did not want to disturb Mr Davies while he was preparing the case, he considered Mr Davies reference in an email to Ms Aikman's 'cost constraints' to be an acknowledgement of the conversation about the caveat conditions, and he was very busy himself.
17. None of those reasons sufficiently explains why he would not then refer to or attempt in some way to record the agreement, if only in an email, particularly when he did engage Mr Davies in an email exchange on 31 October 2016 as to his hourly rate. Neither do those reasons explain why he did not later refer to the purported agreement when Mr Davies demanded his fees. The suggestion that it would have been counter-productive to raise the agreement, but not counter-productive to make serious allegations about Mr Davies' ability and conduct, is not believable.
18. Finally, there are other matters that weigh against accepting Mr Goldsmith's evidence.
19. First, his evidence regarding the security he had taken to ensure the payment of fees by Ms Aiken was unsatisfactory in several respects.
20. In his defence in the Magistrates Court, Mr Goldsmith pleaded his rights pursuant to the registration of the caveat. In his evidence in­chief, Mr Goldsmith said that Ms Aikman offered him a caveat against one of her properties. When asked if the caveat was lodged, Mr Goldsmith said:

Yes, it was. It was registered, and if I can summarise it in terms of the language that was used, I said to Susan, "I understand that you've got cash flow problems." Her business was imploding. I said, "Susan, I know you've got cash flow problems. [Counsel][106] and I will run this for you, but I want a caveat." She agreed, and, yes, I did obtain one, and, yes, I registered it.[107]

1. It was only in cross­examination, two days later, that Mr Goldsmith said there was 'a document that was signed by Ms Aikman acknowledging that she was granting to me an equitable interest in the land and also acknowledging that I had advised her that she should seek independent legal advice on it'. [108] No document was produced. It is surprising that Mr Goldsmith, an experienced solicitor, did not initially refer to the instrument granting the interest. It was not credible that, in relation to fees and disbursements that would total several thousand dollars, Mr Goldsmith could not say whether the security had been given by a formal document or in correspondence, and that he appeared to have taken no steps to ascertain the available equity in Ms Aikman's property.[109]
2. Second, Mr Goldsmith gave unsatisfactory evidence with regard to the arrangements for the payment of junior counsel. He did not say he had an arrangement to defer payment of junior counsel's fees, which might be expected in circumstances where, he says, he had such an agreement with counsel acting in the defamation proceedings which was 'front and centre' of his mind.[110] He had no recollection of receiving a costs agreement from junior counsel.[111] He initially said that he had never received an invoice,[112] and that junior counsel had 'never pursued payment whether by way of correspondence or through legal process or through any other process'.[113] He later conceded that evidence was incorrect; he then said that junior counsel had sent an invoice, but that he had not been paid.[114]
3. The dealings between Mr Goldsmith and junior counsel are tangential to the main issues before the Tribunal. But the unsatisfactory nature of his evidence regarding that matter bears on whether his evidence about arrangements for the payment of fees can be accepted more generally.
4. When all of those matters are taken into account, we are satisfied that Mr Goldsmith agreed to pay Mr Davies' fees, that there was no agreement to defer his liability, and, critically, that Mr Goldsmith did not believe that there was. We make that finding taking into account the seriousness of the allegations made against Mr Goldsmith, and the consequences of a finding of misconduct. But the circumstances, taken together, clearly establish the allegations in Ground 1.

1. Legal profession rules may make provision for standards of conduct expected of an Australian legal practitioner.[115] Section 581 of the LP Act makes the Rules binding on Australian legal practitioners. Rule 4 provides that a breach of the Rules may constitute unsatisfactory professional conduct or professional misconduct.
2. The allegations against Mr Goldsmith include that he breached his professional obligations pursuant to r 26 of the Legal Profession Conduct Rules 2010 (WA) (Conduct Rules). Rule 26 states:

(1) Unless otherwise agreed, a practitioner who engages another practitioner to advise or assist in a matter is responsible for the payment of the other practitioner's fees.

(2) A practitioner must pay fees referred to in subrule (1) within a reasonable time, whether or not the client has provided sufficient funds.

1. Rule 26 does not add to the effect of the costs agreement, by which Mr Goldsmith was responsible for the payment of Mr Davies' fees. Rule 26(2) is relevant in prescribing an obligation to pay within a reasonable time.

1. It is not in dispute that Mr Goldsmith did not pay counsel's fees until after settlement of the Magistrates Court proceedings in August 2017. Pursuant to the costs agreement he was required to pay within 30 days of the bill being sent. Under the Conduct Rules, Mr Goldsmith was required to pay within a reasonable time.
2. Considering solely the failure to pay within 30 days or a reasonable time, it may be arguable that the delay was not so great as to be professional misconduct. But it would be artificial to separate the fact that Mr Goldsmith did not pay from the circumstances, and in particular: His failure to respond at all until February 2017; the terms of his email of 9 February 2017 (some of which, on his evidence at the hearing, he knew was not true)[116]; and his email of 10 February 2017. All of those circumstances were set out by the applicant in the statement of facts and contentions in relation to Ground 1, and all have been established.
3. In those circumstances, we are satisfied the professional misconduct alleged in Ground 1 has been proved.

Ground 2 - the complaint to the Bar Association and the offer to withdraw the complaint

1. On the findings made in relation to Ground 1, we are satisfied that at the time he made his complaint to WABA, Mr Goldsmith did not believe that he had any agreement with Mr Davies to defer payment of fees (he did not assert any such agreement in his complaint), or that he had any reasonable basis to defend a suit brought upon the costs agreement. When all of the circumstances are considered, we are satisfied that the complaint made to WABA was in response to Mr Davies complaining about him, and in response to Mr Davies seeking payment of his fees. Those circumstances include the following.
2. First, there is the matter of timing.

(1) The proceedings in which Mr Davies was briefed were completed in November 2016.

(2) On 10 February 2017, Mr Goldsmith wrote, 'If you make a complaint against me, then I will be left with no alternative other than to lodge a formal complaint with WABA about both you and [junior counsel]'.

(3) Mr Davies made his complaint to the LPCC on 8 March 2017.

(4) The LPCC wrote to Mr Goldsmith regarding that complaint on 13 March.

(6) Mr Goldsmith wrote that he was 'in the course of finalising complaints' the following day.

(7) On 21 March 2021, junior counsel advised Mr Goldsmith that the notices to produce had not been called upon.

(8) On 22 March he said he would send the complaint that day, as 'in reality, I am left with no alternative'.

(9) The complaint to the Bar Association was made by letter dated 7 April 2017.

1. Second, Mr Goldsmith said that his email of 10 February 2017 was simply a statement of intention and was not retaliatory.[117] But the sensible reading of what Mr Goldsmith wrote is that he would retaliate to any complaint by Mr Davies.
2. Third, in his evidence at the hearing, Mr Goldsmith described his conduct in these terms:

Because if they were going to pursue matters in the way that had been foreshadowed, I'm not going to just sit there and lie down and get kicked. I'm not going to do that ... Mr Davies had two choices. He either could have addressed this in the way that I frequently advanced, which was sensibly, commercially, realistically. Or he could have gone down the road that he has gone down, which has led us here today, which has led to numerous complaints to the [LPCC] by me. And if he's going to attack me - yes. Of course I'm going to - I'm not just going to sit there and take it.[118]

1. It is incomprehensible that an experienced practitioner could have considered it a sensible, commercial and realistic strategy to make serious allegations regarding the integrity and competence of a fellow practitioner.
2. We are also satisfied that Mr Goldsmith had no reasonable basis to complain.
3. The timing of the complaint is, in itself, inconsistent with Mr Goldsmith having serious concerns arising from the conduct of Mr Davies in the proceedings. By way of contrast, Mr Goldsmith had not been reticent in expressing his opinions regarding junior counsel at a much earlier time. Indeed, he says he raised the issue with Mr Davies in his telephone discussion on 29 October 2016.
4. Mr Goldsmith's general complaint was expressed as 'serious reservations about [Mr Davies'] professed experience and skills in this area of law', that is, 'matters of Equity including claims based on ultra vires grounds and breach of (fiduciary) duties'.[119] In his final submissions, Mr Goldsmith submitted that, in his complaint, he had not asserted that Mr Davies did not in fact possess any experience and skills, but merely expressed his personally held serious reservations, and that he genuinely held such reservations. He also submitted that there was no misconduct in writing something that was true (i.e. it was true that Mr Goldsmith personally held those reservations) in a complaint made to a professional body.[120]
5. The substance of his 'reservations', however, was that Mr Davies had misrepresented that he was experienced in and knowledgeable of the areas of law raised in the interlocutory application. In his email to both counsel of 9 February 2017, Mr Goldsmith wrote of Mr Davies that the quality of his work 'simply did not reach the level expected of Senior Counsel who professed expertise in matters of equity'. In Mr Goldsmith's second letter to the President of WABA of 15 May 2017, he alleged that Mr Davies had 'misrepresented his skills and experience'. In his pleaded response to the claim in the Magistrate's Court, Mr Goldsmith alleged that by representing he had experience in matters of equity and breach of fiduciary duty, Mr Davies had engaged in conduct that was both misleading or deceptive, and unconscionable.
6. When subjected to any scrutiny, the allegations lack substance. While Mr Goldsmith maintained he had grounds for his reservations, even by the time of this hearing he put forward nothing that could amount to a rational basis for his complaint.
7. Mr Goldsmith did not specify any particular matters relating to equity, ultra vires, or breach of fiduciary duty in which Mr Davies displayed a defect in knowledge or experience. In his evidence at the hearing, when pressed to identify reasons for his 'reservations' Mr Goldsmith referred to the written submissions filed in the interlocutory application.[121] That was not something he relied on in his letter of complaint to WABA, when he said that Mr Davies clearly did 'a much better job' than junior counsel, 'and that is self-evident from the final submissions prepared by Mr Davies SC'.[122]
8. The written submissions were in evidence as an attachment to Mr Davies' statement.[123] They had been reviewed by Mr Goldsmith before the hearing and he had made some comments ­ essentially minor corrections. Mr Goldsmith did not identify any error or weakness or omission in the submissions. It is true that Pritchard J did not accept that the claims of breach of fiduciary were strong. Those comments, of course, may reflect the case which had been brought, rather than the way in which it was presented.
9. The other matter on which Mr Goldsmith appeared to rely was the conclusion he drew from a conversation with Mr Davies after the interlocutory matter had been heard.
10. In his email of 9 February 2017, Mr Goldsmith wrote:

... comments subsequently made led me to the view that your expertise, Stephen, was in insurance work, perhaps likely of a predominant personal injury nature.[124]

1. That statement was reflected in the response filed in this application, where Mr Goldsmith said:

The basis for the respondent's belief that Mr Davies did not possess detailed experience in matters of equity

The respondent's awareness of the lack of experience and skills on the part of Mr Davies in matters of equity particularly breach of fiduciary duty and breach of trust was inspired in part by a telephone conversation between the respondent and Mr Davies shortly after the applications by Ms Aikman were dismissed, in which conversation Mr Davies said words to the following effect:

'Barrie, would you like me to telephone ??. She is the partner at Clyde & Co based in Perth. I know her well. We have many insurance claims together. I can talk to her if you wish about trying to settle all matters.'

I cannot now recall the name of the partner given to me by Mr Davies.

1. That conversation could not reasonably support - or 'inspire' - the belief that Mr Goldsmith says he had, or provide a reasonable basis for complaint. Critically, Mr Goldsmith identified no other basis. In our opinion, having regard also to the timing of his complaint, he did not truly hold those reservations.
2. Turning to the specific complaints of failures at the hearing, it is true that the trial judge commented that the statement of claim would require further amendment to set out fully the case which Ms Aikman sought to advance.[125] Her Honour's comments do not suggest that the application for interlocutory restraint failed for that reason. Mr Goldsmith did not advance any aspect in which counsel had failed by not amending.
3. The second complaint was that Mr Davies 'did not, inexplicably, call upon the notices to produce'. This now appears to be Mr Goldsmith's primary grievance about Mr Davies conduct although, as has been noted above,[126] he did not appear to know whether the notices had been called when he was 'finalising complaints' to WABA.
4. The letter of complaint to WABA did not give much detail of Mr Goldsmith's concerns. He did, however, rely on those same matters in pleading his statement of defence in the Magistrates Court proceedings and in his evidence at the hearing. Mr Goldsmith alleged that Mr Davies was negligent. [127] He qualified that by saying it was 'not necessarily ... advanced in accordance with the strict principles of the law of negligence'. His complaint was that Mr Davies 'fell short of the standard of professional conduct or capable conduct that he should have' in failing to call on the notices[128]
5. Looking at it in hindsight, it is difficult to see what practical benefit calling on the notices could have produced for the plaintiff in interlocutory proceedings.
6. Most importantly, the purpose of the notices had been clearly overtaken by events, and Mr Goldsmith must have appreciated that at the time. The defendants had filed affidavits which exhibited the information which the plaintiff sought. Mr Goldsmith had both seen and commented on the evidence in those affidavits. He was aware that there was no dispute, for the purposes of the interlocutory application, that the strata company was paying the fees of the plaintiffs in the defamation proceedings.
7. In his evidence Mr Davies insisted that that was the reason he did not call on the notices; he decided that they had been overtaken by events. He pointed to several emails between him and Mr Goldsmith that supported his evidence that Mr Goldsmith was aware that that was the case.[129]
8. The Tribunal agrees. But even if that was not the case prior to the hearing, the reasons of Pritchard J, which note that the evidence to which the notices were directed had not been in dispute, can have left Mr Goldsmith in no doubt in that regard. Those reasons were published in November 2016, some months prior to Mr Goldsmith's complaint in April 2017 that Mr Davies' had failed to call upon the notices.
9. To the extent that Mr Goldsmith's claim is that Mr Davies failed to follow instructions, his email sent early on 3 November 2106 referred to the defendants excluding their activity listings in their affidavits and said, 'up to you if you want to call upon them'. That email demonstrates that he was aware of what had been provided on affidavit, and that the decision to call on the notices to produce (should that be necessary) was in the discretion of counsel.
10. The last of Mr Goldsmith's complaints was that Mr Davies' email of 10 February 2017 was 'intimidatory', in suggesting that Mr Davies had authority to influence what the Bar Association did. Mr Davies had written, 'I will cause the WABA, in accordance with its practices, to circulate your name to members of the WABA as a practitioner who has not met his obligations to counsel'. The email is blunt, but well short of being intimidatory. Mr Goldsmith submits that the verb 'cause' amounts to a threat by Mr Davies to use his influence with the WABA to bring about a certain result. But when read fairly the email did no more than say that Mr Davies would bring the non-payment to WABA's attention which would, he expected, act in accordance with its practices to circulate Mr Goldsmith's name to its members as a solicitor who had failed to pay his bills.
11. The applicant also relies on Mr Goldsmith offering to further instruct Mr Davies, despite the complaints, and while proceedings were still on foot, as a relevant circumstance. Mr Goldsmith's conduct in that regard is difficult to reconcile with his assertion that he truly held the belief that Mr Davies' conduct was negligent in the manner he alleged.
12. When all of those matters are taken into account, we are satisfied that Mr Goldsmith made and maintained his complaint without any reasonable basis. Rather, in our view, it was a response to Mr Davies' complaint that his fees had not been paid and commencing proceedings to recover them. Mr Goldsmith characterised his conduct as an attempt to have Mr Davies adopt 'a practical, sensible and commercial approach'. It was not. Mr Goldsmith brought the complaint and sought to use it as a bargaining chip in his attempt to resolve Mr Davies' complaints against him, including his claim for his fees.
13. Finally, the applicant's submission, at times, used the word 'retaliation'. Mr Goldsmith submitted that it was not alleged against him that his complaint was 'retaliation' and submitted that the applicant was confined to its pleaded case. It is not necessary to consider the extent to which the Tribunal can consider the way in which the case was put in opening and in evidence if that goes beyond the 'pleaded' grounds. That is because there is no substantive difference between the two in this case. The allegation in Ground 2 is that the complaint was made 'without reasonable basis and solely in response to' Mr Davies' complaint to the LPCC and the proceedings commenced in the Magistrates Court for payment of his fees. The distinction between a complaint attacking Mr Davies conduct 'in response to' those matters and retaliation for those matters is illusory. Retaliation is a most apt description of what Mr Goldsmith said he would do, and then did, in response to Mr Davies complaint and commencement of the Magistrates Court proceedings.

1. The factual basis of Ground 2 is clearly established.
2. Mr Goldsmith's use of a complaint to WABA as leverage in his dispute with Mr Davies, and then in response to Mr Davies holding his ground, falls far short of the conduct to be expected of a member of the profession in dealings with a fellow practitioner. It is, in our opinion, properly characterised as professional misconduct.[130]

Ground 3 - the making of false and misleading statements in the proceedings in the Magistrates Court

1. In his statement of defence in the Magistrates Court, Mr Goldsmith stated that his agreement with Mr Davies contained the following express terms and/or conditions:

(i) The defendant would be liable for the payment of the bills rendered by the claimant.

(ii) The defendant would be liable for payment of the bill rendered by the claimant because he had registered a caveat against the title to a properly owned by Susan Aikman, the defendant's client, and with Ms Aikman's consent, and for whom legal services were to be provided by the claimant, such that the defendant had a form of security for payment of the claimant's fees and the defendant's own costs.

(iii) The bill rendered by the claimant would be payable, if Ms Aikman did not pay them sooner, upon the exercise by the defendant of his rights specifically pursuant to the registration of the caveat.

(a) The term and/or condition referred to in subparagraph (i) above was contained in the document titled 'costs agreement'

(b) The terms and/or conditions referred to in sub- paragraphs (ii) and (iii) were contained in a telephone conversation between the parties on 29 October 2016.

1. Mr Goldsmith stated that the costs agreement omitted to include the express terms when it should properly have done so.[131]
2. On the findings of the Tribunal regarding Ground 1, the Tribunal is satisfied that, when he made his statement of defence, Mr Goldsmith knew that the statements about his agreement with Mr Davies were false. Although Mr Goldsmith was the party in the action, he is an officer of the court and subject to the obligation to not deliberately mislead the court.
3. It is not necessary to consider the alternative, that Mr Goldsmith was recklessly indifferent as to whether statements in his defence were true. We are satisfied that he knew they were not.

1. It is well established that a lawyer's duty of honesty and candour to the court includes a duty not to mislead the court by stating facts which are, to their knowledge, untrue. That duty extends to proscribe their preparing and filing pleadings containing allegations which, to their knowledge, are false.[132]
2. The conduct alleged in Ground 3 is false, and constitutes professional misconduct.

Ground 4 - the offer to engage Mr Davies in a new matter

1. In particulars of this ground[133], the applicant alleged, in substance, a failure to avoid a conflict of interest where:

(1) Mr Goldsmith had an ongoing personal interest in the outcome of the Magistrates Court Proceeding, which could be expected to involve resolution of matters of fact in which his credibility and that of Mr Davies as witnesses would be in issue.

(2) Mr Davies' complaint to the LPCC was ongoing, and could potentially involve issues of credibility.

(3) By attempting to further brief Mr Davies, Mr Goldsmith's self-interest conflicted with the duties that he owed to Ms Aikman:

1. If the allegations and complaints against Mr Davies were true, then Mr Goldsmith was not acting in Ms Aikman's best interest by attempting to retain Mr Davies again on her behalf;
2. Mr Goldsmith's personal interest would compromise his professional independence;

1. The necessary relationship of trust and confidence between Mr Davies and Mr Goldsmith could not exist, and Ms Aikman could not have trust and confidence in both of them.

1. It was not in dispute that, on 17 July 2017, Mr Goldsmith sent an email to Mr Cook, in which, after setting out matters relating to a proposed new action to be brought by Ms Aikman, Mr Goldsmith wrote:

Accordingly, despite the apparent "oddness" of the enquiry, I request that you please ask your client if he would be willing to accept a brief in the new matter. I will continue to do whatever I can, as quickly and as effectively as possible, to obtain payment of his fees that are currently outstanding.[134]

1. Mr Goldsmith said in his witness statement that before contacting Mr Davies and offering him new instructions to act for Ms Aikman, he spoke to his client and told her that Mr Davies would be suitable and that his concerns about Mr Davies' performance on the application for an interim injunction were related to it being a matter of equity.[135] He said, in effect, that he offered the instructions with the fully informed consent of his client.
2. However, Mr Goldsmith has adduced no evidence, such as notes or correspondence with Ms Aikman, to support his contention that Ms Aikman was fully informed about Mr Goldsmith's allegations against Mr Davies and that, despite being so informed, agreed that he should be instructed.
3. In his evidence at the hearing, Mr Goldsmith accepted that the resolution of his dispute with Mr Davies could have been a 'by-product' of his accepting the brief, but insisted that he was only concerned with the best interests of Ms Aikman.[136]
4. In the light of other evidence, the Tribunal does not accept Mr Goldsmith's evidence and the submissions based on it.
5. Mr Goldsmith's allegations ­ which he had expressed to Mr Davies, alleged in a complaint to the Bar Association, and pleaded in the Magistrates Court proceedings ­ included that his conduct of the proceedings before Pritchard J was negligent; that he had engaged in misleading or deceptive conduct in representing that he was experienced in matters of equity; that his conduct was unconscionable; that he had breached s 260 of the Legal Profession Act 2008; and that his fees were excessive.[137] All of those complaints were of conduct that preceded Mr Goldsmith recommending that his client agree to instruct Mr Davies.
6. We do not accept that in his dealings with Ms Aikman about this matter Mr Goldsmith sought to draw a distinction between his reservations about Mr Davies' experience or expertise in equity and other matters.
7. There is an air of unreality to the evidence. One can understand putting to one side reservations about experience in a particular area, but not reservations about honesty or excessive fees.
8. Perhaps more fundamentally, Mr Goldsmith was apparently offering further instructions in a complex matter when the question of how to pay counsel's outstanding fees was not resolved. Ms Aikman was not then able to pay. Mr Goldsmith was disputing that he was then liable to pay, and his failure to pay was the subject of both a complaint and a claim in the Magistrates Court. All he could offer in the letter to Mr Cook was that he was 'doing what we can as quickly and effectively as possible' to resolve the issue of outstanding fees.
9. When all of those matters are taken into account, we are not satisfied that Mr Goldsmith's evidence as to the offer to further instruct Mr Davies is credible. It is not believable that Ms Aikman could have agreed to instruct Mr Davies if fully informed in the terms Mr Goldsmith described. And we cannot understand how Mr Goldsmith could have thought it remotely possible, in the context of their dispute, that Mr Davies would contemplate accepting those instructions.

1. We think it much more likely that Mr Goldsmith did not raise his 'concerns' about Mr Davies with Ms Aikman at all because he did not genuinely hold those concerns. So much follows from our findings in relation to Grounds 1, 2 and 3.
2. That, in our view, undermines the principal basis for the applicant's allegation of a conflict of interest. If Mr Goldsmith didn't genuinely believe that Mr Davies was incompetent and dishonest, then his personal interest in resolving his dispute with Mr Davies might be said to align with Ms Aikman's interest in engaging competent and diligent counsel.
3. But that then leaves the applicant's particulars that there could be no relationship of trust and confidence between Mr Goldsmith and Mr Davies. It is on that basis the Tribunal concluded (above) that it was utterly unrealistic to think that Mr Davies might accept the brief.
4. By the time the offer to engage Mr Davies was made, the relationship between them had utterly broken down and was characterised by rancour and ill-feeling. Mr Goldsmith ought not to have offered the brief to Mr Davies in those circumstances because it was not in the best interests of Ms Aikman to do so.
5. But in our view that does not require the conclusion that Mr Goldsmith engaged in professional misconduct in seeking to brief Mr Davies. Rather, in our view his actions are more appropriately described as unsatisfactory professional conduct in that his actions in seeking to brief counsel with whom he could not be expected to work cooperatively fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner.

Ground 5 - the attempt to include an additional term of settlement before signing the consent orders

1. The proceedings in the Magistrates Court went to a pre-trial conference. Mr Cook and Mr Davies attended the conference in person. Mr Goldsmith attended by telephone.
2. It is not in dispute that an agreement was reached at the pre-trial conference on 21 August 2017 for Mr Goldsmith to pay Mr Davies fees in three instalments. It is also not in dispute that before a memorandum of consent orders setting out the agreement had been signed, Mr Goldsmith told the registrar that he wished to include an additional term that Mr Davies withdraw his complaint to the LPCC in respect to Mr Goldsmith's conduct.[138] Mr Goldsmith said that he considered he was entitled to ask for the inclusion of another term 'because settlement was subject to the signing of a formal document and that formal document had not yet been signed'.[139] Mr Goldsmith characterised the additional term as an invitation and encouragement to Mr Davies to withdraw his complaint.
3. Mr Goldsmith emailed signed consent orders on 23 August 2017. In the attached email he requested that Mr Davies withdraw his complaint, but it was not a condition of the agreement.[140]
4. Mr Cook gave evidence about the pre-trial conference. He said an additional term had not been mentioned in the discussions leading to the agreement.[141] Mr Cook said that an agreement had been reached and documenting was typical and normal practice in the Magistrates Court.[142]
5. In his witness statement, Mr Cook further said:

At the point at which the Agreement was reached, it was not suggested by anyone, including Mr Goldsmith, that the Agreement would be subject to any formal deed of settlement or other documentation to be signed except for a Form 49 - Memorandum of Consent Orders to set out in its terms. [143]

1. In cross­examination of Mr Cook, Mr Goldsmith strongly put that the agreement did not include a term or condition that it would be recorded in a document, and that '[there] was no term or condition of the agreement that the settlement would be subject to a signed document in whatever shape or form'.[144]
2. The position Mr Goldsmith took in cross examination appeared at odds with his response and his witness statement. In his response, Mr Goldsmith contended that, at the pre-trial conference, the parties agreed terms of settlement 'subject to formal documentation being signed', and that the conference was adjourned to allow him time to consider the memorandum of consent orders.[145] That was also the substance of his witness statement, in which he said 'terms of settlement were agreed in principle but the settlement was subject to an appropriate document being signed, as proposed by the Registrar, a memorandum of consent orders'. He considered that he was entitled to ask for the addition of another term because settlement was subject to the signing of a formal document, which had not been done. [146]
3. Mr Goldsmith maintained that position in his final submissions, where he submitted that 'the terms of settlement which had been agreed orally at the pre-trial conference were subject to the signing of a document that incorporated the oral terms of settlement'.[147]
4. We accept the evidence of Mr Cook, particularly where the contrary position has been so inconsistently maintained. That is, we are satisfied that there was no mention of any further term during the discussions leading to the settlement agreement, and that agreement was not subject to a formal document being prepared and signed.
5. The second aspect of Ground 5 is not contentious. Mr Goldsmith does not dispute that the additional term he sought to have concluded was that Mr Davies withdraw his complaint. That complaint was not limited to Mr Davies' unpaid fees, but included Mr Goldsmith's conduct.
6. The applicant contends that Mr Goldsmith's conduct was intended to avoid Mr Davies' complaint being further and properly investigated by the LPCC and to avoid disciplinary action being taken against him.
7. It is further alleged in Ground 5 that Mr Goldsmith sent an email on 23 August 2017 in which he referred to his offer of settlement at the pre­trial conference and continued:

As I emphasised, I made that offer purely in an attempt to avoid a continuation of this unfortunate dispute. I request that your client reciprocates such good intentions by writing to the LPCC withdrawing his complaint.[148]

1. It has been held on other occasions that an offer of settlement, conditional on the withdrawal of a complaint to the LPCC, is conduct that may subvert the authority of the LPCC and may constitute professional misconduct.[149] The circumstances of this case are not distinguishable. If anything, the conduct is exacerbated by Mrִ Goldsmith seeking to include that term as a condition of the settlement, when the parties had already made the agreement.
2. The email of 23 August 2017, in which Mr Goldsmith requested Mr Davies to withdraw, adds nothing to the finding.

1. For the above reasons, the Tribunal finds that the applicant has made out its case in each of Grounds 1, 2, 3 and 5 that Mr Goldsmith engaged in professional misconduct.
2. In Ground 4, the Tribunal finds that Mr Goldsmith engaged in unsatisfactory professional conduct.
3. Orders will be made to that effect and the matter listed for directions to arrange for submissions to be made as to penalty.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and GOLDSMITH [2022] WASAT 43 (S)

MEMBER : JUSTICE J ALLANSON, SUPPLEMENTARY PRESIDENT

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Vocational regulation - Legal practitioners - Findings of professional misconduct and unsatisfactory professional conduct - Transitional provisions - Penalty - Suspension - Costs

Interpretation Act 1984 (WA), s 37, s 37(1)(c), s 37(1)(d), s 37(1)(f)

Interpretation Act 1987 (NSW), s 30

Interpretation of Legislation Act 1984 (Vic), s 14(2)(e)

Legal Practice Act 2003 (WA)

Legal Practitioners Act 1893 (WA)

Legal Profession Act 2004 (NSW)

Legal Profession Act 2008 (WA), s 426(2), s 435(1), s 438(2), s 439, s 440, s 440(a), s 441, Pt 13

Legal Profession Uniform Law (WA), s 299, s 302(1), Sch 4, cl 26

Legal Profession Uniform Law Application Act 2014 (NSW), s 18A

Legal Profession Uniform Law Application Act 2014 (Vic), Sch 1

Legal Profession Uniform Law Application Act 2022 (WA), s 5, s 6(2), s 57, s 260, s 260(a), s 161, s 266(2), s 269, s 315, s 316, s 317(2), s 317(3), s 317(4), s 318, s 361, Pt 16, Div 2, Pt 16, Div 10

State Administrative Tribunal Act 2004 (WA), s 87, s 87(3)

1. The Tribunal recommends the practitioner be suspended from practice

for a period of 12 months in the States in which he is admitted.

2. The practitioner to pay the applicant's costs fixed at $105,755.

Brookvista Pty Ltd v Meloni [2009] WASCA 180

Council of Law Society of NSW v Griffin [2016] NSWCATOD 40

Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430

Felman v Law Institute of Victoria [1998] 4 VR 324

Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43

Legal Profession Complaints Committee v Love [2014] WASC 389

Merringtons Pty Ltd v Luxottica Retail Australia Pty Ltd [2006] VSC 525

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115

Victorian Legal Services Commissioner v Henderson (Legal Practice) [2016] VCAT 1280

Victorian Legal Services Commissioner v Henderson [2017] VSC 202

Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202

Young v Legal Profession Complaints Committee [2022] WASCA 52

1. Barrie Goldsmith is a legal practitioner. In October 2016, he engaged Stephen Davies SC to act as counsel in interlocutory proceedings in the Supreme Court of Western Australia. When Mr Davies SC sought to recover his fees, Mr Goldsmith did not pay them and responded in a manner which ultimately led to investigation by the Law Complaints Officer, and the referral of Mr Goldsmith's conduct to the Tribunal.
2. The applicant in the Tribunal was the Legal Profession Complaints Committee (the Committee), which alleged that Mr Goldsmith had committed professional misconduct on five grounds of complaint. After hearing, the Tribunal held[150] that Mr Goldsmith had engaged in professional misconduct by:
   1. failing to pay Mr Davies' fees;
   2. lodging a complaint with the Western Australian Bar Association without reasonable basis and solely in response to Mr Davies' complaint to the Committee and his commencement of Magistrates Court proceedings to recover his fees;
   3. filing a defence in the Magistrates Court proceedings that he knew contained false and misleading statements; and
   4. seeking the withdrawal of Mr Davies' complaint to the Committee at a pre-trial conference in the Magistrates Court.
3. The Tribunal also found that Mr Goldsmith's conduct in seeking to engage Mr Davies SC to appear in further proceedings, despite the ongoing dispute between them, was unsatisfactory professional conduct.
4. On 28 July 2022, the Tribunal made orders for the parties to file submissions on costs and penalty, with those matters to be determined on the documents.

Preliminary question - the operation of the Legal Profession Uniform Law

1. A preliminary issue has arisen due to the repeal of the Legal Profession Act 2008 (WA) (LP Act) and the enactment of the Legal Profession Uniform Law (WA) after the Tribunal had delivered its findings but before it had determined and made orders for penalty and costs.
2. On 1 July 2022, the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act) came into operation. By s 6(2) of the Application Act, the Legal Profession Uniform Law (WA) (Uniform Law) applies as a law of the State of Western Australia.
3. The original form of the Uniform Law is set out in Sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic). In applying the Uniform Law to Western Australia, the Application Act makes various amendments to that original version, including to Sch 4 - the Savings and Transitional Provisions. This is a matter returned to below.
4. The Application Act, by s 260(a), also repealed the LP Act, under which these proceedings were commenced and pursuant to which the Tribunal made its findings.
5. Immediately after that section, s 261 of the Application Act provides as follows:

Except where the contrary intention appears, this Part and Part 16 do not prejudice or affect the application of the Interpretation Act 1984 to and in relation to the repeal of the old Act ... under section 260.

1. Part 16 of the Application Act sets out a variety of transitional provisions which include, at Div 10, various matters concerning complaints and discipline under the LP Act, including various matters concerning the powers of the Committee and their investigations:

1. section 316 of the Application Act provides a person aggrieved with the right to apply to the Tribunal for a review of a decision of the Committee to make various orders under s 426(2) of the LP Act where such a decision was made before 1 July 2022 and where the person had a right to, but had not, applied for a review of that decision under s 435(1) of the LP Act; 2. section 317(2) of the Application Act provides that where, before 1 July 2022, a person who is aggrieved by a decision of the Committee made under s 426(2) of the LP Act has applied for a review of that decision to this Tribunal under s 435(1) of the LP Act, that section 'applies to the [Committee's] decision as if that section were not repealed' and s 317(3) and s 317(4) of the Application Act address the circumstances where the Tribunal does and does not (respectively) affirm the decision under review; and

1. section 318 of the Application Act provides a right of review for a person aggrieved by a decision of the Committee to dismiss a complaint under the LP Act where that person had a right under the old Act to seek review of the decision but had not done so prior to 1 July 2022.
2. In contrast, there is no provision in the Application Act for the powers of the Tribunal in relation to proceedings commenced in the Tribunal by the Committee, but not completed, prior to 1 July 2022.
3. Further, s 266(2) of the Application Act (contained within Div 2 of Pt 16) states that only particular clauses of Sch 4 of the Uniform Law (i.e. the original Savings and Transitional Provisions) apply as a law of Western Australia.
4. Of most relevance is cl 26 of Sch 4 of the Uniform Law (cl 26), which provides that complaints made under the original Victorian statutory regime 'but not disposed of before the commencement day' are to be dealt with 'in accordance with the provisions of the old legislation'. In addition to its application in Victoria, cl 26 also applies in New South Wales.[151] The reason for the apparently deliberate omission of cl 26 from the Legal Profession Uniform Law (WA) is unclear.[152]
5. But what follows is that, in our view, there is no 'contrary intention' in Pt 16 of the Application Act to oust the application of the Interpretation Act 1984 (WA) (Interpretation Act) to cases commenced in the Tribunal before 1 July 2022. In our view, therefore, the Interpretation Act applies.[153]
6. Section 37(1)(c), (d) and (f) of the Interpretation Act provide as follows:

Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;

(d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;

(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,

and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.

1. In Henderson[154] the Victorian Civil and Administrative Tribunal (VCAT) accepted submissions to the effect that the applicant - the Victorian equivalent of the Committee - had, by commencing an application in the VCAT under the previous legislation (alleging six charges of professional misconduct), accrued a 'substantive right' which s 14(2)(e) of the Interpretation of Legislation Act 1984 (Vic)[155] protected, despite the repeal of the previous legislation.[156]
2. In doing so, the Tribunal followed the decision of Felman,[157] which in turn followed the High Court's decision in Esber.[158] The Victorian Court of Appeal in Felman[159] described the relevant aspect of Esber as follows:

The appellant in that case had applied under compensation legislation to redeem his weekly payments in exchange for a lump sum. The application had been rejected so he applied to the Administrative Appeals Tribunal for a review of the decision. After the application had been made, but before the hearing, the compensation legislation had been repealed. A majority of the High Court held that the applicant had an accrued right within s. 8(c) of the Acts Interpretation Act 1901 (Cth), being a provision not materially different from s. 14(2) of the Interpretation of Legislation Act. Mason C.J., Deane, Toohey and Gaudron JJ. said at 440-1:

Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment" ... [citation omitted]. Nor was it a mere matter of procedure ... [citation omitted]; it was a substantive right ... Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent" ... [citation omitted]. This was such a right. It was a right in existence at the time the [Compensation (Commonwealth Government Employees) Act 1971 (Cth)] was repealed. That being so, and in the absence of a contrary intention, the right was protected by s. 8 ... and was not affected by the repeal[.]

The majority in Esber based its conclusion that the appellant had a right to have the delegate's decision reconsidered and determined by the tribunal on the fact that the appellant had lodged his application for review before the repeal.

1. Having accepted those submissions, the VCAT in Henderson went on to 'note' the provisions of cl 26 of Sch 4 to the Uniform Law but made no findings about it, or its impact on the application of the Victorian Interpretation Act.[160]
2. Following the VCAT's findings, the Victorian Legal Services Commissioner applied to the Victorian Supreme Court to have Mr Henderson's name removed from the roll of practitioners.[161] McDonald J, who heard the application, noted that the VCAT determined the matter under the Legal Profession Act 2004 (Vic) on 20 June 2016 despite that Act being repealed on 1 July 2015. He also noted, without indicating either approval or disapproval, that the VCAT 'was satisfied that it was appropriate for the application to be heard under the 2004 Act'.[162]
3. In Council of Law Society of NSW v Griffin[163] the Council of the Law Society of New South Wales filed proceedings in the New South Wales Administrative Tribunal against a practitioner on 4 March 2015. The proceedings were brought under the Legal Profession Act 2004 (NSW). On 1 July 2015, the 2004 Act was repealed by the Legal Profession Uniform Law Application Act 2014 (NSW).
4. The Tribunal dealt with the matter under the 2004 Act and made findings against the practitioner.
5. On appeal,[164] the NSW Court of Appeal held that the NSW Civil and Administrative Tribunal 'was correct in the present case to deal with the disciplinary application against [Mr Griffin] by reference to the 2004 Act and not the Uniform Law'.[165]
6. The Court referred to s 30 of the Interpretation Act 1987 (NSW) - in similar form to s 37 of the Interpretation Act - and said that, if those provisions applied, they protected the accrued rights in the proceedings instituted by the Council and the proceedings would continue to be governed by the 2004 Act.[166]
7. The Court further held, however, that cl 26 applied to a disciplinary application with respect to a complaint which had not been finalised by the Tribunal on the commencement day of the Uniform Law.[167]
8. In Mijatovic[168] the Court of Appeal was concerned with the repeal of the Legal Practitioners Act 1893 (WA) (1893 Act) by the Legal Practice Act 2003 (WA) (2003 Act). The court held that the practitioner had, by engaging in conduct that might be found to constitute professional misconduct, incurred a potential or inchoate liability under the LP Act which, pursuant to s 37(1)(d) of the Interpretation Act, survived the repeal of the 1893 Act_._
9. There are aspects of Mijatovic which limit its utility for analogy of analysis of the present case.
10. First, the 2003 Act created the concept of unsatisfactory conduct, a concept not known to the 1893 Act, and which raised questions as to the application of the principle against retrospectivity.
11. Secondly, the 2003 Act established a new disciplinary tribunal,[169] which raised questions as to which, if either, of the two tribunals the 2003 Act conferred jurisdiction on for the determination of conduct which occurred under the previous regime.
12. Nonetheless, the Court held that the term 'liability' in s 37(1)(d) was broad enough to include the 'potential or inchoate liability' of a practitioner who had engaged in conduct proscribed by the 1893 Act and that the terms 'investigation' and 'legal proceeding' in s 37(1)(f) would include an investigation and legal proceeding brought in relation to such (inchoate) liability. The question was, as the Court noted, 'whether the "contrary intention appears" in the 2003 Act so as to exclude the operation of s 37'.[170]
13. The Court also held that:

One thing is clear above all else. The legislature would not have intended to abolish potential liability of practitioners in respect of pre­2004 conduct. Thus, a contrary intention excluding s 37 from preserving liability under the 1893 Act would appear from the 2003 Act only if the conduct of practitioners before 2004 is liable to disciplinary proceedings and sanction under the 2003 Act, thereby rendering unnecessary any preservation of liability under the 1893 Act.[171]

1. In our opinion, and consistently with Mijatovic, the findings of professional misconduct and unsatisfactory professional conduct which we made against Mr Goldsmith prior to the repeal of the LP Act amounts to a liability which is preserved by s 37(1)(d) of the Interpretation Act. The Application Act expresses no contrary intention.
2. There is nothing in either the Application Act or the Uniform Law which suggests that conduct which occurred prior to 1 July 2022 which may have amounted to professional misconduct or unsatisfactory professional conduct, and which was the subject of referral by the Committee prior to that date should be addressed under the Uniform Act.
3. By way of contrast, s 315 of the Application Act provides that conduct which occurred pre-1 July 2022 which may have amounted to professional misconduct or unsatisfactory professional conduct, and which could have, but was not, the subject of complaint or investigation under Pt 13 of the LP Act, may be the subject of a complaint or investigation under the Uniform Law_._
4. We are therefore of the view that the LP Act has ongoing application to these proceedings, where both the conduct in question and the Committee's referral to the Tribunal about the conduct occurred before 1 July 2022.
5. Accordingly, the determination of penalty, costs and the respondent's application for compensation must be determined in accordance with the provisions of the LP Act.
6. Section 438(2) of the LP Act provides:

If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may -

(a) make and transmit a report on the finding to the Supreme Court (full bench); or

(b) make any one or more of the orders specified in sections 439, 440 and 441.

1. Section 440 of the LP Act provides for orders requiring official implementation in another jurisdiction.
2. While we are of the view that s 440 of the LP Act applies to these proceedings, we are unclear as to whether or not the order we propose to make requires implementation in another jurisdiction. We should hear the parties further on that question.
3. One final transitional matter must be addressed.
4. Section 57 of the Application Act establishes, as a committee of the Legal Practice Board, the 'Legal Services and Complaints Committee' (LSCC).
5. By s 269 of the Application Act it is confirmed that the LSCC 'is the same entity as, and a continuation of' the Committee.
6. There is no provision made, as far as we can see, for the continued use of the name 'Legal Profession Complaints Committee' on and from 1 July 2022; from that date the Committee has been known as the Legal Services and Complaints Committee.
7. Accordingly, in our view it is appropriate (and indeed, necessary) to make an order by which the applicant's name is amended to the Legal Services and Complaints Committee.
8. Nonetheless, we have referred to the applicant as the Committee (as shorthand for the Legal Profession Complaints Committee) in the preceding discussion because all references to it are in the context of matters that occurred prior to 1 July 2022. Equally, in the following discussion, we refer to the applicant as the Committee when we refer to its actions pre 1 July 2022 but we refer to the LSCC in the context of the submissions made as to penalty and costs as they were made after 1 July 2022.

The position of the parties as to penalty, costs and compensation

1. The LSCC submitted that, given the close factual relationship of the grounds, the Tribunal should consider a global penalty for the five matters of complaint.
2. It submitted that the dishonest evidence given by Mr Goldsmith at the hearing in the Tribunal can be relied upon to inform its determination of penalty as he was on notice of the Committee's intention to rely on such findings since at least January 2021. The LSCC also submitted that that dishonesty, as well as other aspects of his conduct of the hearing demonstrated the failure of Mr Goldsmith to appreciate the impropriety of his conduct.
3. The LSCC also referred to Mr Goldsmith's disciplinary history. At the time of the Tribunal hearing, Mr Goldsmith had described his record as unblemished.[172] He has, however, been the subject of disciplinary action in New South Wales as follows:
   1. In 1998, Mr Goldsmith was reprimanded for unsatisfactory professional conduct, between May 1995 and March 1996, by receiving and holding money in his general account before on-payment to a third party. There was no allegation of dishonesty.
   2. In November 2020, Mr Goldsmith was reprimanded for unsatisfactory professional conduct in failing in his duty to the court. The substance of the allegation was that, in 2014, Mr Goldsmith represented to the court that his client was ready to proceed to trial when he was aware she was not. The Professional Standards Committee found that Mr Goldsmith's conduct was discourteous to the court, likely to be prejudicial to the administration of justice, and to bring the profession into disrepute.
4. The LSCC did not submit that Mr Goldsmith's prior disciplinary history aggravated his conduct. Rather, it submitted that it precluded him from claiming the mitigating benefit of an unblemished record.
5. The LSCC submitted that the findings of the Tribunal as to Mr Goldsmith's dishonesty in relation to ground 3, on its own, are sufficient to show that Mr Goldsmith lacks the character and trustworthiness necessary to discharge his responsibilities as a legal practitioner. It submits that that conclusion is 'irresistible' when the other findings of the Tribunal are also considered. It submitted that the Tribunal should make an order under s 440(a) of the LP Act recommending that Mr Goldsmith's name be removed from the roll in the two States in which he is admitted to practice, being New South Wales and Victoria.

1. Mr Goldsmith lodged a statement on penalty, in which he said that he fully understood the seriousness of the findings against him, describing the finding on ground three as 'devastating' and stating that he has 'taken on board' each of the findings and 'also every criticism made against' him to ensure that he will not repeat them.[173] He said that the matter was an isolated incident. He repeated undertakings previously provided that, if conduct the subject of grounds 2 and 4 was found to be unacceptable, he would not again engage in such conduct.
2. Mr Goldsmith referred to his litigation work throughout the country, including in specialised areas of law, and the disadvantage that would be suffered by his clients should he not be permitted to continue practice.
3. Mr Goldsmith admitted the previous disciplinary findings, and that he had incorrectly stated that no adverse finding had been made against him and apologised for doing so.
4. Mr Goldsmith also filed submissions made on his behalf by counsel.
5. Mr Goldsmith submitted, through counsel, that the object of personal deterrence was met by the conduct of the hearing and the findings made against him. He further submitted that the published findings would send a clear message as to the seriousness with which the conduct was regarded, and that publication would meet the objects of general deterrence. A costs order would also have a deterrent effect.
6. Mr Goldsmith submitted that not all instances of deliberately misleading conduct would necessarily result in an order striking the practitioner's name from the roll.[174]
7. He submitted, in effect, that the conduct the subject of findings had occurred about five years ago and that there was no evidence that he had engaged in similar conduct since. He also disputed the Committee's submission that he lacked insight and remorse, relying on his expressions of shame in his statement referred to above and to the undertakings offered.
8. He also submitted that the finding that he had misled the court by the defence he filed in the Magistrates Court was mitigated by the circumstances that he filed a defence in his personal capacity, and not as a solicitor for a client; that he did not provide any sworn evidence in support of his defence; and that he, in effect, withdrew any reliance on the defence when he agreed to settle the matter. He submitted that the court was misled, if at all, for a short time.
9. Mr Goldsmith submitted that he is not to be punished for exercising his right to take the matter to a hearing and defending the disciplinary charges. He further submitted that his conduct did not affect the interests of any client, and mainly affected a more senior legal practitioner rather than a vulnerable client.
10. Finally, Mr Goldsmith referred to his personal circumstances, including his age, and to the disadvantage that would be suffered by his clients should his name be removed from the roll. He submitted that the protection of the public may be achieved, at least in part, by the Tribunal making it clear that certain conduct is not acceptable. The Tribunal can achieve, he said, any necessary degree of community protection by means of a sanction less than removal of his name from the roll.

1. Section 438(2) of the LP Act provides that the Tribunal may, if it is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, either make and transmit a report to the Full Bench of the Supreme Court or make any one or more of the orders specified in sections 439, 440 and 441.[175]
2. The principles to be applied in determining the appropriate disciplinary sanctions are well established and were set out by the Court of Appeal in Khosa v Legal Profession Complaints Committee:[176]

1. the purpose of a disciplinary proceeding against a legal practitioner is the protection of the public by the maintenance of proper standards within the profession rather than the punishment of the practitioner; 2. the protection of the public includes both general deterrence of other practitioners who may be tempted to engage in the conduct and personal deterrence;

1. where the conclusion is reached that the practitioner is presently unfit to practise and the choice is between suspension and striking off, the Tribunal must consider that the practitioner will again be fit to practise after the proposed suspension period comes to an end before a term of suspension can be ordered. This is because, when a period of suspension is concluded, the practitioner's name will be on the roll of practitioners and the practitioner will be able to resume practice;

1. suspension is a serious form of discipline which is usually imposed where a practitioner has been found to have engaged in an act of unprofessional conduct, but who, in the opinion of the Tribunal will be a fit and proper person to practise law after the suspension period is ended. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations reflecting, to a significant degree, upon the practitioner's fitness to practise; 2. striking off is likely to be the appropriate response when the circumstances of the conduct amounting to the current unfitness to practise demonstrate that the practitioner lacks the character and trustworthiness necessary to discharge the responsibility of legal practice; 3. a failure to appreciate the impropriety of the practitioner's conduct may support a finding that the practitioner is unfit to practise. The failure to appreciate the impropriety increases the risk of a recurrence of the improper conduct; and 4. the Tribunal is to determine the appropriate penalty, including fitness to practice, at the time of the hearing rather than at the time of the conduct.

1. The findings against Mr Goldsmith are undoubtedly serious.
2. The Tribunal takes into account that Mr Goldsmith has had a long career in the law. While he has been reprimanded twice, he has not previously been found to have behaved dishonestly, or to have engaged in conduct that warranted more than a reprimand.
3. Although those previous matters resulted in a reprimand only, the Tribunal is concerned that Mr Goldsmith referred to his good record on more than one occasion:
   1. In an affidavit made 2 November 2020 he said that his record was 'unblemished'. The decision of Professional Standards Committee of the Law Society of New South Wales is dated 26 November 2020. But the letter notifying Mr Goldsmith of the decision refers to correspondence in October 2020, including a letter sent to the parties on 8 October 2020 which attached the Professional Standards Committee's reasons for its preliminary view that Mr Goldsmith had engaged in unsatisfactory conduct. Mr Goldsmith must have been aware those matters were pending.
   2. Accepting that Mr Goldsmith may have forgotten the disciplinary findings in 1999, he was advised of them by email dated 2 February 2021, before this matter was heard. Mr Goldsmith did not correct his earlier statement regarding his unblemished record, but compounded it at an interlocutory hearing on 3 February 2021, when he referred to his 'wonderful record after some 40 years'.[177]
4. Those statements are not part of the complaint against Mr Goldsmith and we do not consider them in that way. But the lack of candour in his statements to the Tribunal diminishes the force of his arguments regarding his good record.
5. It is not, in our opinion, a mitigating factor that the misleading of the court, the subject of ground 3, was in Mr Goldsmith's personal capacity and not acting as a solicitor for a client. The most serious element of the findings regarding ground 3 is that it suggests a lack of integrity and that Mr Goldsmith cannot be trusted to deal fairly within the system in which he practises.[178] The reflection on his integrity and trustworthiness is not lessened by the fact that his conduct was as a litigant.
6. The Tribunal accepts that Mr Goldsmith did not provide sworn evidence and did not persist in the defence in the Magistrates Court after the pre-trial conference. But he relied on the statement of defence between 24 May 2017 when it was filed, and the pre-trial conference on 21 August 2017. Mr Goldsmith, in fact, relied on the substance of what he had pleaded in his defence in the proceedings in this Tribunal.
7. The Tribunal also does not accept that it is in any way mitigating that Mr Goldsmith's conduct did not affect the interests of a vulnerable client but, rather, affected a senior legal practitioner. That distinction has no relevance to the integrity of his conduct. And it is wrong to seek to diminish the importance of allegations which reflected on the personal and professional reputation of another practitioner.
8. There is no question of Mr Goldsmith being punished for taking this matter to a hearing. The LSCC's position is that Mr Goldsmith's conduct of his case does not show any change in circumstances from the time of the misconduct that might affect the assessment of fitness in his favour. The LSCC also submits that Mr Goldsmith cannot receive the mitigating benefit of cooperation. Those submissions are consistent with principle and should be accepted.
9. It is also necessary to comment on whether Mr Goldsmith has shown appreciation of the impropriety of his conduct. There are several statements in his Statement on Penalty in which Mr Goldsmith, in our view, expresses such appreciation and, also, remorse for it.
10. Most significantly, Mr Goldsmith says he is 'devastated by these findings because [he] appreciate[s] the gravity of a legal practitioner acting dishonestly in any form at all'.[179] He says that he does not 'intend, if [he is] allowed to continue practising, to ever engage in a dispute with a Barrister over fees'[180] and seeks to 'assure the Tribunal' that he has ''taken on board'' not only every finding made against [him] but also every criticism made against [him] to ensure that, if [he is] allowed to continue practising, [he] will never repeat them'.[181]
11. Implicit in these statements is, in our view, a recognition of wrongdoing and remorse which, together with his age and record, is sufficient to avoid the consequence which those statements acknowledge as a real possibility - a recommendation to have his name removed from the roll of practitioners.
12. Such statements appear to us to be in contrast with Mr Goldsmith's previous insistence, up to and including the hearing, that he had reached an agreement with senior counsel as to the payment of counsel's fees. The Tribunal found that no such agreement was reached, and that Mr Goldsmith knew that was the case.
13. Mr Goldsmith's Statement on Penalty says that he persisted in his position because it was his honestly held belief. On its own that statement might be said to be at odds with findings of insight and remorse and the LSCC's submissions in reply contend that Mr Goldsmith is seeking to both 'simultaneously say he accepts the Tribunal's findings ... and assert that they should not have been made'.[182]
14. But Mr Goldsmith's statement is immediately followed by a sentence in which he accepts that the Tribunal has rejected his evidence and accepts that the finding that he was dishonest is a 'very serious finding, which [he] take[s] extremely seriously'. The statement must also be read in the context of the Statement as a whole, some pertinent aspects of which have been quoted above. Read as a whole, we are satisfied that the Statement on Penalty expresses Mr Goldsmith's insight and remorse.
15. Having regard to all of the above matters, the circumstances of the present matter are too serious for a reprimand or a fine. In our opinion, both personal and general deterrence, and the protection of the public, require a stronger sanction.
16. However, having regard to the practitioner's age, record, insight and remorse, we are not satisfied that Mr Goldsmith is permanently or indefinitely unfit to practice.
17. Mr Goldsmith is at the end of a long career. He has practised for many years without a previous finding of dishonesty. Equally, the conduct the subject of these proceedings occurred several years ago and, while he has maintained a position through to the hearing which we found to be dishonest, no other complaint has been made against him in the meantime.
18. Also significant is the insight and remorse contained in Mr Goldsmith's Statement on Penalty which is described in some detail above.
19. That Statement contains passages in which Mr Goldsmith acknowledges, correctly, that the findings made may be sufficient for the Tribunal to recommend to the Full Court that his name be removed from the roll of practitioners.
20. Such an outcome has been avoided. We are satisfied that, at the termination of a period of suspension, he will be fit to resume practice and, accordingly, a period of suspension is sufficient to meet the seriousness of the conduct.
21. The appropriate penalty, in our opinion, is suspension for a period of twelve months, as a global penalty on all grounds. As foreshadowed in paragraph 38 above, we will hear from the parties as to the appropriate nature of the orders necessary to give effect to that finding.

1. The applicant seeks an order that the practitioner pay the applicant's costs of the proceeding.
2. The award of costs is in the discretion of the Tribunal. The starting point in the application for costs is that, unless otherwise ordered, parties bear their own costs.[183]
3. Where a regulatory body is successful in bringing a complaint of misconduct which justifies disciplinary action by the Tribunal, however, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body.[184]
4. This is an appropriate case to make an award of costs. Mr Goldsmith does not argue otherwise. Nor does he question the rates at which senior counsel and junior counsel for the Committee charged for the work they performed.
5. He does, however, dispute the extent to which he should be ordered to pay the applicant's costs. In effect, therefore, there is a dispute between the parties as to the quantum of any order of costs.
6. Mr Goldsmith raises several matters in that regard which are attended to in some detail below. We have taken such an approach in order to allow us to fix the costs payable.
7. The purpose of fixing costs is to avoid expense and delay. In fixing costs, a court or tribunal does not subject the costs to the detailed scrutiny often applied in taxation of costs, but applies a 'broader brush' than would be applied on taxation. The power to award a fixed sum should only be exercised where the Tribunal considers it can determine the amount of the costs fairly and reasonably with an assessment process. [185]
8. The LSCC's initial submissions on costs[186] sought an order for costs fixed in the figure of $117,904.60 comprising:

1. Senior Counsel's fees of $99,930.60 (being less than the $123,646.60 actually invoiced); 2. Junior counsel's fees of $17,424.00 (being less than the $32,452.20 actually invoiced); and

1. The filing fee of $550.
2. The first matter relied upon by Mr Goldsmith was that there had been a calculation error and that the fees of Senior Counsel claimed actually added up to $95,079.60.[187]
3. Secondly, Mr Goldsmith submitted that the LSCC was not entitled to recover from him as costs that part of counsel's fees constituting GST.[188]
4. In its Submissions in reply on penalty and costs, the LSCC accepted both submissions as correct and therefore the correct figure claimed in relation to Mr Yovich SC is $86,436[189] and, in relation to Ms Coci, $15,840.
5. Thirdly, Mr Goldsmith resisted paying any of Ms Coci's fees.
6. As noted above, Ms Coci invoiced the Committee a total of $32,452.20 of which only $17,424 was claimed (prior to the correction for GST). The 'gap' was the time taken by her engaging with Mr Davies SC and drafting his witness statement.
7. Mr Goldsmith's complaint as to the work done by Ms Coci for which the LSCC now seeks recompense (that is work other than in relation to Mr Davies' statement) is that, effectively, it was not necessary for junior counsel to be briefed and that Mr Merrick (a senior lawyer employed by the Committee at the time) could have done the work instead.
8. There is more than one reason to reject that submission but the most powerful is that Ms Coci was engaged almost immediately after Mr Goldsmith had made a complaint to the Committee (later dismissed as unreasonable) about Mr Merrick's conduct in which he challenged Mr Merrick's honesty and integrity.
9. We agree with the LSCC that, in such circumstances, it is unreasonable for Mr Goldsmith to contend that Mr Merrick could have done the work rather than Ms Coci. In our view the decision to brief the work to external counsel was an appropriate response to Mr Goldsmith's complaint.
10. There is no other challenge to the sums claimed in respect of Ms Coci's work and we find them reasonable in any event.
11. Fourthly, Mr Goldsmith resisted paying any of Mr Yovich's fees incurred in dealing with Ms Coci.[190] Those costs include Mr Yovich's time spent working with Ms Coci in both her preparation of the witness statements of Mr Cook and Mr Davies SC as well as in relation to the Reply, which Ms Coci worked on.
12. We accept the LSCC's submission that it is reasonable for senior counsel to communicate with and review and settle the work of junior counsel. Having accepted that it was appropriate for it to recover the Committee's reasonable costs of briefing Ms Coci, we also find that it is appropriate for it to recover its reasonable costs of Mr Yovich SC in his dealings with Ms Coci.
13. Further, we note that the LSCC only seeks costs in relation to some of the work done by Mr Yovich SC in relation to the witness statement of Mr Davies SC - five of the approximately twelve hours charged in his Invoice 00515 of 5 October 2020 and all of the 1 hour charged in invoice 00518 of 23 October 2020.[191] Six hours is still a large amount of time spent by senior counsel in relation to a single witness statement where it has been drafted by competent junior counsel. Nonetheless, we don't think it is so unreasonable as to warrant a discount.
14. Mr Goldsmith does not otherwise complain that the time spent by Mr Yovich SC in his dealings with Ms Coci was unreasonable and, in fact, accepted that, had she not been engaged, Mr Yovich SC would have incurred additional costs of an unknown quantum.[192]
15. For these reasons we reject the submission that Mr Goldsmith should not be liable to the LSCC for Mr Yovich's fees incurred in dealing with Ms Coci.
16. Fifthly, Mr Goldsmith submits that Mr Yovich's invoices disclose that some of the work for which the Committee now seeks recompense was done by Mr Yovich SC in relation to matters 'that do not form part of the charges against him', including work done in addressing Mr Goldsmith's complaints against Mr Davies SC and the associated judicial review application and work described as 'other matters' in Mr Yovich's invoices.[193]
17. Mr Goldsmith's complaints in this regard are based on itemized invoices which were provided to him by the Committee under cover of an email dated 22 July 2022. That email explained that it attached 'itemised and reissued' invoices.[194]
18. Invoice 00515 was originally issued, without itemisation, on 5 October 2020. It summarises Mr Yovich's fees as follows:

Work on particulars of interest ground, preparing for and attending Directions Hearing on 1.9.20, correspondence with Committee, work on witness statements (26.6 but say 24 hours at $490/hour + GST)

Preparing for and attending Directions hearing on 2.10.20 (2.5 hours at $490/hour + GST)

1. Reissued on 21 July 2022, Invoice 00515 summarises Mr Yovich's fees as follows:

Work on particulars of interest ground, preparing for and attending Directions Hearing on 1.9.20, correspondence with Committee, work on witness statements (26.6 but say 24 hours at $490/hour + GST)

Consideration of matters connected with Mr Goldsmith's complaints against Mr Davies (1.7 but say 1.5 hours at $490/hour + GST)

Preparing for and attending Directions hearing on 2.10.20 (2.5 hours at $490/hour + GST)

1. It is not clear why Mr Yovich SC included the work related to Mr Goldsmith's complaints against Mr Davies SC in the reissued invoice. However, what appears to be the case is that the disputed costs were not included in the original invoice and were therefore not part of the LSCC's original claim for costs.
2. It is also said that other small amounts the subject of challenge are 'subsumed in the 2.6 hours of work not claimed as part of the 'but say' aspect of the invoice.
3. The 'other matters' referred to by Mr Goldsmith appear to be time spent by Mr Yovich SC on 20 August 2020 (0.4 hours) and 7 October 2020 (0.2 hours). In addition, Mr Goldsmith objects to time spent by Mr Yovich SC in relation to potential evidence from the Magistrates' Court registrar who oversaw the conference following which Mr Goldsmith settled his dispute with Mr Davies SC. Each of the time entries is for 0.1 hour. Work in respect of potential witnesses may still be included in the costs of preparation notwithstanding the decision is (later) made that the witness is not required.
4. Sixthly, Mr Goldsmith submits that he should not have to pay the LSCC's costs in relation to four specified interlocutory hearings - on 23 October 2020, 6 November 2020, 9 December 2020, and 3 February 2021 - at which costs were reserved.
5. The directions hearing on 23 October 2020 was in connection with an application by Mr Goldsmith for discovery.
6. The Tribunal made directions and also heard and determined an application to extend the time for the Committee to file its statements of evidence. Mr Goldsmith sought a guillotine order, preventing the applicant from relying on any witness statements served after 30 October 2020. The Deputy President declined to make that order. Orders were made extending the time for the filing of witness statements, including the statement of Mr Goldsmith. Mr Goldsmith submits that each party should be ordered to pay its own costs of and incidental to that hearing.
7. In the course of the hearing, the Deputy President said:

This directions hearing was called by me and there was a need to adjust the programming orders. No orders have been made in relation to anything else. The programming orders are part and parcel of the proceedings and it seems to me that the costs of the directions hearing today should be costs in the cause. Costs in the proceedings.[195]

1. Mr Goldsmith pressed for an order that each party bear its own costs. Each party then, however, agreed to the order for costs to be reserved. The Deputy President's preliminary opinion was, in our opinion, correct. The costs of that hearing should be the LSCC's as the successful party.
2. The hearings on 6 November and 9 December 2020 were both on the application of Mr Goldsmith.
3. On 6 November 2020, Mr Goldsmith sought orders that the proceedings be dismissed or struck out for the failure by the Committee to file and serve its witness statements and an indexed and paginated bundle of the documents on which it proposed to rely.
4. The Deputy President made an order extending time for the filing of the Committee's primary witness statement (that of Mr Davies SC) to 20 November 2020, with an order that otherwise grounds 1 and 3 of the application be struck out for want of prosecution. The Deputy President noted that the hearing had been listed at the Tribunal's instance to address programming of the hearing. His Honour further noted, however, that the Committee was in default and required the extension of time.
5. In our opinion, the proper exercise of the Tribunal's discretion would be to make no order as to the costs of the hearing on 6 November 2020.
6. While Mr Goldsmith did not then obtain an order that the proceedings be struck out, the Committee was then in default of orders. The Deputy President, appropriately, made a springing order in relation to the filing of witness statements - although in terms more limited than that sought. In our view it would not be appropriate for Mr Goldsmith to bear the costs of that application.
7. The hearing on 9 December 2020 was on Mr Goldsmith's complaint that the witness statements served on him contained a lot of material which, Mr Goldsmith believed, the Committee did not intend to rely on. He complained also about the bundle of documents, and in particular the way in which it was indexed and ordered. He sought orders that the proceedings be dismissed or struck out or alternatively, grounds 1 and 3 of the application be struck out.
8. The Deputy President gave detailed reasons for the orders that he made. In substance, his Honour did not accept that the Committee had failed to comply with an order or direction of the Tribunal.[196] His Honour was also not satisfied that Mr Goldsmith had been occasioned any unnecessary disadvantage in the conduct of the proceedings generally or in the manner of compliance with the particular orders.[197]
9. In our view it is appropriate for Mr Goldsmith to pay the LSCC's costs for this hearing because such costs are part of the expense which the Committee incurred by reason of the proceedings.
10. The hearing of 3 February 2021 was on Mr Goldsmith's application to vacate the trial dates, then set for 15 to 18 February 2021, due to border closures. The Committee had advised the Tribunal that it was available for alternative hearing dates in April 2021 and would consent to an adjournment to those dates. Those dates were not, however, available to the Tribunal.[198]
11. The substantial question was whether the hearing needed to be adjourned to enable Mr Goldsmith to attend in person. Mr Goldsmith insisted on being present for the hearing and opposed any orders for the hearing to be by video. The Deputy President decided, on balance, that it was in the interests of justice to vacate the hearing date with the hearing relisted to take place in late July or August 2021 on dates convenient to the parties. Orders were made to that effect.
12. Notwithstanding that Mr Goldsmith 'succeeded' in persuading the Deputy President to vacate the hearing dates, we are of the view that it is appropriate for Mr Goldsmith to pay the costs of this hearing, again on the basis that the costs of the hearing were part of the expense which the Committee incurred by reason of the proceedings.
13. Finally, Mr Goldsmith claims that certain amounts invoiced by Mr Yovich SC are either 'unnecessary' (in that the task did not require senior counsel) or 'excessive' (in that he says too much time was spent on the task). There is some strength to those complaints and, while the sums are small in the scheme of the total claim (together, the total amount of time spent on the items in question is 1.6 hours), we would reduce the amount claimed by an hour - $490.
14. It is significant that Mr Goldsmith otherwise does not complain that the costs incurred by Mr Yovich SC are unreasonable or excessive.
15. Accordingly, we are of the view that, save for the costs of the hearing of 6 November 2020 and the sum of $490 (being that described immediately above), Mr Goldsmith should pay the LSCC its costs as adjusted for the calculation error and the omission of the GST component.
16. By our calculation, that sum is $100,806 being $102,276 (being the sum of $86,436 - Mr Yovich SC and $15,840 -Ms Cocci) minus $1,470 (being two hours incurred by Mr Yovich SC on 23 October 2020 in preparation for the directions hearing on 6 November 2020 and a further hour for 'unnecessary' and 'excessive' work).
17. Finally, the LSCC also seeks its costs ($4,949) in relation to Mr Yovich's work in preparing submissions in reply as to penalty and costs. The LSCC's submissions in reply were helpful in our understanding of several issues and we are minded to allow the claim. That brings the total of the costs to be paid by Mr Goldsmith to the LSCC to $105,755.

1. Section 87(3) of the SAT Act provides, as part of the provisions regarding costs in a proceeding of the Tribunal:

The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.

1. In his Submissions on Costs Mr Goldsmith included a claim for an order, pursuant to s 87(3), that the LSCC pay him an amount to compensate him for the loss and inconvenience he suffered, resulting from the four interlocutory hearings on 23 October 2020, 6 November 2020, 9 December 2020, and 3 February 2021.
2. The general rule is that a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation. That general rule is no longer subject to an exception where the litigant happens to be a legal practitioner.
3. Mr Goldsmith does not directly claim legal costs but makes his claim as one for compensation.
4. Mr Goldsmith submits that he spent a total of 25.7 hours in connection with those applications and hearings. He claims compensation for that loss and inconvenience at a rate of $490 an hour; a rate he says is below his charge out rate at the time, and a fair estimate of the amount he could have earned but for the need to prepare for and attend those applications and hearings.
5. The award of costs is in the discretion of the Tribunal. The general rule in litigation that a court will generally order that a successful party recover their costs. Having regard to s 87 of the SAT Act, that general rule cannot guide the exercise of the Tribunal's discretion. Even where that rule applies, it is subject to exceptions, including where the conduct of a party has resulted in costs being unnecessarily or unreasonably incurred.
6. As noted above, on each occasion, costs were reserved and we have determined that, but for the hearing of 6 November 2020, Mr Goldsmith should pay the Committee's costs.
7. On the basis of that finding, it is not appropriate, in our opinion, that an order for compensation be made in favour of Mr Goldsmith for what are, in substance, his costs incidental to the hearings.
8. For the above reasons, we make the following orders.

1. The name of the applicant is amended to the Legal Services and Complaints Committee.
2. The respondent practitioner is to pay the applicant the sum of $105,755 within 30 days or such longer period as may be agreed between the parties.
3. The matter is listed for directions on 6 December 2022 to timetable the matter for submissions addressing the matter raised at paragraphs [30] and [82] of these Reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[3] See also Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228 at [12].

[4] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw).

[5] State Administrative Tribunal Act 2004 (WA), s 32.

[7] Palmer v Dolman [2005] NSWCA 361 at [41].

[8] See Aikman v The Owners of Strata Plan 48817 - 16 Dolphin Drive Mandurah [2016] WASC 380 (Reasons) at [19].

[10] Witness statement of Stephen Michael Davies dated 20 November 2020, Attachment SMD 1 (SMD 1), pages 36-38. We note that the parties agreed in the statement of material facts and the response that the application was made before 13 October 2016. The discrepancy does not appear to be material and it is not necessary to resolve it.

[15] Applicant's Book of Documents, page 156.

[16] All of the emails sent by Mr Goldsmith on 29 October 2016 were received by Mr Davies in the morning (WST) of that day.

[17] Mr Goldsmith was in Sydney. The time difference between Perth and Sydney was then 3 hours. In these reasons, where it is necessary to refer to the time of an email, we will refer to the time it was sent or received in Perth.

[18] ts 51­52, 4 March 2022; SMD 1, page 3.

[19] ts 53, 4 March 2022; SMD 1, page 6.

[21] Substituted Response to Application filed on 7 February 2020, filed pursuant to Order made on 16 June 2020, paras 63-64.

[31] ts 176, 8 March 2022. See also ts 17­19, 10 March 2022.

[35] SMD 1, pages 458-462. From the comments of Pritchard J in her later judgment, I infer that there had not yet been discovery in the action.

[43] SMD 1, pages 525-528, 528-529, 531 and 538-540.

[44] SMD 1, page 551. The Act has since been substantially amended.

[49] Applicant's Book of Documents, pages 285-322.

[56] Book of Documents, page 130. Although expressed as an estimate, it is apparent that Mr Davies was recording time spent.

[63] Strata Titles Act 1985 (WA), s 43.

[81] Applicant's Book of Documents, page 110.

[82] Applicant's Book of Documents, page 109.

[83] Applicant's Book of Documents, pages 140­141.

[85] Respondent's Book of Documents, page 46.

[87] Applicant's Book of Documents, page 155.

[88] Applicant's Book of Documents, page 158.

[89] Applicant's Book of Documents, page 149.

[90] Applicant's Book of Documents, page 148.

[91] Applicant's Book of Documents, pages 153-154.

[92] Respondent's Book of Documents, pages 86-89.

[94] Applicant's Book of Documents, page 203.

[95] Applicant's Book of Documents, page 203.

[98] Witness statement of Jonathon Peter Cook dated 22 September 2020 (Cook witness statement), para 21.

[100] See, for example, Mr Goldsmith's cross­examination of Mr Cook, ts 33­36, 4 March 2022.

[101] Cook witness statement, para 40; Applicant's Book of Documents, page 193.

[105] Applicant's Book of Documents, page 158.

[106] Mr Goldsmith was then referring to counsel briefed in the defamation proceedings.

[119] Respondent's Bundle, pages 156­157.

[120] Respondent's final submissions, para 45

[122] Applicant's Book of Documents, page 157.

[123] Witness statement of Stephen Michael Davies dated 20 November 2020, Annexure SMD 2.

[124] Applicant's Book of Documents, page 116.

[130] See Legal Profession Complaints Committee v In de Braekt [2011] WASAT 1; (2011) 76 SR (WA) 336, 365 at [107] & 371 at [140].

[131] Applicant's Book of Documents, page 203.

[132] See Kyle at [12]-[14], [23] and [66]-[67].

[133] Applicant's Further and Better Particulars of Paragraph 25(e)(ii) of the Applicant's Reply Dated 21 August 2020 Filed Pursuant to Order 3 of Orders Made 1 September 2020, filed 11 September 2020.

[134] Applicant's Book of Documents, pages 170-172.

[135] Witness Statement of Barrie Goldsmith, dated 11 January 2021 (Goldsmith witness statement) at [58].

[137] Applicant's Book of Documents, pages 203-206.

[138] Cook witness statement, para 30; Goldsmith witness statement, para 60.

[139] Goldsmith witness statement, para 60.

[140] Applicant's Book of Documents, page 66.

[141] Cook witness statement, para 30.

[143] Cook witness statement, para 25.

[146] Goldsmith witness statement, para 60.

[147] Respondent's written final submissions, para 105.

[148] Applicant's Book of Documents, page 193.

[149] Legal Profession Complaints Committee and Oud [2018] WASAT 119, [234]-[235]; Legal Profession Complaints Committee and Fidock [2011] WASAT 78.

[150] Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43.

[151] Legal Profession Uniform Law Application Act 2014 (NSW), s 18A.

[152] We note that the Explanatory Memorandum to the Legal Profession Uniform Law Application Bill 2020 (WA) does not provide any assistance in this regard.

[153] Note that s 5 of the Application Act provides that the Interpretation Act applies to the Application Act but not to the Uniform Law. Section 7 of the Uniform Law provides that it is the Interpretation of Legislation Act 1984 (Vic) which applies to the interpretation of the Uniform Act. Given the similarity of the provisions of the two statutes it is unlikely that anything of substance will turn on this.

[154] Victorian Legal Services Commissioner v Henderson (Legal Practice) [2016] VCAT 1280 (Henderson).

[155] The section is, relevantly, expressed in similar terms to s 37(c) of the Interpretation Act.

[157] Felman v Law Institute of Victoria [1998] 4 VR 324 (Felman), 332-336.

[158] Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 440­441.

[161] Victorian Legal Services Commissioner v Henderson [2017] VSC 202.

[162] Victorian Legal Services Commissioner v Henderson [2017] VSC 202 at [10].

[163] Council of Law Society of NSW v Griffin [2016] NSWCATOD 40.

[164] Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 (Griffin).

[166] Griffin at [59] - [60].

[168] Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 (Mijatovic).

[169] The jurisdiction of the new Tribunal was later, in 2005, assumed by the Tribunal.

[172] Affidavit of Barrie Goldsmith, sworn 2 November 2020, para 7; see also ts 4, 3 February 2021 (Directions Hearing).

[173] Statement of Barrie Goldsmith on Penalty dated 1 August 2022 (Statement on Penalty), para 5.

[174] Legal Profession Complaints Committee v Love [2014] WASC 389 at [18]; Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [60].

[175] The corresponding provision of the Uniform Law is found in s 302(1), which provides:

If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following[.]

[176] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [187]- [195].

[178] See Legal Profession Complaints Committee v Love [2014] WASC 389, at [18].

[182] Applicant's submissions in reply on penalty and costs dated 8 August 2022 (Applicant's Reply Submissions), para 16.

[183] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 87.

[184] Young v Legal Profession Complaints Committee [2022] WASCA 52 [261].

[185] Brookvista Pty Ltd v Meloni [2009] WASCA 180 [26] and [27].

[186] Applicant's submissions on penalty and costs dated 18 July 2022.

[187] Respondent's Submissions on Costs dated 1 August 2022.

[188] Merringtons Pty Ltd v Luxottica Retail Australia Pty Ltd [2006] VSC 525.

[189] Applicant's Reply Submissions, paras 31 and 51.

[190] Respondent's Submissions on Costs, paras 3-5.

[191] Applicant's Reply Submissions, Schedule, final paragraph re: Invoice No 1.

[192] Respondent's Submissions on Costs, Annexure B, para 5.

[193] Respondent's Submissions on Costs, para 8.

[194] See also, Respondent's Submissions on Costs, Annexure B, para 6.