(a) "Check in 1 [JD]" is a version of JD's will. It is not dissimilar to the final version of JD's will, but there are some changes in some renumbering and minor changes to order, and a clarification is relation to a child of the marriage at paragraph 6. > > (b) "Check in 2 [GM]" appears to be the final version of GM's will. > > (c) "Check in 1 [JD]" appears to be a standard precedent into which data can be merged. > > (d) "Check in 2 [JD]" is a modified version of the standard template that appears to be a draft joint will for both JD and GM. The Clients' names appear in paragraph 1, and some basic information is filled out. > > (e) "Check in 3 [JD]" is the will of JD with some information inserted into the template. > > (f) "Check in [JD] 4" is a draft will of JD that is largely consistent with JD's instructions but contains some typographical errors. > > (g) "Check in [JD] 5" is as 4, but some typographical errors have been corrected. > > (h) "Check in [JD] 6" is largely the same as five, but removes an unnecessary clause in the dipositive process, and is the final unsigned version.

4. We do not think that the draft wills add anything substantial to the matter. Clearly, changes were made, a fact that was not dispute. Not all the changes were typographical. Some suggest a degree of discussion or refinement. However, even a close and generous examination of the draft wills does not suggest unreasonably difficult or constantly changing instructions. Consideration of the draft wills do not lead the Appeal Tribunal to conclude that the Original Tribunal made an error of fact or law in its conclusions that the Practitioner took excessive time or that the wills were unreasonably complex. The Practitioner has not explained why they should.
5. As we have noted above, in relation to the failure to advise, if the Practitioner was satisfied that the clients had the advantage of financial advice, and required no legal advice, it would have been prudent to address that in the terms of engagement. Any advice given should also have properly been noted.

Alleged error in respect of Original Decision Paragraph 55 - whether amount charged by the Practitioner was excessive

1. We understand the Practitioner to be arguing that the Original Tribunal's findings of fact in relation to both the time spent on the wills and the amount invoiced were not based on evidence and were not accurate. Whether there was evidence to support a particular finding of fact is a question of law.[52] Having reviewed the evidence, we are satisfied that there was a factual basis for the finding.
2. The first ground outlined in paragraph 56 of the appellant's submissions is hard to understand. The submission is that "the tribunal erred in finding that the practitioner charged the clients for the time spent with her while approximately eight drafts were produced." The sentences that follow this submission appear to contend that the Tribunal did not take account of work that was undertaken when the Clients were not present, and work the Practitioner undertook and did not charge for, represented by the $1,000 discount. It may well be that additional work was undertaken when the Clients weren't present, but the invoice[53] clearly establishes that the Practitioner spent some 67 units of work (well over 6.5 hours) with the clients on 1 March and 2 March 2018. There could be no doubt of the accuracy of the Original Tribunal's finding that the Practitioner "charged the clients for the time spent with her while the draft wills were produced".
3. In relation to the total professional fees incurred, the invoices[54] clearly show that the Practitioner charged the clients professional fees of $3,760 (i.e. total, less disbursements and GST). This is consistent with paragraph 2 of the Practitioner's affidavit. We are also satisfied that the Tribunal made no error in relation to the finding that the Practitioner charged both the fixed $800 and the time costed amount. The Practitioner charged the clients an $800 fixed fee in March 2018. It was finally refunded to the clients on 19 October 2019. The Practitioner says that the charge was in error, and that cancelled, internally, on 2 March 2018, and she did not realise that it has not been refunded. The documents appear to confirm the cancellation.[55] However, this does not alter the correctness of the Original Tribunal's finding that the Practitioner, as a matter of fact, only refunded the $880 on 19 October 2019[56], a fact also acknowledged by the Practitioner in paragraph 31 of her affidavit. No error, nor lack of evidence, is identified.
4. The factual conclusions drawn by the Original Tribunal in relation to the fees are justified by the evidence. They are also, in our view, correct having regard to that evidence.
5. The Practitioner further submits that the finding that the Practitioner did not advise the clients about the binding death nomination was contrary to evidence, and in any case did not form part of the charges and should not have considered. The latter point may be dealt with quickly. The allegation that the Practitioner failed to provide advice about a binding death benefit nomination was a ground for charge one - particulars 46(c)(ii) of the application. The only point made by the Original Tribunal in paragraph 55 was to note that the finding that the time spent was excessive was "strengthened" by the fact the Practitioner did not offer advice on the binding nomination and taxation, but rather the time reflected largely the drafting. The appellant has not demonstrated that the factual finding is clearly wrong.
6. In summary, the real difficulty identified by the Original Tribunal was that the method of drafting the wills was time consuming, inefficient, and resulted in additional costs being incurred. We agree. It was simply not an appropriate means of preparing a will costed on an hourly rate, and the Practitioner has not sought to put any argument before this Appeal Tribunal justifying the method used.

Alleged error in respect of Original Decision Paragraph 61 - whether the wills were complex

1. The Original Tribunal acknowledged that the wills were "potentially more complex than a couple with more common assets who had children together".[57] We agree. The wills were obviously more complex than those for parties with less complicated personal and family histories.
2. The Original Tribunal accepted the evidence of the clients that the Practitioner said words to the effect "I will charge a flat rate of $400 for simple wills ... If the wills are complex, I will charge more." The Practitioner appears to suggest, in paragraph 63 of her submissions, that these statements are inconsistent. She also submits, in paragraph 64 of her submissions, that the Original Tribunal concluded that the wills were not simple wills and therefore could not have concluded that that they were charged at a flat rate.
3. Both assertions are plainly wrong. The Original Tribunal acknowledged that the wills were potentially complex. It found that the Practitioner explained her pricing regime for simple and complex wills. The pricing structure was not found to be unreasonable, and nor was it unreasonable for the Practitioner to charge on a time costed basis. Rather, the Original Tribunal's real concern was that the Practitioner did not explain what the fees meant in practice and also did not advice the clients at any time that their wills would fall into the complex category.[58]
4. There is no error as asserted by the Practitioner.

Alleged error in respect of Original Decision Paragraph 63 - whether the term "time costed at $480" was confusing

1. We agree with the Original Tribunal that the use of the term "time costed at $480" was confusing. We also agree with the respondent that real failure was the Practitioner was her failure to clearly advise the Clients that their wills were complex and would be time costed. That the wills were complex this should have been evident at the first consultation, or at the very least after receiving JD's written instructions. The Practitioner should have been clear, in the documents and in any advice provided, that their wills were complex, that the drafting was being time costed, and what that meant.
2. There is no error in this finding.

Alleged error in respect of Original Decision Paragraphs 64 and 65 - whether earlier breach by the Practitioner of section 269 LPA was irrelevant

1. The Tribunal did not err in finding that the Practitioner has been subject to a previous complaint alleging a breach of section 269 of the LPA. That she was is a matter of public record.
2. The Practitioner alleges that consideration of this matter was a breach of section 91 of the Evidence Act 2011. This section provides:

Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in the proceeding.

(2) Evidence that, under this part, is not admissible to prove the existence of a fact may not be used to prove the fact even if it is relevant for another purpose.

1. We do not accept this argument. The previous decision was not used to prove the existence of a fact in issue the case, and as such there was not breach of section 91 of the Evidence Act 2011.
2. We do agree with the respondent that consideration of the previous decision does raise issues of the potential breach of natural justice, in that the Original Tribunal concluded that because of the previous proceeding, the Practitioner should have been aware of her obligations. Ideally, the Original Tribunal should have raised this with the appellant so that she could comment on its correctness. However, not every failure of procedural fairness will entitle a party to an appellate remedy.[59] At most, the Original Tribunal drew upon the previous decision to conclude that the Practitioner should have had knowledge of section 269 of the LPA. This was not a fact in issue nor one that bore upon the outcome of the case.

Alleged error in respect of Original Decision Paragraphs 72 and 74 - whether the Practitioner expressed the view that there were two will matters for the first time during cross examination

1. The Appeal Tribunal is not satisfied that this is an incorrect factual finding of fact.
2. In support of her contention that this fact was wrong, the Practitioner asserted that this was wrong, and made reference to a letter from the Practitioner to the Law Society on 5 May 2018. There is nothing in this letter that lends support to the appellant's submission that she raised this defence at an earlier time. To the contrary, the letter references "the wills", "the clients" and "their position." If anything, it suggests that at that time the Practitioner was of the view there was only one matter.
3. The Original Tribunal clearly set out the factors in considered relevant in determining that the appellant treated the wills as one matter.[60] There is no error in those factual matters. We see no error in the conclusion drawn on the base of them.
4. The Practitioner cannot have it both ways - either they are separate wills, in which case separate files should have been created, time costed separately and separate agreements created for both parties, or they were the one matter.

Alleged error in respect to Original Decision Paragraphs 69 and 70 - whether the Original Tribunal erred in regarding a 'matter' as capable of involving work on two wills

1. We see no reason in law or principle as to why a 'matter' cannot involve the drafting of several related documents. Indeed, it would not be unusual that it did.
2. That said, in our view, this was not an appropriate matter to have treated as a single file. The clients' interests potentially diverged. What should have happened was that the Practitioner open four files and at the very least two file being one for each client, and accurately costed her time on each of them. That may have saved her from at least some parts of the current proceeding, and perhaps even all of it, but that is not what she did.

Alleged error in respect of Original Decision Paragraph 81 - whether the Original Tribunal erred in failing to have regard to material not in evidence

1. As we have stated above, should the appellant have been of the belief that certain material should have been before the Original Tribunal, the appellant had every opportunity to put it there.
2. There is no basis to the appellant's contention that the respondent tried to have the transcript changed. We agree that it is apparent from the context that Mr Rees denied receiving the draft wills. For reasons set out above, we do not consider this relevant anyway. Again, if the appellant wanted them before the Original Tribunal, she should have filed them.
3. The material in relation to Mr Buxton and McInnes Wilson is irrelevant. No error is disclosed.

Alleged error in respect of Original Decision Paragraph 89 - whether work related to estate management

1. The use of the words 'estate management' overstated the work that the appellant was asked to do. The Practitioner was primarily engaged to advise on and draft wills and powers of attorney, the Clients having financial planning advice from other sources. However, this is not a material error that would justify an appellate remedy. It is clear from the reasoning that the Original Tribunal had a clear idea of the work that the appellant was engaged to perform and did indeed perform.
2. This is not an appealable error.

1. Having carefully reviewed the evidence before us, we have found no discernible error on the part of the Original Tribunal. We do, however, make the following observations, based on our reading of the transcript and the material.
2. We did not see the Practitioner or any of the witnesses give evidence and are not in the position to assess the credibility of any witness, other than by comparing the substance of what they said with the documents. Nonetheless, it seems to us that there are two possible interpretations on the Practitioner's actions in this case.
3. The first is that there was a continual failure on the part of the Practitioner to clearly communicate with her clients. The Practitioner, subjectively, considered the wills matters to be separate matters, assessed her obligations regarding costs agreements on that basis, and was satisfied that the wills were simple wills that fell under the threshold, The Practitioner's opinion only changed as the meeting on 1 March dragged on and on. The Practitioner assumed that the clients, as educated and rational people, would appreciate that after six hours of drafting, the wills must be considered 'complex' and time costing requirements would apply. Either she did not consider further explanation necessary, or she overlooked the explanation amongst the frustration of having to draft and redraft the wills.
4. The second possibility is that the Practitioner misled or lied to the clients about the likely costs of the wills, and about the progress of the EPAs, and then sought to squeeze every cent out of them.
5. We think that the first explanation is much more likely. Indeed, we consider that the failure to do such things as accurately time cost her work on individual files, or identify that the cancellation of the $800 that did not go through, are suggestive of a failure of good administrative practice rather than anything calculated. However, this is all a matter of supposition. There is no real evidence either way because the Practitioner has failed to admit she did anything wrong. She has instead sought to rely on highly technical and even disingenuous arguments about the total amount of the bill (after the $800 was refunded). This is a great shame, because if, as is more likely the case, these events were the consequence of miscommunication and genuine mistakes, the Practitioner has suffered a very significant and even disproportionate penalty indeed. If, on the other hand, her actions display a degree of calculation, or recklessness, then the penalty imposed is more appropriate.
6. This matter is an appeal, and for this Appeal Tribunal to uphold the appeal and substitute a substantially lower fine for that imposed by the Original Tribunal we would need to be satisfied that the Original Tribunal has erred in the application of a legal principle or show that the penalty is so unreasonable or unjust that the Original Tribunal erred in the exercise of its discretion.[61] The only basis upon which an error could be found is perhaps in the Original Tribunal's conclusion that the conduct was at "higher end" of the spectrum, but no comparative cases were put before the Appeal Tribunal.
7. Nonetheless, we are left with a feeling of unease about the imposition of the maximum penalty in this case. We are not satisfied that the Practitioner's conduct was deliberately misleading, and, notwithstanding previous complaints, no evidence was put before the Original Tribunal of a pattern of behaviour. The conduct was not found to amount to misconduct, and nor were the allegations so serious that suspension or cancellation were suggested. The actual amount in that was in issue in these proceedings, while certainly not insignificant, was not large. Moreover, we are satisfied that the amount that the Practitioner charged, by reference to the work done, was not overall unreasonable, even if it was poorly communicated and the practices adopted inefficient.
8. In Law Society of South Australia v Murphy Doyle CJ made the point that:

In dealing with a charge of unprofessional conduct, the Court acts in the public interest, and not with a view to punishment: New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183-184; Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 250-251. The Court is concerned to protect the public, not to punish a practitioner who has done wrong.[62]

1. The maximum penalty should be reserved for matters that are at the very highest end of the spectrum, or where there are special circumstances that warrant the imposition of a maximum fine. However, although we have concerns that the fine that imposed by the Original Tribunal was high even on their finding that the conduct was on the higher end of the spectrum and required the imposition of the maximum amount, it was not manifestly unreasonable. It is especially not so having regards to the Practitioner's failure to concede mistakes in her procedures, such that she could put submissions in mitigation. We are therefore of the view that the financial penalty imposed was within the Original Tribunal's discretion and in the absence of it being manifestly unreasonable must stand.

1. The appeal is dismissed.
2. Order 6 of is amended so as to substitute section 433(1) in lieu of section 431(1) of the LPA.
3. The decision of the Original Tribunal is otherwise confirmed.

[1] The maximum penalty payable for unsatisfactory professional conduct - see section 427(1) of the Legal Profession Act 2006.

[3] [2019] ACAT 65 at [52]

[4] Transcript of proceedings 3 February 2022, page 23

[5] The Legal Profession (Solicitors) Conduct Rules 2015 (ACT) Rule 2

[12] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 per President Neate citing CDJ v VAJ (No 1) [1998] HCA 67

[13] Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village [2021] ACAT 71 at [3], [12]; Amer v Erikkson [2019] ACAT 108

[14] Appellant's submissions, 15 September 2021 at [89]

[15] Respondent's submissions, 6 October 2021 at [2.1]

[16] See Hamers v South Canberra Holdings Pty Ltd ACN 606 747 602 Trading as Southside Village [2021] ACAT 71 at [3]

[17] Respondent's submissions 6 October 2021 at [2.3]

[18] Transcript of proceedings 4 May 2020, pages 40-42

[19] Transcript of proceedings 19 May 2020, page 60

[20]Appellant submissions, 15 September 2021 at [89]

[21] Appellant's submissions, 15 September 2021

[22] [2013] ACTSC 134 at [62] per Nield AJ

[24] [2021] ACAT 37 at [4]

[25] Tam v Du [2019] ACAT 94 at [22] citing Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29]- [39]; Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46]- [55]; In the Matter of AB [2018] ACAT 18 at [41]

[26] [2018] ACAT 4

[27] [2018] ACAT 4 at [53]

[28] [2013] ACTSC 219 at [13] and following

[29] This is a Latin term for 'once the necessary changes have been made'.

[30] Harada v Barnes & Anor [2021] ACAT 66 at [8]- [10]; Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [53(a)]

[35] Norbis v Norbis (1986) 171 CLR 518 per Mason and Deane JJ; House v R (1936) 55 CLR 499, 505

[36] [2013] ACTSC 134 at [64] per Neild J

[39] (1977) 1 NSWLR 256 at 261 per Street CJ, with whom Moffitt P and Glass JA agreed

[40] [1918] VCSA 96 at [89]-[90] per Maxwell P, Priest and McLeish JJA

[41] The Council of the Law Society of the ACT v LP [2018] ACTCA 60 at [56]

[42] Law Society of South Australia v Jordan [1998] SASC 6809 at [45] per Doyle CJ (Millhouse and Nyland JJ agreeing)

[47] Originating application at [10]; response at [10:2]

[48] Affidavit of GM at [37]; Affidavit of JD at [31]

[49] Appellant's submissions, 15 September 2021 at [41]

[52] Australian Broadcasting Corporation v Bond [1990] HCA 33; (1990) 170 CLR 321 at [87]

[56] Affidavit of UR Annexure D, Letter to clients enclosing cheque, 19 October 2018.

[59] Parker v Comptroller-General of Customs [2009] HCA 7

[61] See House v R (1936) 55 CLR 499, 505

[62] [1999] SASC 83 at [30]