13 It is more difficult to summarise the case advanced by Perkins, as it was somewhat wide ranging, but we shall attempt to do so.
14 The professional relationship between Anderson and Perkins went back some years. Perkins had done an enormous amount of work for Anderson and had "busted a gut" in Anderson's interests and in pursuing Anderson's case for professional negligence. Anderson was not satisfied with the efforts of barristers previously engaged.
15 The payment was a retainer. By accepting it, Perkins committed himself to the preparation and presentation of Anderson's case. If Anderson succeeded, Perkins could charge further amounts. If Anderson did not succeed at trial, no further fee would be payable. As at the time of the payment, Perkins had already done a very large amount of work on the case. He believed that it was necessary to prepare such things as very substantial chronologies. It had not been established by the Bar that the payment was in respect of legal costs in advance of legal services to be provided.
16 The Bar failed to call crucial witnesses, and particularly Anderson. No satisfactory explanation was given as to this failure. That Anderson is suffering from some form of mental illness is an assertion by him with no proof to support it. The absence of Anderson deprived Perkins of the opportunity to cross-examine him concerning the arrangement which existed between the two. Similarly, other witnesses, such as Mrs Anderson, who may have been able to give helpful evidence, were not called. These failures represent unfairness on the part of the Bar as a prosecuting agency as well as leaving the evidence in an inadequate and unsatisfactory state.
17 The problem is one of characterisation of the payment. Perkins accepted it as a retainer. There was no discussion of it being trust money or being paid into a trust account. Anderson could not have thought that the money was going into a trust account. The only bank account which Perkins had was his account with Bendigo Bank Ltd.
18 The fee paid was a retainer fee, and it was neither unreasonable or dishonest to take such a payment. Perkins gave substantial benefits by way of provision of legal services to Anderson. There was nothing unethical or improper in the arrangement. Perkins did not consider it a breach of trust. He did not characterise the money received as trust money, and it was not intended that it so be. It is clear that Anderson, from some source, has been recompensed in respect of the payment. No evidence was called by the Bar in relation to this.
19 A high standard of proof is required, and the Bar has not discharged that burden of proof. What was done by Perkins was not wilful, careless or reckless. He gave evidence to us as to his state of mind, which is important. It is a question of characterisation of the payment, and how he characterised it, which was as a retainer fee rather than as the payment of money in advance of legal services to be provided or trust money.