Council of the New South Wales Bar Association v Fitzgibbon (No. 4) [2012] NSWADT 145

Council of the New South Wales Bar Association v Fitzgibbon (No. 4) [2012] NSWADT 145

The Tribunal held that, under the Legal Profession Act 2004 (NSW), sums paid by a client to a barrister through a solicitor may be recovered by way of a compensation order for unsatisfactory professional conduct, even absent direct contractual privity. The barrister’s preparation and submissions fell short of competent professional standards, warranting compensation and precluding recovery of outstanding fees.

Parties
Complainant: Bernard Hardt; Respondent: David Claude Fitzgibbon
Jurisdiction
Australia
Judgment Date
24 July 2012
Procedural Posture
Disciplinary/compensation Application / Compensation Orders Following Finding of Unsatisfactory Professional Conduct
Outcome
Orders made in part for compensation and costs; some claims dismissed
Legal Topics
Compensation Orders for Unsatisfactory Professional Conduct, Costs Orders in Disciplinary Proceedings
Legal Profession Professional Discipline Compensation Orders for Unsatisfactory Professional Conduct Costs Orders in Disciplinary Proceedings

Case Brief

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Parties

Bernard Hardt

Complainant

David Claude Fitzgibbon

Respondent

Procedural Posture

Disciplinary/compensation Application / Compensation Orders Following Finding of Unsatisfactory Professional Conduct

Legal Issues

  1. 1 Whether the respondent barrister is liable for compensation to the complainant for loss resulting from unsatisfactory professional conduct
  2. 2 Whether sums paid by the complainant via solicitor can be subject to compensation under the Legal Profession Act 2004 (NSW)
  3. 3 Whether the respondent can recover outstanding unpaid fees from the complainant

Ratio Decidendi

The Tribunal held that, under the Legal Profession Act 2004 (NSW), sums paid by a client to a barrister through a solicitor may be recovered by way of a compensation order for unsatisfactory professional conduct, even absent direct contractual privity. The barrister’s preparation and submissions fell short of competent professional standards, warranting compensation and precluding recovery of outstanding fees.

Court Disposition

Orders made in part for compensation and costs; some claims dismissed

Orders

  • The Respondent pay to the Complainant by way of compensation the sum of $13,500.
  • The Respondent cannot recover from the Complainant the sum of $3,800 in respect of which the Respondent rendered a tax invoice for legal services, but which sum remains unpaid.