Legal Services Commissioner v Galitsky [2008] NSWADT 48

Legal Services Commissioner v Galitsky [2008] NSWADT 48

The application was dismissed because the Applicant did not adduce persuasive evidence capable of proving that the Respondent deliberately charged grossly excessive costs. The costs assessor's referral and affidavit were equivocal, did not establish deliberateness, did not identify a legal or professional source of any obligation to apportion counsel's fees, and did not satisfy the requirements for expert opinion evidence. Applying the Briginshaw standard, the Tribunal could not be comfortably satisfied that professional misconduct was established.

Jurisdiction
Australia
Judgment Date
07 February 2008
Procedural Posture
Barrister Disciplinary Application / Principal Matter; Final Decision
Outcome
Application dismissed.
Legal Topics
['alleged Professional Misconduct' 'deliberate Charging of Grossly Excessive Amounts of Costs' "apportionment of Counsel's Fees" 'expert Evidence' 'standard of Proof in Disciplinary Proceedings']
['legal Profession Regulation' 'professional Discipline' 'costs'] ['alleged Professional Misconduct' 'deliberate Charging of Grossly Excessive Amounts of Costs' "apportionment of Counsel's Fees" 'expert Evidence' 'standard of Proof in Disciplinary Proceedings']

Case Brief

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Procedural Posture

Barrister Disciplinary Application / Principal Matter; Final Decision

Legal Issues

  1. 1 ['Whether the Respondent deliberately charged grossly excessive amounts of costs in three personal injury matters heard together.' 'Whether the Respondent was obliged to apportion costs common to the three matters rather than charging each client the total costs of the hearing.' "Whether the evidence relied on by the Legal Services Commissioner, including the costs assessor's views, was sufficient and admissible as expert evidence to prove professional misconduct."]

Ratio Decidendi

The application was dismissed because the Applicant did not adduce persuasive evidence capable of proving that the Respondent deliberately charged grossly excessive costs. The costs assessor's referral and affidavit were equivocal, did not establish deliberateness, did not identify a legal or professional source of any obligation to apportion counsel's fees, and did not satisfy the requirements for expert opinion evidence. Applying the Briginshaw standard, the Tribunal could not be comfortably satisfied that professional misconduct was established.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.' "The Tribunal orders the Applicant to pay the Respondent's costs as assessed or agreed."]