Berger v Council of the Law Society of New South Wales

1. [1]

   MEAGHER JA: I agree with Payne JA.

2. [2]

   PAYNE JA: Mr Victor Berger was admitted as a solicitor in New South Wales in 1969. He practised continuously until his practising certificate was first suspended in 2013. In October 2015, the Law Society commenced proceedings in the NSW Civil and Administrative Tribunal (“the Tribunal”) seeking an order that Mr Berger’s name be removed from the roll. Mr Berger admitted many of the detailed particulars of the Complaint, but contended that his conduct did not warrant an order removing his name from the roll.

3. [3]

   On 31 October 2017, the Tribunal found Mr Berger guilty of professional misconduct and unsatisfactory professional conduct on multiple grounds.

4. [4]

   On 5 January 2018, following a second hearing, the Tribunal ordered that Mr Berger’s name be removed from the roll of local lawyers.

5. [5]

   This appeal from that order is in essence a penalty appeal. Many of the findings of the Tribunal were accepted. The essence of Mr Berger’s complaint is that the findings of what was described as “subjective” dishonesty made by the Tribunal were not open. It was submitted that if this Court upheld any of the grounds of appeal it should not remit the matter to the Tribunal. Instead it could and should determine the question of whether Mr Berger was probably permanently unfit to practise law and make appropriate orders.

6. [6]

   The circumstances giving rise to the Complaint principally involved a Mrs Domabyl, a Mrs Dougall, a Ms Frischer and a company Storey Street Development Pty Limited. For reasons which were never made clear, the Tribunal referred to the individuals involved by pseudonyms. No pseudonym orders were ever made. No such orders were sought in this Court.

7. [7]

   Despite the limited number of clients involved, there was considerable detail in the particulars of the Complaint. The matter was made more difficult than it should have been because of the way the Law Society framed the Complaint, relying on an overlapping series of particulars in addressing each of the separate subjects of the Complaint.

8. [8]

   The reasons of the Tribunal were correspondingly difficult to follow because in order to address each of the relevant aspects of the Complaint, the Tribunal found it necessary to deal with the conduct thematically and, as a result, adopted a new numbering system to address the issues in a way that the Tribunal found satisfactory. To enable the essence of the conduct complained of to be understood before considering the grounds of appeal, it is necessary first to set out chronologically, and in some detail, the relevant facts as they appear from the Tribunal’s reasons and the primary documents (all typographical errors in the quoted passages are as they appear in those documents), and then to summarise the Tribunal’s reasons before addressing each of the grounds of appeal. As will become apparent when addressing the grounds of appeal, the appellant has introduced yet another numbering system to attempt to address in response to the complexity engendered by what had gone before. This is not a criticism of Mr Lloyd, who appeared for Mr Berger in this Court and ably represented his interests but rather a commentary on the way the case was framed and dealt with by the Law Society.

Relevant facts

1. [9]

   On 14 February 1969, Mr Berger was admitted to the roll of solicitors in NSW. In 1970, he became a partner in the firm JW Milne and Berry.

2. [10]

   In about February 2005, Mr Berger was introduced to Mrs Domabyl and took instructions from her to prepare her will. No costs disclosure or costs agreement was provided to Mrs Domabyl. As will become apparent, the Tribunal found that Mr Berger was obliged to make a costs disclosure to her at this time and to provide updated costs disclosures thereafter.

3. [11]

   On 4 June 2006, Mr Berger became a principal of the firm Milne Berry Berger & Freedman (“MBBF”). On 27 November 2007, Mrs Domabyl granted Mr Berger a general power of attorney. Again, no costs disclosure or costs agreement was provided.

4. [12]

   On or before 6 April 2008, Mr Berger took instructions from Mrs Dougall. On 6 April 2008, Mrs Dougall executed a will nominating Mr Berger as the executor, and granted Mr Berger a power of attorney. No costs disclosure or costs agreement was provided to Mrs Dougall.

5. [13]

   On 18 March 2009, Mr Berger gave the Office of the Legal Services Commissioner an undertaking (“2009 Disclosure Undertaking”) in the following terms:

6. [14]

   The 2009 Disclosure Undertaking was given in response to a complaint made by a Mrs Treadgold to the Legal Services Commissioner regarding Mr Berger’s failure to make a costs disclosure or provide a costs agreement. Notwithstanding the terms of this undertaking, Mr Berger did not make a costs disclosure or provide a costs agreement to Mrs Domabyl, either at this time or at any time before her death.

7. [15]

   On 13 July 2009, Mrs Domabyl executed a will nominating Mr Berger and Mr Green, an accountant, as executors. The will was drafted by Mr Berger. No costs disclosure or costs agreement was provided to Mrs Domabyl. During 2010, Mr Berger provided services of a general nature to Mrs Domabyl with an increased frequency. Again, no costs disclosure or costs agreement was provided to Mrs Domabyl.

8. [16]

   On 18 April 2011, Mr Berger prepared the seventh and final codicil to Mrs Domabyl’s will. No costs disclosure or costs agreement was provided to Mrs Domabyl.

9. [17]

   On 25 April 2011, Mr Berger emailed Mrs Domabyl’s estranged husband, Mr Jan Domabyl, who resided in the Czech Republic:

10. [18]

    In about July 2011, the other partners of MBBF, Mr Freedman and Ms Gopalan, became aware of the very substantial amount of work in progress (“WIP”) charged by Mr Berger to Mrs Domabyl’s file and sought advice from Mr Gulley, an expert solicitor and costs assessor, in relation to Mr Berger’s failure to provide a costs agreement or to make any disclosure about costs or the basis of costs charged to Mrs Domabyl. Mr Berger was aware of the request and prepared a chronology for Mr Gulley.

11. [19]

    On 23 September 2011, Mr Freedman and Ms Gopalan sent Mr Berger a letter setting out their concerns about his handling of Mrs Domabyl’s matters. This was an important letter. In it, Mr Berger’s partners expressed serious concerns about the non-disclosure of costs by Mr Berger to Mrs Domabyl. The letter described Mrs Domabyl, correctly, as a vulnerable client. The letter referred to various of the statutory obligations to disclose costs to a client and pointed out the serious consequences for Mr Berger and the firm of a failure to do so. The letter, signed by Mr Freedman, is sufficiently important to set out at length:

12. [20]

    On 23 September 2011, Mr Berger met with Mr Freedman and Ms Gopalan to discuss Mrs Domabyl’s file. On 25 September 2011, Mr Berger emailed Mr Freedman:

13. [21]

    Given the central nature of Mrs Domabyl’s matter to the issues before this Court, the significance of this email should be emphasised. It demonstrates that Mr Berger’s contemporaneous state of mind was that he accepted that any investigation into his conduct would likely conclude that “I had made ‘inadequate disclosure’”. Mr Berger apparently believed, however, that “no action would be taken against me.”

14. [22]

    On 26 September 2011, Mr Freedman emailed Mr Berger. In that email Mr Freedman explained at some length to Mr Berger that his conduct in charging Mrs Domabyl considerable fees without explaining to her that she or her estate would be charged for those attendances was “morally and legally wrong”. Mr Freedman records Mr Berger stating his contemporaneous view that if he explained to Mrs Domabyl what he was charging her she would “withdraw instructions”:

15. [23]

    On 27 September 2011, Ms Gopalan emailed Mr Berger, referring to their meeting on 23 September 2011. The email stated, relevantly:

16. [24]

    On 27 September 2011, Mr Berger emailed Mr Freedman:

17. [25]

    On 27 September 2011, Mr Freedman emailed Mr Berger in reply:

18. [26]

    On 29 September 2011, Mr Berger emailed Mr Freedman in reply:

19. [27]

    On 30 September 2011, Mr Berger emailed Ms Gopalan. His email took the form of commentary on Ms Gopalan’s earlier email. Mr Berger’s responses are in capital letters:

20. [28]

    On 1 October 2011, Mr Freedman emailed Mr Berger:

21. [29]

    On 1 October 2011, Mr Berger emailed Mr Freedman and Ms Gopalan in reply:

22. [30]

    Pausing there, it appeared at least objectively that on 1 October 2011 Mr Berger had agreed in writing with the other partners of MBBF that:

    1. (1)

       MBBF would write off all billable work in progress recorded for work done by the firm for Mrs Domabyl – then standing at a figure of $113,486; and

    2. (2)

       Mr Berger (and the firm) would not record any further billable time as work in progress in relation to Mrs Domabyl’s file.

23. [31]

    On 1 October 2011, Mr Berger emailed Ms Donovan (his secretary), Mr Freedman and Ms Gopalan:

24. [32]

    On 16 January 2012, Ms Gopalan emailed Mr Berger and Mr Freedman:

25. [33]

    On 23 January 2012, Mr Berger replied to Ms Gopalan and Mr Freedman, copying in Ms Donovan:

26. [34]

    Pausing there, it is clear that as at 23 January 2012 Mr Berger represented to his partners that work in progress was not being recorded against Mrs Domabyl’s file. That is, the 1 October 2011 agreement was being complied with.

27. [35]

    From 26 January 2012, Mrs Domabyl became unable to provide instructions. On 3 February 2012, Mrs Domabyl’s power of attorney in favour of Mr Berger was registered.

28. [36]

    On 15 March 2012, Mr Berger gave the Office of the Legal Services Commissioner a further undertaking to comply with costs disclosure requirements (“2012 Disclosure Undertaking”) as follows:

29. [37]

    The 2012 Disclosure Undertaking was given in response to a complaint made by a Mrs Adzioiski to the Commissioner regarding Mr Berger’s failure to make a costs disclosure or provide a costs agreement.

30. [38]

    On 22 March 2012, Mr Berger issued a Standard Costs Agreement and Costs Disclosure in relation to the sale of Mrs Domabyl’s property, being Bougainvillea Retirement Village, 73/260-270 Military Road, Neutral Bay (“the Domabyl Property”). The costs estimate provided was $1,705. Mrs Domabyl, who was by that time mentally incapable, did not sign either document. By this date, Mr Berger’s costs and disbursements already recorded in relation to the sale of the Domabyl Property amounted to $1,852.29 inclusive of GST.

31. [39]

    On 24 May 2012, Mr Berger sent a letter addressed to himself as Mrs Domabyl’s attorney, enclosing a copy of an “Activity Ledger Card” in relation to the sale of the Domabyl Property. The letter stated:

32. [40]

    The letter was purportedly copied by email to Mrs Domabyl’s estranged husband, Mr Jan Domabyl, and estranged son, Mr Robert Domabyl, who resided in the Czech Republic.

33. [41]

    In about May 2012, Ms Frischer retained Mr Berger to prepare her will.

34. [42]

    On 5 June 2012, and despite the agreement with his partners on 1 October 2011, Mr Berger sent a letter on behalf of MBBF to Mr Jan Domabyl and Mr Robert Domabyl, enclosing a detailed account for MBBF’s fees and disbursements for work said to have been done by the firm for Mrs Domabyl amounting to $176,800.94. A tax invoice from MBBF in that amount was provided.

35. [43]

    On 22 June 2012, and despite the agreement of 1 October 2011, Mr Berger sent a further letter on behalf of MBBF to Mr Robert Domabyl and Mr Jan Domabyl, enclosing an invoice and a more detailed fee schedule which recorded the identity of the person performing each item of work, units of work performed and the unit billing rate (“Revised Fee Schedule”). The Revised Fee Schedule included $90,527.04 in respect of charges for non-legal and power of attorney work, $28,533.52 in respect of charges for work the purpose of which was unclear and $2,432.72 in respect of disbursements the purpose of which was unclear.

36. [44]

    In about August 2012, Mr Berger was the sole director and shareholder of a company, Storey Street Development Pty Limited (“SSD”). SSD was the vendor of Lot 1 in an off the plan property development on Storey Street, Maroubra. SSD were in negotiations with a Mr and Mrs Ho in relation to the sale of Lot 1. The solicitor for Mr and Mrs Ho was a Mr Paffas of Paffas Lawyers and the solicitor for SSD was Mr Berger. There was correspondence between the parties about Special Condition 12 in the contract for sale.

37. [45]

    On 8 August 2012, Paffas Lawyers wrote to MBBF, stating: “Delete special condition 12 (release deposit)”. On 9 August 2012, Ms Kunhi, a conveyancer at MBBF, emailed Mr Paffas in reply, attaching a draft letter which stated: “The deposit is to be released and special condition 12 may be deleted.” That same day, Mr Paffas emailed Ms Kunhi in reply, stating: “Your answer seems to say the the deposit is to be released and that special condition 12 can be deleted. I presume you may have left a word out of your reply and that you meant the deposit does not need to be released. Please confirm.”

38. [46]

    On 10 August 2012, Ms Kunhi emailed Mr Berger confirming a telephone conversation she had with “Elizabeth (secretary) [who] rang for Mr Paffas noting that their latest instructions were: … 2. ‘Not agreed as to issue about release of deposit’”. That same day, Mr Berger and Mr Paffas had a telephone conversation about Special Condition 12.

39. [47]

    On 13 August 2012, Mr Berger emailed Mr Paffas:

40. [48]

    On 13 August 2012, Paffas Lawyers wrote to MBBF, stating: “Only 5% shall be released to your client.” On 14 August 2012, Paffas Lawyers sent a further letter to MBBF, stating: “Release of deposit to only apply once the plan is registered at the land titles office. Please amend that clause accordingly”.

41. [49]

    On 15 August 2012, Mr Paffas emailed Mrs Ho, stating that SSD had indicated that it was “a deal breaker” if it was not agreed that the deposit be released on exchange of contracts:

42. [50]

    On 15 August 2012, Ms Kunhi recorded that a “Rachel” of Paffas Lawyers called her “confirming that 5% deposit is agreed to be released”.

43. [51]

    On 16 August 2012, the contract was executed by Mr Berger for SSD as vendor and by Mr and Mrs Ho as purchasers. Special Condition 12 in the final contract replicated the version proffered by Mr Berger in his email of 13 August 2012. That same day, Mr and Mrs Ho paid the 5% deposit of $57,500 into the MBBF trust account (“Ho Deposit”).

44. [52]

    At some time after 16 August 2012, Mr Berger caused the Ho Deposit to be disbursed from the trust account without notice to the purchasers or their solicitor as required by Special Condition 12.

45. [53]

    On 31 August 2012, contracts in relation to the sale of the Domabyl Property were exchanged. On 3 October 2012, the purchaser’s solicitors, McCourts Solicitors, sent a letter to MBBF enclosing the transfer and requesting it be executed and returned urgently.

46. [54]

    On 4 October 2012, Mrs Domabyl died. Upon the death of Mrs Domabyl, it is now common ground that the power of attorney executed in favour of Mr Berger was terminated. On 5 October 2012, Mr Berger learned of Mrs Domabyl’s death.

47. [55]

    On 9 October 2012, Mr Berger (on MBBF letterhead) wrote to McCourts Solicitors concerning the sale of the Domabyl Property and enclosed the certificate of title and “the registered power of attorney under which Victor Berger had signed the Transfer”.

48. [56]

    On 10 October 2012, McCourts Solicitors were told that “it was discovered that the Transfer sent by Kathryn Adler and signed by Victor Berger on 4 October 2013 was incorrect as it was not endorsed for signing under power of attorney”. That same day, Ms Kunhi noted in her handwriting “See Annexure A” next to Mr Berger’s signature and attached Annexure A which stated:

49. [57]

    On 10 October 2012, Ms Donovan (on Mr Berger’s instructions) emailed Ms Kunhi, providing the following cheque directions in relation to the Domabyl Property:

50. [58]

    On 11 October 2012, Mr Berger (on MBBF letterhead) wrote to McCourts Solicitors with the following cheque directions in respect of the sale of the Domabyl Property:

51. [59]

    That same day, Ms Kunhi (on behalf of MBBF) handed over the transfer (with Mr Berger’s signature crossed out and Annexure A attached) to McCourts Solicitors’ agent.

52. [60]

    On 12 October 2012, settlement of the sale of the Domabyl Property occurred. As per Mr Berger’s directions of 11 October 2012, the settlement cheques included a cheque for $154,000 made out in Mr Berger’s name and paid into a bank account in Mr Berger’s name (the “First Payment”); a cheque for $6,624.49 made out to MBBF and paid into MBBF office account (the “Second Payment”); and a cheque for $188,805.72 made out to the MBBF trust account, being the remaining proceeds of the sale. These and four other payments were later alleged to constitute breaches of trust account obligations. As at 12 October 2012, probate in respect of Mrs Domabyl’s estate had not yet been granted.

53. [61]

    On 22 October 2012, Mr Berger (on behalf of MBBF) issued a Standard Costs Agreement and Costs Disclosure to Mr Berger and Mr Green as executors in relation to probate for Mrs Domabyl’s estate.

54. [62]

    On 6 December 2012, Mr Berger (on MBBF letterhead) wrote to himself as Mrs Domabyl’s attorney, concerning the settlement of the sale of the Domabyl Property. The letter stated:

55. [63]

    On 7 December 2012, Mr Berger caused $8,265.41 to be transferred from the MBBF trust account (held on behalf of Mrs Domabyl’s estate) to the MBBF office account. The shortfall of $1,540.92 constitutes the “Third Payment”. Probate in respect of Mrs Domabyl’s estate had not yet been granted.

56. [64]

    In January 2013, a Mr Sofiak, a trust account investigator for the Law Society, was allocated the task of conducting a routine trust investigation of MBBF’s trust account.

57. [65]

    On 2 January 2013, Mrs Dougall died. It is now common ground that upon the death of Mrs Dougall, the power of attorney executed in favour of Mr Berger was terminated.

58. [66]

    On 25 January 2013, Mr Berger caused $20,000 to be transferred from the MBBF trust account (held on behalf of Mrs Domabyl’s estate) to Mr Berger’s son-in-law, Mr Penn, to discharge a debt owed by Mr Berger (the “Fourth Payment”). The reason on the matter ledger stated: “Payment on behalf of Victor Berger from outstanding fees”. Probate in respect of Mrs Domabyl’s estate had not yet been granted.

59. [67]

    On 18 February 2013, Mr Berger (on MBBF letterhead) sent a letter to Ms Frischer in which he provided his advice, enclosed two drafts of her will and notified her that a tax invoice would be sent to her “in the coming week”.

60. [68]

    On 19 March 2013, Mr Berger sent a tax invoice for the total of $8,751.90 to Mrs Dougall’s niece and nephew for attendances undertaken by him on behalf of Mrs Dougall prior to her death.

61. [69]

    On 16 April 2013, Mr Berger sent a letter to Mr Jan Domabyl, Mr Robert Domabyl and Mrs Domabyl’s daughter, Ms Fudge, in respect of the estimated costs for the administration of Mrs Domabyl's estate. The total estimate was $14,923.73.

62. [70]

    On 22 April 2013, MBBF issued a tax invoice (Invoice #66078) to Mr Berger and Mr Green as executors of Mrs Domabyl’s estate in the amount of $14,341.55 relating to the application for the grant of probate (“Domabyl Probate Invoice”).

63. [71]

    On 23 April 2013, Mr Berger caused $8,751.90 (held on behalf of Mrs Dougall’s estate) to be transferred from the MBBF trust account to the MBBF office account “on a/c of costs & disbursements” (the “Fifth Payment”). Probate had not yet been granted.

64. [72]

    On 2 May 2013, Mr Berger (on MBBF letterhead) sent a letter to himself and Mr Green as executors, Mr Jan Domabyl, Mr Robert Domabyl and Ms Fudge, enclosing the Domabyl Probate Invoice.

65. [73]

    On 6 May 2013, Mr Berger caused $14,341.55 (held on behalf of Mrs Domabyl’s estate) to be transferred from the MBBF trust account to the MBBF office account “Invoice #66078 Trust to Office Transfer” (the “Sixth Payment”). Probate in respect of Mrs Domabyl’s estate had not yet been granted.

66. [74]

    On 11 May 2013, Mr Berger emailed a Mr Hawkins and a Ms Myers, two external examiners conducting an audit of the MBBF trust account, Mr Freedman and Ms Gopalan. The email contained a copy of an email dated 19 April 2013 from Mr Freedman to Mr Berger regarding the review conducted by the external examiners. Mr Freedman expressed his concerns about Mrs Domabyl’s file to which Mr Berger replied in uppercase characters:

67. [75]

    Some aspects of Mr Berger’s contemporaneous state of mind arising from this email bear emphasis. Mr Berger was aware when acting as he did that the beneficiaries under Mrs Domabyl’s will were not yet 18 years old. Mr Berger was denying the existence of his unambiguous agreement made on 1 October 2011 with his partners that the WIP charged to Mrs Domabyl’s file would be written off and no further amounts charged to that file. At the same time he sought to recharacterise that correspondence, set out at length above, as demonstrating that what he had agreed was to defer claiming fees from Mrs Domabyl and that he had never said that he would not claim them.

68. [76]

    In the same email, Mr Freedman expressed concerns about the SSD file to which Mr Berger replied in uppercase characters:

69. [77]

    On 13 May 2013, Ms Gopalan emailed Mr Berger:

70. [78]

    On 7 June 2013, Mr Sofiak interviewed Mr Berger and asked him questions about various transactions involving trust money. On 17 June 2013, Mr Sofiak issued his report to the Law Society, which stated that in his opinion there was a deficiency in the MBBF trust account as a result of the five payments described above made by Mr Berger of trust money on various dates.

71. [79]

    On 21 June 2013, Mr Berger paid $205,258.86 into the MBBF trust account which he claimed “represented the entirety of the money [he] had received in payment of the Domabyl matters (approximately $174,000.00) plus some other fees”.

72. [80]

    On 21 June 2013, the MBBF partnership was dissolved. On 22 June 2013, Mr Berger commenced as principal of Milne Berry Berger (“MBB”).

73. [81]

    On 1 July 2013, the Law Society resolved to suspend Mr Berger’s practising certificate (the “Suspension Decision”). On 5 July 2013, Mr Berger appealed the Suspension Decision to the Supreme Court and applied for a stay. On 9 July 2013, the Supreme Court granted a stay of the Suspension Decision: A Solicitor v Council of the Law Society of New South Wales [2013] NSWSC 921.

74. [82]

    On 11 July 2013, Mr Berger wrote to Ms Frischer informing her of the dissolution of MBBF and seeking authority to transfer her file to MBB. On or about 22 July 2013, Ms Frischer authorised the transfer of her file to MBB.

75. [83]

    On 12 August 2013, Mr Berger swore an affidavit as the executor of Mrs Dougall’s will. On 14 August 2013, the Supreme Court dismissed Mr Berger’s appeal from the Suspension Decision: Berger v Council of the Law Society of NSW [2013] NSWSC 1080. Mr Berger applied for an extension of the stay.

76. [84]

    On 15 August 2013, Beech-Jones J granted a further stay of the Suspension Decision subject to conditions, including a condition that, on or before 21 August 2013, Mr Berger notify his clients of the outcome of the principal proceedings, namely the court’s decision to dismiss the practitioner’s appeal against his suspension (“Condition 6”): Berger v Council of the Law Society of NSW (No 2) [2013] NSWSC 1131. That same day, Mr Berger sent letters to clients, but not to Ms Frischer.

77. [85]

    On 20 August 2013, Ms Frischer emailed Mr Berger “about outstanding issues relating to the drafting of [her] will”.

78. [86]

    On 21 August 2013, probate was granted in Mrs Dougall’s estate.

79. [87]

    On 23 August 2013, Mr Berger emailed Ms Frischer regarding her instructions, stating:

80. [88]

    The next day, Ms Frischer emailed Mr Berger in reply:

81. [89]

    On 28 August 2013, this Court granted a further stay of the Suspension Decision: Berger v Council of the Law Society of New South Wales [2013] NSWCA 278.

82. [90]

    On 25 September 2013, Mr Berger made an application for an assessment of his costs as set out in the Revised Fee Schedule.

83. [91]

    On 3 October 2013, Mr Berger made an application for an assessment of his costs in relation to the Domabyl Probate Invoice.

84. [92]

    On 8 October 2013, this Court dismissed Mr Berger’s application for leave to appeal from the Supreme Court’s decision to dismiss his appeal from the Suspension Decision: Berger v Council of the Law Society of New South Wales [2013] NSWCA 336.

85. [93]

    On 8 October 2013, the stay of the Suspension Decision granted by this Court on 28 August 2013 lapsed. Since that date, Mr Berger has not held a practising certificate.

86. [94]

    On 14 November 2013, the Law Society wrote to Mr Berger regarding a number of matters arising from Mr Sofiak’s report.

87. [95]

    On 20 November 2013, Mr Berger emailed Mr Paffas seeking to make arrangements with Mr and Mrs Ho for the registration of the plan of subdivision of the Storey Street development. In that email, Mr Berger stated regarding the Ho deposit: “I have checked 5% deposit. Was released.” On 25 November 2013, Mr Paffas emailed Mr Berger in reply, stating: “I am also instructed that [Mr and Mrs Ho] would require a variation of the contract as follows: … 2. The vendor is to pay them interest on their released deposit at the rate of 11% per annum from the date of the contract”. On 26 November 2013, Mr Berger emailed Mr Paffas in reply as follows: “not agreed. There has been great capital growth. Interest defeats the purpose of us reaching for capital. It [is] just not possible”.

88. [96]

    On 26 November 2013, the Law Society wrote to Mr Berger regarding the existing issues arising from their letter of 14 November 2013 and an additional complaint regarding Mr Berger’s breach of the undertaking he gave to the Supreme Court to undertake a course in Trust Accounting and Ethics.

89. [97]

    On or about 13 December 2013, SSD was placed into receivership.

90. [98]

    On 23 January 2014, probate was granted in Mrs Domabyl’s estate.

91. [99]

    On 27 March 2014, a certificate of determination was issued in relation to the assessment of the Domabyl Probate Invoice, allowing total costs of $14,102.30.

92. [100]

    On 30 April 2014, Rosenblum & Co, solicitors for Mr and Mrs Ho, wrote to MBB in relation to the Ho deposit:

93. [101]

    That same day, Rosenblum & Co (on behalf of Mr and Mrs Ho) wrote to Ray White Maroubra:

94. [102]

    That same day, Ray White Maroubra responded:

95. [103]

    On or about 8 May 2014, the receivers for SSD ceased to act.

96. [104]

    On 16 May 2014, Mr Berger emailed Mr Rosenblum of Rosenblum & Co, stating “Please see attached ledger as record of disbursement of 5% deposit released to the Vendor”. The ledger enclosed was in the matter of “Sale of 4 Storey Street” for a client “Mr K Hancock, Storey Street Development Pty Limited” and recorded an amount of $57,500 from “Mr K Hancock” on 16 August 2012 for “Deposit on sale”. That same day, Mr Rosenblum emailed Mr Berger in reply, requesting a “copy of written consent to the release of the 5% deposit”. On 18 May 2014, Mr Rosenblum emailed Mr Berger: “I have just realised the ledger you sent us was for Mr K Hancock. Please provide the trust ledger for our clients, Mr & Mrs Ho.” On 19 May 2014, Mr Berger emailed Mr Rosenblum in reply: “I feel dopey. I am certain I sent this attached before. Will have a look later to whom it was sent.”

97. [105]

    On 12 June 2014, a certificate of determination of costs was issued in relation to the assessment of the Revised Fee Schedule. As has earlier been noted, the beneficiaries under Mrs Domabyl’s were minors. By the time of the assessment they were represented by separate solicitors who were given notice by Mr Berger of the application for assessment. The beneficiaries apparently chose not to object to the account or otherwise to participate in the assessment.

98. [106]

    The total amount of costs and disbursements determined to be fair and reasonable was $176,800.74. Relevantly, the reasons for the determination stated:

99. [107]

    On 4 July 2014, Mr Berger sent a letter to Rosenblum & Co enclosing a notice of rescission of the contract between SSD and Mr and Mrs Ho executed on 16 August 2012. The notice stated:

100. [108]

     On 8 July 2014, Rosenblum & Co (on behalf of Mr and Mrs Ho) wrote to Mr Berger not accepting rescission or, alternatively, claiming return of the Ho deposit. The letter stated:

101. [109]

     On 25 August 2014, the Law Society sent a letter to Mr Berger regarding a complaint made by Mr Rosenblum on behalf of Mr and Mrs Ho in relation to the release of the Ho Deposit.

102. [110]

     On 31 October 2014 (although the letter is dated 25 September 2014), Mr Berger responded to the Law Society’s letter with the following submissions:

103. [111]

     On 18 December 2014, the Law Society wrote to Mr Berger:

104. [112]

     On 24 December 2014, Mr Berger emailed the Law Society in reply:

105. [113]

     On 8 February 2015, the Law Society wrote to Mr Rosenblum requesting further information “regarding the trust statement produced by Mr Berger and which, he states, refers to your clients’ money despite being headed ‘K Hancock’”.

106. [114]

     On 18 February 2015, Rosenblum & Co wrote to the Law Society providing further information:

Tribunal proceedings

1. [115]

   On 8 October 2015 and 14 March 2016, the Law Society filed two applications for disciplinary findings and orders in the Tribunal (referred to in these reasons as the Complaint). The first application contained 11 grounds and the second application contained one further ground.

2. [116]

   The Law Society submitted in the Complaint that Mr Berger was guilty of professional misconduct on the following 12 grounds, namely that Mr Berger:

   1. (1)

      misappropriated funds;

   2. (2)

      caused a deficiency in a trust account;

   3. (3)

      breached s 254 of the Legal Profession Act 2004;

   4. (4)

      breached s 255 of the Legal Profession Act 2004;

   5. (5)

      breached s 259 of the Legal Profession Act 2004;

   6. (6)

      purported to act under a power of attorney after the donor of the power had died;

   7. (7)

      purported to act as an executor under a will after the death of the testator but before any grant of probate;

   8. (8)

      failed to comply with an order of the Court;

   9. (9)

      failed to disclose costs;

   10. (10)

       breached an undertaking proffered to the Legal Services Commissioner;

   11. (11)

       engaged in unethical conduct in applying received monies in breach of the terms of the agreement under which they were received; and

   12. (12)

       engaged in overcharging.

3. [117]

   As was described at the outset, the Law Society provided a narrative of 140 separate particulars of the Complaint which were referred to in an overlapping way in relation to each of the grounds. For example, the allegation of misappropriation particularised paragraphs 31-38, 41-43, 47, 64-66 and 73 of the narrative of particulars. The allegation that Mr Berger caused a deficiency in a trust account particularised paragraphs 31-38, 41-43, 46, 64-66, 72, 80-82, 85, 87-89 and 92.

4. [118]

   On 18 March 2016 and then on 1 June 2016, Mr Berger filed replies to the Complaint in the Tribunal. Mr Berger admitted grounds 3, 4, 6, 7, 9 and 10, although he denied a number of the particulars supporting those grounds.

5. [119]

   On 5 October 2016, the Law Society filed detailed opening submissions. These were served before Mr Berger had filed any evidence. On 31 October 2016, the matter was listed to commence in the Tribunal but was adjourned. On 22 February 2017, the hearing commenced before the Tribunal. On 23 February 2017, there was a second day of substantive hearings before the matter was adjourned to dates in May 2017 which were later vacated.

6. [120]

   On 28, 29 and 30 June 2017, Mr Berger was cross-examined. On 6 July 2017, the Law Society filed its closing submissions. On 19 July 2017, Mr Berger filed his closing submissions. On 3 August 2017, the Law Society filed its submissions in reply. On 24 August 2017, Mr Berger filed various affidavits in the nature of character references. There were no oral closing submissions.

7. [121]

   On 21 September 2017, the Tribunal delivered its Stage 1 (Liability) judgment.

The Liability Judgment

1. [122]

   The Tribunal found Mr Berger guilty of professional misconduct: Law Society of NSW v Berger (No 1) [2017] NSWCATOD 137 (“Liability Judgment”). After describing the relevant factual background and the chronology, the Tribunal considered at [44]-[91] the credit of Mr Berger. The Tribunal regarded Mr Berger as an unreliable witness. It described Mr Berger’s claims of ignorance or misunderstanding of his legal obligations as inconsistent with the extent of his training and experience as a solicitor. Parts of Mr Berger’s evidence were described as rambling and unresponsive. The Tribunal found Mr Berger’s evidence “often evasive”. As Mr Berger’s cross-examination proceeded, “the evasiveness became more frequent and included not responding to some questions”.

2. [123]

   The Tribunal disbelieved much of Mr Berger’s evidence. In relation to the central issue about whether he had ever given costs estimates to Mrs Domabyl he said “when costs arose I gave her estimates”. The Tribunal pointed out that no such evidence was contained in Mr Berger’s four affidavits or in Mr Berger’s amended reply. There was an allegation in Mr Berger’s 5 October 2016 affidavit about costs discussions he said he had with Mrs Domabyl. The Tribunal pointed out that this evidence was quite inconsistent with Mr Berger’s amended reply, where he denied an obligation to provide any costs disclosure and the contemporaneous exchanges with his partners which culminated in the 1 October 2011 agreement. The Tribunal regarded Mr Berger’s billing Mrs Domabyl for $176,800.74 in the name of the partnership and in the knowledge that his partners did not agree with charging Mrs Domabyl anything as “very damaging to his reliability as a witness”.

3. [124]

   As noted at the outset, the Tribunal found it necessary to develop its own numbering system to address the Complaint in a sensible manner. The Tribunal addressed each of the 12 grounds in the Complaint under the following 14 headings and in the following order:

   1. (1)

      “Failure to disclose costs – Mrs [Domabyl]’s will etc” (referred to as ground 9.1);

   2. (2)

      “Failure to disclose costs and breach of undertaking to Office of Legal Services Commissioner – Mrs [Domabyl] – Sale of retirement village unit” (referred to as grounds 9.2 and 10.1);

   3. (3)

      “Failure to disclose costs and failure to comply with undertaking to Office of Legal Services Commissioner – Mrs [Dougall]” (referred to as grounds 9.3 and 10.2);

   4. (4)

      “Failure to comply with an order of the Supreme Court” (referred to as ground 8);

   5. (5)

      “Use of Deposit of Mr and Mrs [Ho] – Unethical conduct – applying monies in breach of the terms of an agreement under which they were received” (referred to as ground 11);

   6. (6)

      “Purported to act under a Power of Attorney after the donor of the power had died – execution of transfer” (referred to as ground 6.1);

   7. (7)

      “Purporting to act under a Power of Attorney after donor of the power had died” (referred to as ground 6.2) and “Purporting to act as executor of her will when there was no grant of probate – Settlement instructions and settlement” (referred to as ground 7.1);

   8. (8)

      ”First Payment 12/10/12 … Breach of section 254 of 2004 Act, causing deficiency in Law Practice trust account, purporting to act as executor when no authority because no grant of probate, misappropriation” (referred to as grounds 1.1, 2.1, 3 and 7.1);

   9. (9)

      “Second payment 12/10/12” (withdrawn);

   10. (10)

       “Third payment 7/12/2012 – Mrs [Domabyl]’s estate … Breach of Section 255 of the 2004 Act, purporting to act as executor but no authority because no grant of probate” (referred to as grounds 4.1 and 7.2);

   11. (11)

       “Fourth payment 25/01/2013 … Breach of Sections 255 and 259 of the 2004 Act. Purporting to act as executor when no authority because no grant of probate, causing deficiency in trust account, misappropriation” (referred to as grounds 1.2, 2.2, 4.2, 5 and 7.3);

   12. (12)

       “Fifth payment 23/4/2013 – Estate of Mrs [Dougall] … Breach of Section 255 of the Act, purporting to act as executor when no authority because no grant of probate, causing deficiency of $8,751.90 in the trust account of the law practice” (referred to as grounds 4.2, 7.4, 2.3 and 10);

   13. (13)

       “Sixth payment 6/5/2013 – Transfer of trust funds to pay costs of acting for Estate of Mrs [Domabyl] … Breach of Section 255 of the 2004 Act, causing deficiency of [sic] in the trust account of the law practice, purporting to act as executor of deceased estate in circumstances where he had no authority to so act as there had been no grant of probate” (referred to as grounds 2.4, 4.3 and 7.5);

   14. (14)

       “Application 1620067 – Overcharging” (referred to as ground 12).

4. [125]

   Somewhat confusingly, the Tribunal assigned numbering to each of those findings which did not accord, at least in any consistent way, with the 12 separate grounds in the Complaint. For example, the first matter dealt with what was described as “ground 9.1”. Whilst no doubt it addressed, in part, ground 9 of the Complaint, there was no separate “ground 9.1”. Nevertheless, for consistency and to understand the appellant’s ultimate complaints in context, I will attempt to summarise the Tribunal’s findings by reference to the same groupings as just described.

5. [126]

   The Tribunal found that over a seven year period, Mr Berger created seven codicils, a power of attorney and gave some advice about the possible appointment of a guardian for Mrs Domabyl. On 25 June 2012, Mr Berger rendered an itemised bill for $176,800.94 in respect of work done from March 2009 onwards for Mrs Domabyl. He did not send this bill to Mrs Domabyl but to her estranged husband and son in the Czech Republic.

6. [127]

   Mr Berger submitted that he was not obliged by s 309 of the Legal Profession Act 2004 to make a costs disclosure because of s 312(1)(a) of the Legal Profession Act 2004. He accepted in this Court that the 2004 Act did not apply in February 2005. Instead, the Legal Profession Act 1987 applied, which fixed reasonableness as the standard for disclosure of costs.

7. [128]

   The Tribunal found that, because of Mrs Domabyl’s vulnerabilities, it was not unreasonable for Mr Berger to have been required to make written disclosure of the estimated total legal costs for preparing the will before proceeding with the work. The Tribunal considered that he was obliged to make such disclosure but failed to do so. Mr Berger was thereafter required to notify Mrs Domabyl about any significant increase in that estimate of costs.

8. [129]

   The Tribunal found that conduct constituted professional misconduct. Failing to make costs disclosures at all constituted professional misconduct. Mr Berger’s conduct constituted unsatisfactory professional conduct involving a substantial and consistent failure to maintain a reasonable standard of competence and diligence. In making this finding the Tribunal took into account Mrs Domabyl’s vulnerabilities, Mr Berger’s knowledge of the amount of the work in progress, the advice from his partners and others to waive the fees, his failure to render periodic bills and the length of time from March 2009 until the bill was rendered.

9. [130]

   On 22 March 2012, Mr Berger provided a standard costs agreement and disclosure to Mrs Domabyl regarding the sale of her retirement village unit. The estimate of total costs was given at $1,705.00. The Tribunal found that this was not a genuine estimate of total costs likely to be incurred as Mr Berger had already recorded costs of $1,852.29 and was aware that costs would be substantially more.

10. [131]

    Settlement of the sale occurred on 12 October 2012. The total costs charged by the law practice were $8,165.41, nearly five times the estimate of $1,705.00. The Tribunal found that as at 22 March 2012, Mr Berger was obliged by s 316 of the Legal Profession Act 2004 to give Mrs Domabyl a revised estimate of total costs. This obligation continued unsatisfied until 7 December 2012, a period of nearly nine months.

11. [132]

    In doing this, Mr Berger failed to comply with the disclosure requirements of s 309 and s 316 of the Legal Profession Act 2004. He also breached the undertaking given by him to the Office of the Legal Services Commissioner on 15 March 2012 to ensure that the legal practice complied with the disclosure requirements.

12. [133]

    The Tribunal found that each of his failures to comply with the disclosure requirements, and his breach of the undertaking, constituted unsatisfactory professional conduct.

13. [134]

    On or before 6 April 2008, Mr Berger prepared a will for Mrs Dougall on her instructions nominating him as her executor and prepared a power of attorney appointing him as her attorney. She executed both documents on 6 April 2008. On 2 January 2013, Mrs Dougall died. On or about 19 March 2013, Mr Berger sent a bill to Mrs Dougall’s niece and nephew in the amount of $14,341.55. On or about 22 April 2013, Mr Berger caused a bill for that amount to be given to himself as the executor named in Mrs Dougall’s will.

14. [135]

    At no time prior to 16 April 2013 had Mr Berger made any costs disclosure in accordance with s 309 of the Legal Profession Act 2004 or otherwise in relation to acting for the estate of Mrs Dougall. The Tribunal found a breach of the disclosure requirements of the 2004 Act and the undertaking given to the Office of the Legal Services Commissioner.

15. [136]

    The Tribunal found that such conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and these breaches constituted unsatisfactory professional conduct.

16. [137]

    In about May 2012, Ms Frischer retained Mr Berger, when a partner of MBBF, to prepare her will. The will was not complete by May 2013. In 2013 the Law Society suspended Mr Berger’s practising certificate. Mr Berger was granted a stay of the suspension decision, subject to certain undertakings given by him.

17. [138]

    In mid-July 2013, Ms Frischer received notification from Mr Berger that MBBF had been dissolved and that Mr Berger had established a new law practice. Ms Frischer was invited to sign an authority for her file to be transferred to the new law practice. On 22 July 2013, Ms Frischer signed the file transfer authority and returned it to Mr Berger.

18. [139]

    On 14 August 2013, the appeal against Mr Berger’s suspension was dismissed. On 15 August 2013, Mr Berger was granted a stay of the appeal’s dismissal, again subject to certain conditions. Condition 6 of the grant of the stay was that on or before 21 August 2013, Mr Berger notify his clients of the outcome of the principal proceedings, namely, the court’s decision to dismiss the practitioner’s appeal against his suspension.

19. [140]

    In August 2013, Mr Berger and Ms Frischer exchanged email correspondence in relation to her will, but he failed to notify her of the outcome of the appeal.

20. [141]

    The Tribunal found that Ms Frischer was a “client” within the meaning of Condition 6 of the stay and that Mr Berger breached Condition 6 by failing to notify Ms Frischer by 21 August 2013 of the court’s decision dismissing his appeal.

21. [142]

    The Tribunal found that such conduct was unsatisfactory professional conduct and demonstrated a less than serious respect for orders and conditions imposed on him by the Supreme Court.

22. [143]

    As at 16 August 2012, Mr Berger was the sole director and shareholder of a company, Storey Street Development Pty Limited, which was undertaking a residential development in Storey Street, Maroubra. As at 16 August 2012, that development was incomplete. On 16 August 2012, Mr and Mrs Ho entered into a contract for sale of land as purchasers with Storey Street Development Pty Limited as vendor of Lot 1 in the development. The deposit payable pursuant to the contract was $57,500, which was paid into the trust account of the law practice.

23. [144]

    Contracts were executed and exchanged on 31 August 2012. Special Condition 12 of the contract (set out at [47]) contained qualifications as to how the deposit could be used. No other Special Condition provided for early release of the deposit.

24. [145]

    At some time after 16 August 2012, Mr Berger caused the deposit to be disbursed from the trust account of the law practice without consultation with, or notice to, the purchasers or their solicitor. Special Condition 12 was not complied with. The disbursement of the deposit was in breach of contract.

25. [146]

    On 4 July 2014, Storey Street Development Pty Limited, by letter signed by Mr Berger, purported to rescind the Lot 1 contract. On 8 July 2014, Mr and Mrs Ho, through their solicitor, advised Mr Berger that they did not accept the notice of rescission but that if the contract was validly rescinded they were entitled to a refund of their deposit. The Tribunal found that the deposit has not been returned.

26. [147]

    The Tribunal found that Mr Berger knew that Special Condition 12 applied to the deposit and that it had not been complied with when he caused the deposit to be disbursed from the trust account.

27. [148]

    The Tribunal found that the conduct of Mr Berger in paying the deposit out of the trust account and to his company was in breach of the sale agreement. The Tribunal described Mr Berger’s conduct as dishonest and fraudulent. The Tribunal concluded that Mr Berger’s conduct was seriously unethical conduct amounting to professional misconduct.

28. [149]

    On or about 31 August 2012, Mr Berger exercised the power of attorney of Mrs Domabyl and exchanged contracts for the sale of her retirement village unit. Mrs Domabyl died on 4 October 2012. Mr Berger was notified of her death on 5 October 2012. The sale was not then completed.

29. [150]

    The solicitor for the purchaser of the unit sent the transfer document to Mr Berger under cover of a letter dated 3 October 2012. Mr Berger (illegibly) signed the transfer which was received by the solicitor for the purchaser under cover of a letter from Mr Berger dated 9 October 2012. The transfer did not refer to a power of attorney or indicate that it was Mr Berger and not Mrs Domabyl who had signed the document.

30. [151]

    The Tribunal found that Mr Berger was aware the power of attorney ceased to apply upon Mrs Domabyl’s death on 4 October 2012 and also knew that, if the purchaser’s solicitors became aware of her death, the sale could be aborted or stalled, and for that reason he did not inform the purchasers. The Tribunal found that purporting to make the transfer effective via the power of attorney was dishonest conduct and Mr Berger knew it was dishonest.

31. [152]

    The Tribunal found that signing the transfer and signing Annexure A to the transfer were both unsatisfactory professional conduct.

32. [153]

    Mr Berger, on or before 12 October 2012, instructed his staff to give directions to the purchaser’s solicitors as to how cheques for the settlement amount of Mrs Domabyl’s property were to be drawn. He denied that he did so purportedly as Mrs Domabyl’s attorney but admitted he did so purporting to be exercising powers of an executor of Mrs Domabyl’s estate. Probate of the will had not yet been granted and he had no such powers.

33. [154]

    Mr Berger stated that he thought he had power as someone named as executor to deal with the assets of the deceased. The Tribunal found on the basis of Mr Berger’s training and experience that such ignorance or mistaken belief was not credible. Mr Berger knew that he had no authority pursuant to the power of attorney and no authority as executor pending the grant of probate. He nonetheless completed the sale of Mrs Domabyl’s property.

34. [155]

    The Tribunal found that Mr Berger’s conduct was dishonest. The Tribunal concluded that Mr Berger’s conduct amounted to unsatisfactory professional conduct.

35. [156]

    On or about 12 October 2012, on settlement of the sale of Mrs Domabyl’s property, the cheque for $154,000 payable to Mr Berger was deposited into a bank account in Mr Berger’s name. The Tribunal found that this was trust money belonging to the estate of Mrs Domabyl and that s 254 of the Legal Profession Act 2004 required the cheque to be deposited into a law practice trust fund.

36. [157]

    The Tribunal found that Mr Berger knew that: the $154,000 cheque represented trust money belonging to the estate of Mrs Domabyl; he was required to deposit it into the law practice trust account; he had no power to act as executor until a grant of probate; and causing the $154,000 to be paid to him and its deposit in his bank account was unlawful and dishonest.

37. [158]

    The Tribunal found that, in breaching the Legal Profession Act 2004 by causing a deficiency in the trust account of the law practice, purporting to act as executor without probate in depositing the money and misappropriating the funds, Mr Berger was guilty of professional misconduct.

38. [159]

    As noted above, the Law Society withdrew the allegation about the Second Payment.

39. [160]

    On 6 December 2012, Mr Berger sent a letter, addressed to Mrs Domabyl, to himself as her attorney which purported to outline the settlement of the sale and stated that there was a shortfall of $1,540.92 which would be transferred from trust.

40. [161]

    On or about 7 December 2012, Mr Berger caused $1,540.92 to be debited from the trust monies held on behalf of the estate of Mrs Domabyl and transferred from the trust account of the law practice to the office account of the law practice.

41. [162]

    As at 7 December 2012, probate had not been granted and thus Mr Berger had no authority to make this payment as executor.

42. [163]

    The Tribunal found that Mr Berger knew that the money was trust money and that he had no authority as executor until probate had been granted. Mr Berger disbursed the money in breach of s 255 of the Legal Profession Act 2004, and he knew his conduct was prohibited by law and dishonest.

43. [164]

    The Tribunal found that in purporting to act as executor and in causing the transfer of the money from trust Mr Berger’s conduct was unsatisfactory professional conduct.

44. [165]

    On or about 25 January 2013, Mr Berger caused $20,000 to be paid from trust monies held on behalf of Mrs Domabyl’s estate to his son-in-law purportedly “on account of legal fees due to me and directed to be paid to [his son-in-law].”

45. [166]

    Mr Berger stated that he did not believe that the $20,000 was trust money and had a “mistaken belief and understanding” that he could act as executor without a grant of probate. The Tribunal found that Mr Berger did not have a “mistaken belief and understanding”.

46. [167]

    The Tribunal found that Mr Berger breached s 255 and s 259 of the Legal Profession Act 2004, caused a deficiency of $20,000 in the law practice trust account, and purported to act as executor when he had no authority to so act. The Tribunal found that Mr Berger knew that his conduct was illegal and dishonest. The conduct was also objectively dishonest.

47. [168]

    The Tribunal found that Mr Berger’s conduct was fraudulent and dishonest and amounted to unsatisfactory professional conduct.

48. [169]

    On 2 January 2013, upon the death of Mrs Dougall, the power of attorney executed in favour of Mr Berger was terminated. No probate had then been granted. On or about 23 April 2013, Mr Berger caused the sum of $8,751.90 to be paid into the office account of the law practice purportedly for legal fees.

49. [170]

    The Tribunal found that: Mr Berger knew the money was trust money; he had no authority to make the payment; his conduct was unlawful and dishonest; he breached s 255 of the Legal Profession Act 2004; he purported to act as executor with no probate; and he caused a deficiency of $8,751.90 in the trust account of the estate.

50. [171]

    The Tribunal found that the conduct was dishonest and amounted to unsatisfactory professional conduct.

51. [172]

    On or about 22 April 2013, Mr Berger caused a tax invoice to be prepared in relation to the estate of Mrs Domabyl for a total of $14,341.55. Since he had not made the required costs disclosures under s 309 of the Legal Profession Act 2004, the estate was not obliged to pay the costs unless they had been assessed. They had not been assessed.

52. [173]

    On about 6 May 2013, Mr Berger caused the sum of $14,341.55 to be paid from trust monies held on behalf of Mrs Domabyl to the office account on account of fees.

53. [174]

    The Tribunal found that: Mr Berger knew at the time of the payment that the money was trust money; he had no authority under the power of attorney; the payment was not authorised by probate; and the payment would be illegal and dishonest and in breach of s 255 of the Legal Profession Act 2004.

54. [175]

    The Tribunal found that this was unsatisfactory professional conduct.

55. [176]

    The Tribunal accepted the evidence of Ms Rosati, a costs assessor, that the actual amount that should have been charged by Mr Berger to Mrs Domabyl was $39,257.03. The difference between that amount and Mr Berger’s bill of $176,800.94 was $137,543.91, being the extent of the overcharge.

56. [177]

    The Tribunal concluded that the overcharging amounted to professional misconduct.

57. [178]

    The Tribunal rejected an application that the members constituting the Tribunal disqualify themselves, concluded that Mr Berger was guilty of professional misconduct and set the matter down for a penalty hearing.

The Penalty Judgment

1. [179]

   On 5 January 2018, the Tribunal ordered the removal of Mr Berger from the roll of local lawyers: Council of the Law Society of NSW v Berger [2018] NSWCATOD 4 (“Penalty Judgment”).

2. [180]

   The Tribunal identified a series of antecedent complaints, four of which were highlighted, being those which were investigated and found proved. Seventy other complaints were mentioned and it was noted that not all had been substantiated.

3. [181]

   The Tribunal considered character evidence and concluded that the professional misconduct and unsatisfactory professional conduct were aspects of Mr Berger’s behaviour that he concealed from most of the people he mixed with in the community. No character evidence was given by any solicitor who had worked in the same legal practice as Mr Berger.

4. [182]

   The Tribunal found that the complaints proved were extensive and extremely serious, and included dishonest and fraudulent behaviour.

5. [183]

   Mr Berger acknowledged that the findings of the Tribunal in the Stage 1 matter “reveal many failings on my part to meet my professional obligations” but said “I do not believe that I have engaged in dishonesty …”.

6. [184]

   Taking account of Mr Berger’s conduct and “entrenched inadequacies regarding costs disclosures and … conduct that has been dishonest and sometimes fraudulent …” the Tribunal was not satisfied he was currently fit to practise as a legal practitioner.

7. [185]

   The Tribunal was satisfied that the protection of the public required it to make an order that Mr Berger’s name be removed from the roll of lawyers. The Tribunal found that there was no evidence supporting a finding that Mr Berger was not likely to remain permanently unfit to practise as a legal practitioner.

Amended notice of appeal

1. [186]

   The amended notice of appeal filed on 8 October 2016 provided as follows:

   1. (1)

      “The Tribunal:

   2. (2)

      The Tribunal:

   3. (3)

      The Tribunal:

   4. (4)

      The Tribunal:

   5. (5)

      The Tribunal:

   6. (6)

      The Tribunal:

   7. (7)

      The Tribunal erred in finding (at paragraph [44]) of the Liability Judgment) that the Appellant presented as an unreliable witness and (at [52]) of the Liability Judgment that the Appellant was often evasive … [and] avoided questions and gave unresponsive answers.”

2. [187]

   The factual challenges set out in items (6) and (7) immediately above were added on the morning of the second day of the appeal. The Law Society did not oppose leave being granted to raise them.

The notice of contention

1. [188]

   The Law Society contended that the decision of the Tribunal should be affirmed on grounds other than those relied on by the Tribunal. I will not set out the terms of the lengthy notice of contention, as I have concluded that it is essentially irrelevant.

2. [189]

   Mr Lloyd who appeared for Mr Berger in this Court accepted that if the findings of dishonesty made by the Tribunal were not set aside by this Court, the order that Mr Berger should be struck from the roll was inevitable. The Law Society’s notice of contention sought to support the striking off order on the basis, in effect, that the findings made were so serious that the appropriate conclusion was that findings of professional misconduct should be made.

3. [190]

   The notice of contention did not address the critical issue in this case about whether dishonesty was sufficiently clearly alleged by the Law Society, but essentially assumed that a reference to “misappropriation”, “deficiency from a trust account” and breach of s 255 and s 259 of the Legal Profession Act 2004 was sufficient, without more, to establish that Mr Berger’s conduct was dishonest. The basis upon which the notice of contention was advanced suffered from the same ambiguity as the Complaint. If the appellant’s appeal succeeded there would be no occasion to uphold the Tribunal’s decision on the basis of essentially the same reasoning that Mr Berger attacks in his appeal. The notice of contention need not be considered further.

Mr Berger’s submissions

1. [191]

   As mentioned at the outset, faced with the lengthy and confusing attempts to address the critical issues that have characterised this case, Mr Lloyd for Mr Berger addressed in writing his grounds of appeal in the order in which they appeared in the notice of appeal. I will attempt to summarise the submissions made on behalf of Mr Berger here and in the same order. In doing so, however, it is to be noted that in oral submissions Mr Lloyd attempted to characterise the complaints made about the decision of the Tribunal in a different order, by identifying what he submitted were the most important themes of his complaint. It is in that thematic order that I will ultimately address Mr Berger’s appeal. However, I will return to the specific grounds of appeal at the conclusion of my consideration of those most important themes.

2. [192]

   The appellant submitted that the Law Society’s case against Mr Berger in ground 11 of the Complaint was that he misused a deposit paid to Storey Street Development Pty Ltd as vendor for the sale of land. It was submitted that the Law Society alleged that this conduct was “unethical”, but did not contend that Mr Berger misused the deposit “knowingly” or “dishonestly”. It was submitted that the Law Society failed to plead any material facts sufficient to establish dishonesty or a substantial failure to maintain a reasonable standard of diligence and competence, and thus the findings made by the Tribunal were not open. The appellant refined this submission in oral argument. Mr Lloyd accepted that the Law Society had conducted a case from the beginning alleging what was described as “objective dishonesty”, but submitted that the Law Society’s case was never that Mr Berger was “subjectively dishonest”.

3. [193]

   The appellant submitted that the correct test to establish dishonesty was:

   1. (1)

      identify the knowledge, belief or intent which is said to render the acts dishonest;

   2. (2)

      determine whether Mr Berger subjectively had that knowledge, belief or intent; and

   3. (3)

      prove that the acts were objectively dishonest according to the standards of ordinary and decent people.

4. [194]

   The appellant submitted that the Tribunal erred in the way in which it applied the onus of proof, which rested at all times upon the Law Society in accordance with the Briginshaw principles: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It was submitted that a legal practitioner bears an “evidentiary onus” in respect of certain exculpatory matters, meaning that the practitioner must point to matters worthy of consideration as possible excuses and, once raised, they become matters the Law Society must disprove. It was submitted that the Tribunal did not make findings as to the onus of proof, the application of the Briginshaw principle or the principles in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, but rather often held against Mr Berger that there was “no evidence” of a certain point in contention. The appellant submitted that the Tribunal’s finding of professional misconduct was not open on the evidence as the Law Society elected not to call any witnesses to contradict Mr Berger’s evidence regarding the impugned part of the contract.

5. [195]

   The appellant submitted that, even if the impugned contractual provision was a term of the contract, the Law Society did not establish that the deposit was spent inconsistently with that provision and the Tribunal did not say in its reasons how it was satisfied that the funds had been applied in breach of the provision. It was submitted that the Law Society relied only on the narratives of the trust ledger and Mr Berger’s inability to recall the details of the spending during cross-examination.

6. [196]

   The appellant submitted that the Law Society’s case against Mr Berger in ground 9 of the Complaint was that he failed to make adequate costs disclosures to a client. It was submitted that the Law Society did not plead that Mr Berger’s failures to disclose were dishonest or allege professional misconduct under s 497(1)(b) of the Legal Profession Act 2004.

7. [197]

   The appellant submitted that the finding of professional misconduct was not open having regard to the manner in which the Law Society’s case was conducted. It was submitted that Mr Berger’s conduct was not dishonest or improper and that Mr Berger believed he was acting in the best interests of his client and thus entitled to issue an invoice. It was submitted that Mr Berger’s genuine belief was never challenged at the hearing.

8. [198]

   The appellant submitted that the Tribunal did not make any findings in respect of Mr Berger’s defence under s 312(1)(a) of the Legal Profession Act 2004 and instead found that the Legal Profession Act 1987 applied at the commencement of Mr Berger’s work for Mrs Domabyl. It was submitted, therefore, that many of the later alleged failures to disclose were not breaches of the 2004 Act, and the Law Society bore the onus of disproving that any such defence in the 2004 Act applied.

9. [199]

   The appellant submitted that the Law Society’s case against Mr Berger in ground 8 of the Complaint was that Mr Berger failed to comply with a condition of a court order to notify his clients of the outcome of the principal proceedings relating to the suspension of his practising certificate. It was submitted that the Tribunal misconstrued or misapplied the term “client” and Ms Frischer was not a client within the meaning of the court order.

10. [200]

    The appellant submitted that the Tribunal’s finding at [198] impermissibly strayed beyond the Law Society’s pleaded case, and that an inadvertent breach of a court order is not a proper basis for a finding of unsatisfactory professional conduct.

11. [201]

    The appellant submitted that the Tribunal impermissibly reversed the onus of proof. It was submitted that the fact Mr Berger did not disclose in his documents the details of his instructions or explicitly state that he checked the list of clients his staff prepared does not establish that he in fact did not check the list.

12. [202]

    The appellant submitted that the finding that Ms Frischer was a client and the finding at [198] were not open, on the basis that making such findings would be a denial of procedural fairness because it was not put to Mr Berger that the system he implemented to comply with the court order was inadequate nor was it put to him that he did not check the list prepared by his staff.

13. [203]

    The appellant submitted that the Law Society’s case against Mr Berger was that Mr Berger had misappropriated the First Payment of $154,000 dishonestly. It was submitted that the Tribunal’s findings at [270] was not open on the pleaded case as the Law Society did not plead any subjective knowledge, belief or intention which was said to render the acts dishonest, and the facts relied upon to establish dishonesty were solely objective facts.

14. [204]

    The appellant submitted that the findings were not open on the basis that to make such findings, having regard to the manner in which the case was conducted, would be a breach of procedural fairness. The appellant met the allegation of misappropriation by giving evidence that he believed he was entitled to the funds as they were payable towards legal costs owing. It was submitted that Mr Berger was not challenged on this case, and it was not suggested to him that he was dishonest or his belief in his entitlement to the funds was not genuinely held.

15. [205]

    The appellant submitted that the findings were not open on the evidence because the objective facts and significant unchallenged evidence negate any finding of dishonesty. It was submitted that Mr Berger invoiced his clients and received no objection to the invoice.

16. [206]

    The appellant submitted that the Law Society’s case in ground 12 of the Complaint was that Mr Berger engaged in professional misconduct in overcharging Mrs Domabyl, namely, charging professional rates for non-legal work, charging for work done pursuant to a power of attorney, and charging for work or disbursements where the nature of the work was unknown or unclear.

17. [207]

    The appellant submitted that the Tribunal failed to address Mr Berger’s contention on the principle of finality, namely that controversies, once resolved, are not to be re-opened except in narrowly defined circumstances. In the present case, Mr Berger had his costs in relation to the alleged overcharging assessed in conformity with an undertaking given to the Supreme Court and with the knowledge of the Law Society. The appellant submitted that there was a commonality of issues between the determination of the costs assessor and the determination of the Tribunal since the costs assessor was required to consider the fairness and reasonableness of the amount of costs pursuant to s 328(5) of the Legal Profession Act 2004, to report any that are “grossly excessive” pursuant to s 393, and to produce a certificate and reasons pursuant to s 368 and s 370, and this determination was final under s 372. It was submitted that the costs assessor had finally determined that the costs were not grossly excessive and the Law Society was barred from pursuing a different outcome in the Complaint.

18. [208]

    The appellant alternatively submitted that, even if the principle of finality does not bar the Law Society from pursuing a different outcome in the Complaint, the fact that an independent statutory body has assessed the costs as fair and reasonable is something that ought to be given significant weight.

19. [209]

    The appellant submitted that the Tribunal erred in finding that the charging of professional fees for non-legal work per se amounts to overcharging. It was submitted that whether a client would expect a solicitor to charge professional rates for non-legal work depends on the circumstances, and in the present case the client was without another in whom she reposed confidence to assist with the management of her affairs.

20. [210]

    The appellant submitted that the Tribunal erred in finding that there was no agreement in place for Mr Berger to charge for non-legal work and for work performed pursuant to a power of attorney. As Mr Berger gave evidence alleging that the work was being done with the consent and at the direction of the client, the appellant submitted that the Tribunal either impermissibly reversed the onus of proof or made a finding not open on the evidence.

21. [211]

    The appellant submitted that the Tribunal erred in finding overcharging for professional fees which on the face of the invoice were for an unknown or unclear purpose. It was submitted that the onus of proving overcharging rested on the Law Society and it was impermissible to reverse that onus and say that an unclear bill was per se overcharging unless Mr Berger proved the contrary.

22. [212]

    The appellant submitted that the Law Society adduced insufficient evidence to establish overcharging, relying solely on the invoice and the interpretation of an expert witness.

23. [213]

    On the basis of appeal grounds 1-5, the appellant submitted that the Tribunal erred in finding Mr Berger was guilty of professional misconduct and in finding that the conduct was dishonest. It was submitted that the highest the Tribunal’s findings go are findings of unsatisfactory professional conduct and professional misconduct, but in circumstances where Mr Berger should not have been found guilty of dishonesty.

24. [214]

    The appellant submitted that the Tribunal erred in giving weight to the fact that there was a list of more than 70 complaints against Mr Berger, since almost all of the complaints had not resulted in adverse findings.

25. [215]

    The appellant submitted that the Tribunal erred in not affording any or proper weight to the character references relied upon by Mr Berger. It was submitted that those references which gave evidence of Mr Berger’s good character, reputation in the legal profession and contributions to the broader community were not challenged and capable of being relevant.

26. [216]

    The appellant submitted that the Tribunal erred in failing to address Mr Berger’s fitness at the time of the order, and determined the question solely at the time of the relevant issues that were the subject of the Complaint, which occurred in around 2012. It was submitted that many years have passed and the proper time to determine the question is the date of the order.

27. [217]

    In oral submissions, the appellant submitted that most of the findings of unsatisfactory professional conduct and professional misconduct relate only to Mrs Domabyl who was a difficult client and a very unusual situation. It was submitted that it was necessary to consider mitigating factors and that, even if there was a finding of misappropriation, that finding does not necessarily warrant removal from the roll. The appellant set out 10 factors from Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320, which it submitted may be relevant to whether Mr Berger was fit and proper to engage in legal practice.

28. [218]

    The appellant submitted that the Tribunal’s findings about Mr Berger’s credibility were not open because the allegation was not put or pleaded or the finding was not open on the evidence. It was submitted that Mr Berger’s presentation in the witness box was of doubtful relevance because his evidence was largely unchallenged by any competing factual evidence and his state of mind in relation to his conduct was not put into issue.

29. [219]

    The appellant submitted that, in any event, a fair review of the transcript of Mr Berger’s evidence does not support the Tribunal’s finding that he was often evasive or appeared at times to be controlling or arrogant or that he avoided questions.

30. [220]

    The appellant submitted that the Tribunal wrongly formed an adverse view of Mr Berger based on impermissible “concerns” about his reliability before he entered the witness box, at times a misunderstanding of his evidence and an assessment of his conduct in response to what amounted to cross-examination by the Tribunal’s members.

31. [221]

    In oral submissions, the appellant submitted that the Tribunal in making the findings about credibility relied on its “initial concerns” which arose before the hearing commenced and were unsupported by the evidence or went to matters outside the complaints made. It was also submitted that this Court should exercise care in affirming the Tribunal’s findings about the way in which Mr Berger gave his evidence since the findings of dishonesty, fraud and illegality made which were not open suggest a degree of lack of care by the Tribunal in making very serious adverse findings.

32. [222]

    Appended to the appellant’s submissions in reply was a challenge to five factual findings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 51.36(2):

    1. (1)

       the factual finding that Special Condition 12 formed part of the contract (Liability Judgment at [217]) was challenged. It was submitted that the Tribunal should have found that Special Condition 12 was not part of the contract;

    2. (2)

       the factual finding that Mr Berger knew that Special Condition 12 was part of the contract (Liability Judgment at [218]) was challenged. It was submitted that the Tribunal should have found that he did not believe that Special Condition 12 was part of the contract;

    3. (3)

       the factual finding that Ms Frischer was a client of Mr Berger’s (Liability Judgment at [197]) was challenged. It was submitted that the Tribunal ought to have found that Ms Frischer was not a client at the relevant time;

    4. (4)

       the factual finding that there was no agreement in place with Mrs Domabyl for Mr Berger to charge for non-legal work (Liability Judgment at [337], [349]) was challenged. It was submitted that the Tribunal ought to have found that the work was done as a solicitor with the consent of and at the direction of Mrs Domabyl; and

    5. (5)

       the factual finding that Mr Berger had engaged in overcharging (Liability Judgment at [352]) was challenged. It was submitted that the Tribunal ought to have found that Mr Berger did not engage in overcharging.

Relevant legislation

1. [223]

   A party has a statutory right to appeal to the Supreme Court in respect of a “profession decision” under the Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29(2). A “profession decision” includes a decision for the purposes of the Legal Profession Uniform Law (NSW): Civil and Administrative Tribunal Act, Sch 5, cl 29(1)(e).

2. [224]

   Under the Civil and Administrative Tribunal Act, a reference to the Legal Profession Uniform Law includes a reference to the Legal Profession Act: Civil and Administrative Tribunal Act, Sch 1, cl 21(a). The Legal Profession Uniform Law, Sch 4, cl 2 provides, in substance, that things done under provisions of the Legal Profession Act 2004 that correspond to provisions of the Legal Profession Uniform Law that were done before the commencement of the Legal Profession Uniform Law continue in effect as if they were done under the Legal Profession Uniform Law. Hence an investigation that commenced before 1 July 2015 is taken to have been done under the Legal Profession Uniform Law. It is by virtue of the Legal Profession Uniform Law, Sch 4 that provisions in the Legal Profession Act 2004 continue to apply.

3. [225]

   The matter is assigned to this Court under the Supreme Court Act 1970 (NSW), s 48(1)(a)(viii): Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59 at [15]. The appeal to this Court is by way of rehearing under the Supreme Court Act, s 75A: Civil and Administrative Tribunal Act, Sch 5, cl 29(4)(a).

4. [226]

   It is also desirable to record that in conducting the rehearing, the Court must be astute to ensure that evidence and submissions made by the appellant in this Court, which on one view may have supported the findings of the Tribunal, are not taken into account in reaching any decision adverse to the appellant as to do so, in the absence of a clear warning from the Court, would amount to a denial of procedural fairness: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 267-269 (Brennan, Dawson, Toohey and Gaudron JJ); [1992] HCA 36.

5. [227]

   The relevant provisions of the Legal Profession Act 1987 (NSW) and the Legal Profession Act 2004 (NSW) were set out at length by the Tribunal. It is unnecessary to repeat all of those provisions. The most relevant provisions were as follows.

6. [228]

   The Legal Profession Act 1987 made detailed provision for a disclosure of costs, the total amount of costs and the basis of calculating costs. There was no challenge by Mr Berger to the Tribunal’s finding that at the outset of his engagement by Mrs Domabyl in February 2005, the relevant exclusion was contained in s 180 of the 1987 Act:

7. [229]

   Relevant to the trust account issues, during the relevant period from October 2012 to May 2013 when the First to Sixth Payments were made, the Legal Profession Act 2004 (version for 8 July 2011 to 2 June 2013) provided:

8. [230]

   Relevant to costs disclosure issues in the period after the commencement of the 2004 Act (version for 21 December 2004 to 30 June 2005) are the following provisions:

9. [231]

   The meanings of unsatisfactory professional conduct and professional misconduct in the Legal Profession Act 2004 are as follows: [5]

10. [232]

    The orders available to the Tribunal were found in Legal Profession Act 2004 (version for 4 July 2014 to 30 June 2015):

Consideration

1. [233]

   Before descending into the detail of the various complaints made by Mr Berger about the decision of the Tribunal it is important to recall that counsel for Mr Berger identified the central issue in this case as being whether the conduct proved against Mr Berger was sufficient to warrant an order that his name be removed from the roll of legal practitioners.

2. [234]

   Although the particulars of that conduct are in a number of respects strongly in contest, the general conclusion, that Mr Berger was guilty of, at least, unsatisfactory professional conduct in multiple respects, is not.

3. [235]

   Even if entirely successful in the attack made on the judgment of the Tribunal, Mr Berger invited this Court to determine for itself whether his conduct, as found by the Court, is such that an order that he be removed from the roll is warranted.

4. [236]

   The oral submissions of Mr Lloyd on behalf of Mr Berger addressed 12 thematic issues by reference first to the grounds of the Complaint, next to the findings made by the Tribunal on those grounds of the Complaint, and finally to the challenges in the amended notice of appeal. It is convenient to adopt the same approach here.

5. [237]

   As is clear from the summary of the facts and the submissions, Mr Berger accepts that he purported to act under a power of attorney granted by Mrs Domabyl where he had no authority because she had died, and that he acted as the executor of her estate without authority because there was no grant of probate.

6. [238]

   The critical question, as it emerged in the course of oral submissions, is whether certain findings made by the Tribunal were open in circumstances where no allegation of what was described as “subjective” dishonesty was made by the Law Society in the Complaint or the way the case was conducted.

7. [239]

   The way the parties approached the relevant question, by asking whether dishonesty should be analysed as either “subjective” or “objective” dishonesty, is apt to mislead.

8. [240]

   The common law of Australia about the meaning of “dishonesty”, unless a specific statutory definition applies, has been clear since Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7. There, Toohey and Gaudron JJ said of “dishonesty”:

9. [241]

   In the same case McHugh and Gummow JJ determined at [39] and [93] that the Crown does not have to prove dishonesty as an element of conspiracy to defraud at common law or under s 86A of the Crimes Act 1914 (Cth).

10. [242]

    In Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24 the plurality, Gleeson CJ, Gummow and Hayne JJ, said:

11. [243]

    The appellant accepted in oral submissions that the Law Society had conducted a case of “dishonesty” but submitted that the case was limited to allegations of “objective” dishonesty.

12. [244]

    That this issue arose at all is regrettable. The principal reason for the issue arising is that the Complaint drafted by the Law Society was ambiguous. The Complaint alleged “misappropriation” but omitted to use the words “dishonest” or “fraudulent” at all. There are many shades of meaning to the term “misappropriation”: Council of the Law Society of NSW v Doherty [2010] NSWCA 177 at [43]. The allegation of misappropriation without more in this case led to a lengthy and unproductive debate before the Tribunal and in this Court about whether, in context, it included an allegation of dishonesty.

13. [245]

    The critical question is whether it was open to the Tribunal to find that Mr Berger’s conduct was dishonest. I have concluded that, although the Complaint was ambiguous, the manner in which the case was opened by the Law Society in relation to the First Payment of $154,000 made it clear that dishonesty was alleged. As in Pham v Legal Services Commissioner [2016] VSCA 256 at [188], while the Complaint did not, in express terms, employ the word “dishonesty”, it was necessarily implicit in the manner in which the First Payment of $154,000 was presented to the Tribunal that the Law Society was alleging that Mr Berger’s conduct was dishonest.

14. [246]

    The particulars to the Complaint provided, relevantly:

15. [247]

    The Complaint did not clearly identify the “knowledge, belief or intent which is said to render that act dishonest”. It is not correct, as was submitted on behalf of the Law Society, that what it described in submissions as “objective dishonesty” involves an analysis that proceeds immediately from the identification of conduct – here Mr Berger paying the $154,000 to himself rather than into a trust account for the estate of Mrs Domabyl – to a consideration of whether the conduct was dishonest by the standards of ordinary, decent people. That submission leaves out a step which was at the heart of the reasoning in Peters and Macleod; namely, identification of the knowledge, belief or intent of the allegedly dishonest person.

16. [248]

    In Macleod, the conduct was causing money belonging to a company which was controlled by Mr Macleod to be paid to his personal benefit. The knowledge, belief or intent alleged was Mr Macleod’s knowledge that the funds taken were applied for his own use or benefit and not a use or proper purpose of the company. In examining this critical step the matter litigated was Mr Macleod’s assertion that he believed that the money was owed to him by the company for services rendered and/or that he had a claim of right to the money. The jury rejected Mr Macleod’s evidence and convicted him. The conviction was not overturned in the Court of Criminal Appeal and the High Court held that the Court was correct so to conclude.

17. [249]

    In the present case, Mr Berger’s relevant knowledge was of his lack of entitlement to take or apply the funds for his own use or benefit. The Complaint was ambiguous about whether such an allegation was made. Despite the ambiguity in the Complaint about the $154,000 payment, it is clear that the Law Society conducted its case from the beginning on the basis that Mr Berger knew that he had no power to make the payment to himself from the sale of Mrs Domabyl’s property and that the making of the payment in that state of knowledge was dishonest. As the analysis below shows, Mr Berger was on notice of this allegation and had the opportunity to respond to it.

18. [250]

    The Law Society’s opening written submissions, which were served before Mr Berger was required to file evidence and almost a month before the first hearing day before the Tribunal on 31 October 2016, commenced with an allegation that Mr Berger’s conduct was dishonest. The focus was upon dishonesty:

19. [251]

    The knowledge, belief or intent on Mr Berger’s part alleged to make his conduct dishonest was specifically addressed:

20. [252]

    That is, in relation to the allegations that Mr Berger misappropriated the payments of $154,000 and $20,000, the Law Society alleged, in terms, that without authority Mr Berger caused the two sums to be paid to himself or at his direction and that in doing so he could not have been mistaken as to his lack of entitlement to transfer the relevant monies.

21. [253]

    Mr Berger understood that this was alleged. He maintained in his amended reply that:

22. [254]

    Mr Berger swore affidavits outlining his state of mind. In his principal affidavit dated 5 October 2016 served after the Law Society’s opening he said:

23. [255]

    He was cross-examined about this evidence:

24. [256]

    In cross-examination, in a number of passages, Mr Berger was challenged about his stated knowledge or belief:

25. [257]

    Mr Berger was cross-examined extensively about his knowledge or belief as to his entitlement to pay himself the $154,000 from Mrs Domabyl’s estate:

26. [258]

    In his 5 October 2016 affidavit Mr Berger addressed the question of the tax invoice in the name of MBBF issued in respect of legal work said to have been done for Mrs Domabyl:

27. [259]

    Mr Berger’s attention was specifically directed to his conduct in issuing an invoice in the name of the firm after MBBF had written off the debt allegedly owed by Mrs Domabyl:

28. [260]

    The Law Society conducted a case of dishonesty about the payment by Mr Berger of $154,000 from Mrs Domabyl’s estate to himself. Mr Berger addressed that allegation in his evidence and was cross-examined about it.

29. [261]

    It follows that there was no such denial of procedural fairness. It was open to the Tribunal to find at [270] that Mr Berger, in paying $154,000 from the sale of Mrs Domabyl’s property to himself rather than into a trust account, acted dishonestly.

30. [262]

    The Tribunal found that:

    1. (1)

       Mr Berger knew that the $154,000 was money that belonged to the Domabyl estate;

    2. (2)

       Mr Berger knew that he was required to deposit the funds into a trust account;

    3. (3)

       Mr Berger knew that he had no power to pay the money to himself; and

    4. (4)

       by reference to the standards of ordinary honest people, Mr Berger’s conduct was dishonest.

31. [263]

    There is one respect in which the Tribunal made a finding which was outside the Law Society’s case. It found at [269] that “[Mr Berger] knew what he was doing was unlawful and dishonest”. That allegation was not particularised by the Law Society and not put to Mr Berger. The finding was surplusage in the sense that it was not a necessary ingredient of dishonesty. The fact that a fraudster subjectively believes that dishonest conduct is not “dishonest” is not relevant to proof of dishonesty. That is the requirement that the High Court, by reference to the English Ghosh test, rejected in Peters.

32. [264]

    As the Tribunal has made a finding that was not open on the way the Law Society conducted its case, Mr Berger is entitled to succeed in having this finding set aside. It is true, as Mr Lloyd submitted, that Mr Berger is entitled to have such serious allegations determined by reference to the case he was called to meet.

33. [265]

    As both parties invited the Court itself to determine this matter if error was shown, it is necessary to make findings as to the relevant matters. On all of the evidence, the Law Society’s case was overwhelming that:

    1. (1)

       Mr Berger knew that the $154,000 was money that belonged to Mrs Domabyl’s estate;

    2. (2)

       Mr Berger knew that he was required to deposit the funds into a trust account;

    3. (3)

       Mr Berger knew that he had no power to pay the money to himself; and

    4. (4)

       Mr Berger’s conduct in paying the money to himself was dishonest by application of the standards of ordinary honest people.

34. [266]

    The critical question was as to the third of the matters, namely Mr Berger’s knowledge and belief about his entitlement to pay himself $154,000 from Mrs Domabyl’s estate.

35. [267]

    Mr Berger’s ultimate explanation of his understanding about his having an “entitlement” to be paid the $154,000 from Mrs Domabyl’s estate should not be accepted. Mr Berger knew that he had not made a disclosure to Mrs Domabyl about costs as he was required to do. Mr Berger knew that MBBF had, long prior to paying the money to himself, written off Mrs Domabyl’s entire bill. Mr Berger had agreed in writing with his partners to write off Mrs Domabyl’s entire bill because, as his partners made clear, they were concerned that they and the firm may be guilty of professional misconduct in charging a vulnerable, elderly woman such a significant sum without any adequate costs disclosure having been made.

36. [268]

    Despite knowing all of that, Mr Berger caused a tax invoice for $176,800.94 to be issued, by MBBF, to Mrs Domabyl’s estate. Mr Berger plainly knew that, whatever else he believed, Mrs Domabyl did not have a liability to pay MBBF anything. The suggestion that Mrs Domabyl’s estate had a “costs” liability to MBBF was false and must have been known to be false by Mr Berger who had agreed that MBBF would write off Mrs Domabyl’s bill and not to charge her further costs.

37. [269]

    Mr Berger was a long experienced solicitor. He was, for more than 30 years, an accredited Business Law specialist. Although he suggested that he was much less experienced with wills and estate law, he had prepared hundreds of wills and advised executors for decades. He ultimately did not assert that he believed that he had power under the power of attorney (after Mrs Domabyl had died) or as executor (absent a grant of probate) to pay himself anything from Mrs Domabyl’s estate. He said that his genuine belief was that he was “paying a liability of the estate”. Mr Berger could not explain in his evidence or his cross-examination how it was that he could possibly have believed that Mrs Domabyl’s estate had any personal liability to him. The tax invoice from MBBF was known by Mr Berger not to represent a liability of the estate. Despite that, Mr Berger caused the $154,000 to be paid by the estate directly to him.

38. [270]

    The Tribunal’s finding that Mr Berger knew that he had no power to pay the $154,000 to himself was plainly correct. In acting as Mrs Domabyl’s estate solicitor, Mr Berger resolved the hopeless conflict of interest he faced in favour of his own interests over those of his client.

39. [271]

    In Kumar v Legal Services Commissioner [2015] NSWCA 161, Leeming JA said:

40. [272]

    The same conclusion follows here. There is no plausible explanation inconsistent with dishonesty for misappropriation of these funds. Mr Berger’s payment to himself of $154,000 from Mrs Domabyl’s estate was “precisely the sort of conduct which is antithetical to the trust and confidence which is required by a solicitor with custody of his or her clients’ money”.

41. [273]

    Reliance on the Second Payment was abandoned by the Law Society.

42. [274]

    The appellant submitted, correctly, that issue 3 almost entirely overlapped with issue 1. Mr Berger accepted that he breached s 255 of the Legal Profession Act 2004 and accepted that his conduct caused a deficiency in the trust account. Mr Berger accepted that the conduct was intentional, but took issue with the Tribunal’s finding at [296] that the conduct was dishonest and fraudulent. Mr Berger accepted that he had no authority as executor or under power of attorney to make the payments and that he was thus guilty of unsatisfactory professional conduct.

43. [275]

    Mr Berger maintained, however, that it was not open, for essentially the same reasons canvassed in relation to issue 1, to the Tribunal to find at [294] and [296] that his conduct in directing this payment be made was dishonest and fraudulent conduct.

44. [276]

    For essentially the same reasons as in relation to issue 1, the submission that the Law Society did not conduct a case of dishonesty which Mr Berger understood and had the opportunity properly to meet must be rejected.

45. [277]

    The written opening by the Law Society specifically alleged that Mr Berger acted dishonestly and without authority in paying the $20,000 from the trust account where it was held for Mrs Domabyl and that Mr Berger “could not have been mistaken as to his lack of entitlement to transfer the relevant monies”:

46. [278]

    Mr Berger in his 5 October 2016 affidavit asserted that his honestly held belief about the $20,000 payment was “as set out above” which was apparently intended to be a reference to his asserted belief that “as the person entitled under the contract and the Will, I was entitled to direct the money as I saw fit and that it was not in fact trust money”. As will be recalled, Mr Berger was cross-examined about the “contract” he says he understood he was acting under and he stated:

47. [279]

    The significance of this answer is that Mr Berger had earlier agreed that he understood that in the absence of a grant of probate he could not disburse trust money belonging to Mrs Domabyl, and that the sole remaining basis he asserted as informing his understanding that he was so entitled, a “contract”, was not a basis upon which he thought he was entitled to act.

48. [280]

    Mr Berger was also specifically cross-examined about this payment:

49. [281]

    There is no plausible explanation inconsistent with dishonesty for misappropriation of these funds. The Tribunal was correct to conclude that Mr Berger did not know or believe that he was entitled to the money. Mr Berger’s payment to himself of $20,000 from Mrs Domabyl’s estate was “precisely the sort of conduct which is antithetical to the trust and confidence which is required by a solicitor with custody of his or her clients’ money”: Kumar at [61].

50. [282]

    It is, however, again correct that no allegation was made that Mr Berger subjectively understood when he made the payment that it was illegal and was dishonest. Accordingly, the finding at [294] must be set aside.

51. [283]

    This issue, too, overlapped with issue 1. It will be recalled that the Third Payment was in the amount of $1,540.92 which Mr Berger caused to be debited from trust monies held on behalf of the estate of Mrs Domabyl and credited to the office account of the law practice.

52. [284]

    Mr Berger accepted that he purported to act as executor without authority, that he disbursed trust monies otherwise than in accordance with a direction given by the person on whose behalf it was held, and that he was guilty of unsatisfactory professional conduct. Mr Berger challenged the Tribunal’s finding that he acted dishonestly or that he knew he was behaving dishonestly and illegally as that case was not put.

53. [285]

    Mr Berger is correct that a case of dishonesty was not pleaded in the Complaint with sufficient clarity. Unlike the allegations I have already dealt with, it is far from clear that the Law Society conducted a case that Mr Berger acted dishonestly in respect of the Third Payment and that Mr Berger had a proper opportunity to address that case. The Complaint read as follows:

54. [286]

    Unlike the allegation in relation to the First Payment and Fourth Payment, the Law Society limited itself in opening to the submission that Mr Berger, given his long experience as a solicitor, “can have had no reasonable basis for his belief” that he was not in breach of s 255, and the observation that “his asserted lack of understanding is of concern”.

55. [287]

    That was not a sufficient indication to justify the finding eventually made by the Tribunal at [281] that “[o]n the balance of probabilities the practitioner knew his conduct was prohibited by law and dishonest”.

56. [288]

    That finding at [281] must be set aside. The Tribunal’s ultimate finding on this issue at [282], however, was open and correct. The Tribunal found that, in purporting to act as executor and in causing the payment to be made without a valid direction, the conduct of Mr Berger fell short of the standard of competence and diligence that a member of the public was entitled to expect.

57. [289]

    On 22 April 2013, Mr Berger caused MBBF to issue a tax invoice to Mr Berger and Mr Green as executors of Mrs Domabyl’s estate in the amount of $14,341.55 relating to the application for the grant of probate. On about 6 May 2013, Mr Berger caused an amount of $14,341.55 to be paid from the trust account for those fees. This was the Sixth Payment.

58. [290]

    Mr Berger admits that he failed to hold the relevant monies in a trust account and that he disbursed trust monies other than in accordance with a direction given by the person on whose behalf it was held.

59. [291]

    Precisely what he says his state of mind was in relation the Sixth Payment is unclear, although Mr Berger confirmed in cross-examination that he “thought that the firm was entitled to receive its fees immediately”:

60. [292]

    How it was that he thought that the firm was entitled to fees that the partners had agreed should not be charged was never adequately explained by Mr Berger.

61. [293]

    The Tribunal found that Mr Berger knew that the money was trust money which was required to be held in trust. He knew that without a grant of probate he could not disburse the funds to himself. He knew that the payment was not otherwise authorised. The Tribunal concluded at [317] that Mr Berger knew at the time of the payment that the “payment would be illegal and dishonest”.

62. [294]

    This last finding cannot stand. In the Complaint and in the opening, the Law Society failed adequately to identify a case of dishonesty in relation to the Sixth Payment. But for an absence of adequate pleading or an opening identifying dishonesty on Mr Berger’s part in relation to the Sixth Payment, there was abundant evidence which could have supported such a finding. For example, Mr Berger gave this evidence:

63. [295]

    The ultimate conclusion of the Tribunal on this issue at [318], however, was that, by reason of causing a deficiency in the trust account and purporting to act as executor without a grant of probate, Mr Berger’s conduct fell so far short of the required standard of competence and diligence that it amounted to unsatisfactory professional conduct.

64. [296]

    In exercising the Court’s function under s 75A of the Supreme Court Act 1970 (NSW) on rehearing, having set aside the finding at [317] that Mr Berger knew at the time of the payment the “payment would be illegal and dishonest”, the same conclusion reached by the Tribunal at [318] about unsatisfactory professional conduct should be reached.

65. [297]

    It will be recalled that, on 9 October 2012, Mr Berger (on MBBF letterhead) wrote to McCourts Solicitors concerning the sale of Mrs Domabyl’s property and enclosed the certificate of title and “the registered power of attorney under which Victor Berger had signed the transfer”. On 10 October 2012, McCourts Solicitors was told that “it was discovered that the Transfer sent by Kathryn Adler and signed by Victor Berger on 4 October 2013 was incorrect as it was not endorsed for signing under power of attorney”. That same day, Ms Kunhi noted in her handwriting “See Annexure A” next to Mr Berger’s signature and attached Annexure A which stated:

66. [298]

    In his 5 October 2016 affidavit, Mr Berger swore that he was aware that from the date of death the assets of a deceased person vest in the NSW Trustee. In his amended reply filed 18 March 2016, Mr Berger said that he was unaware of s 61 of the Probate and Administration Act 1898 (NSW) or of any other provision having the effect that until probate or administration the estate of a deceased person vested in the NSW Trustee. The Tribunal rejected this latter explanation as, on all the evidence, it was entitled to do.

67. [299]

    Mr Berger did not challenge the Tribunal’s finding that he signed the annexure to the transfer on 10 October 2012 without proper authority as Mrs Domabyl’s attorney because he knew by 5 October 2012 that she had died on 4 October 2012 and that the power of attorney had lapsed.

68. [300]

    Mr Berger submitted that the Tribunal was not, however, entitled to find that his conduct was dishonest in this respect. I agree.

69. [301]

    I have little doubt that a case of fraud in relation to Mr Berger’s actions in this respect could have been mounted, although it is correct that the Tribunal rejected the submission of the Law Society that Mr Berger signed the transfer after Mrs Domabyl’s death. The Law Society did not, however, in the Complaint allege that Mr Berger’s conduct was dishonest in this respect or make allegations capable of fairly raising that issue. The written opening of counsel for the Law Society contains no hint that dishonesty was alleged in this respect. As I have earlier found, the Law Society’s submission that the Tribunal was entitled to find fraud and dishonesty based on a characterisation of Mr Berger’s defence should be rejected. The finding at [244]-[245] of the Tribunal’s reasons that Mr Berger’s conduct in this respect was dishonest must be set aside.

70. [302]

    The conclusion of the Tribunal at [245], however, is the one that should be reached and the Tribunal’s other findings should not be disturbed. Mr Berger acted to effect the sale of Mrs Domabyl’s property under a power of attorney that he knew had expired and in circumstances where he knew that the property had vested in the NSW Trustee. That was conduct which fell far short of the standards of competence and diligence that a member of the public was entitled to expect and amounted to unsatisfactory professional conduct.

71. [303]

    On 12 October 2012, Mr Berger, who knew that Mrs Domabyl had died and that her estate had vested in the NSW Trustee, nevertheless proceeded to effect settlement of the sale of Mrs Domabyl’s unit. This is issue 7 which is closely related to issue 6. The issues were actually addressed by the Tribunal together at [238]-[245].

72. [304]

    For the same reasons as in relation to issue 6, the finding at [244]-[245] of the Tribunal’s reasons that Mr Berger’s conduct in this respect was dishonest must be set aside.

73. [305]

    The appellant did not challenge the conclusion that Mr Berger’s conduct amounted to unsatisfactory professional conduct for the same reasons as in relation to issue 6. Mr Berger’s conduct fell far short of the standards of competence and diligence that a member of the public was entitled to expect and amounted to unsatisfactory professional conduct.

74. [306]

    Despite having acted for Mrs Domabyl since 2005 and preparing a will, seven codicils, a power of attorney and recording $176,800.94 as costs incurred, Mr Berger failed to make a disclosure of costs to Mrs Domabyl until she was no longer mentally competent.

75. [307]

    The Tribunal found that:

    1. (1)

       Mr Berger was obliged in October 2005 by s 180 of the Legal Profession Act 1987 to make a disclosure to Mrs Domabyl of the total legal costs of the matter; and

    2. (2)

       if Mr Berger had made the initial disclosure he was required to make, he would have been liable under s 180(3) of the 1987 Act and then s 316 of the Legal Profession Act 2004 to disclose any significant increases in that estimate of total costs.

76. [308]

    There was no challenge to the first of those findings, but in writing Mr Berger challenged the second finding on the basis that he had a “defence” under s 312(1)(a) of the 2004 Act. Little was said about this “defence” in oral submissions for good reason. The defence was not engaged. Mrs Domabyl was a vulnerable client entitled to a costs disclosure.

77. [309]

    The Tribunal found that Mr Berger’s failure to make any disclosure of costs to Mrs Domabyl amounted to professional misconduct as it was unsatisfactory professional conduct involving a substantial and consistent failure to maintain a reasonable standard of competence and diligence.

78. [310]

    Mr Berger’s challenge to this finding was that the finding of professional misconduct regarding a failure to make costs disclosures was not open because there was never a pleading under s 497(1)(a) of the 2004 Act. Mr Berger submitted that he was not on notice that he was required to marshal evidence against a finding of substantial and consistent failure. I do not agree.

79. [311]

    It is true that the Complaint, in terms, did not address the finding sought of professional misconduct. The Law Society’s opening submissions, however, made it abundantly clear that such a finding was sought. At the conclusion of their opening submissions the Law Society stated:

80. [312]

    The Law Society’s opening, whilst highlighting particular aspects of Mr Berger’s conduct, plainly asserted that the individual instances of conduct pleaded could be aggregated and seen as involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence:

81. [313]

    Those submissions were served in advance of Mr Berger’s evidence and he had an adequate opportunity in the months that followed to address this issue. He was on notice that he was required to marshal evidence against a possible finding of professional misconduct on the basis of a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence in this respect.

82. [314]

    The Tribunal rejected Mr Berger’s evidence that he secured Mrs Domabyl’s agreement to costs being charged to her estate and, in any event, pointed out that the agreement asserted by Mr Berger did not comply with his cost disclosure obligations. No reason has been shown to disturb those findings.

83. [315]

    On the findings of the Tribunal, the conclusion that Mr Berger’s failure to make any disclosure of costs to Mrs Domabyl amounted to professional misconduct as it was unsatisfactory professional conduct involving a substantial and consistent failure to maintain a reasonable standard of competence and diligence was unassailable. Those findings were:

    1. (1)

       Mrs Domabyl was a vulnerable client. She was elderly, unwell, socially isolated and lacking in family support;

    2. (2)

       Mr Berger owed obligations to Mrs Domabyl as her solicitor to act to protect her interests;

    3. (3)

       Mr Berger, with his training and long experience as a legal practitioner, was aware of Mrs Domabyl’s vulnerability and his cost disclosure obligations;

    4. (4)

       Mr Berger knew that the legal costs being incurred by Mrs Domabyl were significant;

    5. (5)

       Mr Berger had agreed with his partners in writing that MBBF would write off Mrs Domabyl’s entire legal bill and not charge her anymore by reason of the non-disclosure of costs;

    6. (6)

       Mr Berger had been told by his partners that the Law Society had advised them that Mrs Domabyl should not be charged by reason of the non-disclosures of costs; and

    7. (7)

       Mr Berger knew that, over the course of many years, he had not given Mrs Domabyl even one interim or periodic bill.

84. [316]

    In performing the task of identifying the appropriate order to be made that the parties invited this Court to do, it is relevant also to reflect on Mr Berger’s own significant admissions on this topic.

85. [317]

    It will be recalled that, on 25 September 2011, Mr Berger agreed with his partners that “the likelihood” was that he had made inadequate disclosure of costs to Mrs Domabyl, but asserted a belief that no action would be taken against him, presumably on the basis that similar complaints in the past had been resolved by the regulators accepting undertakings from Mr Berger. Mr Berger did not at that time “cavell” [sic] with the proposition that Mrs Domabyl would believe that she was not being charged for work Mr Berger was recording and intended to charge her estate. In January 2012, when challenged about recording work in progress in Mrs Domabyl’s file, having agreed in October 2011 to cease doing so, he wrote to his partners that this was “in error”.

86. [318]

    Mrs Domabyl was precisely the type of client for whom the statutory regime of cost disclosure was designed. The Tribunal correctly concluded at [171] that Mr Berger’s failure to make any disclosure of costs to Mrs Domabyl involved a substantial and consistent failure to maintain a reasonable standard of competence and diligence which amounted to professional misconduct.

87. [319]

    It will be recalled that, on 12 June 2014, a certificate of determination of costs was issued in relation to the assessment of Mr Berger’s revised fee schedule. The total amount of costs and disbursements determined to be “fair and reasonable” was $176,800.74. Mr Berger asserted before the Tribunal that this ground in the Complaint was precluded by an estoppel created by the costs determination. The Tribunal rejected that defence and no appeal is brought against that decision.

88. [320]

    What was the subject of complaint was an alleged failure to address the principle of finality. It is worth reflecting on the breadth of that principle in this context. In Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 at [14] the High Court said:

89. [321]

    In Atwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [52] the High Court said:

90. [322]

    It is true that, by the time of assessment, the beneficiaries were separately represented, and that the executors gave notice that an assessment was being sought. It is also correct that the assessor was tasked with assessing the fairness and reasonableness of the amount of costs under s 328(5) of the Legal Profession Act 2004, reporting any that are “grossly excessive” under s 393, producing a certificate and reasons pursuant to s 368 and s 370, and that this determination was final under s 372.

91. [323]

    That, however, did not engage the principle of finality. The assessment itself did not resolve any dispute between the Law Society and Mr Berger about whether Mr Berger had engaged in overcharging such that he was guilty of unsatisfactory professional conduct or professional misconduct. Relevantly, the reasons for the determination stated:

92. [324]

    O’Connor v Fitti was a decision of Master Malpass under the Legal Profession Act 1987 which provided, relevantly, that:

93. [325]

    This was a case where the assessment was conducted after Mrs Domabyl had died, where Mr Berger as Mrs Domabyl’s long-term lawyer and executor of Mrs Domabyl’s estate was asserting an entitlement to the costs, and where the beneficiaries under Mrs Domabyl’s will were minors.

94. [326]

    The issues being determined by the assessor on the one hand and the Tribunal on the other were quite different. The determination of the costs assessor was limited to determining the validity of objections made. The question before the Tribunal was whether Mr Berger had engaged in unsatisfactory professional conduct or professional misconduct by reason of overcharging. Whilst the determination of the costs assessor was relevant to that question, it did not engage the principle of finality. The Law Society’s allegation of overcharging amounting to professional misconduct against Mr Berger did not call into question the finality and certainty of a judicial decision.

95. [327]

    A costs assessment pursuant to the Legal Profession Act 2004 does not preclude the Tribunal from considering the nature of a practitioner’s conduct, including the reasonableness of his or her charges.

96. [328]

    The Tribunal took into account that the costs assessment determination had been made but was not obliged, in this case, to give that determination significant weight. The heavily qualified decision of the costs assessor could not be dispositive in a case where, as here, the Law Society had led detailed expert evidence on the question of overcharging.

97. [329]

    The Law Society plainly alleged in its opening submissions the case it was conducting:

98. [330]

    Ms Rosati’s expert report addressed, in detail, each of those issues. Mr Berger led no evidence in response to Ms Rosati’s report which was detailed, well-reasoned and compelling.

99. [331]

    The Tribunal found at [361] that Mr Berger engaged in professional misconduct by overcharging.

100. [332]

     The Tribunal’s findings and conclusions on this topic were justified. The amount of Mr Berger’s bill was $176,800.94. Mr Berger overcharged Mrs Domabyl $137,543.91. There is no reason to interfere with the Tribunal’s findings in this respect. The submission made in writing (but not developed orally) by Mr Berger that the Tribunal was not entitled to find that there was no agreement in place for Mr Berger to charge for non-legal work must be rejected. The Tribunal were entitled to reject Mr Berger’s assertion on this topic. The contemporaneous evidence was directly contrary to any such agreement. It will be recalled that, on 25 September 2011, Mr Berger’s state of mind was he did not “cavell” [sic] with the proposition that Mrs Domabyl would believe that she was not being charged for work Mr Berger was recording and intending to charge her estate. The Tribunal’s approach to this issue did not reverse the onus of proof. The Tribunal was entitled to accept the evidence of Ms Rosati.

101. [333]

     That overcharging of Mrs Domabyl constituted professional misconduct because of: Mrs Domabyl’s vulnerability; the absence of cost disclosures; the absence of regular or periodic bills; the charging for services that were not legal services and at rates for legal services; the absence of any contract to pay for non-legal services; the extent of the items that were not legal services; and the extent of the items in the bill that were not identified for the client as legal services.

102. [334]

     It will be recalled that the Law Society’s complaint about this issue related to a deposit paid by Mr and Mrs Ho for a property being developed by a company of which Mr Berger was the sole director and shareholder. Mr Berger caused the deposit to be released to the company for purposes other than those permitted by Special Condition 12 of the contract of sale. It was common ground that there was no other part of the contract of sale permitting release of the deposit to Mr Berger or his company.

103. [335]

     In this Court Mr Berger accepted that the release of the deposit was in breach of Special Condition 12. He submitted, however, that the deposit was released properly in accordance with a separate agreement made by him and the solicitor for Mr and Mrs Ho.

104. [336]

     I reject the submission that Mr Berger’s account of a “separate agreement” was not properly tested. That “separate agreement” was not actually what Mr Berger asserted in his amended reply nor in his evidence. In his 5 October 2016 affidavit he said:

105. [337]

     The insurmountable problem for Mr Berger with this version of events is that the terms of Special Condition 12 were drafted by him personally after the alleged agreement he says he struck with the solicitor for Mr and Mrs Ho.

106. [338]

     The evidence of a “separate agreement” given by Mr Berger for the first time in his 20 February 2017 affidavit was rejected by the Tribunal. It was materially inconsistent with Mr Berger’s earlier explanations. No basis has been shown to disturb that finding.

107. [339]

     As the Tribunal found, even if what Mr Berger says in his 20 February 2017 affidavit about the communication with the solicitor for Mr and Mrs Ho is accepted (that Mr and Mrs Ho agreed to the release of the deposit for the purpose of satisfying the Council for the purpose of the development), many of the disbursements to which the released deposit was directed fell outside that description.

108. [340]

     None of the disbursements of the deposit were made for the purpose set out in Special Condition 12, being various purposes related to the purchase of another property by Mr Berger’s company as vendor.

109. [341]

     Mr Berger accepted in cross-examination that he held no other consent or authority from Mr and Mrs Ho to release the deposit, so there was simply no compliance with Special Condition 12. Thus the Tribunal found:

110. [342]

     No basis was shown to disturb that finding. The Tribunal did not misapply the onus of proof, which rested at all times upon the Law Society, in accordance with the Briginshaw principles.

111. [343]

     The Tribunal concluded that Mr Berger’s conduct was “unethical in all the circumstances” based on the following factors: Mr Berger prepared the contract and took responsibility for its drafting and communication to Mr and Mrs Ho via their solicitor, and in fact sent the special conditions (including Special Condition 12) to the solicitor for Mr and Mrs Ho himself; Mr Berger was both principal (in the sense of being the directing mind of his company) and solicitor for his company and so had a greater degree of control over a deposit than either a vendor (who would not normally hold the deposit) or a solicitor (who would need to account to his or her client) would normally have; Mr Berger did not make any attempt to provide the deposit to the “deposit holder” under the contract, being the vendor’s agent, not the vendor’s solicitor; and the purposes for which the deposit was in fact used, particularly given Mr Berger’s evidence in cross-examination which revealed he simply did not turn his mind to that question.

112. [344]

     The Tribunal was satisfied that Mr Berger’s conduct in removing the deposit from the trust account and providing it to his company was conduct whereby he applied received monies in breach of the terms of the agreement under which they were received. The Tribunal concluded:

113. [345]

     There is no difficulty in the finding that Mr Berger’s conduct was seriously unethical conduct. That allegation was made in the Complaint and repeated in the Law Society’s opening.

114. [346]

     There was, however, no sufficiently clear allegation of dishonesty about Mr Berger’s conduct in this aspect of the case. The Tribunal was not entitled to find that Mr Berger behaved dishonestly and with any intention to defraud Mr and Mrs Ho. That finding at [220] must be set aside.

115. [347]

     I am satisfied, however, for the reasons given at [343] that Mr Berger’s conduct in relation to the deposit demonstrated a substantial failure to maintain a reasonable standard of competence and diligence and warranted a finding of professional misconduct.

116. [348]

     It will be recalled that, as a condition of a stay granted by Beech-Jones J on 15 August 2013, Mr Berger was required to notify all of his clients about the suspension issued by the Law Society and the orders made by the court. Ms Frischer, who had instructed Mr Berger to prepare a will, was not so notified.

117. [349]

     Mr Berger submitted that his not giving notice to Ms Frischer was not enough to warrant a finding of unsatisfactory professional conduct or professional misconduct.

118. [350]

     Mr Berger submitted that his trusted paralegal was asked to prepare a list of clients to notify and Ms Frischer was omitted, and that the fact that the paralegal did a less than effective job does not support a misconduct finding.

119. [351]

     The Tribunal found that Ms Frischer’s initial instructions were given on about May 2012 and she remained a client at the relevant time. That finding was plainly correct. In his email to Ms Frischer on 1 January 2014, Mr Berger referred to his letter of 18 February 2013 to Ms Frischer. Mr Berger confirmed in cross-examination that Ms Frischer’s matter was not concluded at 18 February 2013:

120. [352]

     Mr Berger recognised Ms Frischer as his client by that letter when he provided his advice, enclosed two draft wills, invited further instructions and notified her that a tax invoice would be sent “in the coming week”. Mr Berger also recognised Ms Frischer as his client on 11 July 2013 for the purposes of informing her of his move and having her sign an authority to his former partners to release her documents and files to him. On 20 August 2013, Ms Frischer sent an email to Mr Berger about outstanding issues relating to the drafting of her will.

121. [353]

     The Tribunal rejected Mr Berger’s submission that his failure to notify Ms Frischer of the outcome of the principal proceedings, namely the court’s decision to dismiss the practitioner’s appeal against his suspension, did not constitute a breach of Condition 6 of the stay granted on 15 August 2013. The Tribunal also rejected Mr Berger’s evidence that the failure to notify Ms Frischer was inadvertent. The Tribunal was plainly unimpressed with the evasive and unhelpful answers Mr Berger gave on this topic. In cross-examination on 29 June 2017, when it was put to Mr Berger that Ms Frischer was a client of his when the order was made, he avoided the question. When the presiding member repeated the question he answered, “no”. He was asked if he now conceded she was. He avoided the question. When it was repeated, he answered, “no”. The Tribunal was entitled to reject Mr Berger’s claim that his failure was inadvertent given this evidence and given his failure to disclose in any detail the instructions he gave his staff about how to identify his “clients”.

122. [354]

     The Tribunal’s ultimate conclusion on this issue was as follows:

123. [355]

     I reject Mr Berger’s submission that he did not have a cavalier attitude towards compliance. The order of Beech-Jones J required punctilious compliance. A competent practitioner would clearly have understood that compliance was a matter of critical importance. To delegate the identification and communication task to a paralegal without checking what was done, if that is in truth what happened, demonstrates a less than serious respect for orders and conditions imposed on him by the Supreme Court. The Tribunal’s finding at [199] of unsatisfactory professional conduct in relation to Ms Frischer was justified. No reason has been shown to overturn it.

124. [356]

     Mr Berger accepted that the finding of unsatisfactory professional conduct in relation to Mrs Dougall was available and does not challenge it. It was submitted that the findings that Mr Berger was dishonest and behaved unlawfully could not stand.

125. [357]

     I accept that the Law Society did not identify, with sufficient clarity, that an allegation of dishonesty was made about Mr Berger’s dealings with Mrs Dougall. I am also not satisfied that the Law Society in the Complaint and the opening made clear that dishonesty was being alleged. What was said was as follows:

126. [358]

     As a result, the findings that Mr Berger knew he behaved dishonestly in relation to Mrs Dougall at [306] and [308] must be set aside. The findings of unsatisfactory professional conduct at [307]-[308] were correctly made.

127. [359]

     Three matters in Mr Berger’s written submissions were not addressed as part of the thematic issues nor addressed orally by Mr Berger’s counsel. They each related to the Penalty Judgment and were:

     1. (1)

        the finding and giving weight to the finding of prior complaints made about Mr Berger’s conduct;

     2. (2)

        the failure to afford any or proper weight to the evidence of Mr Berger’s character witnesses; and

     3. (3)

        the failure to address the question of Mr Berger’s fitness at the time of the order.

128. [360]

     Given that I am proposing that this Court should accept the joint invitation of the parties to itself determine the appropriate penalty, it is unnecessary to determine these separate complaints.

129. [361]

     A final matter not addressed as part of the thematic issues and only faintly pressed in oral argument by Mr Berger’s counsel was the characterisation of Mr Berger’s evidence. I reject the submission made by Mr Berger that the Tribunal erred in finding at [44] and [52] that the appellant presented as an unreliable witness who was often evasive, avoided questions and gave unresponsive answers. I have read the transcript of the appellant’s evidence in the context of the detailed contemporaneous written evidence which I have set out at [9]-[114] above. I agree with the characterisation of Mr Berger’s evidence by the Tribunal as unreliable. Mr Berger’s claims of ignorance or misunderstanding of his legal obligations are inconsistent with the extent of his training and experience as a solicitor. Parts of Mr Berger’s evidence were rambling and unresponsive and his evidence was often evasive. On a consideration of the whole of the evidence and having regard to the terms of s 75A of the Supreme Court Act, the Tribunal’s findings about Mr Berger’s evidence were plainly correct.

130. [362]

     Given the confusing way in which all parties presented the issues to be determined I will summarise, first, the effect of my findings on the grounds in the Complaint and, then, the effect of my findings on the grounds of appeal.

131. [363]

     It follows from the consideration of the thematic issues advanced by Mr Berger orally that the Tribunal’s findings on:

     1. (1)

        issue 1 – ground 1 and related portions of grounds 2, 3 and 7 of the Complaint limited to the First Payment of $154,000 should be upheld in part and the finding made at [269] by the Tribunal must be set aside. It is clear, however, that Mr Berger’s conduct in making the First Payment to himself was dishonest;

     2. (2)

        issue 3 – ground 1 and related portions of grounds 2, 4, 5 and 7 of the Complaint limited to the Fourth Payment of $20,000 should be upheld in part and the finding at [294]-[296] that it was dishonest and fraudulent conduct must be set aside. It is clear, however, that Mr Berger’s conduct in making the Fourth Payment was dishonest;

     3. (3)

        issue 4 – grounds 6 and 7 of the Complaint limited to the Third Payment of $1,540.92 should be upheld in part and the finding made at [281] by the Tribunal must be set aside;

     4. (4)

        issue 5 – grounds 2, 4 and 7 of the Complaint limited to the Sixth Payment of $14,000 should be upheld in part and the finding made at [317] by the Tribunal must be set aside;

     5. (5)

        issue 6 – ground 6 of the Complaint limited to execution of the transfer for sale of Mrs Domabyl’s property should be upheld in part and the finding made at [244]-[245] by the Tribunal must be set aside;

     6. (6)

        issue 7 – ground 7 of the Complaint limited to proceeding with the settlement of Mrs Domabyl’s Property without authority as executor should be upheld in part and the finding made at [244]-[245] by the Tribunal must be set aside;

     7. (7)

        issue 10 – ground 11 of the Complaint in relation to applying received monies in breach of the terms of the agreement under which they were received in the Ho matter should be upheld in part and the findings made at [220] by the Tribunal must be set aside; and

     8. (8)

        issue 12 – grounds 2, 4, 6, 7, 9 and 10 of the Complaint limited to causing a deficiency in a trust account in relation to the Fifth Payment of $8,751.90, breach of s 255 of the Legal Profession Act 2004, purporting to act under a power of attorney without authority, purporting to act as an executor without authority, failure to disclose costs, and breach of an undertaking in the Dougall matter should be upheld in part and the finding made at [306] and [308] by the Tribunal must be set aside.

132. [364]

     The Tribunal’s treatment of the following aspects of the Complaint should be upheld:

     1. (1)

        issue 8 – grounds 9 and 10 of the Complaint limited to failure to disclose costs and breach of an undertaking in the Domabyl matter, not including failure to disclose costs in the Dougall matter;

     2. (2)

        issue 9 – ground 12 of the Complaint in relation to overcharging in the Domabyl matter; and

     3. (3)

        issue 11 – ground 8 of the Complaint in relation to failure to comply with a court order in the Frischer matter.

133. [365]

     It follows that the conclusions I have reached about each of the grounds of appeal are:

     1. (1)

        appeal ground 1 – the finding at [220] that Mr Berger’s conduct was dishonest and fraudulent must be set aside. On all of the evidence, however, Mr Berger was guilty of professional misconduct in relation to applying received monies in breach of the terms of the agreement under which they were received in the Ho matter;

     2. (2)

        appeal ground 2 – the Tribunal did not err in finding at [171] that Mr Berger was guilty of professional misconduct in relation to his failure to disclose costs in the Domabyl matter;

     3. (3)

        appeal ground 3 – the Tribunal did not err in finding at [199] that Mr Berger was guilty of unsatisfactory professional conduct in relation to his failure to comply with a court order in the Frischer matter;

     4. (4)

        appeal ground 4 –

     5. (5)

        appeal ground 5 – the Tribunal did not err in finding at [361] that Mr Berger was guilty of professional misconduct for gross overcharging in the Domabyl matter;

     6. (6)

        appeal ground 6 – given that this Court is itself to determine the appropriate order it is unnecessary to determine whether the Tribunal erred;

     7. (7)

        appeal ground 7 – the Tribunal did not err in finding at [44] that Mr Berger presented as an unreliable witness and at [52] that Mr Berger was often evasive, avoided questions and gave unresponsive answers.

Conclusion – The appropriate order

1. [366]

   Error, in part, in the decision of the Tribunal has been established by Mr Berger. I accept the joint submission of the parties that this Court should itself consider the appropriate order based on the findings it has independently made following a rehearing under s 75A of the Supreme Court Act.

2. [367]

   The critical question is whether the proved conduct warrants an order that Mr Berger be struck off the roll. There was no controversy about the legal test to be applied in making that determination. It must be demonstrated that Mr Berger is probably permanently unfit to practise law: Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45.

3. [368]

   The findings I have made at [237]-[361] above disclose that Mr Berger has engaged in professional misconduct:

   1. (1)

      in engaging in unsatisfactory professional conduct involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence: Legal Profession Act 2004, s 497(1)(a); and

   2. (2)

      in engaging in conduct which demonstrates he is not a fit and proper person to engage in legal practice: Legal Profession Act 2004, s 497(1)(b).

4. [369]

   The most significant of the findings are those of misappropriation and dishonesty. Mr Berger’s defalcations in relation to Mrs Domabyl’s estate were intentional. He intended to use clients’ entrusted monies without authority to further his own ends. In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284, Spigelman CJ stated:

5. [370]

   The Court was taken by both parties to many authorities which had considered “misappropriation”. It is unnecessary to address those authorities separately. The relevant principles are clear and were explained sufficiently in Dupal v Law Society of New South Wales [1990] NSWCA 56. The principles in Dupal were explained by Leeming JA in Kumar as follows:

6. [371]

   To the findings of dishonest misappropriation of client funds must be added the many other aspects of the Complaint here proven. Mr Berger’s proven overcharging is serious. It may properly be described as “gross overcharging”. As I have found, it amounts to professional misconduct.

7. [372]

   Mr Berger’s breaches of undertakings to the Office of Legal Services Commissioner are also serious. Breach of an undertaking to a professional body or to the Legal Services Commissioner amounts to professional misconduct. The failure to comply with the condition imposed by Beech-Jones J is also serious. The order concerned Mr Berger directly. It is a serious matter for Mr Berger to have failed to comply with the condition of the stay granted by the court.

8. [373]

   Mr Berger’s conduct also demonstrates a consistent failure on his part to maintain a reasonable standard of competence and diligence. The sheer number of breaches across a range of different categories of conduct must be taken into account. In particular, the saga of Mr Berger’s abject failure over many years (despite the urgings of his partners) to make any costs disclosures to Mrs Domabyl amounts to professional misconduct. Mr Berger’s failure to make any disclosure of costs to Mrs Domabyl was, in the circumstances, conduct falling far short of that expected of a legal practitioner. Mr Berger’s unethical conduct in relation to the deposit paid by Mr and Mrs Ho is also serious.

9. [374]

   Other than the occasions that Mr Berger has given undertakings to the Office of the Legal Services Commissioner recorded in the facts above at [13]-[14] and [36]-[37], I have not taken into account the record of complaints against Mr Berger recited before the Tribunal. There is simply not enough information to draw any reliable conclusions from that material.

10. [375]

    I have taken the character evidence into account in Mr Berger’s favour. Those references, however, do not address, in any detail, the repeated and entrenched nature of the conduct disclosed by the evidence.

11. [376]

    I have given consideration to whether Mr Berger is probably permanently unfit to practise as at today’s date. Regrettably, there is no evidence to suggest that Mr Berger understands the true gravity of his wrongful conduct. Whilst a number of findings made by the Tribunal have been set aside, I have rejected Mr Berger’s submission that his conduct was, in any way, unintentional or inadvertent. In critical respects it was dishonest. The Tribunal found that there was no evidence that the appellant had “learned and changed so much from his mistakes and his suspension that he is not likely to engage in further professional misconduct or unsatisfactory professional conduct if he is permitted to resume legal practice”. I agree. That remains the case today.

12. [377]

    Mr Berger’s name should be removed from the roll for the purposes of protecting the public. That conclusion is reinforced given the unacceptable conduct involved, the necessity of maintaining proper standards, and the need to maintain public confidence in the profession.

13. [378]

    Since this appeal is by way of rehearing and having regard to the provisions of s 75A of the Supreme Court Act, the evidence amply discloses, for the purposes of s 496 and s 497 of the Legal Profession Act 2004, that the appellant’s conduct in the practice of law fell short of the standard of competence and diligence expected, and justifies a finding that he is not a fit and proper person to engage in legal practice.

14. [379]

    Although the Tribunal erred in the respects I have described in these reasons, an independent consideration of all the evidence leads to the same conclusion reached by the Tribunal. Mr Berger’s name must be removed from the roll.

Conclusion and orders

1. [380]

   I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      Mr Berger to pay the costs of the Law Society of the appeal.

2. [381]

   SIMPSON AJA: I agree with the orders proposed by Payne JA, and, subject to one relatively minor reservation, with his Honour’s reasons. My reservation concerns certain conclusions drawn by Payne JA that are favourable to the appellant. These are conclusions that, in some respects, findings that Mr Berger knew that his conduct was dishonest and/or illegal ought to be set aside, on the basis that (as I understand his Honour’s reasons) no clear allegation of dishonesty or illegality was made in the Law Society’s complaint. I take by way of example the payment of $20,000 made by the appellant out of Ms Domabyl’s estate to his son-in-law, Evan Penn, in order to discharge a personal debt to Mr Penn: [274]-[282].

3. [382]

   The Law Society set out in some detail the way in which it put its case in relation to this payment. That included assertions that the relevant legislation required the funds to be held in a trust account to be operated exclusively for Ms Domabyl’s estate, that the appellant was in breach of that legislated requirement, that the payment caused a deficiency in the trust account and that the appellant had no authority (after Ms Domabyl’s death) to act under the Power of Attorney that she had given him, and no authority to act as executor pending a grant of probate.

4. [383]

   In my opinion it is clearly implicit that the Law Society was asserting illegality and dishonesty to the knowledge of the appellant. The appellant could have been under no illusion that, by alleging that he unlawfully and dishonestly paid the sum of money to his son-in-law in discharge of a personal debt, the Law Society was alleging that he did so knowing of the illegality and dishonesty.

5. [384]

   The appellant’s responses to the Law Society’s pleading are, on this question, immaterial. The Tribunal accepted the Law Society’s case as pleaded. In my opinion it was open to the Tribunal to reach the conclusion that the payment was illegal and dishonest and that the appellant was aware of those circumstances. I would not set aside the findings that the appellant knew that the payment was illegal and dishonest.

6. [385]

   There are other instances of similar conclusions. Since the view I take could not enhance the appellant’s position, and merely strengthens the case for the findings of professional misconduct, and the findings that the appellant is permanently unfit to practice, it is not productive to explore other instances.