Department of Wet Lettuce … Barrister lightly birched for overcharging … Unsettling fee collection methods … Fee refund … And that old hearing aid case resurfaces … Janek Drevikovsky reports
In 2015, Ms Hawkins was hired to act for Brisbane man Trevor Griffiths, who was serving a life sentence for a double murder during a drug deal. Several appeal efforts, including to the High Court, had already failed.
But now, according to Trevor, there was new evidence. Ms Hawkins was retained to “run the appeal”, with Maggie Elamrousy on board as the solicitor.
It was Trevor’s father, Harry Griffiths, who footed Hawkins’ bill. There was a charge of $30,000 for 54 hours spent reading the brief and doing research, and other charges for luxury hire car rental, a night of accommodation on the Gold Coast, and driving costs that were not in the fee agreement.
Harry was unhappy with what he had to pay, and lodged a complaint with the NSW bar ‘n’ grill.
Also subject to complaint were Hawkins’ fee collection methods. According to Harry, the barrister telephoned him unexpectedly one day in February 2015, saying she and Ms Elamrousy were in Brisbane and were willing to visit Trevor in prison. But unless they were both paid $5000, she said, they would cancel the visit and fly back to Sydney.
When the bar council found that the barrister had engaged in unsatisfactory professional conduct, the barrister applied to NCAT to overturn the decision.
The tribunal upheld most of the findings. Pressuring Harry into paying $5000 for the jail visit went beyond proper fee collection, the panel said. It was also improper to charge $30,000 for reading and research, since Ms Hawkins had no instructions to do so and hadn’t yet seen the fresh evidence, meaning the work was of little value.
The tribunal found that the trip in Brisbane should have only taken a single day, making the extra night’s accommodation unnecessary. Finally, they decided that the “self-drive” charges were not covered by the fee agreement.
Hawkins was reprimanded for her unsatisfactory conduct and was ordered to pay Harry a 75 percent refund of $22,500 within 21 days.
Dymphna Hawkins v Council of the NSW Bar Association
Sydney solicitor Peter Livers has again been found guilty of professional misconduct, after the original finding against him was quashed by the Court of Appeal.
Livers, a sole practitioner at Thompson & Slattery, was found to have misled a government body when applying for funding to conduct a worker’s compensation case.
Livers, who has 42 years in the trade, was struck from the roll in 2018 by NCAT. But the Court of Appeal later found the solicitor had been denied procedural fairness, in that he was given no opportunity to respond to key allegations.
The matter was remitted to the tribunal for fresh consideration. The allegations concerned an industrial deafness case that the solicitor was working on in 2012-2014.
Mr Souaid, the claimant, worked as a cleaner at North Sydney TAFE but was employed by a company called ISS Facility Services. Livers arranged an audiogram for his client in March 2012, which showed deafness of about 11 per cent in one ear. Before this audiogram, Souaid was apparently unaware he was deaf.
After a hearing before the Workers Compensation Commission, the cleaner received a partial payout from his employer, amounting to $20,500 for his disability and pain and suffering. However, the sum did not cover the cost of hearing aids.
When Allianz, Souaid’s insurer, refused to pay for the hearing aids, Livers took the matter to the Workers Compensation Commission. He applied for funding from the Workers Compensation Independent Review Office (WIRO), which would cover the costs of litigation and pay his fees.
Funding was granted, and Livers billed WIRO $2846.25 plus GST. But soon, WIRO noticed inconsistencies in the application and complained to the Legal Services Commissioner.
The allegations included that the solicitor had misled WIRO, by saying (among other things) that there was no dispute with the insurer, that there had never been previous claims for industrial deafness and that Souaid’s employer was North Sydney TAFE.
Most serious was the claim that Livers had altered the date on the audiogram from March 2012 to March 2014. A small, handwritten line had been added to the number 2, changing it into a 4.
NCAT heard there was no direct evidence that Livers had altered the documents. In fact, the solicitor protested his secretary may have been responsible for the alteration and other errors in the documents.
The tribunal was satisfied by the circumstantial evidence that Livers himself had changed the documents. They accepted his secretary’s evidence that she had done nothing wrong.
It was also found that he had a reason to make the change. The claim was probably time-barred, since Souaid came to know of his deafness over two years prior, back in 2012. Changing the date to 2014 meant the limitation did not apply.
The tribunal further held that Livers had deliberately amended the documents to hide the previous claim Souaid had made for a hearing aid. It was also found that the solicitor had deliberately omitted relevant material, in part by withholding key documents from his secretary when she was preparing the application.
The outcome was a finding of professional misconduct. The matter was stood over for determination of the penalty and costs.
Legal Services Commissioner v Livers
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