De Pardo v Legal Practitioners Complaints Committee

[2000] FCA 335
(2000) 97 FCR 575
(2000) 170 ALR 709

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(Judgment by: CARR J)

NINO ANTHONY DE PARDO
v LEGAL PRACTITIONERS COMPLAINTS COMMITTEE, LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL

Court:

Judges: FRENCH
WHITLAM

CARR JJ

Subject References:
CONSTITUTIONAL LAW
inconsistency
State law regulating legal practitioners
Tribunal established under State law to inquire into allegations of unprofessional conduct
complaint of gross overcharging by counsel in proceedings in State court exercising federal jurisdiction
whether Family Law Act 1975 and Judiciary Act 1903 cover the field excluding application of State law relating to unprofessional conduct
whether State disciplinary authority purporting to exercise federal judicial power.
LEGAL PRACTITIONERS
practitioner admitted by Supreme Court of a State under State legislation
disciplinary proceedings by State Tribunal in respect of conduct in practice of law in State court exercising federal jurisdiction
application by practitioner to restrain proceedings
nature of proceedings undertaken by State Tribunal
gross overcharging amounting to unprofessional conduct
nature of inquiry to determine unprofessional conduct
whether inquiry involves assessment of taxed costs
whether inconsistence with provisions of federal law relating to taxation of costs in federal proceedings
whether impermissible exercise of federal judicial power.

Legislative References:
Legal Practitioners Act 1893 (WA) - s 22(1); s 3. S 28C(1); s 28D; s 29A; s 65
Family Law Act 1975 (Cth) - s 47; s 122; s 123(g); s 4(1)
Judiciary Act 1903 (Cth) - section 1
Family Court Act 1975 (WA) - the Act
Family Court Act 1997 - s 27; s 88A(1)(h)

Case References:
R v Licensing Court; Ex parte Daniell - (1920) 28 CLR 23 referred to
Clyde Engineering Co Ltd v Cowburn - (1926) 37 CLR 466 referred to
Ex parte McLean - (1930) 43 CLR 472 applied
Allinson v General Council of Medical Education and Registration - [1894] 1 QB 750 discussed
In re: A Solicitor Ex parte The Law Society - [1912] 1 KB 302 discussed
Re R - A practitioner of the Supreme Court - [1927] SASR 58 approved
Re: A Practitioner of the Supreme Court - [1937] SASR 316 cited
Re Veron Ex parte Law Society of New South Wales - (1966) 84 WN (Pt 1) (NSW) 136 applied
In the Matter of a Practitioner - (1975) 12 SASR 166 cited
Re: A Practitioner - (unrep SCWA Library No 4989, 18/7/1983) discussed
Kyle v Legal Practitioners Committee - (1999) 21 WAR 56 discussed
Law Society of New South Wales v Foreman - (1994) 34 NSWLR 408 applied
In Re Davis - (1947) 75 CLR 409 applied
Clyne v New South Wales Bar Association - (1960) 104 CLR 186 cited
D'Alessandro v Legal Practitioners Complaints Committee - (1995) 15 WAR 198 discussed
Silver v Consumer Claims Tribunal - (1979) 36 FLR 281 cited
Baker-Johnson v Dregmans - (1996) 20 Fam LR 306 cited
Ffrost v Stevenson - (1937) 58 CLR 528 cited
Minister of State for the Army v Parbury Henty & Co Pty Ltd - (1945) 70 CLR 459 cited
Felton v Mulligan - (1971) 124 CLR 367 cited
Kable v Director of Public Prosecutions - (1996) 189 CLR 51 cited
Little v Registrar of the High Court - (1991) 29 FCR 544 applied
Yamaji v Westpac Banking Corporation (No 1) - (1993) 42 FCR 431 cited
Caboolture Park Shopping Centre Pty Ltd (In Liq) v White Industries (Qld) Pty Ltd - (1993) 45 FCR 224 cited
Re Colina; Ex parte Torney - (1999) 166 ALR 545 cited
Porter v R; Ex parte Yee - (1926) 37 CLR 432 cited
R v Commonwealth Court of Conciliation and Arbitration Ex parte Barrett - (1945) 70 CLR 141 applied
Moorgate Tobacco Co Ltd v Philip Morris Limited - (1960) 145 CLR 457 applied
Miller v Miller - (1978) 53 ALJR 59 referred to

Hearing date: 2 December 1999
Judgment date: 23 MARCH 2000

Perth

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Judgment by:
CARR J

CARR J :

Introduction

62 This is an appeal from a decision of a judge of this Court dismissing an application in which the appellant (a barrister) had sought declaratory relief and a permanent injunction to restrain the first respondent ("the Committee") from prosecuting a disciplinary proceeding against him before the second respondent ("the Tribunal") and to restrain the Tribunal from hearing and determining that proceeding.

63 There are two issues in the appeal. The first is whether the disciplinary provisions in Part IV of the Legal Practitioners Act 1893 (WA) ("the State Act") are inconsistent with s 55B and 55C of the Judiciary Act 1903 (Cth) or s 122 of the Family Law Act 1975 (Cth) and therefore invalid to the extent of any such inconsistency, by operation of s 109 of the Constitution. The second issue is whether, in making a determination in respect of alleged unprofessional conduct on the part of the appellant, the Tribunal would be purporting to exercise the judicial power of the Commonwealth otherwise than in accordance with s 71 of the Constitution.

Factual Background

64 The following factual background is taken largely from the reasons of the learned trial judge. The appellant practises law in the State of Western Australia, being admitted as a practitioner by the Supreme Court of that State pursuant to s 22 of the State Act. He practises only as a barrister.

65 In 1992 the appellant was instructed by a solicitor to perform work as counsel in a proceeding in the Family Court of Western Australia in respect of a matter of federal jurisdiction arising under the Family Law Act . In due course, and by consent, orders were made by the Family Court of Western Australia which disposed of the respective claims of the parties. In a bill of costs provided by the solicitor to his client, fees rendered to the solicitor by the appellant (and paid by the solicitor) were included as a disbursement. The client had the bill taxed by the Family Court of Western Australia. Items in that bill, other than the disbursement, were agreed between the solicitor and the client before taxation. The taxation hearing concerned only the amount of the disbursement paid by the solicitor to the appellant as counsel fees. The appellant attended and gave evidence at the taxation hearing pursuant to a subpoena issued by the Family Court of Western Australia. Upon taxation, the sum claimed as a disbursement was reduced substantially.

66 The solicitor commenced an application in the Family Court of Western Australia to have the appellant joined as a party to the matrimonial proceeding and to have the fees rendered by the appellant to the solicitor made subject to taxation. The appellant opposed the application on the ground that it did not concern parties to a marriage and was not part of a "matrimonial cause" and, therefore, the Family Court of Western Australia had no jurisdiction to tax fees rendered by him to the applicant solicitor. A Magistrate of the Family Court of Western Australia accepted the appellant's submissions and dismissed the application.

67 The solicitor lodged a complaint against the appellant with the Committee in respect of the amount of fees rendered by him and paid by the solicitor. The Committee issued a reference to the Tribunal alleging that the appellant was guilty of unprofessional conduct in that part of the counsel fees rendered by him to his instructing solicitor were, in all the circumstances, "grossly excessive".

68 On 9 March 1998 the appellant applied to this Court for the relief referred to above on the two constitutional grounds summarised above. Notices were duly given under s 78B of the Judiciary Act , but no Attorney intervened.

Statutory Framework

The State Legislation

69 The following summary of the State Act is taken from the reasons of the learned trial judge:

70 Section 22 of the State Act provides that no person shall be admitted a practitioner except by the Full Court of the Supreme Court of Western Australia. "Practitioner" is defined in s 3 of the State Act as a person admitted and entitled to practise as a barrister and solicitor in the Supreme Court of Western Australia. For the purpose of Pt IV of the State Act, relating to professional conduct and discipline, the term "practitioner" also includes a person who is entitled by virtue of a law of the Commonwealth to perform in Western Australia the functions of a barrister or solicitor.

71 For the discipline of practitioners, Pt IV of the State Act (ss 25 - 33) establishes the Committee and the Tribunal. Under s 25 the Committee has power to inquire into the conduct of a practitioner on matters relating to the practice of law to determine whether it may constitute illegal or unprofessional conduct. Under s 29A of the State Act the Tribunal has "jurisdiction" to make a finding that a practitioner has been guilty of -

(a)

illegal conduct;

(b)

unprofessional conduct; or

(c)

neglect, or undue delay, in the course of the practise of the law.

72 The Tribunal may submit a report on such a finding to the Full Court and s 30 of the State Act provides that such a report is to be taken to be conclusive as to all facts and findings therein. After reading the report, the Full Court may fine, suspend from practice or strike off the Roll the practitioner concerned.

73 The conduct or practise of law by a practitioner subject to inquiry is not limited to conduct or practise within State jurisdiction. The touchstone of the discipline provision is determination of fitness to practise law within the State and illegal or unprofessional conduct outside the State is as relevant to that issue as conduct within the State's jurisdiction.

The Constitutional Provisions

74 Section 71 of the Constitution relevantly provides that the judicial power of the Commonwealth shall be vested in the High Court of Australia, in such other federal court as the Parliament creates, and in such other courts as it invests with federal jurisdiction.

75 Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

The Commonwealth Legislation

76 The relevant Commonwealth legislation is contained in the Judiciary Act 1903 (Cth) and the Family Law Act 1975 (Cth). This summary of the relevant Commonwealth legislation is also taken largely from the learned trial judge's reasons.

The Judiciary Act

77 Pursuant to s 55B of the Judiciary Act a person for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State is entitled to practise in any federal court but is not so entitled unless his or her name appears in the Register of Practitioners kept pursuant to s 55C of the Judiciary Act .

78 Under s 55C the Registrar of the High Court is required to maintain a Register of Practitioners at the Registry of the High Court. The Registrar of the High Court is required to enter in that Register the names of persons entitled under s 55B to practise in federal courts.

79 Where satisfied that the conduct of a person justifies such an order, the High Court may order that that person not be entitled to practise in federal courts and the name of that person be struck off the Register or that the person not be entitled so to practise for a specified period [s 55C(5)]. Further, if the Registrar of the High Court is satisfied that a person is not for the time being entitled under s 55B to practise in federal courts, the particulars of that person entered in the Register are to be struck out [s 55C(3)]. .

80 The Register of Practitioners is not a roll of practitioners admitted by the High Court to practise in federal courts as may be established under rules made by the High Court under s 86(ga) of the Judiciary Act . Pursuant to that paragraph, the rules of the High Court may include provisions for the admission of persons to practise as barristers and solicitors in any federal court and for prescribing conditions for the continuance of that right to practise.

81 In respect of a State court exercising federal jurisdiction, the Judiciary Act [s 55B(4)] provides that a person entitled under that subsection to practise as a barrister or solicitor in any federal court has "a right of audience" in such a State court in relation to the exercise of federal jurisdiction by that court.

82 As the primary judge noted, the right to practise as a barrister or solicitor in a State court exercising federal jurisdiction is wider than a right of audience in such a court

83 Section 55B(5) provides that the Chief Justice of the Supreme Court of a State may direct an officer of that court to keep a Register of Practitioners entitled to that right of audience. A person to whom s 55B(4) applies is entitled to be registered in that Register [s 55B(6)]. Where such a Register is kept in a State, a person is not entitled to a "right of audience" unless registered in the Register.

84 Under s 55B(7) the Supreme Court, constituted by two or more judges, may order that a person's registration in the Register of Practitioners kept in accordance with s 55B(5) be cancelled or suspended if it is satisfied that the person has been guilty of conduct that justifies such an order. Section 55B(9) provides that such a person is not entitled to be registered in that Register again, notwithstanding being eligible to be so registered, except by order of the Supreme Court.

The Family Law Act

85 Under s 122 of the Family Law Act a person entitled to practise in any federal court under s 55B(1) of the Judiciary Act has the like right to practise in any State court exercising jurisdiction under the Family Law Act . The Family Law Act makes no provision for the names of such practitioners to be entered in a Register or for the discipline of such practitioners.

The Cross-Vesting Act

86 Under s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) the Supreme Court of a State is invested with federal jurisdiction arising under the Family Law Act . Under s 41(3) of the Family Law Act a State Family Court, in respect of which a proclamation has been made under that subsection, is invested with like jurisdiction. The Family Court of Western Australia is a State Family Court in respect of which such a proclamation has been made.

87 In Western Australia the State courts able to exercise federal jurisdiction under the Family Law Act are the Supreme Court and the Family Court of Western Australia.

The Decision at First Instance

A. The Inconsistency Point

88 His Honour first considered whether the Parliament intended to "cover the field" of the admission to practise and the conduct of legal practitioners. He noted that the Supreme Court admits practitioners to practise law in the State generally, whereas the provisions of the Judiciary Act and the Family Law Act have a much more limited purpose. Further, so his Honour observed, even provisions relating to admission referred to in s 55A and 86(ga) of the Judiciary Act do not provide a general right to practise law in Australia, but only to practise as a barrister or solicitor in any "Federal Court" [the typographical error is in s 86(ga) of the Judiciary Act ]. Furthermore, so his Honour pointed out, the Judiciary Act does not provide for the discipline of persons admitted to practise by the High Court, though it is within the rule-making power conferred on the High Court by s 86(ga) so to provide in any rules made by that Court. His Honour also had regard to s 55C(5) which, as mentioned above, empowers the High Court to cancel or suspend a person's entitlement to practise in federal courts.

89 His Honour noted that under the Commonwealth legislation:

•

determination of the fitness of a person to be admitted to practise law generally and whether such a right to practise is to be abrogated or suspended were recognised as functions of the Supreme Courts of the States;

•

the performance of those functions will control who may practise in courts exercising federal jurisdiction; and

•

the complementary recognition of an entitlement to practise in federal courts and State courts exercising federal jurisdiction is governed, substantially, by continuation by a Supreme Court of a person's entitlement to practise law.

90 His Honour then referred to (a) the provision [in s 55B(7)] for a Supreme Court to exercise disciplinary procedures in respect of a practitioner having a right of audience in State courts exercising federal jurisdiction, and (b) the jurisdiction to discipline persons who practise in federal courts, conferred on the High Court by s 55(C)(5).

91 His Honour concluded that these disciplinary provisions were not intended to exclude the jurisdiction of the Supreme Court.

92 His Honour then said this:

" The provisions in the State Act and the Judiciary Act for the discipline of persons admitted to practise by a State Supreme Court are compatible. Exercise of the jurisdiction of a State Supreme Court to examine the conduct of a person in the practise of barrister or solicitor in a federal court, or in a State court exercising federal jurisdiction, is anticipated in the Judiciary Act. It cannot be said, therefore, that such provisions interfere with the exercise of a federal power ."

93 Similarly, the State jurisdiction to resolve disputes in respect of costs rendered by a practitioner was concurrent with the jurisdiction of federal courts under the federal legislation to regulate charges levied by practitioners. There was thus no inconsistency between the State Act and the Commonwealth legislation to which s 109 of the Constitution might apply.

B. The Chapter III Point

94 In the proceedings before the trial judge (and in the appeal), the appellant asserted that the assessment or taxation of counsel fees rendered by him was part of a "matrimonial cause" and that only a court exercising federal jurisdiction could determine the reasonableness of such fees.

95 The appellant submitted that the Tribunal could not determine the Reference without the Family Court of Western Australia having first determined the reasonableness or otherwise of the fees rendered by him to the solicitor.

96 His Honour accepted (in my respectful view, correctly) that the resolution of the "incidental controversy" between the appellant and the solicitor by determining and enforcing their respective rights was a matter within federal jurisdiction and would amount to a valid exercise of the judicial power of the Commonwealth by the Family Court of Western Australia (see paras 50 and 53 of his Honour's reasons).

97 His Honour held, however, that the control exercisable by the Family Court of Western Australia (under the federal jurisdiction vested in it) by taxation over the costs or fees charged by a practitioner, was a separate function from a determination that a practitioner had engaged in unprofessional conduct.

98 The trial judge noted that the Family Court of Western Australia had power to make orders to effect supervision of the conduct of legal practitioners where such orders were necessary to address a breach of duty to the court that had occasioned loss or injury, and to maintain the integrity of the court's procedures. However, so his Honour held, that judicial power of the Commonwealth was not the same as, and did not supplant, a judicial power of a Supreme Court of a State, assisted in this case by the Tribunal, to find that a practitioner admitted by the Supreme Court had been guilty of unprofessional conduct.

99 His Honour held that the hearing by the Tribunal of the complaint that the appellant engaged in unprofessional conduct by rendering grossly excessive fees to an instructing solicitor in respect of his practice as a barrister in a matter of the Family Court of Western Australia in the exercise of federal jurisdiction did not involve an exercise of a judicial power of the Commonwealth.

Grounds of Appeal

100 There were four grounds of appeal, but in essence they raised only the two constitutional issues which I have identified above.

The Appellant's Submissions

101 The appellant contended that the primary judge had failed to pay sufficient attention to the significance of the fact that the appellant had been engaged in a matrimonial cause within the exclusive federal jurisdiction of the Family Court of Western Australia. Furthermore, his Honour was said to have classified, wrongly, the roles of the Committee and the Tribunal as being in some way those of agents or delegates of the Supreme Court of Western Australia in exercising that Court's jurisdiction over legal practitioners. Senior counsel for the appellant submitted that his Honour appeared to have concluded, without expressly stating so, that there was no infringement of the doctrine of the separation of powers because the Tribunal's functions were fully reviewable by the Supreme Court. The appellant also challenged the primary judge's view that the issue before the Tribunal in the proceedings against the appellant was not coincident with the issue of the reasonableness or otherwise of the appellant's fees, within the context of the matrimonial cause before the Family Court of Western Australia.

102 Further, in relation to the Chapter III point, the appellant submitted that questions about the propriety of the quantum of fees charged by a legal practitioner in relation to a matrimonial cause could only be determined by the Family Court of Western Australia. Alternatively, a determination of whether there had been unprofessional conduct in rendering such fees could only be made by the Tribunal after the determination by that Court of the proper quantum of those fees. These two, latter, submissions overlapped with a submission that the Family Law Act and the regulations made under that Act provided a complete code in relation to all matters of costs and other matters incidental to the exercise of federal jurisdiction over matrimonial causes, thereby rendering the Legal Practitioners Act in relation to the present matter inoperative. Although there was no express statutory or regulatory provision for the resolution of the dispute which had arisen between the solicitor and the appellant in this matter, the appellant submitted that the Family Court had a necessary inherent or incidental jurisdiction to resolve the question whether the costs charged were excessive, and what was the correct figure. All of that would be within federal jurisdiction and, so it was put, would be in conformity with the field that had been covered by the Family Law Act and the regulations. The appellant did not contend that there was inconsistency on any basis other than on the "cover the field" test for inconsistency.

My Reasoning

A. Inconsistency

103 I agree, respectfully, with the primary judge's conclusion that there was no inconsistency between the State Act and the Commonwealth legislation. In my view, the relevant Commonwealth legislation does not manifest an intention on the part of the Parliament that the provisions of the Judiciary Act and the Family Law Act dealing with the professional conduct and discipline of barristers and solicitors (including whether they should continue to practise as such or have a right of audience) should be the exclusive law on that topic both for what it forbids and what it allows - see Miller v Miller (1978) 53 ALJR 59 at 61 per Barwick CJ. I agree with his Honour's reasons, which I have summarised above, on that point.

104 Rather than "covering the field", as I see it, the Commonwealth has walked very lightly into only a small part of the field. As his Honour correctly points out, the Commonwealth provisions relating to admission, referred to in ss 55A and 86(ga) of the Judiciary Act do not provide a general right to practise law in Australia, but only to practise as a barrister or solicitor in any federal court. That right, and the right of audience in State or internal Territory courts exercising federal jurisdiction, is conditioned upon admission or entitlement to practise as a barrister or solicitor of such State or Territory court. Section 122 of the Family Law Act is to like effect. On the disciplinary front, as again his Honour pointed out, the Judiciary Act does not provide for the general discipline of persons admitted into practise by the High Court, but it is within the rule-making power conferred on the High Court in s 86(ga) so to provide. I agree, respectfully, with his Honour that although the Judiciary Act has made provisions for a Supreme Court of a State to exercise disciplinary procedures in respect of a practitioner who has a right of audience in State courts exercising federal jurisdiction, the context in which those provisions appear does not suggest an intention to exclude the jurisdiction of the Supreme Court or the Tribunal to determine such issues under relevant State legislation. In my view, both the content and the context of the provisions point to the opposite of such an intention. Those Commonwealth laws were enacted in the knowledge of the jurisdiction exercisable by the various Supreme Courts of the States at common law and, relevantly in Western Australia, by statute since 1893. His Honour gave attention to the jurisdiction conferred on the High Court of Australia by s 55C(5) of the Judiciary Act . He read that, and I respectfully agree with him again, as providing for an additional disciplinary power appropriate for exercise in certain circumstances. Again, I think his Honour was right in concluding from the context of s 55C(5) that the object of the sub-section was not to exclude the Supreme Court or the Tribunal from disciplining practitioners for conduct for which lesser penalties might be applied.

105 In short, I agree with his Honour that the Commonwealth did not intend to cover the field and, subject to one slight reservation (referred to immediately below) I agree that the State Act and the Commonwealth legislation for the discipline of legal practitioners and for the taxation of costs are compatible. There is no inconsistency between them.

106 At paragraph 51 of his Honour's reasons he stated that no part of the Tribunal's procedure when ascertaining whether the appellant has been guilty of unprofessional conduct, and if so, whether to deal with him under s 29A(3) of the Legal Practitioners Act or make and transmit a report to the Supreme Court under s 29A(2), would determine the existing rights at law of the parties to the dispute in a matter of federal jurisdiction, namely the appellant and the solicitor.

107 The reservation to which I have referred immediately above arises as follows. The Tribunal [and, indeed, the Supreme Court - see s 30(2)] has power to order a practitioner to pay monies to other persons - see s 29A(3)(f), (g) and (h) of the Legal Practitioners Act . The reference to "the client" in the first of those sub-paragraphs may be a reference (in the case of a barrister) not, in the traditional sense, to the solicitor who retained him, but to the client on whose behalf such retainer was made. It is not necessary to decide the point. But under sub-paragraph (g) the Tribunal has power, where it considers that a sum certain in money is owing or payable by the practitioner to the complainant or another person, to order the payment by the practitioner of that sum to the Legal Practice Board for the benefit of the complainant or that person. Under sub-paragraph (h), if the conduct of the practitioner has directly caused a person to suffer pecuniary loss and that person so requests, the Committee has power to order a payment by the practitioner to the Legal Practitioners Board for the benefit of that person of compensation to be assessed by the Tribunal, subject to certain conditions. If it transpired that the Tribunal, after conducting a hearing, were minded to make orders of the type referred to in these sub-paragraphs then, in my view, there would arise what Barwick CJ referred to in Miller v Miller as "a textual collision" between what I consider to be the implied statutory or regulatory conferral of jurisdiction on the Family Court to tax the appellant's bill as between him and the solicitor and to adjudicate upon the question of how much of the fees paid to the appellant should be refunded to the solicitor, and the sub-paragraphs to which I have referred above. Accordingly, those sub-paragraphs may need to be read and construed in such a manner as not to apply to the determination of such an entitlement on the solicitor's part. This would be similar to the approach taken by Rath J in Silver v Consumer Claims Tribunal (1978) 36 FLR 281 at 291. However, that is not something which has to be decided in this appeal.

108 In all other respects, I do not see any inconsistency relevant to the question whether the reference to the Tribunal should be allowed to proceed.

B. The Chapter III Point

109 I accept the appellant's submissions that the Tribunal exercises judicial power. It is an independent statutory Tribunal which has the power and the duty to hear specific charges and to make orders some of which determine rights; the orders thus having effect of their own binding and compulsive force.

110 However, I do not accept the appellant's submission that, in the proceedings contemplated against him, the Tribunal will be exercising the judicial power of the Commonwealth. I think that the difference emerges when one focusses on the different functions and purposes of the Tribunal on the one hand and the Family Court on the other. It seems to me that in the proposed disciplinary proceedings before the Tribunal it will not be the function of the Tribunal to tax the costs which the appellant might legitimately charge to the solicitor. It may hear evidence or otherwise inform itself [it is not bound by the rules of evidence but may inform itself in any matter it considers just - see s 28D(4) of the Legal Practitioners Act ] about what would be an approximate reasonable fee or the reasonable range of fees which counsel might properly charge to a solicitor in the relevant circumstances. Its function then is to compare that approximate fee or range with what was actually charged and then decide whether the difference is so gross as to amount to unprofessional conduct - see for example D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 at 209-210. The search is to see whether or not there is a gross overcharge, not just an unreasonable fee which would not be allowed on taxation either as between barrister and solicitor or between barrister and lay client. The function of the Family Court is to fix the relevant costs down to the last cent.

111 In carrying out the first stage of its functions (establishing an estimate of what would be a reasonable fee or a range in which it might be said the fee was reasonable) the Tribunal is not, in my opinion, usurping any taxation function of the Family Court. I agree, respectfully, with his Honour's reasoning and conclusion in that regard.

112 I reject the appellant's submission that his Honour classified the roles of the Committee and the Tribunal as being in some way those of agents or delegates of the Supreme Court. Nor do I do not read his Honour's reasoning to be implicitly dependent, as senior counsel for the appellant submitted, on the proposition that there was no infringement of the doctrine of the separation of powers because the Tribunal's functions were fully reviewable by the Supreme Court. His Honour certainly referred (see paragraphs 8 and 11) to the assistance which the Tribunal provides to the Supreme Court in exercising statutory power to discipline practitioners. But I do not think that this gives rise to the implication suggested by counsel. I see his Honour's reasoning as being based on a careful analysis of the statutory context and the proper characterisation of the role of the Tribunal in conducting disciplinary hearings.

An additional matter

113 There is one further matter which I think should be mentioned. For the purposes of Part IV of the Legal Practitioners Act (the part concerned with professional conduct and discipline) the definition of "Practitioner" is extended to include a person who is entitled by virtue of a law of the Commonwealth to perform in Western Australia the functions of a barrister or solicitor. The intention of that extension would appear to have been to enable the Tribunal and the Supreme Court to monitor professional conduct and to discipline barristers and solicitors who were admitted, not in Western Australia but in some other State or a Territory and who practised or exercised the right of audience in courts exercising federal jurisdiction in Western Australia. As was mentioned in argument during the hearing of this appeal, the extended definition, read literally, would apply to barristers and solicitors who had never practised or appeared in courts in Western Australia. Whether the definition has to be read down and whether any constitutional problems (whether State or federal) arise out of a literal construction of this extended definition is not something which, in my opinion, it is necessary for us to consider.

Conclusion

114 For the foregoing reasons, I would dismiss the appeal with costs.