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Lawyer ordered to pay $75k to cover costs of ACT Law Society
The former principal of an ACT-based law firm has been ordered to pay over $75,000 to cover the costs incurred by the Law Society of the ACT in proceedings brought against him, which found that he engaged in professional misconduct.
Jess Feyder
In a judgment announced last Thursday (1 December 2022), the ACT Civil and Administrative Tribunal (ACAT) ordered David Chen to pay $75,187.06 to cover the council of the Law Society’s costs for proceedings brought against him in mid-2019.
In 2017, Mr Chen began advising a client in a matter they wished to pursue against the Australian government’s workers’ compensation authority, Comcare, regarding knee injuries and psychological injury.
Upon being given “pessimistic advice” by the barrister in Mr Chen’s legal team, the client requested that Mr Chen appoint a different barrister to the case. Mr Chen was unable to find another barrister and sought adjournment with the court.
The senior member of the tribunal declined the adjournment and asked Mr Chen why they needed more time, to which Mr Chen responded with a false excuse; that his daughter had a medical appointment. However, the hearing went ahead.
Mr Chen claimed he was not available during the hearing and at his daughter’s medical appointment, when in fact, he was not. He also told the tribunal and his client that the two psychiatrists asked to give evidence were unavailable, when they were actually on standby.
Regarding the excuse given pertaining to his daughter, ACAT described this suggestion, at the time, as “frankly bizarre”.
“It is hard to understand how he thought that such a statement would not be checked when a transcript would be available,” it reflected at the time.
Mr Chen, who was admitted to practice in 1996, was practising on an interim certificate while the council delayed its decision to grant a renewal of his certificate for 2019–20, but he then withdrew his application and has ceased to practice as a lawyer.
In the 2020 proceedings, the parties agreed that the conduct amounted to professional misconduct, with applicable sanctions the only issue to be resolved. Ultimately, the tribunal issued a reprimand in accordance with section 419 of the Legal Profession Act 2006.
On Thursday, deputy legal registrar, Wilhelmena Corby, handed down the orders for Mr Chen to pay the Law Society’s costs, pursuant to Rule 71(4) of the ACT Civil and Administrative Tribunal Rules 2020.
The costs comprised: the applicant’s costs, disbursements, and counsel’s fees, as well as fees for the costs of the overall cost assessment.
The judgment stated that, except for limited circumstances, parties to an application in the tribunal must bear their own costs. Yet, in this matter, the tribunal ordered Mr Chen to pay the Law Society’s legal costs of the proceedings at the rate of 90 per cent of the solicitor-client cost and disbursements in full.
The Law Society applied for Mr Chen to cover costs and disbursements to the amount of $81,522.06 and considered Mr Chen’s submission rebuking some of the costs.
It was decided that the Law Society would not recover costs related to the investigation and assessment of the complaint prior to it being lodged, yet Mr Chen was liable for all other costs, including costs related to the Law Society’s ACAT application in July 2019.
