SUPREME COURT OF QUEENSLAND
CITATION:
Jensen v Legal Services Commissioner [2017] QCA 189
PARTIES:
CRAIG GRAHAM SELWYN LEE JENSEN
(appellant)
v
LEGAL SERVICES COMMISSIONER
(respondent)FILE NO/S:
Appeal No 5206 of 2017
QCATA No 69 of 2014DIVISION:
Court of Appeal
PROCEEDING:
Appeal Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:
Queensland Civil and Administrative Tribunal at Brisbane – [2017] QCAT 148 (Thomas J, President, Horsley, Legal panel member, McKay, Lay panel member)
DELIVERED ON:
1 September 2017
DELIVERED AT:
Brisbane
HEARING DATE:
21 July 2017
JUDGES:
Sofronoff P and Gotterson JA and Atkinson J
ORDER:
1. The appellant be given leave to rely upon his affidavit sworn 24 May 2017 and his affidavit sworn 4 July 2017.
2. Allow the appeal.
3. Order:
(1) The appellant be publicly sanctioned;
(2) The appellant be suspended from practice from 22 May 2017 to 21 February 2018;
(3) The appellant receive counselling from a senior counsellor nominated by the President of the Queensland Law Society until 21 February 2019.
CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – APPEALS – where the Queensland Civil and Administrative Tribunal determined that the appellant’s name was to be removed from the roll of solicitors – where the charges against the appellant related to an email sent to the appellant’s client by the client’s son who was the other party to a property dispute – where the appellant claimed that email was defamatory of him and sought payment of $20,000 in settlement of the matter – where the son made a complaint to the respondent about the appellant – where the appellant claimed that complaint republished the defamatory material and would increase the damages which would be awarded to him by the court – where the respondent claimed that the complaint was protected by s 487 of the Legal Profession Act 2007 (the Act) – where the respondent alleged that the appellant knew or ought to have known that the complaint was protected by s 487 of the Act and pursued the claim that had no reasonable prospects of success – whether the appellant’s arguments in relation to defamation and s 487 of the Act were insupportable
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – APPEALS – where the Queensland Civil and Administrative Tribunal determined that the appellant’s name was to be removed from the roll of solicitors – where the charges against the appellant related to an email sent to the appellant’s client by the client’s son who was the other party to a property dispute – where the appellant claimed that email was defamatory of him and sought payment of $20,000 in settlement of the matter – where the son made a complaint to respondent about the appellant – where the appellant also made a complaint to the respondent about the solicitor who acted for the son – where the appellant was charged with making a complaint that contained baseless…
Keep reading for free
Create a free CaseChat account to read Jensen v Legal Services Commissioner and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2017] QCA 189
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework established by the Legal Profession Act 2007, which outlines the disciplinary process and the standards expected of legal practitioners. The appellant argued that his claims of defamation were valid and that the subsequent complaint made by the client's son was a republication of the defamatory material, thereby increasing potential damages. The court considered the protection provided by section 487 of the Act, which shields complaints made to the Commissioner from defamation claims. The appellant's assertion that he was unaware of this protection was scrutinized, as was his claim that the complaint contained baseless allegations against the opposing solicitor. Additionally, the court evaluated whether the appellant's extensive correspondence during the specified period violated the conduct rules. The appellant's argument that an order recommending his removal from the roll of practitioners was not an appropriate penalty was also reviewed.
In its reasoning, the court found that the appellant's arguments regarding defamation and the protection of section 487 of the Act were insupportable. The court determined that the appellant's complaints about the opposing solicitor contained baseless allegations, and that his correspondence from October 2013 to February 2014 did indeed breach the conduct rules. Consequently, the court allowed the appeal and ordered that the appellant be publicly sanctioned, suspended from practice from May 2017 to February 2018, and required to receive counselling from a senior counsellor until February 2019. These orders reflect the court's assessment of the appropriate disciplinary measures in light of the appellant's conduct and the statutory framework governing legal practice.
Orders
Orders of the court
1. The appellant be given leave to rely upon his affidavit sworn 24 May 2017 and his affidavit sworn 4 July 2017.
2. Allow the appeal.
3. Order:
(1) The appellant be publicly sanctioned;
(2) The appellant be suspended from practice from 22 May 2017 to 21 February 2018;
(3) The appellant receive counselling from a senior counsellor nominated by the President of the Queensland Law Society until 21 February 2019.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
With regard to charge 4, the respondent submitted that the reading of the letters identified in the particulars of the charge would satisfy the court that the appellant engaged in conduct which would justify a finding that he was not a fit and proper person to engage in legal practice.ConsiderationThe statutory regimeThe Legal Profession Act 2007 Chapter 7 of the Act creates the office of the Legal Services Commissioner with functions conferred on or imposed under the Act. It also establishes a Legal Services Commission. Chapter 4 of the Act deals with complaints against, and the discipline of, the legal profession. Its main purposes are set out in s 416 which relevantly provides that the main purposes are:“(a)to provide for the discipline of the legal profession;(b)to promote and enforce the professional standards, competence and honesty of the legal profession;(c)to provide a means of redress for complaints about lawyers;…” Under chapter 4, a legal practitioner may be investigated and subject to discipline for unsatisfactory professional conduct or professional misconduct. Unsatisfactory professional conduct is defined in s 418 to include conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. Professional misconduct is defined in s 419(1) to include:“(a)unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and(b)conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.” Part 4.4 of the Act provides that a complaint may be made about the conduct of an Australian legal practitioner, including by the relevant regulatory authority itself. Complaints are made to the Commissioner under s 429 of the Act. An “investigation matter” may be commenced where the Commissioner believes an investigation should be started into the conduct of a legal practitioner.[9] In the usual course, written notice of the complaint will be given to the legal practitioner of the making of the complaint or the investigation into an investigation matter, the nature of the complaint or investigation matter, the identity of a complainant and action taken in relation to the complaint or investigation matter before giving the notice.[10][9]Section 435(1)(c)(i).[10]Section 437(1). The respondent to whom such a notice is given is entitled to make written submissions about the complaint or investigation matter.[11] Under s 443(1)(a) an entity[12] carrying out an investigation into an Australian legal practitioner about a complaint or an investigation matter may require the practitioner who is the subject of the investigation to give the entity, in writing or personally, a full explanation of the matter being investigated within a stated reasonable time, to appear before the entity at a stated reasonable time and place, or to produce to the entity within a stated reasonable time any document in the practitioner’s custody, possession or control that the practitioner is entitled at law to produce. An Australian legal practitioner must comply with each requirement, with limited exceptions, and a failure to comply after written notice may mean that the practitioner may be dealt with for professional misconduct.[13][11]Section 438.[12]An investigation may be carried out by the Commissioner or, on referral from the Commissioner, the relevant professional association.[13]Section 443(3) and (4).