KMQ v QS Law Pty Ltd - [2019] QDC 48

DISTRICT COURT OF QUEENSLAND

CITATION: KMQ v QS Law Pty Ltd [2019] QDC 48
PARTIES: KMQ
(plaintiff)
v
QS LAW PTY LTD ACN: 151 393 654
(defendant)
FILE NO/S: D22/2016
DIVISION: Civil
PROCEEDING: Application
ORIGINATING
COURT: Ipswich District Court
DELIVERED ON: 12 April 2019
DELIVERED AT: Ipswich
HEARING DATE: 12 April 2017
JUDGE: Horneman-Wren SC DCJ

ORDER:

1.

The separate questions set out in paragraph 1 of the order of Koppenol DCJ of 26 August 2016 are answered as follows:

(a) No. (b) No. (c) Unnecessary to answer.

CATCHWORDS:

PRISONER - PRISONER PROPERTY – STATUTE - INTERPRETATION OF STATUES - STATUTORY DUTY – whether Part 7 of the Public Trustee Act 1978 applies to a prisoner released on parole – where a prisoner released on parole is a prisoner to whom Part 7 of the Public Trustee Act 1978 may apply – whether Part 7 of the Public Trustee Act 1978 gives rise to a statutory duty on a prisoner to submit his estate to the Public Trustee – whether Part 7 of the Public Trustee Act 1978 gives rise to a duty on a solicitor acting for a prisoner to submit the prisoners estate to the Public Trustee – where no such duties arise – whether the definition of prisoner under the Corrective Services Act 2006 applies to the expression ‘prisoner’ in the Public Trustee Act 1978.

NEGLIGENCE – DUTY OF CARE – whether a solicitor owes a third party a duty to ensure that the third party is not exposed
to the risk of loss or damage through the conduct of the
solicitor for a client – where no such duty arises.
CASES: Al-Kandori v JR Brown & Co [1988]
Badenach v Calvert [2016] 257 CLR 440;
Bakewell v The Queen (2008) 238 CLR 287;
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR
649;
Council of the Shire of Southerland v Heyman [1985] 157
CLR 424;
Di-Carlo v Kashani-Malaki [2013] 2 Qd.R.17;
Farrington v Rowe McBride & Partners [1885] 1 NZLR 83;
Fitzpatrick v Jackson (1989)? 2 Qd.R. 542;
Hill v Van Erp (1997) 188 CLR 159;
Lee v Abedian & Ors [2016] QSC 92;
Myers v Elman [1940] AC 282;
Power v R [1974] 131 CLR 623;
Tyler v Krause 1 QD.R.453;
LEGISLATION: Corrective Services Act 2006 – Schedule 4; ss
4,180,184,194,199,200,205,209, 214, 215
Offenders Probation and Parole Act 1959 – s 34;
Offenders Probation and Parole Act 1980 – s 63;
Parole Act 1971 (NT) – s 14;
Penalties and Sentences Act 1992 – Part 8; Part 9; ss3,9,
Public Trustee Act 1978 – Part 7; Part 11; ss 28A-28H;
COUNSEL: AM West for the plaintiff
AJH Morris QC for the defendant
SOLICITORS: Walker Pender Group for the plaintiff
Quinn & Scattini Lawyers for the defendant
Background and application

The plaintiff, when a child, was sexually abused by ASC over an eight year period from 1998 to 2006. In June 2007 ASC was convicted of 14 sexual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QDC 48
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the case of KMQ v QS Law Pty Ltd, the plaintiff, a prisoner released on parole, brought an action against the defendant, a law firm, for failing to submit his estate to the Public Trustee as required under Part 7 of the Public Trustee Act 1978. The plaintiff argued that the defendant had a statutory duty to ensure his estate was submitted to the Public Trustee and that this duty extended to the prisoner himself. The court had to determine whether Part 7 of the Public Trustee Act 1978 applied to prisoners released on parole, whether it imposed a duty on the prisoner to submit his estate to the Public Trustee, and whether it imposed a duty on the defendant as the prisoner’s legal representative.

The court examined the language and operation of Part 7 of the Public Trustee Act 1978 and found that it did not impose any obligation on the prisoner or his legal representative to submit his estate to the Public Trustee. Section 91 of the Act automatically placed the prisoner's estate under the control of the Public Trustee upon conviction and sentencing to imprisonment for three years or more. Section 95 restricted the prisoner's ability to deal with his estate without the Public Trustee's consent but did not require the submission of the estate. The court concluded that the plaintiff's interpretation of the Act was incorrect, and no such statutory duty existed. The court also noted that the definition of "prisoner" in the Corrective Services Act 2006 did not apply to the term "prisoner" in the Public Trustee Act 1978.

The court dismissed the plaintiff's claims, finding that the defendant had not breached any statutory duty to submit the plaintiff's estate to the Public Trustee. The court did not find it necessary to address the plaintiff's other claims, including those related to unsatisfactory professional conduct under the Legal Profession Act 2007.

The court ordered that the plaintiff take nothing by way of his claims against the defendant.

Orders

Orders of the court

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

These observations are opposite as well. Part 4.10 of the Legal Profession Act 2007 provides for compensation orders including that the law practice pay compensation to a complainant for compensation suffered because of unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner involved in the relevant practice. Conclusion in respect of question 1 In my view, the first question should be answered in the negative. Does part 7 of the Public Trustee Act 1978 (Qld) create a statutory duty? The duty which the plaintiff alleges is set out in paragraph 21(a) of the statement of claim as follows: In her written submissions[41] the plaintiff contends that the effect of ss 91 and 95 of the PTA was to impose a mandatory obligation upon ASC and the Defendant to submit the estate to the public trustee and not to manage it themselves. [41] Paragraph 23. In my view, there is nothing in s 91 which could be construed as imposing an obligation upon a prisoner (and by extension anyone acting on his or her behalf) to submit his or her estate to the control of the public trustee. The plaintiff’s submissions do not explain what a prisoner must do “to submit” his or her estate to the public trustee. There is nothing prescribed in Part 7 in that regard. As the defendant submits, there is, for example, no requirement compelling the prisoner, or anyone who may be in control of a prisoner’s property, to do anything to surrender possession to the public trustee. However, more fundamentally, that Part 7 should not be construed as imposing such an obligation upon a prisoner to submit his or her estate to the control of the public trustee is apparent from the way its provisions operate. As already observed, s 91 operates as a matter of law to make the public trustee the manager of the prisoner’s estate.[42] As also already observed, the public trustee continues to manage the prisoner’s estate until such time as the authority to do so ceases upon the occurrence of any of the events or circumstances identified in s 97, or the public trustee determines to discontinue managing it under s 92. [42] Fitzpatrick v Jackson (1989) 2 QdR 542 per Kelly SPJ at 544. Section 94(1) prescribes the powers of the public trustee when manager of the prisoner’s property. Those powers are, effectively, without limit in dealing with the prisoner’s property. The public trustee has “full power to deal with any property of the prisoner”….and “generally may do all such things in relation to property…as the prisoner could do if the prisoner was not a prisoner.” Understood in this way, the estate of the prisoner is submitted to the control of the public trustee by operation of law upon his or her conviction and sentence to imprisonment for three years or more. Nothing remains for the prisoner, or anyone else, to do to submit his or her estate to the public trustee’s control. The alleged obligation is simply unnecessary. Nor does s 95 impose such an obligation. Section 95(1) operates, again as a matter of law, to render the prisoner incapable of doing certain things in respect of property, or bringing or defending certain actions, without prior written consent of the public trustee. That provision does not impose any obligation upon the prisoner (or anyone on his behalf) to submit his or her estate to the public trustee. It removes a prisoner’s capacity to deal with his or her estate, already submitted to the control of the public trustee, in certain ways during the period it remains under management.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	KMQ v QS Law Pty Ltd [2019] QDC 48
PARTIES:	KMQ (plaintiff)
v
QS LAW PTY LTD ACN: 151 393 654 (defendant)
FILE NO/S:	D22/2016
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING
COURT:	Ipswich District Court
DELIVERED ON:	12 April 2019
DELIVERED AT:	Ipswich
HEARING DATE:	12 April 2017
JUDGE:	Horneman-Wren SC DCJ

ORDER:	1.	The separate questions set out in paragraph 1 of the order of Koppenol DCJ of 26 August 2016 are answered as follows:
(a) No. (b) No. (c) Unnecessary to answer.

CATCHWORDS:	PRISONER - PRISONER PROPERTY – STATUTE - INTERPRETATION OF STATUES - STATUTORY DUTY – whether Part 7 of the Public Trustee Act 1978 applies to a prisoner released on parole – where a prisoner released on parole is a prisoner to whom Part 7 of the Public Trustee Act 1978 may apply – whether Part 7 of the Public Trustee Act 1978 gives rise to a statutory duty on a prisoner to submit his estate to the Public Trustee – whether Part 7 of the Public Trustee Act 1978 gives rise to a duty on a solicitor acting for a prisoner to submit the prisoners estate to the Public Trustee – where no such duties arise – whether the definition of prisoner under the Corrective Services Act 2006 applies to the expression ‘prisoner’ in the Public Trustee Act 1978.
NEGLIGENCE – DUTY OF CARE – whether a solicitor owes a third party a duty to ensure that the third party is not exposed
to the risk of loss or damage through the conduct of the solicitor for a client – where no such duty arises.
CASES:	Al-Kandori v JR Brown & Co [1988]
Badenach v Calvert [2016] 257 CLR 440;
Bakewell v The Queen (2008) 238 CLR 287;
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR
649; Council of the Shire of Southerland v Heyman [1985] 157
CLR 424;
Di-Carlo v Kashani-Malaki [2013] 2 Qd.R.17;
Farrington v Rowe McBride & Partners [1885] 1 NZLR 83;
Fitzpatrick v Jackson (1989)? 2 Qd.R. 542;
Hill v Van Erp (1997) 188 CLR 159;
Lee v Abedian & Ors [2016] QSC 92;
Myers v Elman [1940] AC 282;
Power v R [1974] 131 CLR 623;
Tyler v Krause 1 QD.R.453;
LEGISLATION:	Corrective Services Act 2006 – Schedule 4; ss
4,180,184,194,199,200,205,209, 214, 215
Offenders Probation and Parole Act 1959 – s 34;
Offenders Probation and Parole Act 1980 – s 63;
Parole Act 1971 (NT) – s 14;
Penalties and Sentences Act 1992 – Part 8; Part 9; ss3,9,
Public Trustee Act 1978 – Part 7; Part 11; ss 28A-28H;
COUNSEL:	AM West for the plaintiff AJH Morris QC for the defendant
SOLICITORS:	Walker Pender Group for the plaintiff Quinn & Scattini Lawyers for the defendant