Lavercombe v Legal Services Commissioner (No 2) - [2025] QCAT 226

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lavercombe v Legal Services Commissioner (No 2) [2025] QCAT 226

PARTIES:

JAMES MATTHEW LAVERCOMBE

(applicant)

v

LEGAL SERVICES COMMISSIONER

(respondent)

APPLICATION NO/S:

OCR081-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 May 2025

HEARING DATE:

8 May 2025

HEARD AT:

Brisbane

DECISION OF:

Hon. Judicial Member Peter Lyons KC

ORDERS:

1. The discipline application filed on 7 June 2021, as varied on 23 March 2023 is dismissed.

CATCHWORDS:

PROFFESIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – where the applicant was found to have engaged in unsatisfactory professional conduct by the Legal Practice Committee – where the applicant seeks a merits review of the decision – where the respondent alleges the applicant contravened rule 33 of the Australian Solicitors’ Conduct Rules – where the applicant represented a lot owner in a community titles scheme in proceedings with the Body Corporate – where the applicant contacted another lot owner in the context of the proceedings – where the other lot owner was also a member of the Committee of the Body Corporate – whether the other lot owner was, at the time of contact, a representative of the Body Corporate authorised to give instructions to the lawyers of the Body Corporate – whether the applicant knew or ought to have known the other lot owner was authorised to instruct lawyers on behalf of the Body Corporate – whether the applicant contravened rule 33 – whether the applicant engaged in unsatisfactory professional conduct or professional misconduct

Australian Solicitors’ Conduct Rules r 33

Body Corporate and Community Management Act 1997 (Qld) s 100, s 101A, s 101(2)

Queensland Civil and Administrative Tribunal Act 2009 s 20

APPEARANCES & REPRESENTATION:

Applicant:

Mr A Morris KC i/b Bartley Cohen

Respondent:

Mr D de Jersey KC i/b Legal Services Commissioner

REASONS FOR DECISION

These proceedings commenced with a discipline application which came before the Legal Practice Committee. It has a procedural history which it is unnecessary to recite. The present hearing is, in truth, a review of a decision of that Committee under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). This Tribunal is required to hear and decide the review by way of a fresh hearing on the merits. The consequence is, as a practical matter, this is the hearing and determination of the discipline application. For that reason, it is proposed, not entirely accurately, to refer to the solicitor who is the subject of these proceedings as the respondent and the Legal Services Commissioner as the applicant.
It is convenient to commence with the factual background which gives rise to the discipline application. Ms Emma Thompson owned a lot in a community titles scheme, which is referred to as Arila Lodge. There were seven other lot owners in the scheme. Those seven other owners were members of the Committee of the Body Corporate for the scheme. Ms Barbara Conaghan, a lot owner, was a member of the Committee of the Body Corporate and its secretary and treasurer.
In about 2016, proceedings began in the District Court in the name of the Body Corporate against Ms Thompson. They were described by Ms Conaghan as debt recovery proceedings. Grace Lawyers acted for the Body Corporate in the District Court proceedings. Ms Thompson took issue with the validity of the resolution to commence proceedings. The respondent, in his affidavit, identified the issue more specifically as being the validity of the engagement of Grace Lawyers to conduct the litigation.
As a result of the raising of this issue, the lot owners, at least informally, decided that the simplest course was to hold a general meeting of the Body Corporate, which would ratify the engagement of the solicitors, thereby dealing with the issue raised by Ms Thompson. A general meeting of the Body Corporate was scheduled to occur on 30 March 2020. However, there was not a sufficient quorum, and the meeting was adjourned until 6 April of that year.
At about the time of the originally scheduled meeting, Ms Thompson engaged the respondent, who was the legal practice director of JNL Rose, to act for her in relation to the dispute. After conferences with Ms Thompson, the respondent contacted Ms Conaghan and had discussions with her about some aspects of the conflict between the Body Corporate and Ms Thompson.
The charge in the discipline application arises out of that contact. The charge is that the respondent dealt directly with the client of another solicitor, the client being the Body Corporate for Arila Lodge, in breach of rule 33 of the Australian Solicitors’ Conduct Rules, by contacting the body corporate through its agent, Ms Conaghan.
Particulars are set out in the charge, some of which should be mentioned. Particular 1.3(b) alleges that Ms Conaghan was the secretary and treasurer on the Committee of the Body Corporate. It is admitted. Particular 1.3(c) alleges that Ms Conaghan, in her capacity as secretary of the Body Corporate, was authorised to instruct Grace Lawyers, and in particular Mr Jason Carlson, who had the carriage of the body corporate’s District Court proceedings previously mentioned. Issue is taken with at least some aspects of the allegation in particular 1.3(c).
Particular 1.4 alleges that the respondent had direct dealings with Ms Conaghan regarding the District Court proceedings by reason of a telephone call to Ms Conaghan’s telephone, which resulted in a missed call message, and by reason of a conversation of some 27 minutes between the respondent and Ms Conaghan, in which he sought to discuss matters relating directly to the District Court proceedings. Both dealings are alleged to have occurred on 6 April 2020. The allegations in particular 1.4, are admitted.
Particular 1.5 alleges that the direct dealing between the respondent and Ms Conaghan occurred while she was authorised to instruct Grace Lawyers and Mr Carlson on behalf of the body corporate in the District Court proceedings. The particular, again at least in some respects, is in issue.
Particular 1.6 alleges that the direct dealing occurred in circumstances other than those which would avoid the prohibition in rule 33. Those circumstances relate to consent by the Body Corporate’s lawyers to the dealing, urgency, a mere inquiry as to whether the Body Corporate was legally represented, and where there is a reasonable basis for the dealing and the consent by the Body Corporate’s lawyers to the dealing is not provided in a reasonable time. Particular 1.6 is also admitted.
The discipline application contains a second charge, but that has been abandoned.
Rule 33 is sometimes referred to as the ‘no contact rule’. It proscribes dealings by a solicitor directly with the client of another practitioner unless one of four conditions are met. Those conditions are reflected in particular 1.6 of the discipline application and do not require further mention.
The rationale for the rule is discussed in Dal Pont’s Lawyers’ Professional Responsibility, 7th edition, [21.240]. It is there stated that the “rule aims to prevent a lawyer from circumventing the protection that legal representation provides to another person”. The rule is intended to avoid the use, by a lawyer, of their legal knowledge and position to secure damaging admissions from the other person, or to obtain access to privileged communications, or to undermine the other person’s trust in her or his own lawyers. It is also designed to avoid disputes which might require the lawyer to become a witness in the proceedings.
There are difficulties in the application of the no-contact rule, where the client is not a natural person. The Queensland Law Society has provided a guidance statement dealing with these circumstances. It includes the following passages:
A solicitor acting for a body corporate, usually instructed by the committee (or other person or entity performing that role), will not be regarded as acting for the individual lot owners, in the same way that the solicitor acting for a company does not act for its shareholders.
…
There may also be situations where a solicitor for one or more lot owners may similarly need to write to the other lot owners, example, about a matter to be voted upon at a general meeting.
…
Lot owners, who instruct a solicitor on behalf of the body corporate in their capacity as committee members, should not be regarded as being represented by that solicitor in their capacity as lot owners and correspondence addressed to them in the latter capacity should be treated in the same way as that to any other lot holder.
It is apparent that these passages are directed in particular to bodies corporate such as those representing community titles schemes. It appears to have been accepted that if the conduct of a solicitor falls within what is accepted by the guidance statement, then it would not amount to misconduct for the purposes of an application such as the present application.
It is convenient at this point to make some further observations about the discipline application. In particular 1.3(b), Ms Conaghan is described as the secretary and treasurer on the Committee of the Body Corporate for Arila Lodge. In the course of submissions, it was made plain on behalf of the Legal Services Commissioner that these matters, which were admitted, were relied upon as establishing that Ms Conaghan was a member of the Committee of the Body Corporate.
Particular 1.3(c) contains an allegation that Ms Conaghan, as secretary of the body corporate, was authorised to instruct Grace Lawyers in connection with the District Court proceedings. This allegation was the subject of submissions in the applicant’s written submissions filed on 28August 2024, as well as oral submissions. In the written submissions, it was pointed out that particular 1.3(c) does not state that Ms Conaghan made decisions as an individual member of the Committee regarding the District Court proceedings. It was also pointed out that charge 1 in the discipline application does not allege that any decision-making power of the Committee was delegated to Ms Conaghan.
The submissions were also relied upon as identifying the basis on which the particular alleged the authority of Ms Conaghan. One basis referred to was Body Corporate and Community Management Act 1997 (Qld), s 101(2). Its terms will be discussed a little later, but it is referred to as “the section 101 argument”.
In the further particulars dated 18 March 2024, matters were identified as establishing Ms Conaghan’s authority, effectively implied from conduct, in particular, her conduct and the conduct of the other members of the Committee; however, those allegations were abandoned at a directions hearing on 29 April 2025, and the particulars in paragraph 3(b) were struck out.
A third source of the authority identified in the material might be described as authority to do acts incidental to an office. In effect, the allegation is that it was implicit in the holding of the office of Committee member that Ms Conaghan was authorised to give instructions to solicitors in the District Court proceedings. The argument is most clearly articulated in paragraph 29 of the submissions of 28 August 2024.
The section 101 argument depends upon the language of that section. It is in the following terms:
101 Procedures and powers of committee
(1) The procedures and powers of the committee are stated in the regulation module.
(2) Without limiting subsection (1), the committee must put into effect the lawful decisions of the body corporate.
The argument of the applicant appears to be that because the committee is required to put into effect the lawful decisions of the body corporate, then committee members are authorised to carry out the acts necessary to do so. The argument may draw on the operation of Body Corporate and Community Management Act 1997 (Qld), s 100, which provides that a “decision of the committee is a decision of the body corporate”, with some exceptions to which it is unnecessary to refer.
In advancing the argument, the applicant accepted that she had not relied on any resolution of the Body Corporate or the Committee. Indeed, no resolution has been proven. It was submitted for the applicant, however, that it did not matter. Section 101 had a prospective operation. That means that the authority, which s 100 creates, extends to conduct which was carried out in anticipation of a resolution, or under what purported to be a resolution, but which was not, in fact, effective.
For the respondent, it was submitted that it was of significance that s 101(2) created a duty. The duty was to put into effect the lawful decisions of the Body Corporate. Implicit in what was raised for the respondent is the proposition that if the authority to do acts is the product of a duty, authority cannot exist before the duty has been imposed on the members of the Committee; in other words, the section cannot have prospective operation. In my view, that is correct. It is supported, in particular, by the language of s 101(2). It is directed to a situation where a lawful decision has been made, which gives rise to an obligation on a committee to put that decision into effect.
The respondent also submitted that whatever the operation might be of s 101(2), it imposes a collective obligation on the Committee, but no obligation on individual members, so that it does not confer authority on individual members to take steps to put into effect the decision of the Body Corporate. It seems to me that there may be cases where that is correct, but in other cases, the nature of the decision may be such that an obligation could be said to fall on members of a committee individually. It is, however, unnecessary to discuss that question further.
In support of the section 101 argument, the applicant relied on section 101A(1) of the Body Corporate and Community Management Act 1997 (Qld). It provides that a “committee member is not civilly liable for an act done or omission made in good faith and without negligence in performing the person’s role as a committee member”. In my view, that is simply a provision to protect committee members in the circumstances described in the subsection. It is of no assistance in understanding whether and to what extent s 101(2) may be a source of authority for individual committee members might act on behalf of the committee.
The other argument relied upon by the applicant is that the authority of Ms Conaghan alleged in the discipline application arose simply from her membership of the Committee. It might be observed that there is nothing in the discipline application which clearly raises that argument.
In the application, Ms Conaghan was referred to as the secretary and the treasurer of the Body Corporate, and it was said that it was in her capacity as secretary that she had authority to instruct solicitors. The applicant contended that the argument had been raised by its submissions of 28 August 2024, specifically by paragraph 29, to which reference has previously been made. Again, it might be observed that the paragraph referred to the offices of secretary and treasurer as the source of authority, not to membership of the Committee, which is what is now relied upon. There is some force in the objection taken on behalf of the respondent to the raising of the argument now sought to be relied upon by the applicant. For that reason alone, I would not be prepared to find against the respondent based on this argument.
Beyond that, no authority was advanced for the proposition that the office of member of the Committee of the Body Corporate provided a sufficient foundation for a finding that a member was authorised to instruct solicitors in legal proceedings, nor was any argument advanced to demonstrate that the office itself is a sufficient basis for authority. I would be inclined to find against the submission if it were necessary to consider it. It follows that the applicant has not established Ms Conaghan was authorised to give instructions, and accordingly, was sufficiently representative of the Body Corporate to invoke the operation of rule 33. For those reasons, the charge fails. It is, however, convenient to deal with some other matters.
The applicant accepted that to establish misconduct on the part of the respondent, it would be necessary to show that the respondent knew or perhaps ought to have known of the authority of Ms Conaghan to instruct solicitors. She provided particulars of the matters relied upon to show that the respondent knew or ought to have known that Ms Conaghan was an agent for the Body Corporate authorised to instruct the lawyers in the District Court proceedings. They are found in paragraph 2(c) of the applicant’s further particulars of 18 March 2024. The matters relied upon to establish the allegation are themselves the subject of earlier particulars, which extract evidence given by Ms Conaghan on 2 February 2022.
The first is a short passage of evidence, the relevant part of which appears to be a statement that she understood that the respondent’s contact with her was in her capacity as the secretary and treasurer who was instructing Grace Lawyers. The passage of evidence is evidence of her understanding. In my view, it does not provide a basis for concluding the respondent knew or ought to have known that Ms Conaghan had authority to instruct the legal team, if such authority had been established.
The next piece of evidence is identified in particular 1(e). It seems to be based, essentially, on a statement by Ms Conaghan that she considered that the respondent was hoping that he could make her see another side of the interaction between Ms Thompson and the Body Corporate. Again, it does not seem to be directed to any question of knowledge, on the part of the respondent, of the authority alleged to have been held by Ms Conaghan.
The third passage is in particular 2(k). In substance, it was a question in cross-examination suggesting that the purpose of the contact by the respondent with Ms Conaghan was to ascertain whether she was attending the meeting of the Body Corporate, and an intention to discuss the proposed ratification of the incurring of fees with the lawyers. The passage appears to be directed to Ms Conaghan in her capacity as a member of the Body Corporate, that is, as a lot owner, and not as a Committee member. None of the passages relied upon, in my view, are sufficient to establish that the respondent knew or ought to have known of any authority on the part of Ms Conaghan, had that been established.
The parties made submissions about the capacity in which Ms Conaghan was approached by the respondent. The submissions do not clearly arise out of a specific allegation in the discipline application, but may perhaps relate to particular 1.5, which alleges that the direct dealing with Ms Conaghan occurred while she was authorised to instruct the solicitors in the District Court proceedings.
For the applicant, it was submitted that Ms Conaghan was contacted by the respondent in her capacity as a Committee member, but passages of evidence relied upon were identified by reference to particulars 1(d), 1(e), and 1(k) of the further particulars of 18 March 2024. These have been the subject of some discussion already. It might be noted that in particular 1(d), Ms Conaghan stated that she believed that the respondent had said, when he first contacted her, his purpose was to try to change her mind on how she would vote. It is rather clear that at the time, that was reference to a proposed vote at a general meeting, which in turn involves her actions as a lot owner, not as a member of the Committee of the Body Corporate.
There was some further questioning, which appears in the particular. Ms Conaghan did not specifically remember whether reference was made to her exercising her vote as a lot owner at the Annual General Meeting. While she said that she understood that she was contacted in her capacity as the secretary and treasurer who was instructing the legal team, as stated previously, this is evidence of her understanding, but cannot be regarded as probative as to the capacity in which the respondent sought to have dealings with her.

Particular 1(e) may perhaps be ambivalent. It could be regarded as directed to Ms Conaghan both as a lot owner and as a member of the Committee, but it is not clear if that is so. It is certainly not sufficient to establish, for the purposes of these proceedings, that the dealings by the respondent with Ms Conaghan were in her capacity as a Committee member.
Particular 1(k) is, in fact, against the proposition that the respondent dealt with Ms Conaghan in her capacity as a member of the Committee. Ms Conaghan appeared to accept, at least at the time of giving evidence, that the respondent was looking to speak to her in relation to the upcoming general meeting, and her vote at that meeting, no doubt as the owner of a lot.
Finally, reference should be made to the evidence of Mr Lavercombe given before the Legal Practice Committee. At paragraph 29 of his affidavit, received by the Committee on 10 November 2021, he stated that before the initial contact with Ms Conaghan, he had been informed that she had some role with the Committee of the Body Corporate. He stated he did not consider that the no contact rule prevented him from speaking with her. He said that he contacted her strictly in her capacity as a lot owner entitled to vote on a motion. Although this is a fresh hearing, Mr Lavercombe was not required for cross-examination. It is difficult to reject his evidence in those circumstances. Beyond that, although, I was told that his evidence was challenged before the Legal Practice Committee, the details of the challenge were not identified, and no attempt was made to convince me that the evidence should be rejected. I accept it. I consider it to be consistent with some of the evidence given by Ms Conaghan referred to in the particulars which have previously been discussed.
I should add that it was submitted by the Commissioner that this passage of evidence from the respondent showed a recognition that it might appear that he was contacting Ms Conaghan as a member of the Committee. The statement, however, by the respondent that he understood that Ms Conaghan had some role with the Committee, and that he gave consideration to the no contact rule, is hardly evidence that he contacted Ms Conaghan in her capacity as a member of the Committee.
It follows that the charge has not been made out and the discipline application should be dismissed.