Legal Services Commission v Bulyk - [2024] QCAT 55

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commission v Bulyk [2024] QCAT 55

PARTIES:

LEGAL SERVICES COMMISSION

(applicant)

v
LILI BULYK

(respondent)

APPLICATION NO/S:

OCR 101-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

14 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 2023

JUDGE:

Davis J

Assisted by:
Mr Keith Revell
Mr Geoffrey Sinclair

ORDER:

Application dismissed

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – NEGLECT AND DELAY – where the respondent was retained by a client to act in a de facto property settlement claim – where a time limit applied for the making of an application – where the time limit was two years from separation of the de facto partners – where the respondent was retained to do initial work concerning a joint bank account and a jointly held property – where the client then had no contact with the respondent for about two years – where the client alleged that she had not been advised of the time limit – where the respondent thought she would have told the client of the time limit – where the respondent conceded she was not in a position to deny the client’s assertions as she had no specific memory – where the respondent made arrangements for her insurer to compensate the client – whether the respondent was charged with unsatisfactory professional conduct or alternatively professional misconduct for failing to advise the client of the time limit – whether the respondent was negligent – whether the respondent was guilty of professional misconduct – whether the respondent was guilty of unsatisfactory professional conduct.

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – SOLICITORS COSTS – where the respondent was retained by the client in a de facto property dispute – where the respondent disclosed the hourly rate of fees to be charged – where the respondent was required to also give an estimate of fees if the fees were to exceed $1,500 – where the fees were approximately $2,250 – where the bills were rendered and paid – where there was no suggestion the bills were excessive – where there was no suggestion that the bills were in amounts that were not expected – where no complaint was made about costs disclosure for two years – where the client then wrongly asserted that the work that was done was worthless – where the respondent repaid the fees in any event – whether the failure to make full costs disclosure constituted professional misconduct – whether the failure to make full costs disclosure constituted unsatisfactory professional conduct

Family Law Act1975 (Cth), s 44, s 90SM
Legal Profession Act2007, s 5, s 308, s 310, s 311, s 418, s 419, s 420
Legal Profession (Solicitors) Rule 2007, r 10

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 cited
Legal Services Commissioner v Bone [2013] QCAT 550

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: [2024] QCAT 55
Decision Date: 14 February 2024

CaseChat Overview and Summary

The respondent, Lili Bulyk, was facing disciplinary charges related to her conduct in two separate matters. The first charge related to the failure to advise a client of the statutory time limit for filing a de facto property settlement claim, while the second charge related to the failure to make full cost disclosures to the client. The case was heard and determined by the court, which needed to decide whether Ms Bulyk's conduct amounted to unsatisfactory professional conduct or professional misconduct.

The court found that Ms Bulyk did not make full disclosure in relation to fees as required by the Legal Profession Act. However, it was a minor infraction which caused the complainant no disadvantage. As for the first charge, the court was not convinced that Ms Bulyk's failure to advise the complainant of the time limit constituted negligence in all the circumstances. The court noted that Ms Bulyk had taken steps to remedy the situation and had gone further than was required to do so. The court held that perfection in legal practice is not possible and a failure to reach perfection does not automatically constitute unsatisfactory professional conduct or professional misconduct.

The court dismissed both charges, finding that Ms Bulyk had committed neither unsatisfactory professional conduct nor professional misconduct. The application was dismissed.

In summary, the court found that the respondent's failure to advise the client of the statutory time limit and failure to make full cost disclosures did not amount to unsatisfactory professional conduct or professional misconduct. The court dismissed both charges and the application.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

The respondent, Lili Bulyk, faces two disciplinary charges. They are:1.Between 6 November 2018 and 11 June 2021, Lili Bulyk (the respondent) failed to deliver legal services competently and diligently to her client (the complainant) by not advising the complainant as to the statutory time limit to file an application for a de facto property settlement claim pursuant to section 44(5) of the Family Law Act 1975.[1]2.Between 6 November 2018 and 15 June 2021, the respondent failed to make cost disclosures to the complainant as required by sections 308(1) and 310(1) of the Act.[2][1]Particulars were provided for both charges. The particulars of charge two are reproduced at paragraph [67] of these reasons.[2]A reference to the Legal Profession Act2007.The facts of charge one Ms Bulyk was admitted to practice as a solicitor in New South Wales in 1985 and in Queensland in 2004. She practices on her own account in Runaway Bay and at least part of her practice is in Family Law. The complainant was in a de facto relationship but that ended on 2 September 2018. The complainant and her former partner owned assets together and their financial affairs were otherwise entangled. On 6 November 2018, the complainant engaged Ms Bulyk to act in what became a property dispute with her former de facto partner. Part V of the Family Law Act 1975 (Cth) concerns property disputes. Section 44(5), 44(5A) and 44(6) provide: “44 Institution of proceedings…Proceedings in relation to de facto relationships(5)Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:(a) the application is made within the period (the standard application period) of:(i)2 years after the end of the de facto relationship; or(ii)12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or(b) both parties to the de facto relationship consent to the application.(5A)However, if proceedings are instituted by an application made with the consent of both of the parties to the de facto relationship, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice.(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:(a) hardship would be caused to the party or a child if leave were not granted; or(b) in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.” Section 90SM of the Family Law Act empowers the Federal Circuit and Family Court of Australia to make orders altering property interests of persons who have been in a de facto relationship. That is the section under which the complainant would apply.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I dismiss charge two.Conclusion Ms Bulyk did not make full disclosure in relation to fees as required by the Legal Profession Act. On any sensible view, it was a minor infraction which caused the complainant no disadvantage. Ms Bulyk probably failed to advise the complainant of a time limit but I am not convinced, for the reasons I have given, that even constituted negligence in all the circumstances. When confronted with the complaints, Ms Bulyk immediately took steps to remedy the situation and, in my view, went further than she was required to do. Perfection in legal practice is not possible. A failure to reach perfection does not automatically constitute unsatisfactory professional conduct or professional misconduct. For the reasons given, Ms Bulyk has committed neither. Neither charge is made out and the application is dismissed.

Ratio Decidendi

Legal Principle Established

The applicant took this as a denial of the complainant’s assertions. It is not. Ms Bulyk cannot be expected to make an express concession that she did not advise the complainant of the time limitation. Doing the best she can, she thinks she would have told the complainant of the limitation period because that was her practice. With no express memory of telling the complainant of the time limitation, and no written advice to that effect, Ms Bulyk, in her written submission, effectively concedes that the complainant’s evidence should be accepted. That approach is the professional, honest and correct one.Consideration of charge one Ms Bulyk is an Australian lawyer as defined by s 5(1) of the Legal Profession Act 2007 and is therefore amenable to discipline. Jurisdiction to impose a sanction is dependent upon a finding of either “unsatisfactory professional conduct” or “professional misconduct”. Section 418 defines “unsatisfactory professional conduct” as: “418 Meaning of unsatisfactory professional conduct Unsatisfactory professional conduct includes 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 Australian legal practitioner.” Section 419 defines “professional misconduct” as:“419 Meaning of professional misconduct (1)Professional misconduct includes—(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. (2)For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.” Section 420 provides relevantly here: “420 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct (1) The following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct— (a) conduct consisting of a contravention of a relevant law, whether the conduct happened before or after the commencement of this section; Note—Under the Acts Interpretation Act 1954, section 7, and the Statutory Instruments Act 1992, section 7, a contravention in relation to this Act would include a contravention of a regulation or legal profession rules and a contravention in relation to a previous Act would include a contravention of a legal profession rule under the Legal Profession Act 2004. …”

CITATION:	Legal Services Commission v Bulyk [2024] QCAT 55
PARTIES:	LEGAL SERVICES COMMISSION (applicant) v LILI BULYK (respondent)
APPLICATION NO/S:	OCR 101-23
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	14 February 2024
DELIVERED AT:	Brisbane
HEARING DATE:	14 December 2023
JUDGE:	Davis J Assisted by: Mr Keith Revell Mr Geoffrey Sinclair
ORDER:	Application dismissed
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – NEGLECT AND DELAY – where the respondent was retained by a client to act in a de facto property settlement claim – where a time limit applied for the making of an application – where the time limit was two years from separation of the de facto partners – where the respondent was retained to do initial work concerning a joint bank account and a jointly held property – where the client then had no contact with the respondent for about two years – where the client alleged that she had not been advised of the time limit – where the respondent thought she would have told the client of the time limit – where the respondent conceded she was not in a position to deny the client’s assertions as she had no specific memory – where the respondent made arrangements for her insurer to compensate the client – whether the respondent was charged with unsatisfactory professional conduct or alternatively professional misconduct for failing to advise the client of the time limit – whether the respondent was negligent – whether the respondent was guilty of professional misconduct – whether the respondent was guilty of unsatisfactory professional conduct. PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – SOLICITORS COSTS – where the respondent was retained by the client in a de facto property dispute – where the respondent disclosed the hourly rate of fees to be charged – where the respondent was required to also give an estimate of fees if the fees were to exceed $1,500 – where the fees were approximately $2,250 – where the bills were rendered and paid – where there was no suggestion the bills were excessive – where there was no suggestion that the bills were in amounts that were not expected – where no complaint was made about costs disclosure for two years – where the client then wrongly asserted that the work that was done was worthless – where the respondent repaid the fees in any event – whether the failure to make full costs disclosure constituted professional misconduct – whether the failure to make full costs disclosure constituted unsatisfactory professional conduct Family Law Act1975 (Cth), s 44, s 90SM Legal Profession Act2007, s 5, s 308, s 310, s 311, s 418, s 419, s 420 Legal Profession (Solicitors) Rule 2007, r 10 Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 cited Legal Services Commissioner v Bone [2013] QCAT 550