Legal Services Commission v Petschler - [2015] QCAT 284

CITATION:

Legal Services Commission v Petschler [2015] QCAT 284

PARTIES:	Legal Services Commission (Applicant/Appellant)
v
William James Petschler (Respondent)

APPLICATION NUMBER:

OCR206-12 & OCR271-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice D Thomas, President
Assisted by:

Ms Joanne Collins, Practitioner Panel Member

Ms Julie Cork, Lay Panel Member

DELIVERED ON:

22 July 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent’s conduct in relation to charges 1 and 2 in OCR206-12 is properly characterised as unsatisfactory professional conduct.

2. The Respondent’s conduct in relation to charges 3, 4 and 5 in OCR206-12 is properly characterised as professional misconduct.

3. The Respondent’s conduct in relation to all charges in OCR271-13 is properly characterised as professional misconduct.

4. The Respondent is not a fit and proper person to practice law and his name should be removed from the roll of practitioners.

5. The Respondent is to pay the Applicant’s costs assessed on the Supreme Court scale.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where practitioner failed to honour an undertaking – where practitioner failed to maintain reasonable standards of competence and diligence – where practitioner failed to comply with an order of the Legal Practice Tribunal – where practitioner convicted of a tax offence – where practitioner failed to comply with a notice issued pursuant to section 433 of the Legal Profession Act 2007 – whether conduct amounts to unsatisfactory professional conduct or professional misconduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – TRUST MONEY – where practitioner charged with five charges of disbursing trust money without authority – whether conduct amounts to unsatisfactory professional conduct or professional misconduct

Legal Profession Act 2007 (Qld) ss 418, 419, 420, 443, 456, 462
Legal Profession (Solicitors) Rule 2007 (Qld) r 22.1
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 92
Taxation Administration Act 2001 (Qld)

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498
Legal Services Commissioner v Madden [2008] QCA 301
Legal Services Commissioner v Petschler [2009] QLPT 24

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The charge

These reasons for decision relate to two applications, namely OCR206‑12 and OCR271-13, which have been brought by the Legal Services Commissioner against Mr William Petschler.

OCR206-12

The application in OCR206-12 concerns five charges:
Charge 1 – failure to honour an undertaking
Charge 2 – failure to maintain reasonable standards of competence and diligence
Charge 3 – failure to comply with an order of the Legal Practice Tribunal
Charge 4 – conviction of a tax offence
Charge 5 – failure to comply with a notice issued pursuant to s 433 of the Legal Profession Act 2007 (Qld) (Legal Profession Act).

OCR271-13

In this application, five charges…

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: [2015] QCAT 284
Decision Date: 22 July 2015

CaseChat Overview and Summary

Legal Services Commission v Petschler was a case before the Supreme Court of New South Wales, where the Legal Services Commission brought a complaint against a legal practitioner. The Commission alleged that the practitioner had engaged in a series of misconducts that included failing to honour an undertaking, falling short of maintaining reasonable standards of competence and diligence, and not complying with orders from both the Legal Practice Tribunal and a notice issued pursuant to section 433 of the Legal Profession Act 2007. Furthermore, the practitioner faced five charges of disbursing trust money without authority. The court was required to determine whether these actions amounted to unsatisfactory professional conduct or professional misconduct.

The central legal issues before the court were the classification of the practitioner's conduct and whether it warranted removal from the roll of practitioners. The court had to consider whether the practitioner's actions, including the failure to comply with tribunal orders, his conviction for a tax offence, and the handling of trust money, constituted unsatisfactory professional conduct or the more severe professional misconduct. Additionally, the court needed to decide if the practitioner was a fit and proper person to continue practicing law.

The court found that the practitioner's conduct in relation to the charges related to the failure to honour an undertaking and the failure to comply with tribunal orders amounted to unsatisfactory professional conduct. However, the conduct regarding the charges of disbursing trust money without authority and the failure to comply with a notice issued under section 433 of the Legal Profession Act 2007 were deemed to be professional misconduct. The court concluded that the practitioner was not a fit and proper person to practice law and ordered that his name be removed from the roll of practitioners. The practitioner was also directed to pay the costs of the proceeding.

The court's final orders were that the practitioner's conduct in relation to specific charges was characterised as unsatisfactory professional conduct or professional misconduct, his name was to be removed from the roll of practitioners, and he was required to pay the costs of the proceeding as assessed on the Supreme Court scale.

Orders

Orders of the court

1. The Respondent’s conduct in relation to charges 1 and 2 in OCR206-12 is properly characterised as unsatisfactory professional conduct.

2. The Respondent’s conduct in relation to charges 3, 4 and 5 in OCR206-12 is properly characterised as professional misconduct.

3. The Respondent’s conduct in relation to all charges in OCR271-13 is properly characterised as professional misconduct.

4. The Respondent is not a fit and proper person to practice law and his name should be removed from the roll of practitioners.

5. The Respondent is to pay the Applicant’s costs assessed on the Supreme Court scale.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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