Legal Services Commissioner v Astley - [2019] QCAT 274

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Astley [2019] QCAT 274

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant)

v

KYLIE MAREE ASTLEY

(respondent)

APPLICATION NO/S:

OCR137-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

23 September 2019

HEARING DATE:

17 April 2018

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:

Ms Megan Mahon
Ms Patrice McKay

ORDERS:

1.   There is a finding that the Respondent engaged in unsatisfactory professional conduct.

2.   The Respondent shall pay a penalty of $750.

3.   There shall be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent worked as a legal officer for the Legal Services Commissioner – where the respondent failed to properly comprehend evidence which defeated a charge in a prosecution brought against a legal practitioner by the Legal Services Commissioner – where the respondent is charged with a failure to act with competence and diligence in the prosecution of that charge on behalf of the Legal Services Commissioner – whether the respondent has committed unsatisfactory professional conduct under s 418 of the Legal Profession Act 2007 – whether to order that the respondent be publicly reprimanded – whether to order that the respondent pay a penalty

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent is found to have engaged in unsatisfactory professional conduct – where the applicant has applied for a costs order – whether exceptional circumstances exist for the purposes of s 462(1) of Legal Profession Act 2008 (Qld)

Legal Profession Act 2007 (Qld), s 12, s 452, s 418, s 456, s 462

Legal Services Commissioner v Anderson [2009] LPT 1 Legal Services Commissioner v Bone [2013] QCAT 550
Legal Services Commissioner v Bentley [2016] QCAT 185
Legal Services Commissioner v Bone [2014] QCA 179
Legal Services Commissioner v Brown [2018] QCAT 263
Legal Services Commissioner v Krebs [2009] LPT 11 Legal Services Commissioner v Laylee & Anor [2016] QCAT 237
Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149
Legal Services Commissioner v McLelland [2006] LPT 13
Legal Services Commissioner v Meehan [2019] QCAT 17 Legal Services Commissioner v Rouyanian [2013] QCAT 57

APPEARANCES & REPRESENTATION:

Applicant:

G R Rice QC of counsel, instructed by Legal Services Commissioner

Respondent:

G N Cranny, solicitor of Gilshenan & Luton

REASONS FOR DECISION

The applicant Legal Services Commissioner (‘LSC’) has brought a discipline application against the Respondent, Kylie Maree Astley, under s 452 of the Legal Profession Act 2007 (‘LPA’). The LSC has proceeded with one charge of unsatisfactory professional conduct:
1. Between 17 January 2014 and 8 September 2015, the respondent failed to act with competence and diligence in the conduct of Charge 1 of a Discipline Application on behalf of the Legal Services Commissioner.
The Respondent has admitted the conduct as particularised in the discipline application, which…

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] QCAT 274
Decision Date: 23 September 2019

CaseChat Overview and Summary

The Legal Services Commissioner filed a complaint against Mr. Astley, who worked as a legal officer, alleging he committed unsatisfactory professional conduct by failing to properly comprehend evidence in a prosecution against a legal practitioner. The case was heard by a court, which had to decide whether Mr. Astley's conduct was indeed unsatisfactory professional conduct under the Legal Profession Act 2007, and whether a penalty or public reprimand should be ordered. Additionally, the court needed to determine if the Legal Services Commissioner was entitled to a costs order under the Legal Profession Act 2008, considering the existence of exceptional circumstances.

The court found that Mr. Astley's failure to properly comprehend evidence led to the defeat of the prosecution charge, which constituted unsatisfactory professional conduct. The court determined that the actions of Mr. Astley were not up to the standard expected of a legal officer. However, the court did not find exceptional circumstances to warrant a costs order against Mr. Astley, hence no costs order was made. The court concluded that Mr. Astley should be publicly reprimanded and ordered to pay a penalty of $750.

The court issued specific orders, including a finding that Mr. Astley engaged in unsatisfactory professional conduct. Additionally, Mr. Astley was required to pay a penalty of $750. Finally, the court made no order as to costs, as no exceptional circumstances were identified that would justify such an order.

Orders

Orders of the court

1. There is a finding that the Respondent engaged in unsatisfactory professional conduct.

2. The Respondent shall pay a penalty of $750.

3. There shall be no order as to costs.

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

There was no alternative submission for the LSC that an order for costs should be made notwithstanding the exceptional circumstances. Accordingly, there will be no order as to costs. Conclusion and orders For the reasons set out above, there will be the following orders: 1.There is a finding that the Respondent engaged in unsatisfactory professional conduct.2.The Respondent shall pay a penalty of $750. 3.There shall be no order as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Astley [2019] QCAT 274
PARTIES:	LEGAL SERVICES COMMISSIONER (applicant)
v
KYLIE MAREE ASTLEY (respondent)
APPLICATION NO/S:	OCR137-17
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	23 September 2019
HEARING DATE:	17 April 2018
HEARD AT:	Brisbane
DECISION OF:	Justice Daubney, President Assisted by: Ms Megan Mahon Ms Patrice McKay
ORDERS:	1. There is a finding that the Respondent engaged in unsatisfactory professional conduct. 2. The Respondent shall pay a penalty of $750. 3. There shall be no order as to costs.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent worked as a legal officer for the Legal Services Commissioner – where the respondent failed to properly comprehend evidence which defeated a charge in a prosecution brought against a legal practitioner by the Legal Services Commissioner – where the respondent is charged with a failure to act with competence and diligence in the prosecution of that charge on behalf of the Legal Services Commissioner – whether the respondent has committed unsatisfactory professional conduct under s 418 of the Legal Profession Act 2007 – whether to order that the respondent be publicly reprimanded – whether to order that the respondent pay a penalty PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent is found to have engaged in unsatisfactory professional conduct – where the applicant has applied for a costs order – whether exceptional circumstances exist for the purposes of s 462(1) of Legal Profession Act 2008 (Qld) Legal Profession Act 2007 (Qld), s 12, s 452, s 418, s 456, s 462 Legal Services Commissioner v Anderson [2009] LPT 1 Legal Services Commissioner v Bone [2013] QCAT 550 Legal Services Commissioner v Bentley [2016] QCAT 185 Legal Services Commissioner v Bone [2014] QCA 179 Legal Services Commissioner v Brown [2018] QCAT 263 Legal Services Commissioner v Krebs [2009] LPT 11 Legal Services Commissioner v Laylee & Anor [2016] QCAT 237 Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149 Legal Services Commissioner v McLelland [2006] LPT 13 Legal Services Commissioner v Meehan [2019] QCAT 17 Legal Services Commissioner v Rouyanian [2013] QCAT 57
APPEARANCES & REPRESENTATION:
Applicant:	G R Rice QC of counsel, instructed by Legal Services Commissioner
Respondent:	G N Cranny, solicitor of Gilshenan & Luton