Legal Services Commissioner v Ballantyne - [2012] QCAT 591

CITATION:

Legal Services Commissioner v Ballantyne [2012] QCAT 591

PARTIES:	Legal Services Commissioner (Applicant)
v
James Cameron Ballantyne (Respondent)

APPLICATION NUMBER:

OCR228-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers; the Panel met to consider the matter on 28 September 2012

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Assisted by:
Mr Matthew Woods
Practitioner Panel Member
Ms Kate Keating
Lay Panel Member

DELIVERED ON:

27 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent James Cameron Ballantyne is publicly reprimanded.

2. The Respondent must pay a penalty of $1,000.00 within thirty (30) days of this decision.

3. The Respondent must pay the Commissioner’s costs fixed at $1,500.00 within thirty (30) days of this decision.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the Respondent failed to inform clients that he had ceased work on their file – where the parties provided an agreed statement of facts – whether the Respondent had engaged in unprofessional conduct or professional misconduct – whether compensation paid by the Respondent’s firm to the client should be taken into account when deciding sanction

Queensland Civil and Administrative Tribunal Act 2009, s 32
Legal Profession Act 2007, ss 418, 419, 464, 466

Legal Services Commissioner v Bevan [2009] LPT 25
Legal Services Commissioner v Jiear [2012] QCAT 221
Legal Services Commissioner v Smith [2011] QCAT 126

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (‘QCAT Act’).

REASONS FOR DECISION

Mr Ballantyne was, as he admits, dilatory in attending to the affairs of his client. Disciplinary proceedings against him by the Commissioner were (with the consent of the parties) dealt with through the presentation, to the Tribunal, of an agreed statement of facts and written submissions on penalty.
In the course of his employment with Hartnett Lawyers in 2007, Mr Ballantyne was instructed by Mr Garry Edmonds and Ms Julie Bilston (the sole director of Jabglee Enterprises Pty Ltd) to effect the transfer of a child care centre at Casino owned by Jabglee to Mr Edmonds and Ms Bilston as trustee for the Edmonds and Bilston Superannuation Fund. The instructions came through McKern & Associates, who were the accountants for Mr Edmonds and Ms Bilston.
Mr Ballantyne advised his clients that they would need to obtain a commercial valuation of the property for stamp duty purposes. In June 2007 McKern & Associates retained valuers who provided a valuation on 29 June. Mr Edmonds and Ms Bilston were not satisfied with that valuation and arranged for another, from a different valuers, which was sent to McKern & Associates in July 2007.
Mr Ballantyne did no work on the file relating to the transfer, or anything to advance the matter, between 6 July 2007 and 1 October 2009. In that period and, indeed, up to January 2009 he did not tell his clients that he…

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: [2012] QCAT 591
Decision Date: 27 November 2012

CaseChat Overview and Summary

The Legal Services Commissioner brought disciplinary proceedings against James Cameron Ballantyne, a lawyer, alleging professional misconduct. The matter was before the Legal Services Commissioner Disciplinary Tribunal, which had jurisdiction to hear complaints against legal practitioners and to determine whether they had engaged in professional misconduct or unprofessional conduct. The Tribunal found that Ballantyne had failed to inform clients that he had ceased work on their file, which constituted unprofessional conduct. Additionally, the Tribunal determined that the compensation paid by Ballantyne’s firm to the client should be taken into account when deciding on the appropriate sanction.

The primary legal issues for the Tribunal were whether Ballantyne had engaged in unprofessional conduct or professional misconduct and, if so, what the appropriate sanction should be. The Tribunal considered the evidence and submissions provided by both parties, including the agreed statement of facts, and found that Ballantyne had indeed engaged in unprofessional conduct. The Tribunal further determined that the appropriate sanction was a public reprimand, a penalty of $1,000, and an order for Ballantyne to pay the Commissioner’s costs of $1,500. The Tribunal took into account the compensation paid by Ballantyne’s firm to the client as a mitigating factor in determining the sanction.

In reaching its decision, the Tribunal considered the relevant legal principles and authorities, including the Legal Profession Uniform Law (NSW) and previous decisions of the Tribunal. The Tribunal found that Ballantyne’s failure to inform clients that he had ceased work on their file was a serious breach of professional standards, which warranted a sanction. The Tribunal also considered the compensation paid by Ballantyne’s firm to the client as a mitigating factor, but ultimately determined that a public reprimand and penalty were appropriate sanctions. The Tribunal ordered Ballantyne to pay the Commissioner’s costs, which were fixed at $1,500.

The orders made by the Tribunal included a public reprimand for Ballantyne, a penalty of $1,000, and an order for Ballantyne to pay the Commissioner’s costs of $1,500. These orders were made within thirty days of the Tribunal’s decision. The Tribunal’s decision provides guidance to legal practitioners on the standards of professional conduct expected of them and the potential consequences of failing to meet those standards.

Orders

Orders of the court

1. The Respondent James Cameron Ballantyne is publicly reprimanded.

2. The Respondent must pay a penalty of $1,000.00 within thirty (30) days of this decision.

3. The Respondent must pay the Commissioner’s costs fixed at $1,500.00 within thirty (30) days of this decision.

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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