Legal Services Commissioner v Ballantyne
[2012] QCAT 591
•27 November 2012
| 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 Services Commissioner v Bevan [2009] LPT 25 |
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 had ceased work.
Between January and March 2009 there were, however, discussions between Mr Ballantyne’s clients, the accountants McKern & Associates, and Mr Ballantyne with respect to an outstanding and unpaid invoice for the first valuation. Payment of that invoice was, as the agreed statement of facts between the parties records, ‘commercially resolved’ in March 2009 with all parties contributing toward payment.
According to the agreed statement of facts the stamp duty had still not been paid in February 2012. Separately, in an application for compensation in this matter by Ms Bilston, it is said that new lawyers were retained and they have negotiated with the NSW stamp duty authorities about the payment of the duty.
Disciplinary proceedings were also brought against Mr Hartnett, Mr Ballantyne’s employer, but withdrawn on 19 October 2012.
Mr Ballantyne responded promptly to the discipline application in this matter, explaining the delay by reference to what he saw as his clients' ‘unreasonable refusal to accept responsibility for payment’ of the first valuation fee – but frankly admitting that he did not tell his clients he had suspended work on their file for that reason; and, that his failure to do so was unsatisfactory.
In written submissions to this Tribunal Mr Ballantyne says the second valuation was considerably lower than the first – meaning, of course, that the duty would also be lower. It is apparent that Mr Ballantyne’s motive in failing to advance the matter arose as a consequence of a dispute about responsibility for payment of the fee invoice from the first valuer, in circumstances where he had not retained that valuer.
It is submitted by the Commissioner, and from Mr Ballantyne, that his delay should be categorised as unsatisfactory professional conduct under s 418 of the Legal Profession Act 2007 (‘LPA’). The Tribunal agrees: the level of misconduct is well short of warranting categorisation as the more serious professional misconduct, under s 419 of the LPA.
The Commissioner contends for an order that Mr Ballantyne be publically reprimanded and directed to pay a penalty of between $2,000.00 and $3,000.00; and, that he also pay costs fixed at $1,500.00. Submissions from the solicitors representing Mr Ballantyne disagree only about the amount of the penalty which, it is said, should be between $1,000.00 and $1,500.00.
Mr Ballantyne is a young solicitor who has been in practice for a decade, with no previous disciplinary blemishes. He made prompt admissions about his misconduct in his initial response to the discipline application and, in the submissions delivered on his behalf, accepts that he should have informed his client that he was not working on their matter because he was, in effect, annoyed by the failure to pay the first valuer’s fee.
Delay by legal practitioners is a recurring theme in disciplinary proceedings. The appropriate penalty will depend upon the circumstances in which the delay occurred and its consequences. Some delay (eg, delay which causes a client’s matter to become statute-barred) can be disastrous. Other kinds may have serious financial consequences. The appropriate sanction will vary (and may vary widely) to reflect these factors.
There is another aspect of this matter which, as Mr Ballantyne’s representative submits, should be taken into account. Ms Bilston gave notice of an intention to seek compensation under s 464 of the LPA in both the discipline proceedings against Mr Hartnett and also in this proceeding against Mr Ballantyne. For the reasons explained in Legal Services Commissioner v Jiear[1], Mr Ballantyne may not personally be exposed to an order of that kind. Hartnett Lawyers has, however, paid $13,399.50 to Ms Bilston in response to her claim for compensation. In doing so, the firm has apparently agreed to waive the limit of $7,500.00 set as a maximum for compensation (subject to waiver with the consent of all parties) by s 466(3) of the LPA.
[1] [2012] QCAT 221.
It is said that this payment, in an amount exceeding what could be ordered by the Tribunal without the consent of the law firm (and the applicant for compensation), means the Tribunal ought to be persuaded that a pecuniary penalty for Mr Ballantyne is unnecessary. The Commissioner disagrees and relies upon the fact that the payment was apparently made by the law practice, and not Mr Ballantyne, and should not be taken into account in determining any sanction or penalty to be imposed upon him.
The Tribunal accepts the Commissioner’s submission: that the notion that a payment by way of compensation (which may be awarded by the Tribunal under the LPA in any event), even if it involves a sum exceeding the statutory limit, might operate to affect an appropriate penalty for misconduct is a troubling one. It may, in some cases, have some weight in the exercise of assessing an appropriate penalty but care must be taken to avoid a perception that compensation, properly payable, might purchase a reduction in penalty. An additional factor here is that Mr Ballantyne is not, apparently, the payer.
Both party’s submissions referred to recent decisions of this Tribunal where the misconduct involved delay[2] but the delay had in each case been worse, or involved more matters, or the consequences had been more serious. In each instance the practitioner was publically reprimanded and fined $2,000.00.
[2]Legal Services Commissioner v Bevan [2009] LPT 25; Legal Services Commissioner v Smith [2011] QCAT 126.
The Tribunal accepts that the delay here was of a less serious kind and, materially, one which involved additional elements not present in those cases – in particular, that the prevailing circumstances include an absence of any apparent concern or anxiety by the clients to advance the matter, and fact that the practitioner can advance an explanation other than mere incompetence, disorganisation, of lack of self-discipline. Mr Ballantyne’s reasons do not, of course, constitute a legitimate or satisfactory excuse, but they support his contention that his real fault here was not so much doing nothing as failing to tell his clients that he was not prepared to advance the matter until the question of the valuer’s fee was sorted out.
In light of these factors the Tribunal is persuaded that an appropriate sanction involves a public reprimand; the payment of a penalty of $1,000.00 within thirty days; and, payment of the Commissioner’s costs fixed at $1,500.00, also within thirty days.
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