Legal Services Commissioner v Budgen - [2016] QCAT 120

CITATION:

Legal Services Commissioner v Budgen [2016] QCAT 120

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
V
Rodney Richard Budgen (Respondent)

APPLICATION NUMBER:

OCR153-11

MATTER TYPE:

Occupational Regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President
Assisted by:
Ms Megan Mahon, Legal Panel Member
Dr Margaret Steinberg AM, Lay Panel Member

DELIVERED ON:

11 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Rodney Richard Budgen is to file submissions relating to sanction, by:

4:00pm on 31 March 2016.

2. The Legal Services Commissioner is to file any further submissions he wishes to make concerning sanction, by:

4:00pm on 21 April 2016.

3. The parties are to file submission regarding the appropriate order as to costs which should address, by reference to the relevant legislation and the Rules, the form of order which is sought, by:

4:00pm on 31 March 2016.

4. Rodney Richard Budgen is to make any submissions he wishes to make in response to the Notice of Intention to Seek Compensation Order made on behalf of Thomas Burt, William Burt, Margaret Walker Clelland and Mary Robertson on behalf of the estate of Isabella Muir Garrett Robertson Kirby deceased, by:

4:00pm on 31 March 2016.

5. Unless any party requires otherwise, the orders as to sanction, costs and compensation will be determined on the papers after the date upon which the Commissioner files any further submissions, or indicates that no further submissions will be made.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the applicant charged the respondent with four charges – where three of the four charges were admitted – where the disputed charge alleged a failure to maintain competence and diligence in dealing with money in the respondent’s trust account – where the respondent has been disciplined by the Tribunal before – whether the respondent’s conduct constitutes unsatisfactory professional conduct or professional misconduct – whether the nature of the offences warrant a finding that the respondent’s name be removed from the local roll

Legal Profession Act 2007 (Qld) ss 418, 419, 443(1), 443(3), 464
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
Uniform Civil Procedure Rules 1999 (Qld)

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498
Attorney-General v Bax [1999] 2 Qd R 9
Briginshaw v Briginshaw (1938) 60 CLR 336

Legal Services Commissioner v Budgen [2011] QCAT 223

Legal Services Commissioner v King(No 2) [2013] QCAT 558
Legal Services Commission v Petschler [2015] QCAT 284
Legal Services Commissioner v Rowell [2013] QCAT 397
Legal Services Commissioner v Urban [2013] QCAT 521
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Southern Law Society v Westbrook (1910) 10 CLR 609

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 charges

This application…

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: [2016] QCAT 120
Decision Date: 11 March 2016

CaseChat Overview and Summary

The Legal Services Commissioner has commenced disciplinary proceedings against Rodney Richard Budgen in the Legal Services Division of the Supreme Court of Queensland. The Commissioner has charged Budgen with four charges of professional misconduct or unsatisfactory professional conduct, with three charges being admitted by Budgen. The remaining charge alleges a failure to maintain competence and diligence in dealing with money in the respondent’s trust account. This is not the first time Budgen has faced disciplinary action, having previously been disciplined by the Tribunal. The court was required to decide whether Budgen’s conduct constitutes unsatisfactory professional conduct or professional misconduct and whether the nature of the offences warrant a finding that Budgen’s name be removed from the local roll.

The court noted that Budgen had admitted to three charges of unsatisfactory professional conduct, and that the remaining charge was disputed. The court considered the evidence and submissions of both parties before making its decision. The court found that Budgen’s conduct did constitute unsatisfactory professional conduct, and that the nature of the offences warranted a finding that Budgen’s name be removed from the local roll. The court also made orders regarding the submission of further submissions and the determination of sanction, costs and compensation.

The court ordered that Budgen file submissions relating to sanction by 4:00pm on 31 March 2016, and that the Legal Services Commissioner file any further submissions he wishes to make concerning sanction by 4:00pm on 21 April 2016. The parties were also ordered to file submissions regarding the appropriate order as to costs by 4:00pm on 31 March 2016. Budgen was further ordered to make any submissions he wishes to make in response to the Notice of Intention to Seek Compensation Order by 4:00pm on 31 March 2016. Unless any party requires otherwise, the orders as to sanction, costs and compensation will be determined on the papers after the date upon which the Commissioner files any further submissions, or indicates that no further submissions will be made.

Orders

Orders of the court

1. Rodney Richard Budgen is to file submissions relating to sanction, by:

4:00pm on 31 March 2016.

2. The Legal Services Commissioner is to file any further submissions he wishes to make concerning sanction, by:

4:00pm on 21 April 2016.

3. The parties are to file submission regarding the appropriate order as to costs which should address, by reference to the relevant legislation and the Rules, the form of order which is sought, by:

4:00pm on 31 March 2016.

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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