Legal Services Commissioner v Budgen - [2016] QCAT 121

CITATION:

Legal Services Commissioner v Budgen [2016] QCAT 121

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

APPLICATION NUMBER:

OCR362-12

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, Lay Panel Member

DELIVERED ON:

9 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent be publicly reprimanded

2. That the respondent not be issued with a practising certificate until he pays in full:

i. $17, 252.20 to his former employee’s superannuation account

ii. $1,500.00 in costs to the Legal Services Commissioner

iii. The costs payable by the respondent pursuant to Order 3

3. The respondent is to pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the Tribunal ordered the respondent to pay superannuation and costs in application LPD004-07 – where the applicant charged the respondent with not complying with those orders – where a simultaneous application is being heard by the Tribunal – where the respondent offered an excuse for non-compliance – where circumstances beyond the respondent’s control occurred – where the applicant should have been notified of failure to comply – whether the respondent’s conduct amounts to professional misconduct or unsatisfactory conduct

Legal Profession Act 2007 (Qld) ss 418, 420(1)(f), 456, 456(2)(e)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
Uniform Civil Procedure Rules 1999 (Qld)

Legal Services Commissioner v Budgen [2011] QCAT 223
Legal Services Commissioner v Kellahan [2016] QCAT (unreported) delivered 1 February 2016
Legal Services Commission v Petschler [2015] QCAT 284

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

The Charge

On 24 May 2011, in application LPD004-07, the Tribunal ordered Mr Rodney Budgen to pay $17,252.20 to a former employee’s superannuation account, and costs of the Legal Services Commissioner (‘the LSC’) in the amount of $1,500.00.
In the present proceedings, the LSC charges Mr Budgen with failure to comply with each of those monetary orders, and alleges that his non-compliance constitutes professional misconduct or unsatisfactory professional conduct, within the meaning of section 420(1)(f) of the Legal Profession Act 2007 (Qld) (‘the Act’).

Discussion

In so far as is relevant, section 420(1)(f) of the Act, provides that a practitioner’s failure to comply with an order of a disciplinary body made under the Act is conduct capable of constituting unsatisfactory professional conduct or professional misconduct.
The respondent, for his part, says that he is financially incapable of complying with the subject orders, and that he is not guilty of…

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 121
Decision Date: 9 March 2016

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Budgen, the Legal Services Tribunal was tasked with determining whether the respondent's conduct amounted to professional misconduct or unsatisfactory professional conduct. The Legal Services Commissioner, acting on behalf of the public interest, charged the respondent with failing to comply with a previous order that mandated the payment of superannuation contributions and costs. The respondent argued that his non-compliance was due to circumstances beyond his control and that the Commissioner should have been notified of his inability to comply. This case arose from the respondent's earlier failure to remit superannuation and costs to his former employee, leading to the Tribunal's order in application LPD004-07.

The legal issues before the Tribunal included whether the respondent's failure to comply with the Tribunal's orders constituted professional misconduct or unsatisfactory professional conduct, and if the respondent's excuse and the circumstances were sufficient to mitigate his non-compliance. The Tribunal needed to assess the respondent's conduct in light of the seriousness of the breach, the potential harm to the public, and the respondent's previous conduct and history. Additionally, the Tribunal had to consider whether the Commissioner should have been notified of the respondent's difficulties in complying with the order, and whether this affected the severity of the respondent's misconduct.

The Tribunal found that the respondent's conduct did amount to unsatisfactory professional conduct, despite the respondent's explanation and the circumstances that contributed to the non-compliance. The Tribunal concluded that the respondent's failure to remit the superannuation and costs was a serious breach, and the respondent's excuse did not fully excuse his non-compliance. The Tribunal also noted that the Commissioner should have been notified of the respondent's inability to comply, which further impacted the respondent's credibility. Based on these findings, the Tribunal ordered that the respondent be publicly reprimanded, that he not be issued with a practising certificate until he paid the outstanding amounts, and that he pay the Commissioner's costs.

The Tribunal's final orders included a public reprimand for the respondent, a condition that the respondent must not be issued with a practising certificate until he had fully paid the superannuation and costs, and a direction that the respondent pay the Commissioner's costs on a standard basis, according to the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld). These orders reflect the Tribunal's determination that the respondent's conduct warranted disciplinary action, while also considering the mitigating factors presented by the respondent.

Orders

Orders of the court

1. The respondent be publicly reprimanded

2. That the respondent not be issued with a practising certificate until he pays in full:

i. $17, 252.20 to his former employee’s superannuation account

ii. $1,500.00 in costs to the Legal Services Commissioner

iii. The costs payable by the respondent pursuant to Order 3

3. The respondent is to pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland

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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