Legal Services Commissioner v Bussa - [2011] QCAT 388

CITATION:

Legal Services Commissioner v Bussa [2011] QCAT 388

PARTIES:	Legal Services Commissioner (Applicant)
v
Giovanni Pietro Bussa (Respondent)

APPLICATION NUMBER:

OCR151-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers, 18 July 2011

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Assisted by:
Mr M Woods
(Practitioner Panel Member)
Dr J Lamont
(Lay Panel Member)

DELIVERED ON:

11 August 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the respondent be publicly reprimanded.

2. That the respondent pay a penalty of $10,000 within 90 days.

3. That the respondent pay the sum of $7,500 by way of compensation under s 464 of the Legal Profession Act 2007 to Wayne Malcome Allerton of 12 Honeyeater Place, Lowood, Qld 4311 within 90 days.

4. That the respondent engage the services of Peter Lynch to provide advice as to the improvement and implementation of appropriate management systems of his practice to enable the provision of legal services by the respondent in accordance with the professional obligations of Australian Legal Practitioners under the Legal Profession Act 2007.

5. That the respondent provide to the Legal Services Commissioner a report by Peter Lynch within 12 months.

6. That the respondent pay the applicant’s costs fixed in the sum of $1,500 within 30 days.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – COMPENSATION – where the respondent faced three charges of: delay and failure to prosecute a criminal compensation claim, failure to respond to requirements of the Law Society, and failure to respond to requests of the Legal Services Commission – where the respondent has previously been the subject of professional discipline – whether the respondent’s actions amount to professional misconduct or unsatisfactory professional conduct – appropriate penalty

Legal Profession Act 2007, ss 418, 419, 443, 464

Legal Services Commission v Bussa [2005] LPT 005, cited
Legal Services Commissioner v Smith [2011] QCAT (6 April 2011), cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers, with the consent of the parties, pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act). The Tribunal met to consider written submissions from the parties on 18 July 2011.

REASONS FOR DECISION

The Commissioner is proceeding with three charges against Mr Bussa, a solicitor who was admitted to practice in 1984 and who is now aged 51.
The first charge is that between September 2005 and October 2007 Mr Bussa delayed, and failed to prosecute, a criminal compensation claim for his client Mr Wayne Allerton. The second charge is that he failed to respond to requirements from the Law Society that he provide a chronology of his representation of Mr Allerton, and his file in the matter. The third charge is that he failed to respond to a similar request from the Legal Services Commission in 2009 in respect of another matter, involving different clients.
Mr Bussa’s misconduct, which he admits, is to…

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: [2011] QCAT 388
Decision Date: 11 August 2011

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Bussa, the Legal Services Commissioner brought a disciplinary action against Bussa before the Queensland Civil and Administrative Tribunal. The Commissioner alleged that Bussa had committed professional misconduct and/or unsatisfactory professional conduct by failing to prosecute a criminal compensation claim, by failing to respond to the requirements of the Law Society, and by failing to respond to the requests of the Legal Services Commission. Bussa had previously been the subject of professional discipline. The Tribunal had to determine whether Bussa’s actions amounted to professional misconduct or unsatisfactory professional conduct and, if so, the appropriate penalty.

The central legal issue before the Tribunal was whether Bussa’s conduct amounted to professional misconduct or unsatisfactory professional conduct. The Tribunal considered whether Bussa’s failure to prosecute the criminal compensation claim, his failure to respond to the Law Society and the Legal Services Commission, and his previous history of professional discipline constituted unacceptable professional behaviour. The Tribunal also had to consider the appropriate penalty for Bussa's conduct.

The Tribunal found that Bussa’s conduct amounted to unsatisfactory professional conduct but not professional misconduct. The Tribunal noted that Bussa had shown a pattern of non-compliance with professional obligations and had not taken adequate steps to address his deficiencies despite previous warnings. However, the Tribunal did not find that Bussa's conduct demonstrated a lack of honesty, integrity or reliability to the degree that it warranted a finding of professional misconduct. The Tribunal ordered that Bussa be publicly reprimanded, pay a penalty of $10,000, compensate the affected party, engage an external advisor to improve his management systems, and pay costs.

The Tribunal made several orders against Bussa, including a public reprimand, a penalty of $10,000, and compensation of $7,500 to the affected party. Bussa was also ordered to engage an external advisor to improve his management systems and to provide a report to the Legal Services Commissioner within 12 months. Finally, Bussa was ordered to pay the Commissioner's costs of $1,500. The Tribunal's decision highlights the importance of legal practitioners complying with their professional obligations and the potential consequences of failing to do so.

Orders

Orders of the court

1. That the respondent be publicly reprimanded.

2. That the respondent pay a penalty of $10,000 within 90 days.

3. That the respondent pay the sum of $7,500 by way of compensation under s 464 of the Legal Profession Act 2007 to Wayne Malcome Allerton of 12 Honeyeater Place, Lowood, Qld 4311 within 90 days.

5. That the respondent provide to the Legal Services Commissioner a report by Peter Lynch within 12 months.

6. That the respondent pay the applicant’s costs fixed in the sum of $1,500 within 30 days.

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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