Legal Services Commissioner v Cass - [2023] QCAT 320

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Cass [2023] QCAT 320

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant)

v

MURRAY LESTER CASS

(respondent)

APPLICATION NO/S:

OCR207-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

25 August 2023

HEARING DATE:

21 July 2023

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons KC, Judicial Member

Assisted by:
Mr Ross Perrett, Practitioner Panel Member

Mr Keith Revell, Lay Panel Member

ORDERS:

1.     The Tribunal determines that the respondent’s conduct identified in the Discipline Application is unsatisfactory professional conduct.

2.     The respondent is ordered to pay a pecuniary penalty in the sum of $1,000.

3.     The respondent is to pay the applicant’s costs of and incidental to the Discipline Application, such costs to be assessed on the standard basis as if this were a matter before the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where a married couple engaged the respondent to act in the purchase of a property – where a conflict subsequently arose between his clients as to whether they should hold title as joint tenants or tenants in common – where the respondent submitted the transfer for registration on at least three occasions with the form of holding contrary to the instructions of one of the clients – whether the respondent’s failure to follow his client’s instructions, recognise her ability to change instructions, or the conflict of duty, should be characterised as professional misconduct or unsatisfactory professional conduct – whether the conduct subject of the charge should be considered a single course of conduct or consistent conduct – whether it was relevant that the same outcome was likely to be achieved even if the instructions had been given effect – whether a reprimand was warranted

Legal Profession Act 2007 (Qld), s 418, s 419, s 452

Law Society of NSW v Moulton [1981] 2 NSWLR 736, cited

Legal Services Commissioner v Astley [2019] QCAT 274, considered

Legal Services Commissioner v Devery [2017] QCAT 155, distinguished

APPEARANCES & REPRESENTATION:

Applicant:

A Angeli, legal officer of the Legal Services Commission

Respondent:

C DoRozario, solicitor of Potts Lawyers

REASONS FOR DECISION

The respondent to this Discipline Application acted for Mr and Mrs Thompson in the purchase by them of a property located at 1/29 Nankeen Avenue, Paradise Point. A dispute arose between Mr and Mrs Thompson as to the way in which the title was to be held. Nevertheless the respondent continued to act. The questions which arise are the characterisation of the respondent’s conduct, and what orders should be made as a consequence.

Background

Mr and Mrs Thompson were long standing clients of the respondent. They engaged him to act in the purchase in April 2020.
The respondent provided some advice about the form of the contract in a letter dated 15 April 2020.[1] The contract was signed in the latter part of April 2020. The settlement occurred on 22 May 2020.[2]…

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: [2023] QCAT 320
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was asked to decide whether a lawyer, Murray Lester Cass, acted in a way that was bad enough to be called "professional misconduct" or just "unsatisfactory professional conduct". This decision came about because Mr and Mrs Thompson had a disagreement about how they wanted to hold the title to a property they were buying. Mr Thompson wanted to hold the title as "tenants in common" and Mrs Thompson wanted to hold it as "joint tenants". Even though they disagreed, they both asked Mr Cass to help them buy the property. Later, Mr Thompson changed his mind and wanted to hold the title as "tenants in common", but Mrs Thompson did not agree to this change. Mr Cass submitted the Transfer document to the Department of Natural Resources, Mines and Energy for registration, recording the title as "tenants in common". This was against Mrs Thompson's instructions. The Tribunal decided that Mr Cass's actions were not "professional misconduct" but were instead "unsatisfactory professional conduct". This is because, while Mr Cass did not follow Mrs Thompson's instructions and acted on Mr Thompson's instructions instead, it was not a consistent failure on his part to maintain a reasonable standard of competence and diligence. The Tribunal ordered that Mr Cass pay a penalty of $1,000 and also pay the costs of the application.

Orders