Legal Services Commissioner v Chapman - [2023] QCAT 357

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION: Legal Services Commissioner v Chapman [2023] QCAT 357

PARTIES:
LEGAL SERVICES COMMISSIONER

(applicant)

v

SHAYE ELIZABETH CHAPMAN

(respondent)

APPLICATIONNO/S: OCR031-22

MATTERTYPE: Occupational regulation matters

DELIVEREDON: 19 September 2023

HEARINGDATE: 6 September 2023

HEARDAT: Brisbane

DECISIONOF:
Justice Williams

Assisted by: Mr Ross Perrett

Mr Keith Revell

ORDERS:

The Respondent’s conduct identified in respect of the charge in the discipline application is found to constitute professional misconduct.

The Respondent is publicly reprimanded.

For a period of five years from the Tribunal’s order, a condition be placed on any practicing certificate issued to the Respondent that the Respondent must not accept any retainer on a deferred fee basis.

The Respondent must undertake the Queensland Law Society Remedial Ethics course, including a component on costs and billing.

The Respondent pay the Applicant’s costs of and incidental to the discipline application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

The application for a compensation order by the Complainant, Katrina Harris, is dismissed.

CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL

MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – SOLICITOR’S COSTS –
where the respondent is charged with one charge of charging excessive fees – where the respondent commenced proceedings against the complainant seeking to recover unpaid legal costs and interest – where a costs assessor was appointed – where the respondent sought review of the costs assessment – where the disparity between the costs as charged and as assessed was 42% – where the respondent accepts that the conduct constituted professional misconduct – where the applicant and the respondent also agree on the appropriate sanction – whether the Tribunal is satisfied as to the agreed characterisation of the respondent’s conduct and the agreed sanction
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – SOLICITOR’S COSTS –
where the respondent is charged with one charge of charging excessive fees – where the complainant seeks a compensation order for $7,500 pursuant to Legal Profession Act 2007 (Qld) s 464 from the respondent – whether the complainant has suffered pecuniary loss because of the respondent’s overcharging
Legal Profession Act 2007 (Qld) s 5, s 6, s 418, s 419, s
420, s 437, s 452, s 456, s 462, s 464, s 465, s 466
Attorney-General v Bax [1999] 2 Qd R 9
Chapman v Harris [2019] QDC 47
Chapman v Harris (No 2) [2019] QDC 78
Legal Services Commissioner v Challen [2019] QCAT 273
Legal Services Commissioner v Madden (No 2) [2009] 1
Qd R 149
Legal Services Commissioner v Reeve (No 3) [2016] QCAT 487
Legal Services Commissioner v Wrightway Legal [2015] QCAT 174
Re Veron (1966) 1 NSWR 511

APPEARANCES & REPRESENTATION:

Applicant: P Ahern instructed by Legal Services Commissioner

Respondent: B Cohen instructed by Bartley Cohen

Complainant: Self-represented

REASONS FOR DECISION

This is a discipline application by the Legal Services Commissioner (LSC) under s 452…

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 357
Decision Date

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Chapman, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with deciding whether the respondent, an experienced legal practitioner, had engaged in unsatisfactory professional conduct warranting disciplinary action. The Legal Services Commissioner alleged that the respondent had overcharged a client and engaged in misleading conduct, prompting the complaint and subsequent investigation. The dispute centred on the interpretation and application of Section 456 of the Legal Profession Act 2007 (LP Act), which outlines the potential orders a tribunal can make following a finding of unsatisfactory professional conduct or professional misconduct.

The primary legal issue before the tribunal was whether the respondent's conduct warranted a disciplinary order and, if so, what form that order should take. The tribunal had to consider the wide discretion granted under Section 456 of the LP Act, which allows for various orders including suspension or cancellation of the practitioner's practising certificate, imposition of conditions on the certificate, and public or private reprimands. The tribunal also had to weigh the principles of personal and general deterrence, the need to maintain and enforce proper standards in the profession, and the respondent's history and conduct.

The tribunal found that the respondent's conduct did indeed amount to unsatisfactory professional conduct. The respondent had overcharged the client by a significant sum and had not taken any steps to address the client's concerns or offer any compromise. The tribunal noted that the respondent was an experienced practitioner without prior disciplinary history, which influenced the decision on the appropriate disciplinary action. Ultimately, the tribunal decided that a public reprimand, along with a requirement for the respondent to undertake specified professional development, was the most suitable order. This decision aimed to deter the respondent and other practitioners from similar conduct while also protecting the public and upholding professional standards.

The tribunal ordered that the respondent be publicly reprimanded and required to complete specified professional development courses to address the underlying issues of her conduct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 456 of the LP Act states:“456 Decisions of tribunal about an Australian legal practitioner(1)If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.(2)The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—(a)an order recommending that the name of the Australian legal practitioner be removed from the local roll;(b)an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;(c)an order that a local practising certificate not be granted to the practitioner before the end of a stated period;(d)an order that—(i) imposes stated conditions on the practitioner’s practising certificate granted or to be issued under this Act; and(ii) imposes the conditions for a stated period; and(iii) specifies the time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed;(e)an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner;(f)an order that no law practice in this jurisdiction may, for a period stated in the order of not more than 5 years—(i) employ or continue to employ the practitioner in a law practice in this jurisdiction; or The discretion to make any order the Tribunal thinks fit is a wide discretion and is to be exercised primarily in the protection of the public.14 Principles of personal and general deterrence are also relevant.15 The maintenance and enforcement of proper standards in the profession is a further aim. Accordingly, it is relevant to consider the need to deter other practitioners from engaging in similar conduct and also to protect the public by enforcing standards upon which the public can rely.16 On the facts of the current case, the following are relevant to the exercise of the discretion:(a)The Respondent is an experienced practitioner, and at the time of the conduct had been in practice for 11 to 12 years.(b)The Respondent currently holds an unrestricted principal practising certificate issued by the QLS.(c)The Respondent does not have any disciplinary history in Queensland.(d)The Respondent was solely responsible for the large sum overcharged.(e)There is no evidence that the Respondent:(i) sought to address the Complainant’s concerns after issuing the invoices or commencing recovery proceedings.(ii) made any offers of compromise during the costs assessment or the review application.(iii) engaged in any rehabilitative professional development to address the cause of the complained conduct.(f)The Respondent initially maintained to the Commission that she had not engaged in any wrong-doing, however did later admit unsatisfactory professional conduct after the commencement of the discipline application.

Ratio Decidendi

Legal Principle Established

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CITATION:	Legal Services Commissioner v Chapman [2023] QCAT 357
PARTIES:	LEGAL SERVICES COMMISSIONER (applicant)
v
SHAYE ELIZABETH CHAPMAN (respondent)
APPLICATIONNO/S:	OCR031-22
MATTERTYPE:	Occupational regulation matters
DELIVEREDON:	19 September 2023
HEARINGDATE:	6 September 2023
HEARDAT:	Brisbane
DECISIONOF:	Justice Williams Assisted by: Mr Ross Perrett Mr Keith Revell
ORDERS:	The Respondent’s conduct identified in respect of the charge in the discipline application is found to constitute professional misconduct. The Respondent is publicly reprimanded. For a period of five years from the Tribunal’s order, a condition be placed on any practicing certificate issued to the Respondent that the Respondent must not accept any retainer on a deferred fee basis. The Respondent must undertake the Queensland Law Society Remedial Ethics course, including a component on costs and billing. The Respondent pay the Applicant’s costs of and incidental to the discipline application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland. The application for a compensation order by the Complainant, Katrina Harris, is dismissed.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL

APPEARANCES & REPRESENTATION:
Applicant:	P Ahern instructed by Legal Services Commissioner
Respondent:	B Cohen instructed by Bartley Cohen
Complainant:	Self-represented