Legal Services Commissioner v Clark - [2024] QCAT 506

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Clark [2024] QCAT 506

PARTIES:

LEGAL SERVICES COMMISSION

(applicant)

v

PETER ELLIOT CLARK

(respondent)

APPLICATION NO/S:

OCR120-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

25 November 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons KC, Judicial Member

Assisted by:

Ms Petrina Macpherson, Practitioner Panel Member
Ms Julie Cork, Lay Panel Member

ORDERS:
1. The Tribunal recommends that the name of the respondent Peter Elliott Clark be removed from the local roll;

2. The respondent is to pay the costs of the applicant and the complainant Edward James Bell of and incidental to these proceedings, to be assessed on the standard basis as if these proceedings were conducted in the Supreme Court of Queensland.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the applicant alleged that the respondent failed to maintain a reasonable standard of competence and diligence for reason of delay to progress an appeal application – where the applicant also alleged that the respondent failed to deposit a sum of money into a trust account – where the applicant further alleged that the respondent failed to comply with a s 443 Legal Profession Act 2007 (Qld) notice – whether the conduct constituted unsatisfactory professional conduct or professional misconduct – whether an order should be made for removal of respondent’s name from roll of practitioners – whether to make a compensation order

Australian Solicitors Conduct Rules 2012 r 4

Legal Profession Act 2007 (Qld) s 120, s 237, s 418, s 419, s 420, s 443, s, 456, s 462, s 464, s 656C

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 275, s 289

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

Degiorgio v Dunn (No 2) 62 NSWLR 284

Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235

Johns v Law Society of New South Wales [1982] 2 NSWLR 1

Legal Services Commissioner v Mauritz [2023] QCAT 325

Legal Services Commissioner v Smith [2011] QCAT 126

Legal Services Commissioner v Twohill [2005] LPT 1

Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300

O’Reilly v Law Society of New South Wales (1988) 24 NSW LR 204

Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320

R v Solicitors’ Disciplinary Tribunal; Ex parte L (a solicitor) [1988] VR 757

Re Moseley (1925) 25 SR (NSW) 1

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The respondent was retained by Mr Edward Bell to act in relation to claims for a psychiatric condition which Mr Bell had acquired during his employment by UGL Operations and Management (Services) Pty Ltd (“UGL”). That has resulted in the applicant bringing charges in the Discipline Application against the respondent, relating primarily to his…

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.

Keep reading for free

Create a free CaseChat account to read Legal Services Commissioner v Clark and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] QCAT 506
Decision Date: 25 November 2024

CaseChat Overview and Summary

The Legal Services Commissioner brought proceedings against Peter Elliott Clark, a legal practitioner, alleging professional misconduct and unsatisfactory professional conduct. The Commissioner's claims were that Clark had failed to maintain a reasonable standard of competence and diligence due to delays in progressing an appeal application, had not deposited a sum of money into a trust account, and had failed to comply with a notice issued under section 443 of the Legal Profession Act 2007 (Qld). The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT) which had to determine if Clark's conduct constituted unsatisfactory professional conduct or professional misconduct, whether his name should be removed from the roll of practitioners, and if a compensation order should be made.

The Tribunal considered the evidence and submissions from both parties and concluded that Clark's conduct did indeed amount to unsatisfactory professional conduct. The Tribunal found that Clark had exhibited a lack of diligence and competence, particularly in the way he handled the appeal application and the trust account issues. The Tribunal also found that Clark had failed to comply with the notice issued under the Legal Profession Act. The Tribunal noted the seriousness of the allegations and the need to maintain public confidence in the legal profession.

Following its findings, the Tribunal recommended that Clark's name be removed from the local roll of legal practitioners. The Tribunal also ordered Clark to pay the costs of the Commissioner and the complainant, Edward James Bell, in relation to the proceedings. These costs were to be assessed on the standard basis, as if the proceedings had been conducted in the Supreme Court of Queensland.

The final orders of the Tribunal included the recommendation for Clark's removal from the local roll of legal practitioners and the direction that Clark pay the costs of the Commissioner and the complainant, Edward James Bell, in accordance with the specified assessment basis.

Orders

Orders of the court

1. The Tribunal recommends that the name of the respondent Peter Elliott Clark be removed from the local roll;

2. The respondent is to pay the costs of the applicant and the complainant Edward James Bell of and incidental to these proceedings, to be assessed on the standard basis as if these proceedings were conducted in the Supreme Court of Queensland.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.