Legal Services Commissioner v Devery - [2017] QCAT 155

CITATION:	Legal Services Commissioner v Devery [2017] QCAT 155
PARTIES:	Legal Services Commissioner (Applicant)
v
Julie Theresa Devery (Respondent)
APPLICATION NUMBER:	OCR178-16
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	2 May 2017
HEARD AT:	Brisbane
DECISION OF:	Justice DG Thomas, President Assisted by: Dr John de Groot (Legal panel member) Ms Julie Cork (Lay panel member)
DELIVERED ON:	10 May 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Julie Theresa Devery is to be publicly reprimanded. 2. Julie Theresa Devery is to pay a pecuniary fine in the sum of $1,500.00 to be paid by equal monthly payments over a period of 18 months from the date of this order. 3. Julie Theresa Devery is to pay the Legal Services Commissioner’s costs to be assessed on the 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. 4. The Legal Services Commissioner’s costs are to be paid by equal monthly instalments over a period of 24 months from the date the costs are assessed in accordance with the QCAT Rules, and the amount of the assessment is notified to Julie Theresa Devery.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT – where respondent acted on behalf of two clients who purchased property as tenants in common in equal shares – where respondent prepared and held a deed between the clients for an unregistered transfer in favour of one client until the other client paid the balance of the purchase price –where respondent then acted for the other client in the sale of his interest in the property to a third party – where respondent admits to all facts and characterisation as unsatisfactory professional conduct – whether conflict of duty and duty – whether professional misconduct or unsatisfactory professional conduct – whether fine an appropriate penalty Legal Profession Act 2007 (Qld) ss 418, 419, 423, 456, 462 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 Legal Services Commissioner v Hinschen [2015] QCAT 122 Legal Services Commissioner v Madden (No 2) [2008] QCA 301

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 Commissioner alleges that in August 2001, Ms Devery committed unsatisfactory professional conduct or professional misconduct by failing to act with the competence and diligence expected by a member of the public from a reasonably competent legal practitioner.
An application for referral – disciplinary proceedings was filed on 4 October 2016.
A statement of agreed facts was filed on 6 October 2016.
At a directions hearing on 13 December 2016, an order was made by consent of each party that the matter be heard on the papers after 1 March 2017.

Background

From the statement 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: [2017] QCAT 155
Decision Date: 10 May 2017

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Devery, the Legal Services Commissioner sought disciplinary action against Julie Theresa Devery, a legal practitioner, alleging that she had engaged in unsatisfactory professional conduct. The respondent acted for two clients who purchased a property as tenants in common in equal shares. She prepared and held a deed for an unregistered transfer in favour of one client until the other client paid the balance of the purchase price. The respondent later acted for the other client in the sale of his interest in the property to a third party. The respondent admitted to all the facts and characterisation of the conduct as unsatisfactory professional conduct.

The Legal Services Commissioner argued that the respondent's conduct constituted professional misconduct, as she had a conflict of duty and duty. The Commissioner submitted that the respondent's conduct was a breach of her duty to act in the best interests of her clients and to avoid any conflict of interest. The respondent submitted that her conduct constituted unsatisfactory professional conduct, and that a fine was an appropriate penalty. The Commissioner argued that a fine was insufficient and that a public reprimand and suspension from practice were necessary.

The court found that the respondent's conduct constituted unsatisfactory professional conduct, but not professional misconduct. The court noted that the respondent had acted in the best interests of her clients, and that there was no evidence of any intention to deceive or mislead. The court found that the respondent's conduct was negligent, but not dishonest. The court also found that a fine was an appropriate penalty, and ordered that the respondent be publicly reprimanded and pay a pecuniary fine of $1,500.00 in equal monthly payments over a period of 18 months. The court further ordered that the Legal Services Commissioner's costs be paid by equal monthly instalments over a period of 24 months from the date the costs are assessed.

Orders

Orders of the court

1. Julie Theresa Devery is to be publicly reprimanded.

2. Julie Theresa Devery is to pay a pecuniary fine in the sum of $1,500.00 to be paid by equal monthly payments over a period of 18 months from the date of this order.

3. Julie Theresa Devery is to pay the Legal Services Commissioner’s costs to be assessed on the 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.

4. The Legal Services Commissioner’s costs are to be paid by equal monthly instalments over a period of 24 months from the date the costs are assessed in accordance with the QCAT Rules, and the amount of the assessment is notified to Julie Theresa Devery.

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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