Legal Services Commissioner v Devery - [2011] QCAT 390

CITATION:

Legal Services Commissioner v Devery [2011] QCAT 390

PARTIES:	Legal Services Commissioner (Applicant)
v
Julie Theresa Devery (Respondent)

APPLICATION NUMBER:

OCR312-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers, 26 July 2011

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Assisted by:
Mr K Horsley
(Practitioner Panel Member)
Dr S Dann
(Lay Panel Member)

DELIVERED ON:

16 August 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the respondent be publicly reprimanded.

2. That the respondent pay a penalty of $2,500 within 90 days.

3. That, in the event that the respondent applies for a practising certificate under the Legal Profession Act 2007 it is restricted to an employee level for one year from the date of application.

4. That the respondent pay the applicant’s costs fixed in the amount of $1,500 within 90 days.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent faces five charges including: failing to act competently and diligently for a clients in litigation; failing to respond to correspondence about litigation from a client, or informing a client of correspondence from the opponent’s solicitor advising that bankruptcy proceedings would issue against the client; failing to comply with written notices from the Commissioner requesting explanations for her conduct; and, failing to make a payment to a medical practitioner whom she had engaged to give evidence on behalf of a client – whether the respondent’s actions amount to professional misconduct or unsatisfactory professional conduct – appropriate penalty

Legal Profession Act 2007, ss 418, 419, 443
Legal Profession (Solicitors) Rule 2007, rr 1, 2

Legal Services Commissioner v Smith [2011] QCAT 126, 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 26 July 2011.

REASONS FOR DECISION

Ms Devery was admitted as a solicitor on 12 March 1984. She has not previously been the subject of any disciplinary action.
The Commissioner has brought five charges against her. The first and second assert that in 2009 she failed to act competently and diligently for one of her clients in litigation, and that she failed to give her file to her client, or the client’s new solicitors, despite requests to do so.
In the litigation orders had been made against her client in February 2009 that she pay the other party various sums amounting to more than $30,000. Ms Devery failed to respond to correspondence about the litigation from the client. Nor did she tell the client about correspondence from the opponent’s solicitor advising that bankruptcy proceedings would issue against the client. Later, the client was served with a bankruptcy notice.
In late February 2009 the client paid all Ms Devery’s fees in full and asked for her files. This was followed…

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 390
Decision Date: 16 August 2011

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Devery, the respondent, a legal practitioner, faced charges of professional misconduct and unsatisfactory professional conduct before a disciplinary tribunal. The Commissioner alleged that the respondent had failed to act competently and diligently for clients in litigation, neglected to respond to correspondence regarding the litigation, and did not comply with notices from the Commissioner requesting explanations for her conduct. Additionally, the Commissioner claimed that the respondent failed to make a payment to a medical practitioner engaged to give evidence on behalf of a client. The tribunal was tasked with determining whether the respondent's actions amounted to professional misconduct or unsatisfactory professional conduct and to decide on the appropriate penalty.

The tribunal began by examining the respondent's conduct against the established standards of professional behaviour. It considered the respondent's failure to act competently and diligently, which included missing critical deadlines and providing inadequate legal advice. The tribunal also took into account the respondent's lack of responsiveness to client communications and her failure to comply with formal notices from the Commissioner. Furthermore, the tribunal evaluated the respondent's failure to settle a debt owed to a medical practitioner who had been engaged to provide expert testimony. Each of these instances was assessed for its impact on the respondent's professional duties and the overall trust in the legal profession.

After thorough deliberation, the tribunal found the respondent's conduct to be both professionally misconducting and unsatisfactory. The tribunal concluded that the respondent's actions demonstrated a significant departure from the standards expected of legal practitioners, particularly in terms of diligence, communication, and financial responsibility. The tribunal imposed a public reprimand, a penalty of $2,500, and restricted the respondent's practising certificate to an employee level for one year if she applied for it. Additionally, the respondent was ordered to pay the Commissioner's costs of $1,500. These measures were intended to uphold the integrity of the legal profession and deter similar conduct in the future.

Orders

Orders of the court

1. That the respondent be publicly reprimanded.

2. That the respondent pay a penalty of $2,500 within 90 days.

3. That, in the event that the respondent applies for a practising certificate under the Legal Profession Act 2007 it is restricted to an employee level for one year from the date of application.

4. That the respondent pay the applicant’s costs fixed in the amount of $1,500 within 90 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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