Legal Services Commissioner v Dingwall - [2017] QCAT 76

CITATION:

Legal Services Commissioner v Dingwall [2017] QCAT 76

PARTIES:	Legal Services Commissioner (Applicant)
v
Jodi Leigh Dingwall (Respondent)

APPLICATION NUMBER:

OCR060-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:	Justice DG Thomas, President Assisted by: Patrice L McKay, Lay panel member Joanne Collins, Legal panel member
DELIVERED ON:	21 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent be publicly reprimanded.

2. The Respondent must pay a fine in the sum of $2,000.00.

3. After obtaining an employee level practicing certificate, the Respondent must work under the supervision of another legal practitioner who holds a Principal level practicing certificate.

4. The Respondent is prohibited from applying for or obtaining a certificate to practice as a Principal for a period of 3 years after obtaining an employee level practicing certificate.

5. In the absence of an agreement as to the Applicant’s costs within 30 days, it is ordered that the Respondent pay the Applicant’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.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where respondent failed to progress three client matters causing delay – where respondent made false representations in relation to the progress of three client matters – where respondent subsequently removed false representations from client file entries to reflect the actual progress in those matters and informed employer – where respondent was a junior lawyer of 5 to 6 years post-admission experience – where little to no supervision offered by firm – whether respondent’s actions misleading and dishonest – whether whole of respondent’s conduct amounts to professional misconduct – whether respondent a fit and proper person – whether imposition of a fine is an appropriate order

Legal Profession Act 2007 (Qld) ss 418, 419, 456, 461, 462
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 107

REPRESENTATIVES (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

The Commissioner has brought disciplinary proceedings against Ms Dingwall, and brings the following charges:
Charge 1 – Delay and Failure to Advance a Client’s Actions (BRI Ferrier Matter).
Between 22…

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 76
Decision Date: 21 March 2017

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Dingwall, the Legal Services Commissioner initiated disciplinary proceedings against the respondent, a lawyer with approximately five to six years of experience post-admission. The Commissioner alleged that the respondent engaged in professional misconduct by failing to progress three client matters, causing delays, and by making false representations regarding the progress of these matters. The respondent later corrected the false representations and informed the employer. The Legal Services Commissioner sought a determination on whether the respondent's actions constituted professional misconduct and whether the respondent was a fit and proper person to hold a practicing certificate. The court was also required to consider whether a fine was an appropriate penalty.

The primary legal issues were whether the respondent's actions were misleading and dishonest, and if the totality of the conduct amounted to professional misconduct. Additionally, the court needed to determine if the respondent was a fit and proper person to hold a practicing certificate. The court also considered whether imposing a fine was an appropriate order. In addressing these issues, the court examined the respondent's experience level, the lack of supervision from the firm, and the steps taken by the respondent to rectify the situation.

The court found that the respondent's actions, while not amounting to the gravest form of professional misconduct, were indeed misleading and dishonest. Despite the respondent's limited experience and the firm's minimal supervision, the court held that the respondent should have recognised the need to progress the client matters and the necessity to accurately represent their status. The court concluded that the respondent's conduct, though not the most egregious, still warranted disciplinary action. The court ordered a public reprimand, a fine of $2,000, and conditions for the respondent's future practice, including mandatory supervision and a prohibition on applying for a principal practicing certificate for three years.

The court ordered that the respondent be publicly reprimanded, pay a fine of $2,000, and work under the supervision of another legal practitioner with a principal level practicing certificate after obtaining an employee level practicing certificate. Additionally, the respondent is prohibited from applying for or obtaining a certificate to practice as a principal for three years following the issuance of an employee level practicing certificate. Should the parties not agree on the costs within 30 days, the respondent is to pay the Commissioner's costs, assessed on the standard basis on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld).

Orders

Orders of the court

1. The Respondent be publicly reprimanded.

2. The Respondent must pay a fine in the sum of $2,000.00.

3. After obtaining an employee level practicing certificate, the Respondent must work under the supervision of another legal practitioner who holds a Principal level practicing certificate.

4. The Respondent is prohibited from applying for or obtaining a certificate to practice as a Principal for a period of 3 years after obtaining an employee level practicing certificate.

5. In the absence of an agreement as to the Applicant’s costs within 30 days, it is ordered that the Respondent pay the Applicant’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.

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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