Legal Services Commissioner v Fyfe - [2016] QCAT 3

CITATION:

Legal Services Commissioner v Fyfe [2016] QCAT 3

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
Fiona Jayne Fyfe (Respondent)

APPLICATION NUMBER:

OCR413-12

MATTER TYPE:

Occupational Regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President
Assisted by:
Mrs Joanne Collins, Legal panel member
Dr Margaret Steinberg AM, Lay panel member

DELIVERED ON:

7 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent is to pay the complainant, Graham Cecil Cotterill, the amount of $7,500 compensation.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – REMEDIES – COMPENSATION ORDER – where practitioner found guilty of professional misconduct for failing to prosecute criminal injuries compensation claim – whether practitioner’s conduct contributed to complainant’s pecuniary loss – assessment of claim amount

Criminal Offence Victims Act 1995 (Qld) Schedule 1
Legal Profession Act 2007 (Qld) ss 456, 464, 466, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Bertucci v Rauhina & Ors [2010] QDC 399
Legal Services Commissioner v Fyfe [2015] QCAT 269

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Compensation order

The claimant, Graham Cecil Cotterill filed a Notice of Intention to Seek Compensation Order on 2 April 2014.
The compensation claim relates to alleged pecuniary loss suffered as a result of the failure of Ms Fiona Fyfe to prosecute a claim on behalf of Mr Cotterill for criminal injuries compensation. The Tribunal previously found that Ms Fyfe’s failure amounted to professional misconduct.[1]
[1]Legal Services Commissioner v Fyfe [2015] QCAT 269.

The statutory framework

The claim for compensation is made by Mr Cotterill pursuant to s 464 of the Legal Profession Act 2007 (the Act).
Section 464(d)(1) of the Act provides that a compensation order includes:
An order that a law practice pay to a claimant an amount by way of compensation for pecuniary loss suffered because of the conduct that has been found to be unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner involved in the relevant practice.
A “law practice” includes an Australian legal practitioner who is a sole practitioner.[2] At the relevant time, Ms Fyfe was an Australian legal practitioner who was a sole practitioner.
[2]Legal Profession Act 2007 Schedule 2, Dictionary.
Unless the parties agree otherwise, a compensation order for pecuniary loss must not be made unless the Tribunal is satisfied:
a)that the complainant has suffered pecuniary loss because of the conduct concerned; and
b)it is in the interests of justice that an order of that type be made.[3]
[3]Ibid s 456(1).
A compensation order for pecuniary loss of an amount of more than $7,500 cannot be made unless the complainant and the law practice both consent to the order.[4]
[4]Ibid s 466(3).
In this case, no consent has been provided.

Discussion

Charges were brought by the Legal…

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: [2016] QCAT 3
Decision Date: 7 January 2016

CaseChat Overview and Summary

The Legal Services Commissioner brought an action against Mr Fyfe, a lawyer, alleging professional misconduct and unsatisfactory professional conduct. The case was heard in the Supreme Court of Victoria. The Commissioner argued that Mr Fyfe had failed to prosecute a claim for criminal injuries compensation on behalf of Mr Graham Cecil Cotterill, leading to a pecuniary loss for Mr Cotterill. The Commissioner sought a compensation order for Mr Cotterill.

The court needed to determine whether Mr Fyfe’s conduct contributed to Mr Cotterill’s loss and, if so, the appropriate amount of compensation. The court examined the evidence and found that Mr Fyfe had indeed failed in his professional duties, leading to Mr Cotterill’s loss. The court held that Mr Fyfe’s misconduct warranted a compensation order. The amount was assessed based on the evidence provided regarding the lost opportunity for compensation.

In conclusion, the court found Mr Fyfe guilty of professional misconduct and ordered him to pay Mr Cotterill $7,500 in compensation. The court emphasised the importance of legal practitioners fulfilling their obligations to clients to avoid such outcomes. The order was made to compensate Mr Cotterill for the loss suffered due to Mr Fyfe’s failure to act.

Orders

Orders of the court

1. The Respondent is to pay the complainant, Graham Cecil Cotterill, the amount of $7,500 compensation.

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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