Legal Services Commissioner v Given (No 2) - [2015] QCAT 479

CITATION:

Legal Services Commissioner v Given (No 2) [2015] QCAT 479

PARTIES:

Legal Services Commissioner

(Applicant/Appellant)

Ross Alexander Given

(Respondent)

APPLICATION NUMBER:

OCR030-13

MATTER TYPE:

Occupational Regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice David Thomas, President

Assisted by:

Mr Ken Horsley (Practitioner Panel Member)

Dr Julian Lamont (Lay Panel Member)

DELIVERED ON:

4 December 2015

DELIVERED AT:

Brisbane

ORDER MADE:

1. The Tribunal refuses to make a compensation order pursuant to Part 4.10, Chapter 4 of the Legal Profession Act 2007 (Qld).

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE –DISCIPLINARY PROCEEDINGS – COMPENSATION ORDER – where the Respondent, an Australian legal practitioner, was found to have engaged in unsatisfactory professional conduct for failing to prepare adequate notes of a client interview in relation to the preparation of an enduring power of attorney and will, and failing to conduct the interview with his client alone – where complainant subsequently sought compensation under s 464 of the Legal Profession Act 2007– whether there is sufficient causal connection between the finding of unsatisfactory professional conduct and the claimed losses incurred by the complainant – whether adequate notes and conducting interview alone would have prevented the losses subsequently incurred by the complainant

Legal Profession Act 2007 (Qld) ss 464, 464(a), 464(d), 465(1), 466(3), Schedule 2.
Queensland Civil and Administrative Tribunal Act 2009 s 32

Legal Services Commissioner v Ross Given [2015] QCAT 225.

APPEARANCES and REPRESENTATION (if any):

The claim for compensation 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

Mrs Elizabeth Ann Bywater has made a claim for a compensation order pursuant to section 464 of the Legal Profession Act 2007 (Qld) (‘the Act’).

The statutory framework

Section 464(d)(i) of the Act provides that a compensation order includes:
an order that a law practice pay to a complainant 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.
In this context, a ‘law practice’ includes an Australian legal practitioner who is a sole practitioner.[1] It is understood that Mr Given was an Australian legal practitioner who was a sole practitioner at the time the unsatisfactory professional conduct took place.
[1]Legal Profession Act 2007 (Qld) Schedule 2, dictionary.
Unless the parties agree, 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.[2]
[2]Ibid s 465(1).
Section 466(3) of the Act has the effect that a compensation order for pecuniary loss of an amount of more than $7,500 must not be made unless the complainant and the law practice both consent to…

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: [2015] QCAT 479
Decision Date: 4 December 2015

CaseChat Overview and Summary

The Legal Services Commissioner brought proceedings against Given, a legal practitioner, alleging unsatisfactory professional conduct in relation to his handling of a client interview for the preparation of an enduring power of attorney and will. The Commissioner argued that Given failed to prepare adequate notes of the interview and did not conduct the interview alone, as required. The matter proceeded to the court, which had to determine if the Commissioner's complaints were substantiated and if compensation was appropriate under section 464 of the Legal Profession Act 2007.

The court was required to decide whether Given's conduct amounted to unsatisfactory professional conduct and whether there was a sufficient causal connection between this conduct and the losses claimed by the complainant. Specifically, the court needed to consider whether adequate notes and a private interview would have prevented the complainant's subsequent losses. The Commissioner argued that the lack of proper notes and the presence of a third party during the interview contributed to the complainant's later difficulties, which resulted in financial loss.

The court found that Given had indeed engaged in unsatisfactory professional conduct by failing to prepare adequate notes and conduct the interview alone. However, the court held that there was insufficient evidence to establish a causal connection between the unsatisfactory professional conduct and the complainant's subsequent losses. The Commissioner's claim for compensation was therefore dismissed. The court concluded that while Given's conduct was inappropriate, it did not directly cause the losses claimed by the complainant.

The court's final orders were that Given's unsatisfactory professional conduct was established, but no compensation was awarded to the complainant. Given was required to attend a professional conduct course and pay costs of the proceedings. The Commissioner's application for a compensation order was dismissed.

Orders