Legal Services Commissioner v Hadley - [2020] QCAT 509

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Hadley [2020] QCAT 509

PARTIES: LEGAL SERVICES COMMISSIONER

(applicant)

v

DAVID WAYNE HADLEY

(respondent)

APPLICATION NO/S:

OCR140-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

26 November 2020 (ex tempore)

HEARING DATE:

26 November 2020

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:

Mr Geoffrey Sinclair, Legal Panel Member
Dr Margaret Steinberg AM, Lay Panel Member

ORDERS:
1.   The respondent is publicly reprimanded.

2.   The respondent is prohibited from applying for or obtaining a certificate to practise as a principal for two years after being granted an employee-level practising certificate.

3.   The respondent’s application for an employee-level practising certificate must include a copy of the Tribunal’s reasons and:

(a)    evidence of successful completion of the Queensland Law Society’s remedial trust account and ethics courses (or equivalent at the time), having been completed within 12 months prior to the application; and

(b)   a report from the respondent’s treating psychologist confirming that the respondent is in a therapeutic treating relationship, such report to be obtained within 6 months prior to the application.

4.   Practising certificates issued to the respondent for the three years following his next application for a practising certificate must contain the condition that the respondent maintain a therapeutic treating relationship with a suitably trained psychologist and require the respondent to provide evidence of that relationship annually upon application for renewal of the practising certificate.

5.   The respondent shall pay the applicant’s standard costs of and incidental to this discipline application, such costs to be assessed as if this were a proceeding before the Supreme Court of Queensland.

6.   The complainant who filed the Notice of Intention to Seek Compensation Order on about 25 November 2019 shall advise the Tribunal and the respondent as to whether the complainant wishes to pursue that Notice by 4:00pm on 17 December 2020.

7.   If the complainant advises that the complainant wishes to pursue a compensation order, then the matter will be listed for directions on a date to be advised by the Tribunal.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – TRUST MONEY – where the respondent failed to account for money held in trust in breach of s 259 of the Legal Profession Act 2007 (Qld) (“LPA”) – where the respondent failed to lodge an external examiner’s report for the incorporated legal practice of which he was the legal practitioner director – where the applicant issued and served on the respondent two notices pursuant to s 443(3) of the LPA – where the respondent did not respond to either notice – where the applicant has now brought four charges against the respondent – where the respondent has made full admissions in respect of the conduct – where the parties have agreed on the characterisation of the conduct under each charge – whether the conduct underpinning each charge amounts to professional misconduct or unsatisfactory professional conduct

PROFESSIONS AND…

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: [2020] QCAT 509
Decision Date: 26 November 2020 (ex tempore)

CaseChat Overview and Summary

The Legal Services Commissioner brought proceedings against Hadley concerning breaches of professional conduct. Hadley admitted to failing to account for trust money and neglecting to submit an external examiner’s report for his incorporated legal practice, which led to formal charges. The case was heard in a relevant tribunal where the Commissioner sought various sanctions. The main legal issues were whether Hadley’s conduct constituted professional misconduct or unsatisfactory professional conduct, and if so, what appropriate sanctions should be imposed.

The tribunal considered Hadley's admissions and remorse, alongside evidence of his psychological state. It was noted that Hadley had not responded to notices served by the Commissioner. Given the seriousness of the breaches, the tribunal concluded that the conduct amounted to both professional misconduct and unsatisfactory professional conduct. The tribunal imposed a public reprimand and prohibited Hadley from applying for a principal practising certificate for two years after obtaining an employee-level certificate. Further, Hadley's applications for practising certificates must include evidence of completing specific courses and psychological evaluations. Additionally, practising certificates issued over the next three years must include a condition for annual evidence of his ongoing psychological treatment.

In addition to the reprimand and restrictions on practising certificates, Hadley was ordered to pay the Commissioner’s costs as if the case were before the Supreme Court of Queensland. The tribunal also gave the complainant an opportunity to decide whether to pursue a compensation order within a specified timeframe. If the complainant chose to proceed, the tribunal would schedule directions for the compensation matter.

Orders

Orders of the court

1. The respondent is publicly reprimanded.

2. The respondent is prohibited from applying for or obtaining a certificate to practise as a principal for two years after being granted an employee-level practising certificate.

3. The respondent’s application for an employee-level practising certificate must include a copy of the Tribunal’s reasons and:

(a) evidence of successful completion of the Queensland Law Society’s remedial trust account and ethics courses (or equivalent at the time), having been completed within 12 months prior to the application; and

(b) a report from the respondent’s treating psychologist confirming that the respondent is in a therapeutic treating relationship, such report to be obtained within 6 months prior to the application.

4. Practising certificates issued to the respondent for the three years following his next application for a practising certificate must contain the condition that the respondent maintain a therapeutic treating relationship with a suitably trained psychologist and require the respondent to provide evidence of that relationship annually upon application for renewal of the practising certificate.

5. The respondent shall pay the applicant’s standard costs of and incidental to this discipline application, such costs to be assessed as if this were a proceeding before the Supreme Court of Queensland.

6. The complainant who filed the Notice of Intention to Seek Compensation Order on about 25 November 2019 shall advise the Tribunal and the respondent as to whether the complainant wishes to pursue that Notice by 4:00pm on 17 December 2020.

7. If the complainant advises that the complainant wishes to pursue a compensation order, then the matter will be listed for directions on a date to be advised by the Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Hadley [2020] QCAT 509
PARTIES:	LEGAL SERVICES COMMISSIONER
(applicant)
v
DAVID WAYNE HADLEY
(respondent)
APPLICATION NO/S:	OCR140-19
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	26 November 2020 (ex tempore)
HEARING DATE:	26 November 2020
HEARD AT:	Brisbane
DECISION OF:	Justice Daubney, President Assisted by: Mr Geoffrey Sinclair, Legal Panel Member Dr Margaret Steinberg AM, Lay Panel Member
ORDERS:	1. The respondent is publicly reprimanded. 2. The respondent is prohibited from applying for or obtaining a certificate to practise as a principal for two years after being granted an employee-level practising certificate. 3. The respondent’s application for an employee-level practising certificate must include a copy of the Tribunal’s reasons and: (a) evidence of successful completion of the Queensland Law Society’s remedial trust account and ethics courses (or equivalent at the time), having been completed within 12 months prior to the application; and (b) a report from the respondent’s treating psychologist confirming that the respondent is in a therapeutic treating relationship, such report to be obtained within 6 months prior to the application. 4. Practising certificates issued to the respondent for the three years following his next application for a practising certificate must contain the condition that the respondent maintain a therapeutic treating relationship with a suitably trained psychologist and require the respondent to provide evidence of that relationship annually upon application for renewal of the practising certificate. 5. The respondent shall pay the applicant’s standard costs of and incidental to this discipline application, such costs to be assessed as if this were a proceeding before the Supreme Court of Queensland. 6. The complainant who filed the Notice of Intention to Seek Compensation Order on about 25 November 2019 shall advise the Tribunal and the respondent as to whether the complainant wishes to pursue that Notice by 4:00pm on 17 December 2020. 7. If the complainant advises that the complainant wishes to pursue a compensation order, then the matter will be listed for directions on a date to be advised by the Tribunal.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – TRUST MONEY – where the respondent failed to account for money held in trust in breach of s 259 of the Legal Profession Act 2007 (Qld) (“LPA”) – where the respondent failed to lodge an external examiner’s report for the incorporated legal practice of which he was the legal practitioner director – where the applicant issued and served on the respondent two notices pursuant to s 443(3) of the LPA – where the respondent did not respond to either notice – where the applicant has now brought four charges against the respondent – where the respondent has made full admissions in respect of the conduct – where the parties have agreed on the characterisation of the conduct under each charge – whether the conduct underpinning each charge amounts to professional misconduct or unsatisfactory professional conduct PROFESSIONS AND…