Legal Services Commissioner v Hallam - [2024] QCAT 386

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Hallam [2024] QCAT 386

PARTIES:

LEGAL SERVICES COMMISSIONER

(Applicant)

DANIEL JOEL HALLAM

(Respondent)

APPLICATION NO/S:

OCR 266-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 September 2024

HEARING DATE:

17 July 2024

HEARD AT:

Brisbane

DECISION OF:

Justice Williams
Assisted by:
Ms Petrina Macpherson, Practitioner Panel Member
Mr Keith Revell, Lay Panel Member

ORDERS:

1. The Respondent’s conduct identified in respect of Charge 1 in the Amended Discipline Application is found to constitute unsatisfactory professional conduct.

2. The Respondent’s conduct identified in respect of Charge 2 in the Amended Discipline Application is found to constitute unsatisfactory professional conduct.

3. The Respondent is publicly reprimanded.

4. The Respondent pay the Applicant’s costs of and incidental to the Amended Discipline Application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the discipline application raises two charges against the respondent of acting otherwise than in the best interests of a client and failure to disclose – where the respondent, legal practitioner director, was engaged for the purposes of a property settlement in a family law matter – where the respondent did not advise about a mortgage which benefited the respondent, by giving his firm security for its legal fees – where the respondent admits he did not make a file note of an initial client meeting – where the second charge relates to the practitioner’s failure to ensure his client made full and frank disclosure to the court of financial matters, in relation to the existence of a mortgage – whether the respondent ought to have disclosed the mortgage – whether the relevant conduct amounts to unsatisfactory professional conduct or professional misconduct

Family Law Act1975 (Cth), s 79

Family Law Rules 2004 (Cth), r 13.04
Land Title Act1994 (Qld), s 162

Legal Profession Act 2007 (Qld), s 418, s 419, s 420, s 452, s 456, s 462, s 656, s 656C

Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498

Legal Services Commissioner v Bradshaw [2009] QCA 126
Legal Services Commissioner v Challen [2019] QCAT 273
Legal Services Commissioner v Hackett [2006] LPT 015
Legal Services Commissioner v Laylee [2016] QCAT 237
Legal Services Commissioner v Richards [2018] QCAT 128
Legal Services Commissioner v Thomson [2011] QCAT 127
Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295

New South Wales Bar Association v Lott [2018] NSWCATOD 99

APPEARANCES & REPRESENTATION:

Applicant:

Mr T Ritchie of Counsel instructed by the Legal Services Commission

Respondent:

Mr B Cohen of Bartley Cohen Lawyers

REASONS FOR DECISION

This is a discipline application by the Legal Services Commissioner (LSC) under s 452 of the Legal Profession Act 2007 (Qld) (LP Act) for disciplinary orders pursuant to s 456 of the LP Act. The discipline application…

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: [2024] QCAT 386
Decision Date: 18 September 2024

CaseChat Overview and Summary

The Legal Services Commissioner filed an application against Hallam, a legal practitioner, alleging professional misconduct and unsatisfactory professional conduct. The allegations related to his actions during a property settlement in a family law matter. The central issues were whether Hallam's conduct constituted unsatisfactory professional conduct or professional misconduct, specifically in failing to disclose a mortgage and not advising the client about a mortgage which benefitted Hallam's firm. The Commissioner argued that Hallam's failure to disclose the mortgage was a significant breach of his professional duties and that his conduct fell short of the professional standards expected of a legal practitioner.

The court evaluated the evidence presented and considered the principles outlined in the Legal Profession Act 2007 (Qld). It held that Hallam's failure to disclose the mortgage and his failure to advise the client about the mortgage which benefitted his firm were both serious breaches of his professional obligations. The court found that these breaches amounted to unsatisfactory professional conduct. Hallam's admission of not making a file note of an initial client meeting further supported the finding of unsatisfactory professional conduct. The court did not find the conduct to reach the threshold of professional misconduct but concluded that it was still sufficiently serious to warrant a public reprimand and an order for Hallam to pay costs.

In summary, the court found Hallam's conduct to be unsatisfactory professional conduct and not professional misconduct. The court issued a public reprimand and ordered Hallam to pay the Commissioner's costs. The decision underscores the importance of transparency and proper disclosure in legal practice, particularly in family law matters.

Orders

Orders of the court

1. The Respondent’s conduct identified in respect of Charge 1 in the Amended Discipline Application is found to constitute unsatisfactory professional conduct.

2. The Respondent’s conduct identified in respect of Charge 2 in the Amended Discipline Application is found to constitute unsatisfactory professional conduct.

3. The Respondent is publicly reprimanded.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 456 of the LP Act states:“456 Decisions of tribunal about an Australian legal practitioner(1)If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.(2)The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—(a) an order recommending that the name of the Australian legal practitioner be removed from the local roll;(b) an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period;(d) an order that—(i)imposes stated conditions on the practitioner’s practising certificate granted or to be issued under this Act; and(ii) imposes the conditions for a stated period; and(iii) specifies the time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed;(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner;(f) an order that no law practice in this jurisdiction may, for a period stated in the order of not more than 5 years—(i) employ or continue to employ the practitioner in a law practice in this jurisdiction; or(ii) employ or continue to employ the practitioner in this jurisdiction unless the conditions of employment are subject to conditions stated in the order.(3)The tribunal may, under this subsection, make 1 or more of the following—(a) an order recommending that the name of the Australian legal practitioner be removed under a corresponding law from an interstate roll;(b) an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled under a corresponding law;(c) an order recommending that an interstate practising certificate not be, under a corresponding law, granted to the practitioner until the end of a stated period;(d) an order recommending—(i) that stated conditions be imposed on the practitioner’s interstate practising certificate; and(ii) that the conditions be imposed for a stated period; and(iii) a stated time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed.(4)The tribunal may, under this subsection, make 1 or more of the following—(a) an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100,000;(b) a compensation order; (c) an order that the practitioner undertake and complete a stated course of further legal education;(d) an order that, for a stated period, the practitioner engage in legal practice under supervision as stated in the order;(e) an order that the practitioner do or refrain from doing something in connection with the practitioner engaging in legal practice;(f) an order that the practitioner stop accepting instructions as a public notary in relation to notarial services;(g) an order that engaging in legal practice by the practitioner is to be managed for a stated period in a stated way or subject to stated conditions;(h) an order that engaging in legal practice by the practitioner is to be subject to periodic inspection by a person nominated by the relevant regulatory authority for a stated period;(i) an order that the practitioner seek advice from a stated person in relation to the practitioner’s management of engaging in legal practice;(j) an order that the practitioner must not apply for a local practising certificate for a stated period.(5)To remove any doubt, it is declared that the tribunal may make any number of orders mentioned in any or all of subsections (2), (3) and (4).(6)Also, the tribunal may make ancillary orders, including an order for payment by the Australian legal practitioner of expenses associated with orders under subsection (4), as assessed in or under the order or as agreed.(7)The tribunal may find a person has engaged in unsatisfactory professional conduct even though the discipline application alleged professional misconduct.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.