Legal Services Commissioner v Hinschen - [2015] QCAT 122

CITATION:

Legal Services Commissioner v Hinschen [2015] QCAT 122

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
Gail Susan Hinschen (Respondent)

APPLICATION NUMBER:

OCR283-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice D Thomas, President

Assisted by:
Ms Megan Mahon
(Practitioner Panel Member)
Ms Julie Cork
(Lay Panel Member)

DELIVERED ON:

22 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent is to be publically reprimanded.

2. The Respondent is to pay a pecuniary penalty of $1,500 within two months of the date of this order.

3. The Respondent is to pay the Applicant’s costs, fixed in the sum of $2,000.00, within eight months of the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent was charged with failing to reach or keep a reasonable standard of competence or diligence with regard to the conduct of a client’s matter – where the respondent was charged with breaching section 443(3) of the Legal Profession Act 2007 (Qld) – whether the respondent’s conduct constituted unsatisfactory professional conduct or professional misconduct

Legal Profession Act 2007 (Qld), ss 418, 419,437, 443(1)(a)(i), 443(3), 462(5)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498
Legal Services Commissioner v Bussa [2005] LPT 005
Legal Services Commissioner v Madden (No 2) [2008] QCA 301

Legal Services Commissioner v Smith [2011] QCAT 126

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 (Qld) (QCAT Act).

REASONS FOR DECISION
Charges

The Commissioner has brought two charges against Ms Gail Hinschen and asserts that the charges constitute professional misconduct and/or unsatisfactory professional conduct:
Charge 1 – competence and diligence
Between 15 November 2011 and 28 February 2012 Ms Hinschen’s conduct of a family law litigation matter on behalf of her client involved a failure or a substantial failure to reach or keep a reasonable standard of competence or diligence.
Charge 2 – breach of s 443(3) of the Legal Profession Act 2007 (Qld)
Ms Hinschen failed to comply with a written notice issued on 4 July 2012 by the Legal Services Commissioner pursuant to s 443(3) of the Legal Profession Act 2007 (Qld) (the Act).

Background

The following facts were not in dispute.
Ms Hinschen was retained by her client to act in a matrimonial property dispute.
An order was made by the Family Court of Australia requiring exchange of offers within 28 days of the order.
An offer was made by the client’s husband in or around 7 December 2011 via Ms Hinschen which was open for acceptance for 14 days. Ms Hinschen did not provide this offer to her client at any time nor advise her that the offer had been made.
On or around 11 January 2012, the client’s husband made a…

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 122
Decision Date: 22 April 2015

CaseChat Overview and Summary

The Legal Services Commissioner brought proceedings against a respondent, a legal practitioner, alleging breaches of professional conduct in relation to their handling of a client's matter. The Commissioner contended that the respondent failed to maintain a reasonable standard of competence and diligence, contravening section 443(3) of the Legal Profession Act 2007 (Qld). The issues before the court involved whether the respondent's conduct amounted to unsatisfactory professional conduct or professional misconduct, as defined under the Act.

The court examined the respondent's handling of the client's matter, including their communication, preparation, and overall competence. The respondent's conduct was assessed against the professional standards expected of a legal practitioner. The court found that while the respondent's actions did not reach the threshold of professional misconduct, they did constitute unsatisfactory professional conduct due to the lack of reasonable competence and diligence. The court highlighted specific instances where the respondent's performance fell short of acceptable standards, leading to the client's dissatisfaction and potential harm.

Consequently, the court imposed a public reprimand on the respondent, a pecuniary penalty of $1,500, and ordered the payment of costs to the Commissioner in the sum of $2,000. The court's decision was based on the need to uphold professional standards within the legal profession and to deter similar conduct in the future. The court did not consider a suspension or cancellation of the respondent's practising certificate necessary but deemed these sanctions appropriate to address the respondent's shortcomings.

Orders

Orders of the court

1. The Respondent is to be publically reprimanded.

2. The Respondent is to pay a pecuniary penalty of $1,500 within two months of the date of this order.

3. The Respondent is to pay the Applicant’s costs, fixed in the sum of $2,000.00, within eight months of the date of this order.

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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