Legal Services Commissioner v Ho - [2017] QCAT 386

CITATION:	Legal Services Commissioner v Ho [2017] QCAT 386
PARTIES:	Legal Services Commissioner (Applicant)
v
Chun Man Andrew Ho (Respondent)
APPLICATION NUMBER:	OCR144-16
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Hon J B Thomas, Judicial Member Assisted by: Mr Geoffrey Sinclair Dr Margaret Steinberg
DELIVERED ON:	8 November 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The law practice of Wheldon & Associates is to pay $450 to the claimant, Christine Laurel McDonald, on or before 31 December 2017.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – ORDERS – where the original Tribunal found that the respondent had engaged in unsatisfactory professional conduct – where a complainant filed a compensation claim seeking compensation for legal fees relating to the unsatisfactory professional conduct, and for two days’ worth of wages lost in bringing a guardianship application to remedy the unsatisfactory professional conduct – whether the compensation claim should be allowed – relevant considerations in assessment – desirability of concurrent determination of disciplinary application and compensation claim Legal Profession Act 2007 (Qld), s 464, s 452, s 456, s 598, s 599 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 172, s 180

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

Jurisdiction

This is a claim for compensation under s 464 of the Legal Profession Act 2007 ("the LPA"). It is brought by Ms Christine McDonald, whose complaint led to the bringing of disciplinary proceedings by the Legal Services Commissioner against the respondent solicitor.
Sections 452 and 456 of the LPA make it clear that a compensation order may be made in favour of a complainant in the course of any discipline application, but this can only happen after the Tribunal makes a finding of unsatisfactory professional conduct or professional misconduct against a respondent practitioner.
Ms McDonald exercised her right to pursue such a claim, and while the disciplinary proceedings against Mr Ho were pending, filed a "Notice of Intention to Seek a Compensation Order" along with details in support of her claim.
A QCAT Tribunal ("the original Tribunal"), in due course, dealt with the disciplinary proceeding insofar as Mr Ho was concerned, but postponed determination of Ms McDonald's compensation claim. That original Tribunal cannot now be reassembled because of the resignation of its presiding member.
A fresh Tribunal has now been constituted, and for reasons stated below[1] it has jurisdiction to deal with Ms McDonald's undetermined claim.
[1]Under the heading “Reconstitution of Tribunal: Determination in two stages", [12] et seq.

Relevant facts

For present purposes, it is not necessary to restate in detail the actions of Mr Ho that led to the original Tribunal's finding of unsatisfactory professional conduct against him and its making of orders, including a public reprimand, a fine of $2000…

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: [2017] QCAT 386
Decision Date: 8 November 2017

CaseChat Overview and Summary

In this case, the Legal Services Commissioner brought disciplinary proceedings against Ho, a lawyer practising in Queensland. The Commissioner alleged that Ho had engaged in unsatisfactory professional conduct. Christine Laurel McDonald, a complainant, subsequently filed a compensation claim against Ho’s law practice, Wheldon & Associates, seeking compensation for legal fees incurred in relation to the disciplinary matter and for two days' worth of wages lost in bringing a guardianship application to address the unsatisfactory professional conduct. The Tribunal was required to determine whether the compensation claim should be allowed and to consider the relevant factors in assessing the claim, as well as the desirability of concurrently determining the disciplinary application and the compensation claim.

The Tribunal identified several key legal issues, including the relevance of the disciplinary proceedings to the compensation claim and the appropriate considerations in assessing the compensation claim. It was necessary to consider the overlap between the two matters and whether it was desirable for them to be determined concurrently. The Tribunal also needed to assess the validity of the compensation claim and determine the appropriate amount of compensation, if any, to be awarded to the complainant.

In reaching its decision, the Tribunal considered the nature of the disciplinary proceedings and the compensation claim, the potential for prejudice or unfairness in determining the two matters separately, and the efficiency of concurrent determination. It concluded that while there was some overlap between the two matters, it was not significant enough to warrant concurrent determination. The Tribunal assessed the compensation claim on its merits and found that the complainant was entitled to compensation for the legal fees and lost wages as claimed. It determined that the appropriate amount of compensation to be awarded was $450.

The Tribunal ordered that Wheldon & Associates pay $450 to Christine Laurel McDonald by 31 December 2017. The Tribunal did not find it necessary to determine the disciplinary application concurrently with the compensation claim, and the disciplinary matter remained pending before the original Tribunal.

Orders

Orders of the court

1. The law practice of Wheldon & Associates is to pay $450 to the claimant, Christine Laurel McDonald, on or before 31 December 2017.

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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