Legal Services Commissioner v Hope

[2010] QCAT 184

CITATION: Legal Services Commissioner v Hope [2010] QCAT 184

PARTIES:	Legal Services Commissioner (Applicant)
v
Neil Samuel Hope  (Respondent)

APPLICATION NUMBER:            LPD010-09               

MATTER TYPE: Discipline action under the Legal Profession Act 2007

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President
Mr P J Mullins (Practitioner Panel Member)
Dr S Dann (Lay Panel Member)

DELIVERED ON:   30 April 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  

1. The respondent is found guilty of three counts of unsatisfactory professional conduct.
2. The respondent is publicly reprimanded.
3. The respondent is to pay the costs of the applicant fixed in the amount of $1000 within 30 days of the date of this order.

CATCHWORDS :  PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DUTY TO EMPLOYEES  – UNSATISFACTORY PROFESSIONAL CONDUCT – where respondent  failed to pay superannuation contributions on behalf of three employees  – whether unsatisfactory professional conduct

APPEARANCES and REPRESENTATION (if any):

APPLICANT: 

RESPONDENT: 

REASONS FOR DECISION

1. The respondent, an Australian legal practitioner now aged 57, was admitted to practice in 1981. At the times relevant to this matter, in 2002 – 2003, he conducted the law practice of Hope Lawyers as a sole practitioner. Three of his employees complained that in that period he had failed to pay superannuation contributions on their behalf, in a total sum slightly exceeding $10,000.

1. The Commissioner filed a discipline application in the Supreme Court on 17 August 2009 which was amended, by agreement, in this Tribunal on 22 February 2010. The application alleges that, in failing to make to pay those superannuation contributions, the respondent is guilty of unsatisfactory professional conduct and/or professional misconduct.

1. Particulars of the charges are:

(a)     That between June 2002 and June 2003 the respondent failed to make superannuation contributions on behalf of his employee Kim Douglas as required by the Superannuation Guarantee (Administration) Act 1992; the sum involved was $3,940.46.

(b)     That between February 2002 and September 2003 the respondent failed to make superannuation contributions on behalf of his employee Angela Spenceley as required by the Superannuation Guarantee (Administration) Act 1992; the sum involved was $4,743.13.

(c)     That between June 2002 and August 2003 the respondent failed to make superannuation contributions on behalf of his employee Christopher Carmichael as required by the Superannuation Guarantee (Administration) Act 1992; the sum involved was $1,500.

1. The respondent has had no previous adverse findings by a disciplinary body. He provided a notice of address for service as soon as he was served with the discipline application. When the matter was transferred to QCAT after this Tribunal commenced operations on 1 December 2009 it was referred to the Deputy President for a compulsory conference. That conference produced an agreed statement of facts and a joint submission from the applicant and the respondent about the terms of suitable orders.

1. In the statement the respondent agrees that he was required to make the superannuation contributions and failed to do so; and, accepts that his conduct in those respects is properly categorised as unsatisfactory professional conduct, a term defined[1] to include conduct happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

   [1]Legal Profession Act 2007, s 418

1. The statement also records the Commissioner’s acceptance that there were several mitigating circumstances relevant to the matter, namely:

(a)     That the poor health of the respondent at the material time, and subsequently, was a factor which operated to contribute to and/or exacerbate the conduct the subject of the charges;

(b)     The respondents financial position deteriorated as a result of his ill health; the Commissioner acknowledges that in that context that respondent received advice which affected his ability to take steps to remedy the effects of the conduct in a more timely manner;

(c)     The conduct the subject of the charges occurred in isolation over the period February 2002 – September 2003, in the context of the respondent’s considerable career as practitioner.

(d)     The respondent has cooperated with the applicant in seeking to resolve the prosecution of the matter prior to a full hearing becoming necessary.

(e)     Before a compulsory conference conducted by the Deputy President on 22 February 2010 the respondent provided bank cheques to the Commissioner in the amounts sought for restitution to the three complainants in the matter; and the applicant and the respondent agreed that those cheques would be re-negotiated to provide for payment direct to the complainants.

1. The applicant and the respondent also agreed that if one of the complainants, Mr Carmichael, cannot be located within two months of the order of this Tribunal the cheque payable to him will be returned to the respondent.

1. The offending conduct here may, in terms of s 420 of the Legal Profession Act 2007, constitute either unsatisfactory professional conduct, or professional misconduct. S 420(a) defines each as including conduct consisting of a contravention of relevant law, whether the conduct happened before or after that section commenced.

1. The definitions of unsatisfactory professional conduct in s 418 and professional misconduct in s 419 make it clear that the latter is the more serious, involving ‘…a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence…’ and ‘…conduct …that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice’.

1. The respondent’s offending occurred over a relatively short period of time in a long legal career during which there had been no previous adverse findings against him by any disciplinary body. The misconduct had a direct connection with health problems leading to a deterioration in the respondent’s financial position. He has cooperated fully with the disciplinary body and taken certain steps in an attempt to rectify the financial loss suffered by the three employees as a result of his failure to meet his statutory obligations. The Tribunal accepts that the offending, in those circumstances, is properly categorised as unsatisfactory professional conduct and that the penalty sought by the applicant (with which the respondent agrees) is, in those circumstances, appropriate.

1. The Tribunal’s order, then, accords with what the parties have jointly submitted, and is that:

(a)     The respondent is found guilty of three counts of unsatisfactory professional conduct.

(b)     The respondent is publicly reprimanded.

(c)     The respondent is to pay the cost of the applicant fixed in the amount of $1,000 within 30 days of the date of the order of this Tribunal.