Legal Services Commissioner v Jackson - [2017] QCAT 449

CITATION:	Legal Services Commissioner v Jackson [2017] QCAT 449
PARTIES:	Legal Services Commissioner (Applicant)
v
Amanda Lee Jackson (Respondent)
APPLICATION NUMBER:	OCR120-13
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Hon J B Thomas, Judicial Member Assisted by: Dr Steinberg Ms Collins
DELIVERED ON:	12 December 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. In relation to charge 1, the respondent is ordered to pay a penalty of $2,000 on or before 1 February 2018. 2. There will be no order as to costs.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – SOLICITOR’S COSTS – DISCIPLINARY PROCEEDINGS – QUEENSLAND – where a former QCAT Tribunal made a finding of unsatisfactory professional conduct against the respondent – whether the Tribunal’s determination can be set aside by a reconstituted Tribunal - where the applicant was unsuccessful on three other charges brought – where s 462 of the Legal Profession Act 2007 (Qld) entitles the applicant to a costs order where a finding of prescribed conduct is made – –– whether exceptional circumstances exist justifying a departure from the rule in s 462 as to costs – whether the respondent’s sanction ought to include a reprimand Legal Services Commissioner v Ho [2017] QCAT 95 Attorney-General v Bax (1999) 2 Qd R Baker v Legal Services Commissioner [2006] QCA 145 Briginshaw v Briginshaw (1938) 60 CLR 336 Scroope v Legal Services Commissioner [2013] NSWCA 178 Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, Explanatory Memorandum Queensland Civil and Administrative Tribunal Act 2009, s 47, 48, 126, 135, 136 Legal Profession Act 2007, s 452, 249, 456, 598, 599 Legal Profession Regulation 2007, s 58

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

Background and Jurisdiction

This Tribunal has been constituted in order to deal with matters that remain undetermined in a disciplinary proceeding against the respondent solicitor brought by the Legal Services Commissioner (“the Commissioner”) under s 452(1)(a) of the Legal Profession Act 2007 (“the LPA”).
A former QCAT Tribunal made a finding of unsatisfactory professional conduct against the respondent practitioner but did not address the questions of sanction or costs. That Tribunal cannot now do so because its Judicial Member resigned soon after delivering a judgment that contained that finding.
The case is concerned with the respondent’s behaviour in 2008 following termination of her retainer by a client. Another firm of solicitors (“the complainant firm”) asked her to hand over her files, and the case concerns her subsequent conduct.
The complaints of the complainant firm were made in April and May 2008.
Much later, the Commissioner brought the present proceedings containing four (4) charges, namely one of overcharging, one of transferring money in payment of some of those costs to herself in breach of a Regulation (later amended to…

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 449
Decision Date: 12 December 2017

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Jackson, the respondent, a solicitor, faced disciplinary action by the Legal Services Commissioner. The proceedings followed a finding by a former Queensland Civil and Administrative Tribunal (QCAT) panel that the respondent had engaged in unsatisfactory professional conduct. The Legal Services Commissioner, however, was unsuccessful in proving three other charges of professional misconduct against the respondent. The Commissioner sought to have the former QCAT decision set aside and to have a costs order made under section 462 of the Legal Profession Act 2007 (Qld). Additionally, the Commissioner argued that exceptional circumstances justified a departure from the usual rule regarding costs, and that the respondent should receive a reprimand as part of his sanction.

The central legal issues before the court were whether the former QCAT Tribunal’s determination could be set aside by a newly constituted Tribunal, if the Commissioner was entitled to a costs order under section 462 of the Legal Profession Act 2007 (Qld), and whether exceptional circumstances existed to justify a departure from the statutory rule on costs. The court also needed to determine if the respondent’s sanction should include a reprimand.

The court held that the former QCAT Tribunal’s determination could not be set aside by a reconstituted Tribunal. In terms of costs, the court found that the Commissioner was not entitled to a costs order as there was no finding of prescribed conduct against the respondent. The court further determined that there were no exceptional circumstances justifying a departure from the statutory rule on costs. Finally, the court decided that a reprimand was not warranted in the circumstances of this case.

Accordingly, the court ordered the respondent to pay a penalty of $2,000 by a specified date. No order was made as to costs, and no reprimand was issued.

Orders

Orders of the court

1. In relation to charge 1, the respondent is ordered to pay a penalty of $2,000 on or before 1 February 2018.

2. There will be no order as to costs.

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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