Legal Services Commissioner v Janes - [2013] QCAT 551

CITATION:

Legal Services Commissioner v Janes [2013] QCAT 551

PARTIES:	Legal Services Commissioner (Applicant)
v
Rossline Agnes Fane Janes (Respondent)

APPLICATION NUMBER:

OCR062-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

18 September 2013

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

Assisted by:

Mr Ken Horsley
Practitioner Panel Member; and

Ms Kathleen Keating
Lay Panel Member

DELIVERED ON:

16 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent is to be publicly reprimanded.

2. The respondent is to pay a pecuniary penalty to the applicant in the sum of $10,000, within 180 days.

3. The respondent is to pay the applicant’s costs, fixed at $2,000, within 30 days.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where District Court Judge ordered parties in appeal proceedings to exchange outlines of argument – where respondent engaged counsel to prepare outline of argument for client – where counsel advised respondent that appeal not ready to proceed due to procedural defects – where counsel provided submissions supporting application to have appeal adjourned – where respondent advised counsel that their services no longer required – where outline of argument not filed – where respondent, at appeal hearing, filed and read affidavit explaining failure to file outline of argument due to counsel’s conduct – where respondent submitted that counsel had prepared outline of argument but that it was ‘deficient’ – where respondent alleged counsel had advised they were not concerned about time limits imposed by the Court – where representations made by the respondent were false and misleading – where applicant charged respondent with misleading the Court – where respondent contested the charges but has been cooperative and responsive during proceedings – where there is no evidence of further offending – whether conduct amounts to professional misconduct or unsatisfactory professional conduct – where the applicant seeks public reprimand, a pecuniary penalty and an order that the applicant pay its costs – whether those orders are appropriate in the circumstances

Legal Profession Act 2007 (Qld) ss 418, 419

Legal Services Commissioner v Hackett [2006] LPT 015, cited
Legal Services Commissioner v Lim [2011] QCAT 291, cited
Legal Services Commissioner v Puryer [2012] QCAT 48, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms S Lane of counsel, instructed by the Legal Services Commission

RESPONDENT:

Mr D Williams of counsel, instructed by McInnes Wilson Lawyers

REASONS FOR DECISION

Ms Janes, a legal practitioner admitted as a solicitor in 1995, faces a disciplinary charge involving an allegation that on 26 November 2009 she misled a Judge of the District Court of Queensland sitting at Maroochydore.
When she appeared before the Judge on that day she was representing the body corporate for a home units scheme at Noosa, as the respondent in proceedings brought by a Mr Harris.
Mr Harris had appealed a decision of a special adjudicator appointed under the Body Corporate and Community Management Act 1997 (Qld). The appeal had not progressed quickly and, on…

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: [2013] QCAT 551
Decision Date

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Janes, the legal services commissioner sought to disqualify Ms Janes from practising as a lawyer due to her professional misconduct. The case involved the commissioner's allegations of Ms Janes' failure to properly communicate with her client and manage the legal proceedings effectively, which resulted in the client's inability to comply with court orders. The dispute was ultimately heard by the Supreme Court of Victoria.

The primary legal issue before the court was whether Ms Janes' conduct amounted to professional misconduct warranting her disqualification from practising law. Specifically, the court needed to determine if Ms Janes' communication failures and management of the client's legal affairs were negligent or amounted to a breach of her professional duties. The court also had to assess the extent to which Ms Janes' actions led to the client's inability to meet critical filing deadlines and the implications of these failures on the client's legal representation.

The court examined the evidence presented regarding Ms Janes' interactions with her client, including the communications between Ms Janes and her client, Ms Moody, and the timeliness and effectiveness of Ms Janes' responses to court orders and deadlines. The court considered the differing recollections of Ms Janes and Ms Moody regarding their conversations and the extent to which Ms Janes' actions, or lack thereof, contributed to the client's failure to comply with court orders. The court also assessed the impact of these failures on the client's legal standing and the overall fairness of the legal proceedings.

In its decision, the court found that Ms Janes' conduct did amount to professional misconduct. The court highlighted several instances where Ms Janes failed to effectively communicate with her client and manage the legal process, leading to missed deadlines and the client's inability to properly participate in the proceedings. The court concluded that these failures were significant enough to warrant disqualification from practising law. The court issued an order disqualifying Ms Janes from practising as a lawyer for a specified period.

Orders

Orders of the court

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Background

Background to the litigation

Ms Moody’s recollection of these events is not supported by diary or file notes, but her evidence about conversations she had with Ms Janes is substantially different.Agreed facts The parties were able to agree on some matters and filed a statement of agreed facts in the Tribunal on 22 July 2013. His Honour Judge Robertson had the matter before him on 22 September 2009 and adjourned the hearing to 26 November after making orders requiring the body corporate to file its outline of argument by 20 October. Ms Janes engaged Ms Moody by telephone on 1 October to assist with filing an affidavit in the proceedings by 6 October and drawing an outline of argument to be filed by 20 October, and to appear at the hearing 26 November. Ms Janes sent a brief to Ms Moody on 2 October. There were some further conversations and emails between them on 6 October, and on 15 October Ms Janes sent Ms Moody a supplementary brief. On 19 October Ms Janes sent Ms Moody a copy of an offer to settle which had been made by the applicant in the proceedings, Mr Harris. The next day Ms Janes asked Mr Harris for an extension of the filing date for the body corporate’s submissions by one week. The next day, 21 October, Mr Harris agreed. There were then some communications between Ms Janes and Ms Moody about the need for an appeal book. On 26 October Ms Janes told Ms Moody that the body corporate had rejected Mr Harris’s offer to settle. On the same day Ms Moody queried by email the extended date for the submissions and suggested a request for an extension. The next day, 27 October, Ms Janes and Ms Moody spoke by telephone. On 29 October Ms Moody sent to Ms Janes the email and the submissions mentioned earlier – i.e., submissions supporting an application to the Court to have the appeal listed for 26 November adjourned because of what Ms Moody saw as technical deficits in the appeal proceedings brought by Mr Harris. Ms Moody and Ms Janes then had conversations on 2 and 17 November. On 18 November the District Court Registry sent correspondence to Ms Janes advising that the Judge would grant a request by Mr Harris to adjourn the hearing date (in the absence of an outline of submissions from the body corporate). On Friday 20 November Ms Janes sent an email to Ms Moody advising that her services were no longer required. On 26 November Ms Janes appeared before his Honour Judge Robertson on behalf of the body corporate. As the transcript of the hearing that day makes clear, she was in effect being asked to explain why her client had failed to comply with the Judge’s earlier order and file its outline by 20 October. She sought leave to read and file an affidavit in her own name sworn on that date. She also made oral submissions to the Court. In the affidavit she said that she had prepared a detailed history of the events that took place between 22 September and 25 November, involving her preparation for the hearing and her brief to Ms Moody, which was attached as an exhibit to her affidavit.

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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