Legal Services Commissioner v Jiear
[2012] QCAT 221
•31 May 2012
| CITATION: | Legal Services Commissioner v Jiear [2012] QCAT 221 |
| PARTIES: | Legal Services Commissioner (Applicant) |
| v | |
| Warren Peter Jiear (Respondent) |
| APPLICATION NUMBER: | OCR082-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 12 December 2011; subsequent written submissions received up to 28 February 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Assisted by: Mr Mathew Woods (Practitioner Panel Member) Dr Julian Lamont (Lay Panel Member) |
| DELIVERED ON: | 31 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the Respondent pay a pecuniary penalty, in the sum of $1,500; 2. That the Respondent receive a public reprimand; 3. That the Respondent pay the Applicant’s costs, in the sum of $1,500; and, 4. The claim for compensation is refused. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the Respondent failed to reach or keep a reasonable standard of competence and diligence in progressing a civil litigation claim – whether the conduct is properly characterised as unsatisfactory professional conduct – appropriate penalty – whether there are grounds for the Tribunal to make a compensation order Acts Interpretation Act 1954, s 14A Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] 47 CLR 1 |
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 (QCAT Act); the panel members met to consider the parties’ submissions on 12 December 2011.
REASONS FOR DECISION
Mr Jiear was admitted as a solicitor in 1996. The Commissioner alleged, in a discipline application, that his conduct of a civil litigation matter for a client involved a failure, or substantial failure, to reach or keep a reasonable standard of competence and diligence. Mr Jiear admitted the charge and its particulars, and with the consent of both parties the proceeding was dealt with on the papers[1]. Each party filed submissions and an agreed statement of facts.
[1]A procedure permitted under s 32 of the Queensland Civil and Administrative Tribunal Act2009.
The agreed facts
Between 18 October 2000 and 28 February 2009, Mr Jiear acted on behalf of the complainant Mr Alan Howison (and a firm or company with which he was associated, Dial Technologies) in a civil claim in the Supreme Court. Between October 2000 and March 2006, Mr Jiear satisfactorily progressed the claim.
Mr Howison paid the law firm of which Mr Jiear was a partner at the time, Quinn & Scattini, approximately $35,000 for costs in the civil litigation up to the point of disclosure in the proceedings, whereafter it was agreed that Quinn & Scattini would conduct the matter on a speculative basis.
At the time that agreement was reached, the claim appeared to have reasonable prospects for a successful outcome. In October 2004, however Mr Jiear, having some apparent concerns about the prospects of recovery in the proceedings, attempted to renegotiate the basis of the retainer. Mr Howison refused to do so.
By late 2005, Mr Jiear’s concerns about Mr Howison’s prospects in the matter and, in particular, his prospects of recovery if he was successful, had apparently grown: some of the defendants were no longer taking any part in the action, and one had taken steps to put its assets ‘out of reach’.
By about March 2006, Mr Jiear had serious concerns that if the matter proceeded to trial there was no practical prospect of any net recovery of damages. He again, unsuccessfully, attempted to renegotiate his firm’s retainer with Mr Howison.
Mr Jiear accepts that at that time he should have terminated the retainer and refused to act further unless Mr Howison was prepared to pay fees. He did not do that but, in March 2007, told Mr Howison that if the matter proceeded any further he was unlikely to recover anything, because legal fees would probably exceed any actual sum recovered. Nevertheless Mr Howison instructed Mr Jiear to press on.
Mr Jiear’s misconduct was in failing to do so: between 2 March 2006 and 28 February 2009, he failed to take any step in the proceeding, thereby preventing Mr Howison from taking any new step without the leave of the Court[2].
[2] Uniform Civil Procedural Rules 1999, r 389(2).
On a date in 2009 (the exact date is unclear), Mr Jiear left the firm of Quinn & Scattini. He is currently a partner of another law firm. The retainer with Quinn & Scattini was then terminated. Mr Howison engaged the services of another solicitor to attempt to negotiate a settlement in the original action and, at that time, discovered that his case had been ‘stayed’. He did not make any application for leave to proceed, and his action has effectively stalled.
In the agreed statement of facts lodged by the Commissioner and Mr Jiear, Mr Jiear accepts that his relationship with Mr Howison ‘…could have been “managed better”’, and that he ought to have set out more clearly for Mr Howison his assessment of the prospects, and made it abundantly clear to him that there was no good reason to pursue the matter. He also accepts that his firm should have taken a firmer position at an earlier stage by terminating the retainer, and refusing to continue to act on a speculative basis, as it was entitled to do. He acknowledges that his failure to do so, and his conduct in simply allowing the matter to ‘drift on’ justifies a finding of unsatisfactory professional conduct.
The Tribunal’s conclusions
The Legal Profession Act 2007 (LPA) contains two ‘key’ concepts: the first is unsatisfactory professional conduct, which is defined in s 418 to mean conduct occurring 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 lawyer.
The other key concept is professional misconduct, which is defined in s 419 of the LPA to include unsatisfactory professional conduct, if it involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; or, conduct that would if established justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
It is submitted for Mr Jiear, and the Commissioner accepts, that his conduct is properly categorised as unsatisfactory professional conduct, and does not fall within the more serious misconduct envisaged in the definition of professional misconduct. The Tribunal accepts that submission: while the matter involved undue delay for a period of several years, the solicitor had satisfactorily progressed the matter for about 6 years, mainly on a speculative basis, up to that time.
In reaching that conclusion, the Tribunal rejects a submission previously made by Mr Jiear to the Commissioner that it is material that, notwithstanding the procedural difficulties confronting Mr Howison at the end of the period of delay which has been categorised as misconduct, his claim was not incapable of being revived at that time and he might have applied to the court for leave to do so. As observed in LSC v Slipper[3], it is not the potential for success in proceedings (or, here, in an application that would have been necessary to re-enliven them in the Court) that is a factor in disciplinary proceedings, but the denial of the opportunity for the complainant to test the worth of their claim.
[3] [2008] LPT 8 at [13].
Penalty
Submissions for the parties are in substantial accord as to an appropriate penalty: a public reprimand, a pecuniary penalty in the range $1,000-$2,000, and payment of the Commissioner’s costs in the agreed sum of $1,500.
The Tribunal has, in the submissions, been referred to the penalties imposed in LSC v Bussa[4], LSC v Petschler[5], LSC v Williams[6] and, more recently, LSC v Mackie[7].Both Bussa[8] and Petschler[9] involved multiple offences, including failures to comply with notices under the Legal Profession Act2007. In Petschler[10], the penalty ordered was $2,000. In Mackie[11] the practitioner had not prosecuted the complainant’s action over an aggregate period of five years and, also, recklessly misled the client about the progress of the proceeding. The penalty in that case was $5,000.
[4] [2005] LPT 5.
[5] [2009] LPT 24.
[6] [2005] LPT 8.
[7] [2010] QCAT 570.
[8] Legal Services Commissioner v Bussa [2005] LPT 5.
[9] Legal Services Commissioner v Petschler [2009] LPT 24.
[10] Legal Services Commissioner v Petschler [2009] LPT 24.
[11] Legal Services Commissioner v Mackie [2010] QCAT 570.
The failure here is not, as in some of the cases mentioned above, one involving both incompetence and misleading the client. In the view of the Tribunal the charges here are less serious, involving a claim which had been commenced and appropriately pursued for a number of years, with the delay occurring only after the practitioner formed the view the client’s action did not justify further pursuit and, then, a failure to act appropriately and effectively in that light. In all the circumstances a penalty of $1,500 is appropriate.
So is a public reprimand, and payment of costs agreed at $1,500.
Compensation claim
The Legal Profession Act2007 authorises the Tribunal to make orders:
…that a law practice pay to a complainant an amount by way of compensation for pecuniary loss suffered because of conduct that has been found to be – unsatisfactory professional conduct…[12] (emphasis added).
[12] Legal Profession Act2007, ss 464(d), 465.
Mr Howison seeks compensation under the LPA from Mr Jiear, comprised of claims for $30,886.58 for costs paid to Quinn & Scattini up to the time of disclosure in the proceeding; $574.75 for costs paid to another lawyer to review an amended retainer proposed by Quinn & Scattini and a barrister; and, $7,117.96 for costs paid for advice and other work in the proceeding after Quinn & Scattini’s retainer ended.
At the time the Tribunal met on 12 December 2011, it had no submissions from Mr Howison, the Commissioner, or Mr Jiear about this compensation claim, and sought them.
Mr Jiear has filed submissions contending that the compensation claim cannot properly be brought by Mr Howison, but could only be maintained by a company with which he was connected, Dial Technologies Pty Ltd; that Mr Jiear is not a “law practice” under the legislation; that the firm of Quinn & Scattini is no longer in existence, nor practising; and, that Mr Howison’s claim is not, in any event, sustainable.
The Commissioner has delivered submissions pointing out that it does not act for Mr Howison and that, if an order cannot be made because (under the legislation set out above) there is now no “law practice” that may be ordered to pay compensation, the Tribunal may nevertheless be at liberty to make an order directing that Mr Jiear pay money to Mr Howison pursuant s 456(1) of the LPA, which says the Tribunal:‘…may make any order as it thinks fit, including any one or more of the orders stated in this section’.
Mr Howison has also filed some submissions, addressing those lodged by Mr Jiear. As to Mr Jiear’s first point, he has produced parts of the original retainer document showing that it was between Quinn & Scattini and both him and ‘Dial Technologies’. As to the second, he contends that if a compensation order cannot be made he should, nevertheless, have the benefit of an order under s 465(1) of the LPA.
The question whether, in circumstances in which there is no proper subject of a compensation order under Part 4.10 of the LPA, the Tribunal may nevertheless order compensation under the general power granted to it by s 456(1) has not been determined. It was touched upon in Mackie[13], but did not need to be decided in that case.
[13] Legal Services Commissioner v Mackie [2010] QCAT 570.
The power in the Tribunal to make ‘…any order it thinks fit’ in s 456(1) is plainly a broad one. It is followed by the words ‘…including any one or more of the orders stated in this section’. Subsections 456(2) and (3) relate to orders which may be made about local and interstate rolls and practising certificates, and conditions which may be imposed upon them by the Tribunal. Under subsection 456(4) the Tribunal is also specifically empowered, however, to impose penalties and conditions and, in particular, make a compensation order.
Mr Jiear is not, it must be accepted, a “law practice”, and therefore exposed to a compensation order pursuant to ss 464(d)(1) and 465. The term is defined in Schedule 2 of the LPA in a way which shows it does not extend to an individual. He does not, the Tribunal accepts, fulfil the definition and is not, therefore, amenable to a claim from Mr Howison.
Nor, the Tribunal is persuaded, is the general power to make any order it thinks fit, contained in s 456(1), a power which the LPA extends to permit orders for payment of money from a practitioner to a complainant when a compensation order cannot be made.
The legislation is, of course, to be interpreted in a way that would best achieve the purposes of the LPA: Acts Interpretation Act1954, s 14A. As a matter of general principle, however, when a statute contains clear words setting out a course of action that is to be followed for a particular purpose, it is usually interpreted on the basis that the same course is not to be achieved by some other method.[14] To put the principle another way, where a particular procedure is designated in an act to achieve something, other procedures are usually excluded.
[14]R v Wallis; ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 per Dixon J at 550.
As Gavan Duffy CJ and Dixon J said in Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia[15]:
…when the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
[15] [1932] 47 CLR 1 at 7 per Gavin Duffy CJ and Dixon J.
Here the legislature has, in Part 4.10 of the LPA, provided a specific scheme and mechanism for complainants to be awarded compensation arising from the misconduct of a law practice and, under s 456(4), this Tribunal is specifically empowered to make a compensation order.
In those circumstances, it may be concluded that the Legislature did not intend to extend the general discretionary power in the Tribunal to make any order it thinks fit under s 456(1) so as to include the particular power to order compensation granted under later, explicit provisions.
The result is that the Tribunal is not persuaded this a case in which it has power to make a compensation order.
Notwithstanding that conclusion, it is also appropriate to observe that this is not a case in which, even if the statutory hurdle had not existed, Mr Howison’s claim for a compensation order is compelling. The initial payments made by Mr Howison were for work that was, in the absence of any claim to the contrary, properly done – ie, legal work up to the point of disclosure. The fees paid to Quinn & Scattini were, it appears to be agreed, properly charged for proper legal work. The fact they have not been expended in a claim that was ultimately successful has no connection with the delay of which Mr Jiear was subsequently guilty.
The second claim, for advice about Quinn & Scattini’s proposed amended retainer, may have some connection, although the original retainer permitted the firm to decline to act – something which, it is accepted, Mr Jiear should have done earlier.
The third claim is for advice and legal work after the delay occurred. Here, there is some discord between the agreed statement of facts and Mr Howison’s submissions. He says that at the time the delay began he disagreed with Mr Jiear about his prospects, and believes he had “an excellent chance of recovery”.
Uncertainty about precisely what happened after Mr Howison sought advice from other practitioners; whether or not an application for leave to proceed in his action would have succeeded (in circumstances where Mr Howison could reasonably argue that the delay was connected with his former solicitor’s conduct); and, whether or not the additional costs of about $7,000 were wisely and appropriately expended mean that it is simply impossible to conclude that compensation for this head of his claim would be awarded. They may not, in light of the principle mentioned earlier at paragraph [14], have operated against a claim. The statutory hurdle is, unfortunately, what precludes it.
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