Legal Services Commissioner v Johnston

CITATION: Legal Services Commissioner v Johnston [2015] QCAT 480

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
Suzanne Machelle Johnston (Respondent)

APPLICATION NUMBER: OCR156-14

MATTER TYPE: Occupational Regulation matters

HEARING DATE: 8 December 2015

HEARD AT: Brisbane

DECISION OF: Justice DG Thomas, President
Assisted by:
Mr Scott Anderson, Legal panel member
Dr Margaret Steinberg AM, Lay panel member

DELIVERED ON: 15 December 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The name of the respondent, Suzanne Machelle Johnston, be removed from the roll of practitioners kept by the Supreme Court of Queensland.

2.    The respondent pay the applicant’s costs, to be assessed on the Supreme Court scale.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS –
MISCONDUCT, UNFITNESS AND DISCIPLINE – GROUNDS OF DISCIPLINARY ORDERS – In general – where eleven charges for determination in discipline application including failing to maintain competence and diligence, trust account breaches and failing to respond to s 443 notices under the Legal Profession Act 2007 (Qld) – where no appearance for respondent solicitor – where respondent found guilty of all charges – where respondent found guilty of unsatisfactory professional conduct in relation to charges regarding competence and diligence – where respondent found guilty of professional misconduct in relation to eight charges regarding failure to comply with s 433 notices – where respondent found guilty of professional misconduct in relation to the trust account breaches - whether respondent had
demonstrated unfitness to practice by her conduct and should be removed from the local roll – whether respondent should pay applicant’s costs of the application

Legal Profession Act 2007 (Qld) ss 7(4), 244, 250, 259(1), 265, 268, 420(1)(a), 443, 462, 701, 712.

Legal Profession Regulation 2007 (Qld) rr 33(2)(c), 37(2).

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 92, 93.

Legal Services Commissioner v Thomas [2009] LPT 13 at [61].

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Scott, A. of Counsel.

RESPONDENT: No appearance.

REASONS FOR DECISION

1. The Legal Services Commissioner brought charges against Ms Johnston alleging:

   ·       a failure to exercise competence and diligence;

   ·       the making of false representations;

   · failures to comply with s 443 notices under the Legal Profession Act 2007 (Qld) (the Act); and

   ·       various breaches of the Legal Profession Regulations 2007 (Qld) (the Regulations) relating to trust accounts maintained by Ms Johnston.

Background

Kilham matter

1. Ms Johnston acted for Mr Kilham and his wife, Ms Phillips, with respect to a conveyancing transaction in which they were vendors.  Settlement took place on 30 October 2009 and a settlement statement provided by Ms Johnston to her clients indicated that a deposit in the sum of $2,000.00 had been paid.

2. Mr Kilham made enquiries concerning that deposit.  By way of an email dated 27 May 2010 he informed Ms Johnston that, whilst the settlement statement suggested a deposit of $2,000.00 was paid on the exchange of contracts, the agent had advised him that no deposit had in fact been paid.

3. Ms Johnston responded on 3 September 2010 saying:

   Ms Overvest, the Buyer, attended settlement personally on…