Legal Services Commissioner v Kellahan - [2016] QCAT 113

CITATION:

Legal Services Commissioner v Kellahan [2016] QCAT 113

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
Drew Adrian Kellahan (Respondent)

APPLICATION NUMBER:

OCR269-13

MATTER TYPE:

Occupational Regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President
Assisted by:
Ms Joanne Collins, Legal panel member
Ms Julie Cork, Lay panel member

DELIVERED ON:

1 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent is to be publicly reprimanded

2. A fine in the sum of $1000.00 is imposed

3. The respondent must not be issued with a Practising Certificate in the future unless and until:

a) Payment of the sum of $75,000.00 be made to Alexander John Newitt

b) Payment of the sum of $5,000.00 be made to the Legal Services Commissioner

c) Payment of a fine in the sum of $1,000.00 be paid to the Legal Services Commissioner

d) Payment of the costs in relation to these proceedings be paid to the Legal Services Commissioner

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where legal practitioner failed to comply with previous orders of a disciplinary body – where practitioner offered to pay compensation and costs in respect of previous disciplinary proceedings – where practitioner impecunious – where practitioner genuinely believed payment could be secured from third party – where practitioner failed to make payment – whether unsatisfactory professional conduct or professional misconduct – submissions as to sanction

Legal Profession Act 2007 (Qld) ss 418, 420, 456
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Council of the Law Society of NSW v Tsalidis (No.4) [2012] NSWADT 230
Environment Protection Authority v Keogh [2000] NSWLEC 237
Legal Services Commissioner v Kellahan [2012] QCAT 263
Legal Services Commissioner v Rowell [2013] QCAT 397
Nelson v Cyran [2015] QCA 226

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

The charge

The Commissioner alleges that on 26 December 2012, 26 June 2013 and 26 December 2013 Mr Kellahan failed to comply with orders of a disciplinary body.

Background

On 25 June 2012 this Tribunal handed down its decision in the matter of Legal Services Commissioner v Kellahan.[1]
[1][2012] QCAT 263.
The orders of the Tribunal in that instance included that Mr Kellahan was to pay to Mr Newitt (‘the Complainant’) the sum of $75,000.00 and also to pay the Commissioner’s costs in the agreed sum of $5,000.00. Mr Kellahan failed to comply with either of those orders.
The context in which the matter came before the Tribunal for its determination included submissions as to sanction, due to Mr Kellahan’s non-compliance, filed on behalf of both parties.
Mr Kellahan offered to pay compensation in the sum of $75,000.00 to Mr Newitt. This was acknowledged by the Legal Services Commissioner as being made in circumstances where it…

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: [2016] QCAT 113
Decision Date: 1 February 2016

CaseChat Overview and Summary

The Legal Services Commissioner initiated proceedings against the respondent, Kellahan, a legal practitioner, alleging unsatisfactory professional conduct and professional misconduct. The case involved a series of events where Kellahan failed to adhere to previous orders from a disciplinary body, despite offering to pay compensation and costs to a complainant, Alexander John Newitt, and believing that a third party would secure the payment. When the payment was not made, it led to the current disciplinary proceedings. The court was tasked with determining whether Kellahan's actions constituted unsatisfactory professional conduct or professional misconduct, and if so, to decide on appropriate sanctions.

The court considered the nature of Kellahan's conduct and his financial situation. It examined whether his belief that payment could be secured from a third party was genuine and whether his failure to make the payment was due to his impecuniosity. The court also evaluated the seriousness of Kellahan's non-compliance with the disciplinary orders and his overall professional behavior. The court concluded that Kellahan's actions amounted to unsatisfactory professional conduct due to his failure to comply with the previous orders and his non-payment despite his offers to do so.

The court imposed a public reprimand on Kellahan and a fine of $1,000. Additionally, Kellahan was ordered to make payments totalling $75,000 to Alexander John Newitt, $5,000 to the Legal Services Commissioner, and $1,000 as a fine to the Legal Services Commissioner, along with the costs of the proceedings. Furthermore, Kellahan is prohibited from being issued a practising certificate unless and until these payments and costs are made. The court aimed to address both the misconduct and the financial obligations through these sanctions, ensuring accountability and deterrence.

Orders

Orders of the court

1. The respondent is to be publicly reprimanded

2. A fine in the sum of $1000.00 is imposed

3. The respondent must not be issued with a Practising Certificate in the future unless and until:

a) Payment of the sum of $75,000.00 be made to Alexander John Newitt

b) Payment of the sum of $5,000.00 be made to the Legal Services Commissioner

c) Payment of a fine in the sum of $1,000.00 be paid to the Legal Services Commissioner

d) Payment of the costs in relation to these proceedings be paid to the Legal Services Commissioner

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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