Legal Services Commissioner v King - [2013] QCAT 260

CITATION:

Legal Services Commissioner v King [2013] QCAT 260

PARTIES:	Legal Services Commissioner
v
Ms Karen Louisa King

APPLICATION NUMBER:

OCR257-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

17,18,19 October 2011

HEARD AT:

Brisbane

DECISION OF:

Justice Fryberg, Member
Assisted by:

Mr Ken Horsley
Practitioner Panel Member; and
Dr Susan Dann
Lay Panel Member

DELIVERED ON:

2 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Charges 1, 2, 6 and 7 are proved.

2. .19 July 2013 4:00pm on Parties are to file in the Tribunal and give to each other written submissions in relation to each of the charges proved as to whether Ms Karen Louisa King had engaged in either unsatisfactory professional conduct or professional misconduct and the question of disciplinary orders by

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – Breach of undertaking

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – TRUST MONEY – Transfer of money to meet costs and disbursements in breach of statute

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – False statement to Queensland Law Society in the course of an investigation

PROFESSIONS AND TRADES – LAWYERS - COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – Failure to comply with written notice issued by the Legal Services Commissioner – Legal Profession Act 2007, s 443(3)

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – SOLICITOR'S COSTS – Failure to provide itemised bill of costs at request – Legal Profession Act 2007, s 332

Legal Profession Act 2007 (Qld), s 249, s 258(1)(b), s 330, s 331, s 332, s 443, s 443(3), s 452, s 708

Legal Profession Regulation 2007 (Qld), s 58, s 58(3), s 58(4)

Briginshaw v Briginshaw (1938) 60 CLR 336, cited.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Legal Service Commissioner represented by BI McMillan, instructed by Crown Law
RESPONDENT:	Ms Karen Louisa King represented by P Davis SC and P Morreau, instructed by Brian Bartley & Associates

REASONS FOR DECISION

FRYBERG J: On 11 October 2010 an application under s 452 of the Legal Profession Act 2007 (“Act”) was filed in the Tribunal in Form 22 of the Tribunal's forms. It disclosed that the Legal Services Commissioner was the applicant, but did not name him. It sought “[d]isciplinary orders pursuant to section 456 of the Act” against the respondent, Karen Louisa King. It set out seven charges against Ms King. In relation to each charge it alleged that she had engaged in “unsatisfactory professional conduct and/or professional misconduct”.

The office of Legal Services Commissioner exists because s 583 of the Act provides, “There is to be a Legal Services Commissioner”. The Act further provides that the Governor in Council may appoint “a person” as the commissioner by gazette notice.[1] 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: [2013] QCAT 260
Decision Date

CaseChat Overview and Summary

The case of Legal Services Commissioner v King involved proceedings brought by the Legal Services Commissioner against Ms Karen Louisa King, an Australian legal practitioner, under s 452 of the Legal Profession Act 2007. The Commissioner sought disciplinary orders against Ms King on the basis of seven charges of unsatisfactory professional conduct or professional misconduct. The case was heard over three days in October 2011, and reasons for judgment were delivered on 2 July 2013. The Tribunal found that charges 1, 2, 6, and 7 were proved, while charge 3 was not proved. The Tribunal ordered further submissions on the nature of the misconduct and the appropriate disciplinary orders.

Charge 7 related to Ms King's failure to honour an undertaking given by her employee, Oriena Stephanie Moloney, to pay Rodney John Clark of Counsel $5,000 by 1 September 2006 and the remainder of his outstanding fees within one month. The Tribunal found that Ms King had authorised Ms Moloney to give the undertaking but that she had failed to honour it. Consequently, charge 7 was proved.

Charges 1 and 4 related to Ms King's unlawful withdrawal of trust monies and a false statement made to the Queensland Law Society during an investigation. The Tribunal found that Ms King had withdrawn $87,000 from her trust account without complying with the requirements of the Legal Profession Regulation 2007 and that she had made a false statement to the Law Society regarding the preparation of a bill of costs. Consequently, charge 1 was proved, and charge 4 was not proved.

Charge 6 related to Ms King's failure to comply with a written notice issued by the Legal Services Commissioner under s 443(3) of the Legal Profession Act 2007. The Tribunal found that Ms King had no reasonable excuse for failing to comply with the notice and that she had fabricated evidence to support her claim that she had responded to the Commissioner's correspondence. Consequently, charge 6 was proved.

The Tribunal ordered further written submissions from the parties on the nature of the misconduct and the appropriate disciplinary orders. These submissions should be made at the same time as submissions on the question of disciplinary orders.

Orders