Legal Services Commissioner v Leneham - [2016] QCAT 314

CITATION:

Legal Services Commissioner v Leneham [2016] QCAT 314

PARTIES:	Legal Services Commissioner (Applicant)
v
Russell James Leneham (Respondent)

APPLICATION NUMBER:

OCR011-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 and 9 September 2015

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President
Assisted by:
Scott Anderson, Legal Panel Member
Dr Margaret Steimberg AM, Lay Panel Member

DELIVERED ON:

8 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Charges 1, 3, 4, 5 and 6 are dismissed.

2. Charge 2 is upheld, and the conduct of the respondent is found to be unsatisfactory professional conduct.

3. The LSC is to file in the Tribunal and serve any submissions he wishes to make in relation to sanction and costs, by:

4:00pm on 22 September 2016.

4. The respondent is to file in the Tribunal and serve any submissions he wishes to make in relation to sanction and costs, by:

4:00pm on 6 October 2016.

5. The question of sanction and costs will be dealt with on the papers unless either party requests an oral hearing by 13 October 2016.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – SOLICITOR’S COSTS – where the respondent was charged with failing to make costs disclosure, charging excessive legal costs and failing to supervise – where the respondent claims he isn’t a “partner” of the law firm and so cannot be charged for the issuing of the bill and the costs applicable – where the applicant argues that the respondent was a salaried partner and was held out as a partner of the practice – whether a salaried partner comes within the ambit of the Legal Profession Act 2007 (Qld) for the purpose of discipline – whether the respondent failed to update costs disclosure to the complainant where there was a substantial change – whether the respondent’s conduct amounts to unsatisfactory professional conduct or professional misconduct

Legal Profession Act 2007 (Qld) ss 308, 456(2)(e), 462(4), 462(7), 462(8)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 103, 104
Succession Act 1981 (Qld) Part 4
Uniform Civil Procedure Rules 1999 (Qld) rr 743A, 743L

Berger v Council of the Law Society of NSW [2013] NSWSC 1080
Brown v Maurice Blackburn Cashman [2013] VSCA 122
Burrell Solicitors Pty Ltd & Anor v Reavill Farm Pty Ltd & Ors [2016] NSWSC 303
Cook v Downie (1944) 50 Argus LR 341
Council of the Queensland Law Society v Roche [2004] 2 Qd R 574
De Pardo v Legal Practitioners Complaints Committee (1999) 170 ALR 709
Fagenblatt v FGT Custodians Pty Ltd [2004] VSC 196
Jeffrey Thomas & Partners v Jackson [2001] VSC 490
Legal Profession Complaints Committee v O’Halloran [2013] WASC 430
Lynch v Stiff (1943) 68 CLR 428
M Young Legal Associates Ltd v Zahid [2006] 1 WLR 2562
Nationwide Building Society v Lewis [1998] 2 WLR 915
NSW Bar Association v Meakes [2006] NSWCA 340
Old v McInnes and Hodgkinson [2011] NSWCA
Power v Hammond

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 314
Decision Date: 8 September 2016

CaseChat Overview and Summary

The Legal Services Commissioner (LSC) brought disciplinary proceedings against Mr Leneham, a solicitor, alleging he engaged in professional misconduct and unsatisfactory professional conduct. The LSC alleged that Mr Leneham failed to make proper disclosure of costs, charged excessive costs, and failed to adequately supervise a law clerk. Mr Leneham contested the allegations, arguing that he was not a "partner" of the law firm and, therefore, could not be charged for issuing the bill and associated costs. The central issues before the court were whether Mr Leneham was a "partner" under the Legal Profession Act 2007 (Qld) for disciplinary purposes, and if his conduct constituted unsatisfactory professional conduct or professional misconduct. Additionally, the court needed to determine whether Mr Leneham failed to update his costs disclosure to the complainant when there was a substantial change.

The court examined the nature of Mr Leneham’s role and whether he was a "partner" in the firm for the purpose of being charged for costs. It was determined that Mr Leneham was a salaried partner and was held out as such to the complainant. This meant he was subject to disciplinary action under the Legal Profession Act. The court also considered whether Mr Leneham failed to update his costs disclosure when there was a substantial change, finding that he did not. However, the court found that Mr Leneham’s conduct amounted to unsatisfactory professional conduct because he did not ensure that the costs disclosure was kept up to date and accurate. Charges of professional misconduct were dismissed, but the charge of unsatisfactory professional conduct was upheld.

The court dismissed several charges against Mr Leneham but upheld the charge of unsatisfactory professional conduct. The LSC and Mr Leneham were instructed to file and serve submissions on sanction and costs by specified dates. The matter of sanction and costs was to be dealt with on the papers unless a party requested an oral hearing by a certain date. This decision underscores the importance of accurate costs disclosure and appropriate supervision in maintaining professional standards in the legal profession.

Orders

Orders of the court

1. Charges 1, 3, 4, 5 and 6 are dismissed.

2. Charge 2 is upheld, and the conduct of the respondent is found to be unsatisfactory professional conduct.

3. The LSC is to file in the Tribunal and serve any submissions he wishes to make in relation to sanction and costs, by:

4:00pm on 22 September 2016.

4. The respondent is to file in the Tribunal and serve any submissions he wishes to make in relation to sanction and costs, by:

4:00pm on 6 October 2016.

5. The question of sanction and costs will be dealt with on the papers unless either party requests an oral hearing by 13 October 2016.

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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