Legal Services Commissioner v Loel - [2020] QCAT 326

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Loel [2020] QCAT 326

PARTIES: LEGAL SERVICES COMMISSIONER

(applicant)

v

JAMES BERESFORD LOEL

(respondent)

APPLICATION NO/S:

OCR180-15

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 September 2020

HEARING DATE:

15 July 2020

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:

Dr John de Groot, Legal Panel Member
Dr Margaret Steinberg AM, Lay Panel Member

ORDERS:
1.   On each of Charges 11, 13, 14, 15 and 17, there is a finding that the respondent engaged in professional misconduct.

2.   On each of Charges 1, 2, 3, 4, 5, 6, 7 and 10, there is a finding that the respondent engaged in unsatisfactory professional conduct.

3.   The respondent is publicly reprimanded.

4.   The respondent shall pay a penalty of $10,000.

5.   The respondent is prohibited from applying for or obtaining a principal practising certificate for one year after being granted an employee practising certificate.

6.   The respondent’s next application for a practising certificate must be accompanied by a copy of these reasons, and the report of an independent practising psychiatrist who has been provided with a copy of these reasons, and who has reported on the respondent’s mental condition and its effect on his ability to engage in legal practice, such report to be obtained within six months prior to the application.

7.   Practising certificates issued to the respondent for the three years following his next application for a practising certificate must contain conditions that:

(a)    the respondent maintain a therapeutic treating relationship with a suitable treating psychiatrist and each quarter provide evidence of that relationship to the Queensland Law Society; and

(b)   the respondent accept mentoring from a senior legal practitioner agreed to, or nominated by, the Queensland Law Society and consult with that practitioner on matters of law, practice and ethics at least once per month, and submit an annual report to the Queensland Law Society (countersigned by the mentor) confirming compliance with that condition.

8.   The respondent shall undertake the next remedial trust account and ethics courses facilitated by the Queensland Law Society.

9.   The respondent shall pay the applicant’s costs of and incidental to this discipline application, such costs to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

10.   Julieanne Harris shall advise the Tribunal and the respondent as to whether she wishes to pursue her Notice of Intention to Seek Compensation Order by 4:00pm on 9 October 2020.

11.   If Julieanne Harris advises that she wishes to pursue a compensation order, then the matter will be listed for directions on a date to be advised by the Tribunal.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent was engaged to represent a prospective lender in relation to a loan – where the prospective borrower was a client or former client of the respondent – where a title search of the…

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: [2020] QCAT 326
Decision Date: 10 September 2020

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Loel, the Legal Services Commissioner brought complaints against the respondent, a legal practitioner, regarding various instances of professional misconduct and unsatisfactory professional conduct. The complaints spanned multiple matters, including the respondent’s failure to inform a client of existing encumbrances on a property, engaging in dishonest conduct, failing to act in a client's best interests, and mishandling trust money. The respondent admitted to various breaches of professional standards and acknowledged his conduct was indefensible.

The primary legal issues for the court to decide involved whether the respondent’s conduct amounted to professional misconduct or unsatisfactory professional conduct under the Legal Profession Act 2007 (Qld). The court needed to assess the gravity of the respondent’s actions, including his failure to provide proper advice, act in conflict of interest situations, and comply with his undertakings. Furthermore, the court had to determine whether the respondent’s failure to adhere to disclosure requirements for costs and his unauthorized transfers of trust money constituted misconduct.

The court found that the respondent's conduct in several instances amounted to professional misconduct, particularly where he acted dishonestly and failed to protect client interests. In other instances, the court determined the conduct amounted to unsatisfactory professional conduct due to neglect, delay, and a lack of competence and diligence. The court considered the respondent's admissions, acceptance of responsibility, and evidence of rehabilitation in determining the appropriate sanctions. The court imposed a public reprimand, a penalty, and restrictions on the respondent's practising certificates, along with conditions for future practice to ensure public protection and personal deterrence.

The final orders included findings of professional misconduct and unsatisfactory professional conduct, a public reprimand, a penalty of $10,000, a one-year ban on applying for a principal practising certificate, mandatory reporting and mentoring conditions, participation in remedial courses, and payment of costs. The court also set a deadline for any potential compensation claim to be pursued.

Orders

Orders of the court

1. On each of Charges 11, 13, 14, 15 and 17, there is a finding that the respondent engaged in professional misconduct.

2. On each of Charges 1, 2, 3, 4, 5, 6, 7 and 10, there is a finding that the respondent engaged in unsatisfactory professional conduct.

3. The respondent is publicly reprimanded.

4. The respondent shall pay a penalty of $10,000.

5. The respondent is prohibited from applying for or obtaining a principal practising certificate for one year after being granted an employee practising certificate.

6. The respondent’s next application for a practising certificate must be accompanied by a copy of these reasons, and the report of an independent practising psychiatrist who has been provided with a copy of these reasons, and who has reported on the respondent’s mental condition and its effect on his ability to engage in legal practice, such report to be obtained within six months prior to the application.

7. Practising certificates issued to the respondent for the three years following his next application for a practising certificate must contain conditions that:

(a) the respondent maintain a therapeutic treating relationship with a suitable treating psychiatrist and each quarter provide evidence of that relationship to the Queensland Law Society; and

(b) the respondent accept mentoring from a senior legal practitioner agreed to, or nominated by, the Queensland Law Society and consult with that practitioner on matters of law, practice and ethics at least once per month, and submit an annual report to the Queensland Law Society (countersigned by the mentor) confirming compliance with that condition.

8. The respondent shall undertake the next remedial trust account and ethics courses facilitated by the Queensland Law Society.

9. The respondent shall pay the applicant’s costs of and incidental to this discipline application, such costs to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

10. Julieanne Harris shall advise the Tribunal and the respondent as to whether she wishes to pursue her Notice of Intention to Seek Compensation Order by 4:00pm on 9 October 2020.

11. If Julieanne Harris advises that she wishes to pursue a compensation order, then the matter will be listed for directions on a date to be advised by the Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Loel [2020] QCAT 326
PARTIES:	LEGAL SERVICES COMMISSIONER
(applicant)
v
JAMES BERESFORD LOEL
(respondent)
APPLICATION NO/S:	OCR180-15
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	10 September 2020
HEARING DATE:	15 July 2020
HEARD AT:	Brisbane
DECISION OF:	Justice Daubney, President Assisted by: Dr John de Groot, Legal Panel Member Dr Margaret Steinberg AM, Lay Panel Member
ORDERS:	1. On each of Charges 11, 13, 14, 15 and 17, there is a finding that the respondent engaged in professional misconduct. 2. On each of Charges 1, 2, 3, 4, 5, 6, 7 and 10, there is a finding that the respondent engaged in unsatisfactory professional conduct. 3. The respondent is publicly reprimanded. 4. The respondent shall pay a penalty of $10,000. 5. The respondent is prohibited from applying for or obtaining a principal practising certificate for one year after being granted an employee practising certificate. 6. The respondent’s next application for a practising certificate must be accompanied by a copy of these reasons, and the report of an independent practising psychiatrist who has been provided with a copy of these reasons, and who has reported on the respondent’s mental condition and its effect on his ability to engage in legal practice, such report to be obtained within six months prior to the application. 7. Practising certificates issued to the respondent for the three years following his next application for a practising certificate must contain conditions that: (a) the respondent maintain a therapeutic treating relationship with a suitable treating psychiatrist and each quarter provide evidence of that relationship to the Queensland Law Society; and (b) the respondent accept mentoring from a senior legal practitioner agreed to, or nominated by, the Queensland Law Society and consult with that practitioner on matters of law, practice and ethics at least once per month, and submit an annual report to the Queensland Law Society (countersigned by the mentor) confirming compliance with that condition. 8. The respondent shall undertake the next remedial trust account and ethics courses facilitated by the Queensland Law Society. 9. The respondent shall pay the applicant’s costs of and incidental to this discipline application, such costs to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland. 10. Julieanne Harris shall advise the Tribunal and the respondent as to whether she wishes to pursue her Notice of Intention to Seek Compensation Order by 4:00pm on 9 October 2020. 11. If Julieanne Harris advises that she wishes to pursue a compensation order, then the matter will be listed for directions on a date to be advised by the Tribunal.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent was engaged to represent a prospective lender in relation to a loan – where the prospective borrower was a client or former client of the respondent – where a title search of the…