Legal Services Commissioner v Mackie - [2010] QCAT 570

CITATION:

Legal Services Commissioner v Mackie [2010] QCAT 570

PARTIES:	Legal Services Commissioner (Applicant)
v
David Christopher Mackie (Respondent)

APPLICATION NUMBER: OCR093-10

MATTER TYPE:

Disciplinary proceedings under the Legal Profession Act 2007

HEARING DATE: 3 November 2010

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President
Assisted by:
Mr M Woods (Solicitor Practitioner Panel Member)
Dr J Lamont (Lay Panel Member)

DELIVERED ON: 15 November 2010

DELIVERED AT: Brisbane

ORDERS MADE:  1. Mr Mackie is publicly reprimanded;
  2. He is ordered to pay a fine in the amount
  of $5,000.00 within ninety days to the
  Legal Practitioners Interest on Trust
  Accounts Fund; and
  3. He is to pay the applicant’s costs fixed in
  the amount of $2,500.00 within one
  hundred and twenty days.

CATCHWORDS :

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE –DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where respondent charged with failure to diligently prosecute client’s case and recklessly misleading client about progress of matter – where respondent admits both charges – where respondent’s conduct represents professional misconduct – nature of the appropriate penalty

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE –DISCIPLINARY PROCEEDINGS – COMPENSATION ORDER – where complainant seeks compensation order – where compensation paid by law practice if complainant suffers pecuniary loss and in the interests of justice – where the respondent’s offending conduct occurred when he was employed in a Brisbane law firm – where that law firm is dissolved and no longer exists – where the complainant had previously received written advice by counsel that her opponent’s position was stronger – where complaint rejected previous offers to settle – where complaint still owes outstanding legal fees to the now dissolved firm – whether compliant has suffered pecuniary loss – whether in the interests of justice to award compensation – whether existence of a “law practice” to pay compensation

Legal Profession Act 2007, ss 418, 419, 456(1), 458(2)(c), 466(3), 464

Legal Services Commissioner v Bussa [2005] LPT 005, cited

Legal Services Commissioner v Chadwick [2009] LTP 16, cited

Legal Services Commissioner v Dwyer [2009] LPT 008, cited
Legal Services Commissioner v Hackett [2006] LPT 015, cited

Legal Services Commissioner v Krebs [2009] LPT 11, cited

Legal Services Commissioner v Madden (No 2) [2008] QCA 301, cited

Legal Services Commissioner v Ramsden [2006] LPT 10, cited

Legal Services Commissioner v Sorban [2009] LPT 5, cited
Legal Services Commissioner v Voll [2008] QCA 293; [2008] LTP 001, followed

APPEARANCES and REPRESENTATION (if any):

By consent, the matter was listed for determination on the papers under s 32 of the Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

Mr Mackie is a Solicitor, first admitted in 1996. He is 41. This disciplinary proceeding arises from two charges brought against him by the Commissioner in April 2010.

The first is that between 5 August 1999 and 1 July 2004 he failed to maintain reasonable standards of competence or diligence in relation to the conduct of a matter in which he…

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: [2010] QCAT 570
Decision Date: 15 November 2010

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Mackie, the Legal Services Commissioner (LSC) brought charges against Mr Mackie, a former solicitor, alleging professional misconduct. Mr Mackie admitted to two charges: failing to diligently prosecute a client's case and recklessly misleading the client about the progress of the matter. The case was heard in a disciplinary tribunal, which had to determine the nature of the appropriate penalty for Mr Mackie's misconduct.

The tribunal identified several key issues, including the standard of professional conduct expected of a solicitor, the seriousness of the misconduct, and the potential penalty. The tribunal considered the admitted charges, the admissions made by Mr Mackie, and the evidence presented. They concluded that Mr Mackie's conduct represented professional misconduct and that the appropriate penalty should reflect the seriousness of the breach and the need to protect the public and maintain the integrity of the legal profession.

The tribunal ordered that Mr Mackie be publicly reprimanded, and he was ordered to pay a fine of $5,000 within ninety days to the Legal Practitioners Interest on Trust Accounts Fund. Additionally, he was required to pay the LSC's costs, fixed at $2,500, within one hundred and twenty days. The tribunal also considered a compensation order, but found that the complainant had not suffered a pecuniary loss, and therefore did not award compensation.

Orders

Orders of the court

1. Mr Mackie is publicly reprimanded;

2. He is ordered to pay a fine in the amount

of $5,000.00 within ninety days to the

Legal Practitioners Interest on Trust

Accounts Fund; and

3. He is to pay the applicant’s costs fixed in

the amount of $2,500.00 within one

hundred and twenty days.

Background

Background to the litigation

Full text does not contain this section.

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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