Legal Services Commissioner v Manz - [2019] QCAT 147

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Manz [2019] QCAT 147

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant)

v

MATTHEW KENNETH MANZ

(respondent)

APPLICATION NO/S:

OCR059-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 June 2019

HEARING DATE:

23 April 2018; 25 October 2018; 5 November 2018

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

Assisted by:
Ms Patrice McKay
Mr Michael Meadows

ORDERS:

1.   The respondent is publicly reprimanded.

2.   The respondent is ordered to pay a penalty of $30,000.

3.   The respondent is to pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.

4.   Atrium Resort CTS 4043 shall advise the Tribunal and the respondent as to whether it wishes to pursue its notice of intention to seek compensation order within 14 days of the publication of this decision.

5.   If Atrium Resort CTS 4043 advises that it 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 – where two of the respondent’s three clients had their letting agent licenses revoked following conviction of offences of dishonesty – where the respondent prepared a deed of assignment of the right to operate the letting business to the third client – where the respondent was instrumental in the creation of a reason other than the revocation of the licences as the reason for the assignment – where the respondent communicated that reason to the body corporate whose agreement to the assignment was required – where the respondent caused another solicitor to confirm that false reason – where the discipline application did not allege that the respondent’s conduct was dishonest – whether the discipline application should be amended to make clear that it alleged the respondent’s conduct was dishonest – whether the respondent’s conduct is characterised as unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2007 (Qld) – what orders should be made upon finding of professional misconduct

Legal Profession Act 2007, s 418, s 419, s 443, s 455

Adamson v Queensland Law Society Inc [1990] 1 Qd R 498
Attorney-General v Bax [1999] 2 Qd R 9
Commonwealth v Director, Fair Work Building Industry Inspectorate & Ors (2015) 258 CLR 482; [2015] HCA 46
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Legal Services Commissioner v Bevan [2015] QCAT 290
Legal Services Commissioner v Gould [2016] QCAT 533
Legal services Commissioner v Mullins [2006] LPT 12
Legal Services Commissioner v Voll [2008] QCA 293
Legal Services Commissioner v XBV [2018] QCAT 332
Minister for Industry, Tourism, and Resources v Mobil Oil Australia Pty Ltd [2004] ATPR 41-993
NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285; [1996] FCA 1134
Re Wheeler [1992] 2 Qd R 690
Trade Practices Commission v CSR Ltd [1991]…

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.

Keep reading for free

Create a free CaseChat account to read Legal Services Commissioner v Manz and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QCAT 147
Decision Date: 10 June 2019

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Manz, the Legal Services Commissioner sought to discipline a legal practitioner, Mr Manz, in relation to his conduct involving the preparation of a deed of assignment for the rights to operate a letting business. Mr Manz's two clients had their letting agent licenses revoked, which led them to seek to assign their rights to a third party. The Commissioner alleged that Mr Manz's conduct was dishonest in that he assisted in creating and communicating a false reason for the assignment to the body corporate whose agreement was necessary. The Queensland Civil and Administrative Tribunal was tasked with determining whether the Commissioner's allegations were substantiated and, if so, the appropriate level of misconduct and corresponding disciplinary action.

The Tribunal had to resolve whether Mr Manz's conduct should be classified as unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2007 (Qld). The central issue was whether Mr Manz's actions in finding and communicating an accounting reason for the assignment, knowing it to be false, constituted dishonesty. The Tribunal also considered the implications of the Commissioner's failure to initially allege dishonesty in the discipline application.

The Tribunal concluded that Mr Manz's conduct was indeed dishonest as he knew the true reason for the assignment but chose to communicate a different reason to the body corporate's lawyer. This conduct fell below the professional standards expected of a reasonably competent legal practitioner. Although the respondent argued that his actions were motivated by a desire to protect his clients' interests and that the reason provided was notionally valid, the Tribunal found these submissions unconvincing. The Tribunal found that the respondent's actions were deliberately misleading and reached the level of professional misconduct.

The Tribunal ordered that Mr Manz be publicly reprimanded, pay a penalty of $30,000, and cover the Commissioner's costs. Additionally, the Tribunal gave Atrium Resort CTS 4043, the body corporate, the opportunity to decide whether to pursue a compensation order within 14 days of the decision's publication. If Atrium Resort CTS 4043 chose to proceed, the matter would be listed for further directions.

Orders

Orders of the court

1. The respondent is publicly reprimanded.

2. The respondent is ordered to pay a penalty of $30,000.

3. The respondent is to pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.

4. Atrium Resort CTS 4043 shall advise the Tribunal and the respondent as to whether it wishes to pursue its notice of intention to seek compensation order within 14 days of the publication of this decision.

5. If Atrium Resort CTS 4043 advises that it 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

On 23 November 2018, the applicant filed an Application for miscellaneous matters for leave to amend the discipline application in accordance with the orders of the Tribunal. Given the substance of those orders, the application was not required and it is unnecessary to deal with it further.Factual conclusions The factual matters alleged in the application (other than the matters set out in paragraph 1.15) are established by the SOAF. It will be apparent from what has already been set out that the respondent knew that the real reason why his clients wanted to assign the management rights was the difficulty arising from the cancellation of the letting licences of two of them, and the resulting jeopardy to the company’s business. He then set about finding another reason for the assignment to be communicated to the body corporate’s lawyer. He then communicated the accounting reason to the body corporate’s lawyer as the reason why the assignment was sought, and caused the employed solicitor to confirm it. It should be added that there is no evidentiary basis for finding that no tax advantage would result to the clients from the assignment. The respondent’s conduct in seeking and communicating to the body corporate’s solicitor the accounting reason for the assignment, when he knew the true reason to be the difficulty with the licences, was dishonest. It was also dishonest of him to cause the other solicitor to communicate to the body corporate’s solicitor potential taxation advantages as the reason for the proposed assignment.Characterisation of conduct The applicant has submitted that the respondent deliberately misled “the other party”, and that it could be considered that his conduct “reaches the level of professional misconduct”.[3] It fell short, to a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competency. The respondent had been instrumental in orchestrating the accounting reason, and providing that reason to the body corporate and its solicitor as the purpose for the proposed assignment; as well as providing the reason to the other solicitor working at his firm, who confirmed it to the other party.[3]Outline of submissions on behalf of the Legal Services Commissioner, filed 12 July 2017, at [46]. For the respondent, it was submitted that the conduct should be characterised as unsatisfactory professional conduct. It was a “one off” event; it was motivated by his desire to protect his client’s interests, and not for personal gain; and the reason asserted for the assignment was “a notionally valid reason… verified by (the) clients’ accountant, even though it was in fact misleading because it was not the real reason for the request”[4] for consent to the assignment. [4]Outline of Submissions on behalf of the Respondent, filed 28 July 2017, at [8]. The LP Act contains statutory definitions relevant to the respondent’s conduct. Thus s 418 of the Act provides: Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Manz [2019] QCAT 147
PARTIES:	LEGAL SERVICES COMMISSIONER (applicant)
v
MATTHEW KENNETH MANZ (respondent)
APPLICATION NO/S:	OCR059-17
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	10 June 2019
HEARING DATE:	23 April 2018; 25 October 2018; 5 November 2018
HEARD AT:	Brisbane
DECISION OF:	Hon Peter Lyons QC, Judicial Member Assisted by: Ms Patrice McKay Mr Michael Meadows
ORDERS:	1. The respondent is publicly reprimanded. 2. The respondent is ordered to pay a penalty of $30,000. 3. The respondent is to pay the applicant’s costs of and incidental to the application to be assessed on the standard basis. 4. Atrium Resort CTS 4043 shall advise the Tribunal and the respondent as to whether it wishes to pursue its notice of intention to seek compensation order within 14 days of the publication of this decision. 5. If Atrium Resort CTS 4043 advises that it 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 – where two of the respondent’s three clients had their letting agent licenses revoked following conviction of offences of dishonesty – where the respondent prepared a deed of assignment of the right to operate the letting business to the third client – where the respondent was instrumental in the creation of a reason other than the revocation of the licences as the reason for the assignment – where the respondent communicated that reason to the body corporate whose agreement to the assignment was required – where the respondent caused another solicitor to confirm that false reason – where the discipline application did not allege that the respondent’s conduct was dishonest – whether the discipline application should be amended to make clear that it alleged the respondent’s conduct was dishonest – whether the respondent’s conduct is characterised as unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2007 (Qld) – what orders should be made upon finding of professional misconduct Legal Profession Act 2007, s 418, s 419, s 443, s 455 Adamson v Queensland Law Society Inc [1990] 1 Qd R 498 Attorney-General v Bax [1999] 2 Qd R 9 Commonwealth v Director, Fair Work Building Industry Inspectorate & Ors (2015) 258 CLR 482; [2015] HCA 46 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Legal Services Commissioner v Bevan [2015] QCAT 290 Legal Services Commissioner v Gould [2016] QCAT 533 Legal services Commissioner v Mullins [2006] LPT 12 Legal Services Commissioner v Voll [2008] QCA 293 Legal Services Commissioner v XBV [2018] QCAT 332 Minister for Industry, Tourism, and Resources v Mobil Oil Australia Pty Ltd [2004] ATPR 41-993 NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285; [1996] FCA 1134 Re Wheeler [1992] 2 Qd R 690 Trade Practices Commission v CSR Ltd [1991]…