Legal Services Commissioner v McDonald - [2024] QCAT 193

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v McDonald [2024] QCAT 193

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant)

v

NATALIE JOY MCDONALD

(respondent)

APPLICATION NO/S:

OCR200-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 June 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Mellifont, President
Assisted by:
Ms Susan Forrest
Practitioner Panel Member
Dr Julian Lamont
Lay panel Member

ORDERS:

1.    Ms McDonald is publicly reprimanded;

2.    Ms McDonald is to pay a pecuniary penalty in the amount of $2,000.00 by 30 September 2024; and

3.    Ms Mcdonald is to pay the applicants costs of and incidental to the Disciplinary Application filed 19 June 2023. The amount shall be as agreed between the Legal Services Commission and Ms McDonald and if not agreed, to be assessed on the standard basis as if the matter were in the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSOINAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent is charged with two charges of failing to act with competence and diligence and/or promptness – where the respondent admits the charges - where the respondent was engaged to provide advice to clients regarding their family members will – where the respondent failed to conduct probate searches regarding the status of the estate of that will, nor did the respondent advise that her clients could apply for a probate caveat – where the respondent filed an application on behalf of her clients and failed to follow-up the status of that application – where the respondent accepts that the conduct constituted unsatisfactory professional conduct - where there is an agreed proposed sanction – whether the Tribunal is satisfied as to the agreed characterisation of the respondent’s conduct and the agreed sanction

Australian Solicitors Conduct Rules 2012, r 4.1.2, r 7

Legal Profession Act 2007 (Qld), s 456, s 462

Uniform Civil Procedure Rules 1999 (Qld), ss 623-628

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Background

This is a referral to the Tribunal by the Legal Services Commissioner (‘LSC’), alleging disciplinary conduct against Ms McDonald. There is a statement of agreed and disputed facts before the Tribunal. At a directions hearing on 30 April 2024, Ms McDonald advised that there are no longer any disputed facts.
On 5 November 2007, Ms McDonald was admitted to the legal profession in the State of Queensland. From 6 June 2014, Ms McDonald has held an unrestricted principal practicing certificate issued by the Queensland Law Society and been the legal practitioner of the incorporated legal practice Natalie McDonald Law at Upper Caboolture.

Charge 1 in the disciplinary referral

Charge 1 in the referral is entitled “Failing to act with competence and diligence”. The facts in respect of that charge are as follows.
On 21 July 2019, Ms Orr passed away. Pursuant to her will, her executor was to be her daughter Ms Byron, and because Ms Byron predeceased Ms Orr, Mr Christopher Byron and Mr Matthew Byron, who are the complainants in this matter, and their half-sister Ms Millgate, were the joint alternative executors. The complainants and Ms Millgate were the alternative beneficiaries under Ms Orr’s will by which Ms Millgate was granted Ms Orr’s house, and the residual estate was divided equally between the complainants and Ms Millgate.
On 10 December 2019, Ms Millgate applied for probate. On 15 January 2020, the complainants engaged the services of Ms Mcdonald, and attended her offices to obtain advice from her in relation to whether they had been adequately provided for under Ms Orr’s will and concerns about the validity of Ms Orr’s will.
At this initial meeting, Ms McDonald advised the complainants about the time limits for the filing of a family provision claim and was made aware by the complainants that Ms Millgate was one of three executors of Ms Orr’s will and was legally represented by Shine Lawyers, and that there was a disagreement between the complainants and Ms Millgate in relation to the validity of Ms Orr’s will and as to whether the complainants had been adequately provided for under Ms Orr’s will.
At the conclusion of the initial meeting, Ms McDonald advised the complainants that she would contact Shine Lawyers. Following the initial meeting, she did not search the Supreme Court of Queensland eCourts file to see whether anyone, including Ms Millgate, had applied for or been granted probate, or search the Queensland Reports Probate Notice Database as to any notice about Ms Orr’s deceased estate or advise the complainants about applying for a probate caveat.
On 30 January 2020, Ms Millgate was granted probate.

Charge 2 of the disciplinary referral

Charge 2 is headed “Failing to act with competence, diligence and promptness”.
On 20 March 2020, Ms McDonald became aware that Ms Millgate had already applied for and obtained probate of Ms Orr’s will. On 20 April 2020, Ms McDonald, on behalf of the complainant, sent an application via Express Post to the Queensland Supreme Court Registry in Brisbane to set aside the probate grant granted to Ms Millgate.
On 21 April 2020, Ms McDonald received a letter from Ms Millgate’s solicitors advising that Ms Orr’s estate would be distributed if a sealed copy of the application was not received within 14 days of the date of that correspondence, being 5 May 2020.
On 7 May 2020, Ms McDonald received a letter dated 6 May 2020 from those solicitors advising that no sealed application had been received, and that Ms Orr’s estate had been distributed. That letter enclosed two cheques addressed to each of the complainants.
On 7 May 2020, following receipt of the 6 May 2020 letter, Ms McDonald telephoned the registry to inquire as to whether the application had been received, whereby the registry staff member advised Ms McDonald that no application had been received and checked the status of the Express Post envelope in which the application was sent, which was noted as pending.

Ms McDonald’s submissions

By submissions dated 20 March 2024, Ms McDonald stated her express agreement with the contents of the disciplinary referral, and on 30 April 2024, during a directions hearing, informed the Tribunal that she doesn’t wish to dispute any facts, nor does she dispute or oppose the sanctions that the LSC seeks. She states that she comes to this acceptance after great thought, reflection and time. She states that:
I now realise that I did not act in a professional manner when this matter was ongoing. I am very remorseful for my lack of professional conduct. As stated in some of my replies to the Commissioner, I have outlined some steps to ensure this type of behaviour does not occur again. For example: updating checklists, diarising all applicable dates for matters, and re-familiarising myself with relative legislation and rules.
In addition, I am completing this year’s CPD points by watching and studying the QLS Succession and Elder Law Conference 2023 package that is provided by the Queensland Law Society. At this time, I’ve experienced medical and mental health issues and have been advised by medical professionals (both Doctor and Nurse Practitioner) that I must reduce stress in order that I can regain better health outcomes.
It is unnecessary to traverse the details of Ms McDonald’s health issues in this decision.
Ms McDonald states that actions taken to de-stress her life have led to her to reflect on her actions in the past and become responsible for her own behaviour, which she accepts was unacceptable within the legal profession when she was engaged in this particular matter. She accepts that she has failed to act with competence, diligence and promptness, and that has resulted in unsatisfactory professional conduct. She seeks that the matter be dealt with on the papers.

The LSC’s submissions

The LSC submits that it is appropriate for the Tribunal to find that Ms McDonald has failed to act with competence, diligence and/or promptness, and that her conduct constitutes unsatisfactory professional conduct. The LSC seeks orders, pursuant to section 456 of the Legal Profession Act 2007 (Qld) (‘LP Act’), that Ms McDonald be publicly reprimanded, and that she pay a pecuniary penalty of $2,000.00. As already noted above, Ms McDonald does not oppose those orders.
The LSC’s submissions, in short summary, follow.
The LSC submit that Ms Orr had appointed the complainants and Ms Millgate as joint alternative executors, which was necessary, given that Ms Orr’s primary executor had predeceased Ms Orr and beneficiaries, and that the complainants were concerned, first, that they had not been adequately provided for under Ms Orr’s will and, second, about the validity of Ms Orr’s will. The LSC’s submissions reflect that charge 1 alleges that Ms McDonald failed to act with competence and diligence, because at the initial meeting, she did not conduct searches to find that Ms Millgate had applied for probate of Ms Orr’s estate and did not advise the complainants that they could apply for a probate caveat.
The submissions observe that the parties are agreed that on 10 December 2019, prior to the initial meeting of 15 January 2020, Ms Millgate had applied for probate, which was granted on 30 December. At the initial meeting, Ms McDonald provided advice about filing a family provision claim, and at the conclusion of the initial meeting, Ms McDonald would contact Shine Lawyers, Ms Millgate’s solicitors. It is also not in dispute that Ms McDonald did not undertake any searches as to whether Ms Millgate or any other person had filed to a probate of Ms Orr’s estate, and that she did not advise the complainants about applying for a probate caveat.
The LSC submits that these agreed facts are sufficient to show that Ms McDonald was in breach of rule 7.1 of the Australian Solicitors Conduct Rules, in circumstances where searches on the Queensland Supreme Court eCourts website and the Queensland Law Report Public Notices are free and easily accessible irrespective of a client’s instructions.
The LSC submit that a reasonably competent and diligent solicitor would undertake a search regarding the status of probate for a will and had Ms McDonald undertaken those searches, either at the initial meeting or afterwards, the urgency of taking a step to preserve the complainants’ position ought to have become apparent, given that Ms Millgate had filed her application for probate more than a month prior to the initial meeting.
The LSC submit that a reasonably competent and diligent solicitor would have considered and advised their client on options to prevent probate from being granted, including the availability under rules 623-628 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPRs’) to obtain a probate caveat.
The LSC submits that Ms McDonald failed to provide clear and timely advice to be able to assist the complainants to make informed choices about their actions. The LSC submits that Ms McDonald was aware of the ability to conduct an eCourt search but did not do so until, it appears, 20 March 2020, and that while Ms McDonald did advise the complainants about family provisions, in circumstances where she was aware of the length of time since Ms Orr had passed and that there was another executor, Ms McDonald ought to have advised of other options. In this case, the option of applying for a probate caveat was never presented to the complainants for them to consider such a course of action, and, therefore, the LSC submits that Ms McDonald failed to act with competence and diligence.
In respect of charge 2, the LSC observed that the parties are agreed that on 20 April 2020, Ms McDonald sent the application for filing with registry via Express Post. On 21 April 2020, Ms McDonald received correspondence from Shine Lawyers advising of Ms Millgate’s intent to distribute Ms Orr’s estate if the application was not received by Shine Lawyers within 14 days of the date of that letter, the 14th day being 5 May 2020. On 7 May 2020, Ms McDonald received correspondence from Shine Lawyers advising that the estate had been distributed and that cheques to the complainants had been enclosed with that letter, and following receipt of the letter, referred to immediately above, Ms McDonald followed up with the registry and Australia Post about the status of the posted application.
The LSC submits that, based on those facts, Ms McDonald was in breach of rule 4.1.2 of the Australian Solicitors Conduct Rules, because it took Ms McDonald until 6 April 2020, being four business days after instructions were received, to make an email inquiry with the registry for information about the steps to revoke the grant of probate and until 20 April 2020, being 13 business days factoring in the Easter public holidays, which fell from 10 April 2020 to 13 April 2020, after instructions were received to file the application via Express Post.
The LSC further submits that Ms McDonald ought to have been aware that there was urgency in ensuring the application was filed, given that Shine Lawyers had first stated in correspondence, dated 27 March 2020, that Ms Millgate was ready to finalise the estate and, secondly, followed up Ms McDonald on 16 April 2020 as to whether the complainants agree to the distribution of the estate. The LSC observe that on the 11 January 2021 letter, Ms McDonald appeared to seek to justify her action, by stating:
“On the 17th of April 2020, in my discussion with Christopher Byron included his instruction to move forward, to have probate rescinded and distribution halted.”
The LSC submit that even if Mr Christopher Byron had done so, the unequivocal nature of the instructions on 31 March 2020 meant that a reasonably competent solicitor would not have waited for further instructions before proceeding to prepare the application.
The LSC observe that after Express Posting the application on 20 April 2020, Ms McDonald did not follow up about its status until 7 May 2020, which was:
(a)13 business days after Express Posting the application; and
(b)two days outside of the timeframe which Shine Lawyers had advised in correspondence of 21 April that if they did not receive a sealed application within 14 days (that is, by 5 May 2020), they would proceed to distribute the estate by way of cheque forwarded, care of her office as previously foreshadowed; and
(c)only after she had received the 6 May 2020 letter.
The LSC submits that Ms McDonald’s inexplicable delay in first filing the application, despite having instructions to do so, and then, second, following up the status of the application departs from the standard of competence, diligence and promptness. The LSC submits that this was especially so considering that the consequence of the delay was that Ms Orr’s estate was distributed with very little recourse for the complainants to challenge that. Furthermore, the LSC submits Ms McDonald was on notice of that consequence, given the 21 April 2020 letter.
The LSC, also makes reference to defensive responses of Ms McDonald over a period from 24 July 2020 until 13 January 2022, but noted that on 21 July 2022, she did, in communication with the LSC, acknowledge that she had made an error of judgment in not providing adequate advice to Ms Byron between 15 January 2020 and 30 January 2020 with regard to the time limit for filing an appropriate caveat and the application for probate filed by the other executor. The LSC submit that up until recently, she maintained her position that she believed that she had acted in a professional manner, given the difficulty experienced gaining proper instructions from the clients. That position changed on 20 March 2024, by her submissions of that date, in which she states that she now fully accepts her wrongdoing and sets out steps she has taken to seek to ensure that this does not occur in the future.

Conclusion

The Tribunal accepts the submissions of the LSC that the conduct engaged in, in respect of each of charges 1 and 2, constitutes unsatisfactory professional conduct.
The Tribunal accepts that the sanction of a public reprimand and a $2,000.00 pecuniary penalty is appropriate taking into account all of the circumstances of the case, and the material before the Tribunal.

Costs

The LSC seeks a costs order in the matter pursuant to section 462(1) of the LP Act, which provides that the Tribunal must make an order requiring a person whom it has found to engage in unsatisfactory professional conduct or professional misconduct to pay costs, including the costs of the Commissioner and the complainant, unless the Tribunal is satisfied that exceptional circumstances exist.
The LSC submits that there is no evidence that exceptional circumstances exist and seek an order that Ms McDonald pay the costs of and incidental to the discipline application, such costs to be agreed or assessed on the standard basis in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland.
Ms McDonald informed QCAT at the directions hearing on 30 April 2024 that she would have difficulty in paying a costs order. When asked if Ms McDonald wishes to seek to point to any exceptional circumstances, Ms McDonald was not able to put to such a circumstance.
The Tribunal finds that:
The Tribunal is satisfied that, the conduct subject to charge 1 and 2 of the Disciplinary Application filed 21 August 2023 is proved and amounts to unsatisfactory professional conduct.
Orders

The Tribunal makes orders pursuant to section 456 of the LP Act that:
1.Ms McDonald is publicly reprimanded;
2.Ms McDonald is to pay a pecuniary penalty in the amount of $2,000.00 by 30 September 2024; and
3.Ms Mcdonald is to pay the applicants costs of and incidental to the Disciplinary Application filed 19 June 2023. The amount shall be as agreed between the Legal Services Commission and Ms McDonald and if not agreed, to be assessed on the standard basis as if the matter were in the Supreme Court of Queensland.