Legal Services Commissioner v Pene - [2021] QCAT 299

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Pene [2021] QCAT 299

PARTIES: LEGAL SERVICES COMMISSIONER

(applicant)

v

EDWARD RATAHI PENE

(respondent)

APPLICATION NO/S:

OCR315-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

23 September 2021

HEARING DATE:

27 August 2021

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President
Assisted by:
Dr Julian Lamont
Mr Ross Perrett

ORDERS:

1.    In respect of Charge 4, there is a finding that the Respondent engaged in professional misconduct.

2.    In respect of each of Charges 2, 3 and 5, there is a finding that the Respondent engaged in unsatisfactory professional conduct.

3.    It is ordered that a local practising certificate not be granted to the Respondent before the end of the period of three (3) years from 1 July 2019.

4.    After the expiration of the said three-year period, the Respondent is prohibited from applying for, or obtaining, a principal practising certificate for two (2) years after being granted an employee level practising certificate.

5.    At the time of first applying for an employee level practising certificate after the expiration of the said three-year period, the Respondent must:

(a)     provide evidence of successful completion of the Queensland Law Society’s remedial trust account and ethics courses (or equivalent at the time) having been completed within twelve (12) months prior to the application; and

(b)    include a copy of these Reasons with his application.

6.    The Respondent shall pay the Applicant’s standard costs of and incidental to this discipline application, such costs to be assessed as if this were a proceeding before the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where respondent was a sole practitioner and principal of a law practice – where respondent failed to submit external examiner’s reports by required dates – where respondent failed to lodge final external examiner’s report – where respondent engaged in legal practice when not entitled – where respondent had been told by regulatory body numerous times to cease practising – where respondent failed to comply with these requests – where respondent faced financial and family stressors at the time – whether the respondent’s conduct ought be characterised as professional misconduct or unsatisfactory professional conduct – whether the respondent is permitted to apply or obtain a practising certificate

Legal Profession Act 2007 (Qld), s 21, s 24, s 274, s 276, s 418, s 456, s 462

Legal Services Commissioner v De Fraine [2015] QCAT 292
Legal Services Commissioner v Warren [2017] QCAT 158

APPEARANCES & REPRESENTATION:

Applicant:

R Taylor (counsel) i/b Legal Services Commissioner

Respondent:

P Lyons (solicitor) i/b FC Lawyers

REASONS FOR DECISION

On 13 October 2020, the Applicant, the Legal Services Commissioner, filed in the Tribunal a discipline application under the Legal Profession Act 2007 (Qld) (“LPA”) against the Respondent, Edward Ratahi Pene. That discipline application contains five charges against the Respondent. Charge 1 was subsequently withdrawn. The Respondent admitted the substance 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: [2021] QCAT 299
Decision Date

CaseChat Overview and Summary

In this case, the Legal Services Commissioner filed a discipline application against Edward Ratahi Pene, a legal practitioner in Queensland, under the Legal Profession Act 2007 (Qld). The application contained five charges against the Respondent, with Charge 1 subsequently withdrawn. The remaining charges related to the Respondent's failure to submit external examiner's reports by the required dates, engaging in legal practice when not entitled, and failure to lodge a final external examiner's report. The Respondent admitted to the substance of these charges.

The Tribunal found that the Respondent's conduct in relation to Charges 2, 3, and 5 amounted to unsatisfactory professional conduct, as it fell 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. The most serious charge, Charge 4, involved the Respondent engaging in legal practice when not entitled to do so. The Tribunal found this conduct to be professional misconduct, as it seriously violated the Respondent's legal and ethical responsibilities.

Considering the appropriate sanction, the Tribunal took into account the Respondent's personal circumstances, including financial and family stressors at the time of the charged conduct. However, the Tribunal also noted that the Respondent had been repeatedly told by the Queensland Law Society to cease practising immediately. Despite this, the Respondent continued to practise for a month, exposing his clients to risk.

The Tribunal ordered that a local practising certificate not be granted to the Respondent before the end of the period of three years from 1 July 2019. After the expiration of the said three-year period, the Respondent is prohibited from applying for, or obtaining, a principal practising certificate for two years after being granted an employee level practising certificate. Additionally, the Respondent must provide evidence of successful completion of the Queensland Law Society's remedial trust account and ethics courses (or equivalent at the time) having been completed within twelve months prior to the application, and include a copy of these Reasons with his application. The Respondent is also required to pay the Applicant's standard costs of and incidental to this discipline application.

Orders