Legal Services Commissioner v Richards - [2024] QCAT 355

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Richards [2024] QCAT 355

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant)

v

DARRYL RICHARDS

(respondent)

APPLICATION NO/S:

OCR288-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Mellifont, President
Assisted by:
Ms Susan Forrest
Practitioner Panel Member
Ms Julie Cork
Lay Panel Member

ORDERS:

1.     The respondent is publicly reprimanded.

2.     The respondent to pay a pecuniary penalty of $3,000 within six months.

3.     The respondent is prohibited from applying for, or obtaining, a principal practising certificate for a period of one year from the date of this order.

4.    The respondent complete, at his own expense, an approved practice management course prior to applying for a principal practising certificate.

5.    The respondent must include a copy of these orders and reasons for the decision with any application for a practising certificate in any Australian jurisdiction for a five year period from the date of this decision.

6.    The respondent is to pay the applicant’s costs of and incidental to the discipline application. Such costs to be assessed on the standard basis in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland, unless the parties otherwise agree.

CATCHWORDS:

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where the practitioner failed to honour an undertaking given to the regulator in the course of legal practice – where the applicant brought a charge against the respondent for the substantial departure of competence and diligence expected of a reasonably competent practitioner – where the respondent accepts that the conduct constituted professional misconduct – where the respondent agrees to the proposed sanctions - whether the Tribunal is satisfied as to the agreed characterisation of the respondent’s conduct and the agreed sanction

Australian Solicitors Conduct Rules 2012

Legal Profession Act 2007 (Qld) ss 5(1), 249, 258, 332, 418, 419, 420(1), 443(3), 447, 448(1)(b), 452, 456(1), 456(2), 462(1)
Legal Profession Regulation 2017 (Qld) ss 53, 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s32

Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498

Council of the Law Society (NSW) v Bunton [2020] NSWCATOD 67
Council of the Law Society (NSW) v Fisher [2021] NSWCATOD 73
Council of the Law Society (NSW) v Lewis [2019] NSWCATOD 100
Council of the Law Society (NSW) v Marando [2018] NSWCATOD 194
Council of the Law Society (NSW) v Morgan [2015] NSWCATOD 71
Council of the Law Society (NSW) v Powell [2019] NSWCATOD 24
Council of theLaw Society of New South Wales v Downey [2023] NSWCATOD 162
Law Society (NSW) vThompson [2018] NSWCATOD 57
Law Society (NSW) v Waterhouse [2002] NSWADT 204
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Legal Services Commissioner v Bui [2018] QCAT 424
Legal Services Commissioner v Richards [2018] QCAT 128

Legal Services Commissioner v Wrightway Legal [2015] QCAT 174

APPEARANCES &…

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: [2024] QCAT 355
Decision Date: 3 September 2024

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Richards, the Legal Services Tribunal considered an application for disciplinary proceedings against a legal practitioner. The Commissioner brought a charge against the respondent for substantial departure from competence and diligence expected of a reasonably competent practitioner, stemming from the practitioner’s failure to honour an undertaking given to the regulator in the course of their legal practice. The respondent admitted that their conduct constituted professional misconduct and agreed to the proposed sanctions.

The Tribunal was tasked with determining whether it was satisfied with the agreed characterisation of the respondent’s conduct and the proposed sanctions. The Tribunal considered the nature of the misconduct, the respondent’s admissions, and the agreed sanctions, which included a public reprimand, a pecuniary penalty of $3,000, a one-year prohibition from applying for or obtaining a principal practising certificate, the requirement to complete an approved practice management course, and the obligation to include a copy of the Tribunal's orders and reasons for the decision with any application for a practising certificate in any Australian jurisdiction for a five-year period. The Tribunal also ordered the respondent to pay the applicant's costs of and incidental to the discipline application, to be assessed on the standard basis in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland, unless the parties otherwise agreed.

Upon reviewing the submissions and the agreed sanctions, the Tribunal concluded that the respondent’s conduct did indeed constitute professional misconduct. The Tribunal found the agreed sanctions to be appropriate, considering the gravity of the misconduct and the respondent’s admission and cooperation. The Tribunal confirmed the agreed sanctions and ordered them as part of its decision.

Orders

Orders of the court

1. The respondent is publicly reprimanded.

2. The respondent to pay a pecuniary penalty of $3,000 within six months.

3. The respondent is prohibited from applying for, or obtaining, a principal practising certificate for a period of one year from the date of this order.

4. The respondent complete, at his own expense, an approved practice management course prior to applying for a principal practising certificate.

5. The respondent must include a copy of these orders and reasons for the decision with any application for a practising certificate in any Australian jurisdiction for a five year period from the date of this decision.

6. The respondent is to pay the applicant’s costs of and incidental to the discipline application. Such costs to be assessed on the standard basis in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland, unless the parties otherwise agree.

Background

Background to the litigation

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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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