Legal Services Commissioner v Richards - [2018] QCAT 128

CITATION:	Legal Services Commissioner v Richards [2018] QCAT 128
PARTIES:	Legal Services Commissioner (Applicant)
v
Darryl William Richards (Respondent)
APPLICATION NUMBER:	OCR234-16
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Hon J B Thomas, Judicial Member Assisted by: Mr Geoffrey Sinclair Dr Margaret Steinberg
DELIVERED ON:	1 May 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The Tribunal is satisfied that the respondent Darryl William Richards engaged in unsatisfactory professional conduct; 2. The respondent Darryl William Richards is publicly reprimanded; 3. The respondent Darryl William Richards is to pay a penalty of $3,000 on or before 31 May 2018; 4. The respondent Darryl William Richards is to pay to the Applicant the Applicant's costs fixed in the sum of $7,000 on or before 31 May 2018; 5. The compensation claim of Adam Borland is dismissed.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – MISLEADING COURT AND PERVERTING THE COURSE OF JUSTICE –where reckless misstatement within affidavit – where no deliberate deceit in misstating affidavit – where misstatement has been corrected – whether unsatisfactory professional conduct or professional misconduct PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – compensation - elements of claim - need for proof - status of original complainant to Commission - whether time spent by complainant in assisting commissioner in prosecution of disciplinary charge is compensable – need for some evidence of the nature of such assistance and of reasonableness of the quantum claimed Legal Services Commissioner v Chadwick [2009] LPT 016 Legal Services Commissioner v Hackett [2006] LPT 015 Legal Services Commissioner v Ho [2017] QCAT 386 Legal Services Commissioner v Lim [2011] QCAT 291 Legal Services Commissioner v Ramsden [2006] LPT 10 Legal Services Commissioner v Richards [2017] QCAT 384 Legal Services Commissioner v Sorban [2009] LPT 005 Legal Services Commissioner v Thomson [2011] QCAT 127 Legal Profession Act 2007, s 452, s 464, s 465, s 429, s 448, s 451, s 462, s 463
APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

This is the determination of a disciplinary proceeding under section 452 of the Legal Profession Act 2007 (“LPA”) and also of a claim for compensation under section 465 of that act.
The applicant in the disciplinary proceeding is the Legal Services Commissioner (“the Commissioner”). The claimant for compensation, Mr Borland, is the original complainant who brought the misconduct of the respondent to the attention of the Commissioner.
This Tribunal assembled in September 2017 to decide the disciplinary application, but postponed further proceeding until directions were carried out which would enable the compensation claim to be pursued against the legal respondent's legal practice.[1]
[1]Legal Services Commissioner v Richards [2017] QCAT 384.

Relevant facts

The respondent (“Mr Richards”) is now 43 years…

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: [2018] QCAT 128
Decision Date: 1 May 2018

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Richards, the respondent, Darryl William Richards, faced a tribunal hearing concerning allegations of professional misconduct and unsatisfactory professional conduct. The Legal Services Commissioner brought the complaint against Richards, alleging that he had made a reckless misstatement within an affidavit, which amounted to misleading the court and perverting the course of justice. Additionally, the original complainant, Adam Borland, sought compensation for time spent assisting the Commissioner in the prosecution of the disciplinary charge. The Queensland Legal Services Tribunal was tasked with determining whether Richards' actions constituted unsatisfactory professional conduct or professional misconduct and whether Borland was entitled to compensation.

The tribunal had to decide whether Richards' misstatement within the affidavit constituted unsatisfactory professional conduct or professional misconduct. It also needed to determine whether Borland was entitled to compensation for time spent assisting the Commissioner in the prosecution of the disciplinary charge. The tribunal had to consider the elements of Borland's claim for compensation, including the need for proof and the status of the original complainant to the Commission. Furthermore, the tribunal needed to assess whether the time spent by Borland in assisting the Commissioner was compensable and whether there was sufficient evidence of the nature of such assistance and the reasonableness of the quantum claimed.

The tribunal found that Richards had engaged in unsatisfactory professional conduct by making a reckless misstatement within an affidavit, even though there was no deliberate deceit involved. The tribunal determined that Richards' misstatement had been corrected, but this did not negate the unsatisfactory nature of his conduct. Regarding the compensation claim, the tribunal dismissed Borland's claim, finding that there was insufficient evidence to substantiate the nature of his assistance and the reasonableness of the quantum claimed. Consequently, the tribunal ordered that Richards be publicly reprimanded, pay a penalty of $3,000, and cover the Commissioner's costs of $7,000.

The tribunal issued several orders in the case. Firstly, it found that Richards engaged in unsatisfactory professional conduct. Secondly, Richards was publicly reprimanded. Thirdly, Richards was ordered to pay a penalty of $3,000 by a specified date. Fourthly, Richards was directed to pay the Commissioner's costs, fixed at $7,000, by the same date. Lastly, the tribunal dismissed Borland's compensation claim. These orders reflect the tribunal's findings on the professional conduct of Richards and the compensation claim made by Borland.

Orders

Orders of the court

1. The Tribunal is satisfied that the respondent Darryl William Richards engaged in unsatisfactory professional conduct;

2. The respondent Darryl William Richards is publicly reprimanded;

3. The respondent Darryl William Richards is to pay a penalty of $3,000 on or before 31 May 2018;

4. The respondent Darryl William Richards is to pay to the Applicant the Applicant's costs fixed in the sum of $7,000 on or before 31 May 2018;

5. The compensation claim of Adam Borland is dismissed.

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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