Legal Services Commissioner v Roati - [2020] QCAT 466

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Roati [2020] QCAT 466

PARTIES: LEGAL SERVICES COMMISSIONER

(applicant)

v

JOHN GERARD ROATI

(respondent)

APPLICATION NO/S:

OCR335-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 November 2020 (ex tempore)

HEARING DATE:

20 November 2020

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:

Mr Geoffrey Sinclair, Legal Panel Member
Mr Keith Revell, Lay Panel Member

ORDERS:
Upon the respondent, John Gerard Roati, undertaking to the Tribunal that he will, within the next seven days, repay to Robert Clough the sum of $3,600 referred to in paragraph 15(b) of the Statement of Agreed Facts,

And upon the respondent, John Gerard Roati, undertaking to the Tribunal that he will, over the next 12 months, perform not less than 30 hours pro bono legal work for a community legal centre,

it is ordered that:

1.   There is a finding that the respondent engaged in unsatisfactory professional conduct.

2.   The respondent is publicly reprimanded.

3.   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 matter before the Supreme Court of Queensland.

4.   Robert Clough shall advise the Tribunal and the respondent as to whether he wishes to pursue his Notice of Intention to Seek Compensation Order by 4:00pm on 19 December 2020.

5.   If Robert Clough advises that he wishes to pursue a compensation order, then the matter will be listed for a directions hearing on a date to be advised by the Tribunal.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent established a “litigation loan facility” pursuant to the terms of a costs agreement with his client – where the respondent advanced a total of $16,017.89 to the client and charged $3,600 for “interest and charges” – where the applicant has brought one charge against the respondent of failing to act in the best interests of his client – where the respondent does not contest the charge, and the parties jointly urge that there be a finding of unsatisfactory professional conduct – whether the conduct underpinning the charge amounts to unsatisfactory professional conduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the respondent has cooperated in the expeditious resolution of the matter before the Tribunal – where the respondent has explained the background to the commission of the conduct in question and expressed genuine remorse – where the respondent has proffered two undertakings to the Tribunal, being to repay the sum of $3,600 to the client, and to engage in pro bono legal work for a community legal centre – where the applicant seeks the imposition of a public reprimand and pecuniary penalty – whether this is an appropriate case for the imposition of a public reprimand – whether a pecuniary penalty is necessary or warranted, in light…

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: [2020] QCAT 466
Decision Date: 20 November 2020 (ex tempore)

CaseChat Overview and Summary

The Legal Services Commissioner brought an application against John Gerard Roati, a lawyer, in relation to an alleged failure to act in the best interests of his client. The application was heard by the Queensland Civil and Administrative Tribunal (QCAT). The Commissioner alleged that Roati had engaged in unsatisfactory professional conduct by establishing a "litigation loan facility" with his client, pursuant to the terms of a costs agreement, and subsequently charging $3,600 in interest and charges. Roati did not contest the charge and the parties jointly urged that there be a finding of unsatisfactory professional conduct. The court was required to determine whether the conduct in question amounted to unsatisfactory professional conduct and, if so, what the appropriate penalty should be.

In considering whether Roati's conduct amounted to unsatisfactory professional conduct, the court noted that there was no dispute that Roati had acted in a way that was contrary to the duty of loyalty owed to his client. The court found that the establishment of a litigation loan facility and the charging of interest and charges were not appropriate given the nature of the relationship between the lawyer and the client. The court also noted that the respondent had cooperated in the expeditious resolution of the matter before the Tribunal and had expressed genuine remorse. However, the court found that the conduct did amount to unsatisfactory professional conduct.

In relation to the penalty, the court noted that the respondent had proffered two undertakings to the Tribunal, being to repay the sum of $3,600 to the client, and to engage in pro bono legal work for a community legal centre. The court found that these undertakings were appropriate and that a public reprimand and pecuniary penalty were also necessary. The court ordered that Roati be publicly reprimanded and pay the Commissioner's costs. The court also ordered that Roati repay the sum of $3,600 to the client and perform not less than 30 hours pro bono legal work for a community legal centre over the next 12 months. Finally, the court ordered that the client be given the opportunity to pursue a compensation order.

Orders

Orders of the court

Upon the respondent, John Gerard Roati, undertaking to the Tribunal that he will, within the next seven days, repay to Robert Clough the sum of $3,600 referred to in paragraph 15(b) of the Statement of Agreed Facts,

And upon the respondent, John Gerard Roati, undertaking to the Tribunal that he will, over the next 12 months, perform not less than 30 hours pro bono legal work for a community legal centre,

it is ordered that:

1. There is a finding that the respondent engaged in unsatisfactory professional conduct.

2. The respondent is publicly reprimanded.

3. 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 matter before the Supreme Court of Queensland.

4. Robert Clough shall advise the Tribunal and the respondent as to whether he wishes to pursue his Notice of Intention to Seek Compensation Order by 4:00pm on 19 December 2020.

5. If Robert Clough advises that he wishes to pursue a compensation order, then the matter will be listed for a directions hearing 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Roati [2020] QCAT 466
PARTIES:	LEGAL SERVICES COMMISSIONER
(applicant)
v
JOHN GERARD ROATI
(respondent)
APPLICATION NO/S:	OCR335-19
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	20 November 2020 (ex tempore)
HEARING DATE:	20 November 2020
HEARD AT:	Brisbane
DECISION OF:	Justice Daubney, President Assisted by: Mr Geoffrey Sinclair, Legal Panel Member Mr Keith Revell, Lay Panel Member
ORDERS:	Upon the respondent, John Gerard Roati, undertaking to the Tribunal that he will, within the next seven days, repay to Robert Clough the sum of $3,600 referred to in paragraph 15(b) of the Statement of Agreed Facts, And upon the respondent, John Gerard Roati, undertaking to the Tribunal that he will, over the next 12 months, perform not less than 30 hours pro bono legal work for a community legal centre, it is ordered that: 1. There is a finding that the respondent engaged in unsatisfactory professional conduct. 2. The respondent is publicly reprimanded. 3. 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 matter before the Supreme Court of Queensland. 4. Robert Clough shall advise the Tribunal and the respondent as to whether he wishes to pursue his Notice of Intention to Seek Compensation Order by 4:00pm on 19 December 2020. 5. If Robert Clough advises that he wishes to pursue a compensation order, then the matter will be listed for a directions hearing on a date to be advised by the Tribunal.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent established a “litigation loan facility” pursuant to the terms of a costs agreement with his client – where the respondent advanced a total of $16,017.89 to the client and charged $3,600 for “interest and charges” – where the applicant has brought one charge against the respondent of failing to act in the best interests of his client – where the respondent does not contest the charge, and the parties jointly urge that there be a finding of unsatisfactory professional conduct – whether the conduct underpinning the charge amounts to unsatisfactory professional conduct PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the respondent has cooperated in the expeditious resolution of the matter before the Tribunal – where the respondent has explained the background to the commission of the conduct in question and expressed genuine remorse – where the respondent has proffered two undertakings to the Tribunal, being to repay the sum of $3,600 to the client, and to engage in pro bono legal work for a community legal centre – where the applicant seeks the imposition of a public reprimand and pecuniary penalty – whether this is an appropriate case for the imposition of a public reprimand – whether a pecuniary penalty is necessary or warranted, in light…