Legal Services Commissioner v Rowell - [2013] QCAT 397

CITATION:

Legal Services Commission v Rowell [2013] QCAT 397

PARTIES:	Legal Services Commissioner (Applicant)
v
Peter Arthur Rowell (Respondent)

APPLICATION NUMBER:

OCR207-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

26 August 2013

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

Assisted by:

Ms Bronwyn Cushing-Sullivan
Practitioner Panel Member
and
Ms Kathleen Anne Keating
Lay Panel Member

DELIVERED ON:

30 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent’s name is to be removed from the local roll.

2. It is recommended that the Respondent’s name be removed from the local roll in New South Wales.

3. The Respondent is to pay the Applicant’s costs fixed at $2,000.00 within 30 days of the date of this order.

4. The Respondent is to pay Tara Cuddeford compensation in the sum of $7,500.00 within 60 days of the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE –PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the Respondent practised law without holding a current practising certificate – where the Respondent undertook work for Legal Aid Queensland when it was a condition to hold a current practising certificate – where the Respondent failed to tell a client about a hearing and, at that hearing, consented to an order without taking instructions – where the Applicant referred the matter to the Tribunal – where the Respondent failed to respond to the discipline application – where the Applicant contends the Respondent’s conduct amounts to professional misconduct – where the Applicant claims that the conduct constitutes an admission that the Respondent no longer intends to adhere to professional standards – whether conduct amounts to unsatisfactory professional conduct or professional misconduct – whether the Respondent is a fit and proper person to engage in legal practice

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE –MISCONDUCT – COMPENSATION ORDERS –where a compensation order may be made against a law practice – where a law practice is defined to include an Australian legal practitioner who is a sole practitioner – where the Respondent does not hold a current practising certificate and is not an Australian legal practitioner – where s 417 of the Legal Profession Act 2007 (Qld) provides that the relevant chapter applies to Australian lawyers and former Australian lawyers – where Australian lawyer is defined to mean a person admitted to the legal profession – whether it is in the interests of justice that a compensation order be made by the Tribunal

Legal Profession Act 2007 (Qld), s 5(1), s 6(1), s 417, s 419, s 456(3)(a), s 464, s 466(3)

Legal Services Commissioner v Hoolihan [2007] LPT 3, cited
Legal Services Commissioner v Kellahan [2012] QCAT 263, cited
Legal Services Commissioner v Voll [2008] LPT 1, distinguished

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms S Lane of Counsel

RESPONDENT:

No appearance

REASONS FOR DECISION

Mr Rowell is 58. He was admitted to practise as a solicitor in Queensland on 15 July 2002. He was then, for a time, employed…

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: [2013] QCAT 397
Decision Date

CaseChat Overview and Summary

The Legal Services Commissioner brought a complaint against Peter Arthur Rowell, a former solicitor, alleging various professional misconduct and unsatisfactory professional conduct. The Commissioner argued that Mr Rowell practiced without a current practising certificate, undertook work for Legal Aid Queensland without a valid practising certificate, failed to inform a client about an upcoming hearing, and consented to an order on behalf of the client without instructions. The matter was heard by Justice Alan Wilson, assisted by Ms Bronwyn Cushing-Sullivan and Ms Kathleen Anne Keating. Mr Rowell did not appear or respond to the proceedings.

The court determined that Mr Rowell's actions amounted to professional misconduct as he knowingly practiced without a current practising certificate and misrepresented his qualifications to Legal Aid Queensland. Furthermore, his failure to inform the client about a hearing and entering a consent order without instructions also constituted professional misconduct. The court found Mr Rowell unfit to practice law and ordered his name to be removed from the local roll in Queensland and recommended the same for New South Wales. The court also ordered Mr Rowell to pay the Commissioner's costs of $2,000 within 30 days and compensate the affected client, Ms Cuddeford, in the sum of $7,500 within 60 days.

The court found that it was in the interests of justice to grant the compensation order to Ms Cuddeford, as she suffered pecuniary loss due to Mr Rowell's professional misconduct. The order was limited to $7,500, as per the Legal Profession Act 2007 (Qld). The court's decision was based on the evidence presented, and the clear misconduct demonstrated by Mr Rowell throughout the proceedings.

Orders