Legal Services Commissioner v Scott - [2015] QCAT 402

CITATION:	Legal Services Commissioner v Scott [2015] QCAT 402
PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
Karl Scott (Respondent)

APPLICATION NUMBER:

OCR244-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

6 July 2015

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody
Assisted by:
Ms Julie Cameron, Legal Panel Member
Dr Margaret Steinberg, Lay Panel Member

DELIVERED ON:

12 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

THE TRIBUNAL ORDERS THAT:

1. Karl Scott’s name be removed from the local roll of legal practitioners;

2. Karl Scott pay the applicant’s costs of and incidental to the proceedings, fixed in the amount of $2,500.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT – TRUST MONEY – INVESTIGATION REQUIREMENTS –– where the respondent was a solicitor practising law in Queensland – where the respondent maintained a trust account – where the respondent appears to have disbursed monies from the trust account in satisfaction of personal debts and debts attached to business interests – where a complaint was made against the respondent in respect of the wrongful appropriation of trust moneys – where the Queensland Law Society required the respondent to explain the dispersion of the trust moneys – where the respondent failed to supply an explanation in accordance with the relevant legislation – where the Queensland Law Society issued a further notice requiring the respondent to comply with the original notice requiring an explanation – where the respondent failed to comply with the second notice – where the Legal Services Commissioner filed a disciplinary application against the respondent alleging professional misconduct in respect of the wrongful appropriation of trust moneys and failure to comply with prescribed investigatory requirements – where the respondent failed to respond to the disciplinary application or enter an appearance in the proceedings – whether the respondent breached his professional duties in disbursing trust moneys without authority to satisfy personal debts – whether the respondent breached his professional duties in failing to respondent to the notice requiring an explanation of the subject matter asserted in the originating complaint – whether the respondent has committed professional misconduct or unsatisfactory professional conduct.

Legal Profession Act 2007 (Qld) ss 419, 433, 452

Adamson v The Queensland Law Society Incorporated [1990] 1 Qd R 498
Attorney-General v Bax (1999) 2 Qd R 9
In Re a Practitioner [1941] SASR 48
Kennedy v Council of Incorporated Law Institute of New South Wales (1940) 13 ALJ 563

Legal Services Commission v Bryant [2005] LPT 003.

Queensland Law Society Incorporated Carberry [2000] QCA 450
Queensland Law Society v Whitman [2003] QCA 438
Re Weare (1893) 2 QB 439

APPEARANCES and REPRESENTATION:

APPLICANT: Martin Kelly for the applicant
RESPONDENT: Did not appear

REASONS FOR DECISION

This is a discipline application by the Legal Services Commissioner under s 452 of the Legal Profession Act 2007 (the Act).
A main purpose of the Act is to regulate Queensland legal practice for the protection of consumers of related professional services.
The Commission has made a disciplinary application to the tribunal…

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: [2015] QCAT 402
Decision Date: 12 October 2015

CaseChat Overview and Summary

The matter of Legal Services Commissioner v Scott was heard in the Legal Services Tribunal. The respondent, Karl Scott, was a practising solicitor in Queensland. A complaint was made against Scott, alleging that he had wrongfully appropriated trust moneys. This was followed by an investigation by the Queensland Law Society, which required Scott to provide an explanation regarding the dispersion of these funds. Scott did not comply with the initial requirement, and despite a subsequent notice, he failed to respond. The Legal Services Commissioner then filed a disciplinary application against Scott, alleging professional misconduct in relation to the appropriation of trust moneys and non-compliance with investigatory requirements. Scott did not respond to the application or enter an appearance in the proceedings.

The Tribunal was required to determine several legal issues. The first was whether Scott had breached his professional duties by disbursing trust moneys without authority to satisfy personal debts. The second issue was whether Scott breached his professional duties by failing to respond to the notice that required an explanation regarding the subject matter of the originating complaint. Finally, the Tribunal needed to determine if Scott had committed professional misconduct or unsatisfactory professional conduct.

The Tribunal found that Scott had indeed breached his professional duties. He had used trust moneys for personal and business debts without authority, which is a clear violation of professional standards. Additionally, Scott failed to respond to the investigatory notices, which is a further breach of his professional obligations. The Tribunal concluded that Scott's actions constituted professional misconduct. Consequently, the Tribunal ordered that Scott's name be removed from the local roll of legal practitioners and that he pay the costs of the proceedings, amounting to $2,500.

Orders

Orders of the court

THE TRIBUNAL ORDERS THAT:

1. Karl Scott’s name be removed from the local roll of legal practitioners;

2. Karl Scott pay the applicant’s costs of and incidental to the proceedings, fixed in the amount of $2,500.

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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