Legal Services Commissioner v Sheehy - [2018] QCAT 422

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Sheehy [2018] QCAT 422

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant)

v

RHONDA BERYL SHEEHY

(respondent)

APPLICATION NO/S:

OCR125-14

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 December 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

Assisted by:
Dr Julian Lamont, Lay Panel Member

Ms Megan Mahon, Practitioner Panel Member

ORDERS:

1. The Commissioner’s costs application is allowed.

2. The practitioner is ordered to pay the Commissioner’s costs of the disciplinary proceeding as agreed within 90 days or to be assessed on the standard basis in the manner and on the scale that the costs would be assessed in the Supreme Court of Queensland under the Uniform Civil Procedure Rules.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the tribunal dismissed the discipline application and compliance with filing submissions on costs was suspended pending the outcome of the appeal – where the Queensland Court of Appeal (QCA) set aside the tribunal’s finding and declared the practitioner had engaged in prescribed conduct – where costs of the appeal followed the event but no application or order was made for the tribunal costs in issue – where s 462(1) Legal Profession Act makes an order requiring a defaulting practitioner to pay the Commissioner’s costs prima facie mandatory when a disciplinary body finds prescribed conduct was engaged in – where the tribunal must infer whether Parliament intended the Commissioner to be awarded his costs where a positive conduct finding is declared on appeal – where awarding the Commissioner costs of the disciplinary proceeding accords with the object and underlying policy of s 462 – where the Commissioner’s application for costs is allowed

Legal Profession Act 2007 (Qld) ss 418, 419, 420, 462, Schedule 2
Queensland Civil and Administrative Tribunal Act2009 (Qld) ss 161, 165, Schedule 3

Legal Services Commissioner v Jensen [2018] QCAT 264
Legal Services Commissioner v Sheehy [2018] QCA 151

APPEARANCES:

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

REASONS FOR DECISION

The issue in this application is whether the tribunal has a structured statutory discretion to award the Commissioner’s costs of a discipline proceeding against a defaulting practitioner where the misconduct “finding” was made by the Queensland Court of Appeal (QCA) and not by the tribunal itself.
The context
On 8 August 2017 the tribunal dismissed the discipline application and gave directions for filing submissions on costs.
Costs of a practitioner found not (or not found) to have engaged in prescribed conduct are payable in special circumstances.[1]
[1]Legal Profession Act 2007 (Qld) s 462(4) (LP Act).
Conversely, costs against a practitioner cleared by the tribunal of prescribed conduct are recoverable where the proceedings were due to the person’s lack of cooperation or “there is some other reason” warranting it in the particular circumstances.[2]
[2]LP Act s 462(2).
The Commissioner appealed…

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 422
Decision Date: 3 December 2018

CaseChat Overview and Summary

In Legal Services Commissioner v Sheehy, the Legal Services Commissioner sought a declaration that the practitioner had engaged in prescribed conduct and for an order that the practitioner pay the Commissioner’s costs of the disciplinary proceeding. The matter was initially dismissed by the tribunal, but the Queensland Court of Appeal overturned this decision, finding that the practitioner had indeed engaged in prescribed conduct. The Commissioner then applied for an order that the practitioner pay the costs of the disciplinary proceeding. The practitioner argued that the Commissioner’s costs were not to be automatically awarded and that the Court of Appeal had not made a finding to that effect. The Commissioner contended that, given the Court of Appeal’s finding of prescribed conduct, the practitioner should be ordered to pay the Commissioner’s costs of the disciplinary proceeding.

The court considered whether the Queensland Court of Appeal’s declaration of prescribed conduct also implied a finding that the practitioner should pay the Commissioner’s costs. It examined the language and intent of s 462(1) of the Legal Profession Act, which mandates an order for a defaulting practitioner to pay the Commissioner’s costs if a disciplinary body finds prescribed conduct. The court determined that the object and underlying policy of s 462 was to ensure that the Commissioner could recover costs from practitioners found guilty of prescribed conduct, and that this policy was consistent with the Court of Appeal’s decision. The court concluded that the Commissioner was entitled to an order for his costs under s 462.

The Commissioner’s application for costs was allowed. The practitioner was ordered to pay the Commissioner’s costs of the disciplinary proceeding as agreed within 90 days or to be assessed on the standard basis in the manner and on the scale that the costs would be assessed in the Supreme Court of Queensland under the Uniform Civil Procedure Rules.

Orders

Orders of the court

1. The Commissioner’s costs application is allowed.

2. The practitioner is ordered to pay the Commissioner’s costs of the disciplinary proceeding as agreed within 90 days or to be assessed on the standard basis in the manner and on the scale that the costs would be assessed in the Supreme Court of Queensland under the Uniform Civil Procedure Rules.

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 Sheehy [2018] QCAT 422
PARTIES:	LEGAL SERVICES COMMISSIONER (applicant)
v
RHONDA BERYL SHEEHY (respondent)
APPLICATION NO/S:	OCR125-14
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	3 December 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Justice Carmody Assisted by: Dr Julian Lamont, Lay Panel Member Ms Megan Mahon, Practitioner Panel Member
ORDERS:	1. The Commissioner’s costs application is allowed. 2. The practitioner is ordered to pay the Commissioner’s costs of the disciplinary proceeding as agreed within 90 days or to be assessed on the standard basis in the manner and on the scale that the costs would be assessed in the Supreme Court of Queensland under the *Uniform Civil Procedure Rules.*
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the tribunal dismissed the discipline application and compliance with filing submissions on costs was suspended pending the outcome of the appeal – where the Queensland Court of Appeal (QCA) set aside the tribunal’s finding and declared the practitioner had engaged in prescribed conduct – where costs of the appeal followed the event but no application or order was made for the tribunal costs in issue – where s 462(1) Legal Profession Act makes an order requiring a defaulting practitioner to pay the Commissioner’s costs prima facie mandatory when a disciplinary body finds prescribed conduct was engaged in – where the tribunal must infer whether Parliament intended the Commissioner to be awarded his costs where a positive conduct finding is declared on appeal – where awarding the Commissioner costs of the disciplinary proceeding accords with the object and underlying policy of s 462 – where the Commissioner’s application for costs is allowed Legal Profession Act 2007 (Qld) ss 418, 419, 420, 462, Schedule 2 Queensland Civil and Administrative Tribunal Act2009 (Qld) ss 161, 165, Schedule 3 Legal Services Commissioner v Jensen [2018] QCAT 264 Legal Services Commissioner v Sheehy [2018] QCA 151
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).