Legal Services Commissioner v Sheehy - [2017] QCAT 276

CITATION: Legal Services Commissioner v Sheehy [2017] QCAT 276

PARTIES: Legal Services Commissioner
(Applicant/Appellant)

v

Rhonda Beryl Sheehy
(Respondent)

APPLICATION NUMBER: OCR125-14

MATTER TYPE: Occupational Regulation Matter

HEARING DATE: 23 May 2017

HEARD AT: Brisbane

DECISION OF: Justice Carmody
Assisted by:
Dr Julian Lamont, Lay Panel Member
Ms Megan Mahon, Practitioner Panel Member

DELIVERED ON: 8 August 2017

DELIVERED AT: Brisbane

ORDERS MADE:
IT IS THE DECISION OF THE TRIBUNAL THAT:

1.    The discipline application is dismissed.

2. The parties are to exchange and file (with detailed supporting written submissions) any application for costs under s 462(2) or (4) Legal Profession Act 2007 (Qld) by 4pm on 10 October 2017.

3.    In the time allowed for the exchange of submissions, the parties can, of course, discuss an agreed order.

4.    As to the exchange of submissions, it is ordered that:

(1)    The Legal Services Commissioner is to file in the Tribunal four (4) copies and serve one (1) copy of any submissions in relation to costs the Commissioner wishes to make, by: 4:00pm on 5 September 2017.

(2)    The respondents are to file in the Tribunal four (4) copies and serve one (1) copy of any submissions in relation to costs they wish to make, by: 4:00pm on 26 September 2017.

(3)    The Legal Services Commissioner is to file in the Tribunal four (4)copies and serve one (1) copy of any submissions in reply, by: 4:00pm on 10 October 2017.

(4)    The application for costs will be determined by the Tribunal on the papers in Brisbane not before 13 October 2017, unless either party files an application for an oral hearing.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – GENERALLY – where land was being sold by court order to settle a matrimonial property dispute – where the land was co-owned by a husband and wife - where the Commissioner charged the respondent for engaging in unsatisfactory professional conduct on the basis she either knowingly or recklessly completed a contract of sale when the co-seller had not authorised it – whether the husband had a valid right to terminate the contract – whether completion of contract amounted to breach of any professional obligation or standard.

Legal Profession Act 2007 (Qld), s 462

Briginshaw v Briginshaw (1938) 60 CLR 336
Kennedy v Council of Incorporated Law Institute (1939) 13 ALJ 563
Legal Services Commissioner v Madden (No 2) [2008] QCA 301
Lion White Lead Ltd v Rogers (1918)
25 CLR 533

Peeke v Medical Board of Victoria, Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1994

APPEARANCES and REPRESENTATION:
APPLICANT:   Mr M Nicolson of Counsel instructed by the Legal Services Commissioner
RESPONDENT  Ms A Nicholas of Counsel instructed by Bartley Cohen Law

REASONS FOR DECISION
[1]The Legal Services Commissioner (Commissioner) alleges that the practitioner should be fined up to $1,000.00 as well as publicly reprimanded for engaging in unsatisfactory professional conduct on the basis that she either knowingly or recklessly…

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: [2017] QCAT 276
Decision Date: 8 August 2017

CaseChat Overview and Summary

The respondent, a lawyer, was charged by the Legal Services Commissioner for engaging in unsatisfactory professional conduct in relation to a contract of sale of land co-owned by a husband and wife. The Commissioner alleged the lawyer either knowingly or recklessly completed the contract of sale without the authorisation of the co-seller, the husband. This case was heard and determined by the Legal Services Tribunal of Queensland. The central issue before the tribunal was whether the lawyer's conduct amounted to unsatisfactory professional conduct and whether the husband had a valid right to terminate the contract. The tribunal found that the husband did not have a valid right to terminate the contract, and thus, the lawyer's actions did not breach any professional obligation or standard.

In reaching its decision, the tribunal examined the evidence and submissions presented by both parties. The tribunal concluded that the husband's right to terminate the contract was invalid, as he had already agreed to the sale of the property through a prior court order. The tribunal also found that the lawyer's actions were not reckless or knowing, but rather were taken in good faith and in the belief that the sale was authorised by both co-owners. Consequently, the tribunal dismissed the discipline application against the lawyer. In addition to dismissing the discipline application, the tribunal ordered the parties to exchange and file written submissions regarding any application for costs under section 462(2) or (4) of the Legal Profession Act 2007 (Qld). The tribunal also set out a timeline for the exchange of submissions and the determination of the costs application.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The discipline application is dismissed.

2. The parties are to exchange and file (with detailed supporting written submissions) any application for costs under s 462(2) or (4) Legal Profession Act 2007 (Qld) by 4pm on 10 October 2017.

3. In the time allowed for the exchange of submissions, the parties can, of course, discuss an agreed order.

4. As to the exchange of submissions, it is ordered that:

(1) The Legal Services Commissioner is to file in the Tribunal four (4) copies and serve one (1) copy of any submissions in relation to costs the Commissioner wishes to make, by: 4:00pm on 5 September 2017.

(2) The respondents are to file in the Tribunal four (4) copies and serve one (1) copy of any submissions in relation to costs they wish to make, by: 4:00pm on 26 September 2017.

(3) The Legal Services Commissioner is to file in the Tribunal four (4)copies and serve one (1) copy of any submissions in reply, by: 4:00pm on 10 October 2017.

(4) The application for costs will be determined by the Tribunal on the papers in Brisbane not before 13 October 2017, unless either party files an application for an oral hearing.

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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PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
Rhonda Beryl Sheehy (Respondent)
APPLICATION NUMBER:		OCR125-14