Legal Services Commissioner v Smith - [2021] QCAT 345

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Smith [2021] QCAT 345

PARTIES: LEGAL SERVICES COMMISSIONER

(applicant)

v

TRACEY ANNE SMITH

(respondent)

APPLICATION NO/S:

OCR359-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

25 October 2021

HEARING DATE:

18 October 2021

HEARD AT:

Brisbane

DECISION OF:

Hon Duncan McMeekin QC, Judicial Member
Assisted by:
Ms Patrice McKay
Mr Peter Sheehy

ORDERS:

1. Pursuant to s 456(2)(a) of the Legal Profession Act 2007 (Qld), an order is made recommending that the name of the respondent, also known as Tracey Anne Brewer, be removed from the local roll.

2. Pursuant to s 456(3)(a) of the Legal Profession Act 2007 (Qld), an order is made recommending that the name of the respondent be removed from the New South Wales roll.

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 in the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – IMPROPER DEALINGS – where the respondent was a sole practitioner and operated her own firm – where the respondent dishonestly obtained monies from clients – where the respondent failed to respond to matters or take appropriate action – where the respondent entered into void and unenforceable cost agreements with her own firm – where the respondent gave a client incorrect information about the Australian Solicitors Conduct Rules – where the respondent self-notified the applicant of her conduct – where the applicant brought a discipline application against the respondent in this Tribunal – where the respondent has cooperated with the Tribunal and the applicant to a significant degree – whether the respondent engaged in unsatisfactory professional conduct or professional misconduct – whether the name of the respondent should be removed from the local roll

PROFESSIONS AND TEADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – TRUST MONEY – where the respondent was a sole practitioner and operated her own firm – where the respondent authorised the use of funds in trust account to pay invoices arising out of work performed as an executor or Power of Attorney – where the respondent received money into general account rather than trust account – where the respondent transferred money from trust account to general account without the necessary authority – where the respondent has cooperated with the Tribunal and the applicant to a significant degree – whether the respondent engaged in unsatisfactory professional conduct or professional misconduct – whether the name of the respondent should be removed from the local roll

Legal Profession Act 2007 (Qld), s 418, s 419, s 456

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Attorney-General of the State of Queensland v Legal Services Commissioner; Legal Services Commissioner v Shand [2018] QCA 66
Barristers’ Board v Darveniza [2000]…

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: [2021] QCAT 345
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) considered a case brought by the Legal Services Commissioner against Tracey Anne Smith, a solicitor admitted to practice in Queensland and New South Wales. The Commissioner sought orders recommending that Smith's name be removed from the local and New South Wales rolls, as well as costs. The Commissioner alleged Smith engaged in unsatisfactory professional conduct and professional misconduct, including dishonestly obtaining monies from clients, failing to respond to matters or take appropriate action, entering into void and unenforceable cost agreements with her own firm, and providing incorrect information about the Australian Solicitors Conduct Rules. Smith self-notified the Commissioner of her conduct and cooperated with the investigation. The primary legal issue was whether Smith engaged in unsatisfactory professional conduct or professional misconduct warranting her removal from the local and New South Wales rolls. The Tribunal concluded that Smith's conduct was dishonest, involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and undermined the public's trust in the legal profession. The Tribunal ordered Smith's name be removed from both rolls and that she pay the Commissioner's costs. This outcome was consistent with previous cases where solicitors engaged in similar misconduct.

Orders