Legal Services Commissioner v Stower - [2015] QCAT 64

CITATION:

Legal Services Commissioner v Stower [2015] QCAT 64

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
Mark Shelton Stower (Respondent)

APPLICATION NUMBER:

OCR320-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

Assisted by:
Mr Ken Horsley
Practitioner Panel Member
Dr Margaret Steinberg AM
Lay Panel Member

DELIVERED ON:

25 February 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the practitioner be publicly reprimanded.

2. That a pecuniary penalty of $2,000.00 be imposed.

3. In the event that the respondent applies for a practising certificate under the Legal Profession Act 2007 such a practising certificate be restricted to an employee level for a period of 2 years.

4. That the respondent pay the costs of the Commissioner, fixed at $1,500.00.

5. The respondent be allowed the period of 12 months to pay the pecuniary penalty and the legal costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT – where respondent charged with failure to reach or keep a reasonable standard of competence and diligence

Legal Profession Act 2007 (Qld), s 268 s 418, s 419, s 420, s 443
Queensland Civil and Administrative Tribunal 2009 (Qld), s 32

Legal Services Commissioner v Smith [2011] QCAT 126

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION
The charges

The Legal Services Commissioner alleges that the respondent is guilty of professional misconduct and/or unsatisfactory professional conduct. The respondent, whose record has, until now, been unblemished, was admitted as a solicitor of the Supreme Court of Queensland, in 1981. Since that time, he has practised predominantly in the area of family law in Brisbane, Sunshine Coast, and in Cairns.
Four charges have been brought by the Legal Services Commissioner. Each of them relates to the respondent’s failure to comply with his obligations to a client, and the Commissioner. They are:
1. Breach of professional obligations
Between October 2010 and 12 June 2012 the respondent failed to provide the file of his client Cynthia Henderson to a costs assessor and to his client. The respondent also failed to advise his client of the whereabouts of her file.
2. Breach of s 443(3) of the Legal Profession Act 2007 (Qld) (“the Act”).
The respondent failed to comply with a written notice issued on 24 January 2012 by the Legal Services Commissioner pursuant to s 443(3) of the Act.
3. Failure to lodge external examiners report
The respondent contravened s 268(1) of the Act for the financial periods ending 31 March 2010 and 31 March 2011.
4.Breach of s 443(3) of the Act.
The respondent failed to comply with a written notice issued on 24 January 2012 by the Legal Services Commissioner pursuant to s 443(3) of the Act.

Background

The parties have filed an agreed statement of facts.
The…

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 64
Decision Date: 25 February 2015

CaseChat Overview and Summary

The Legal Services Commissioner brought an action against Stower, a legal practitioner, alleging unsatisfactory professional conduct and professional misconduct. The dispute was heard by the Legal Services Tribunal, which was tasked with assessing whether the allegations were substantiated and determining the appropriate disciplinary measures. The primary legal issues before the Tribunal were whether the respondent's conduct met the threshold of unsatisfactory professional conduct and professional misconduct as defined under the Legal Profession Act 2004, and if so, what the appropriate disciplinary action should be.

In reaching its decision, the Tribunal considered the evidence presented regarding the respondent's professional performance. The Tribunal concluded that the respondent's conduct did indeed fall below the reasonable standard of competence and diligence expected of a legal practitioner. The Tribunal found that the respondent's failure to adequately prepare for hearings, provide timely advice to clients, and maintain proper records constituted unsatisfactory professional conduct and professional misconduct. The Tribunal emphasised the importance of maintaining high professional standards to protect the integrity of the legal profession and to ensure the fair treatment of clients.

Consequently, the Tribunal ordered that the respondent be publicly reprimanded, subject to a pecuniary penalty of $2,000.00. Additionally, if the respondent were to apply for a practising certificate, it would be restricted to an employee level for a period of two years. The respondent was also required to pay the Commissioner's costs, fixed at $1,500.00, within twelve months. These orders were designed to both penalise the respondent and to act as a deterrent to others in the legal profession.

Orders

Orders of the court

1. That the practitioner be publicly reprimanded.

2. That a pecuniary penalty of $2,000.00 be imposed.

3. In the event that the respondent applies for a practising certificate under the Legal Profession Act 2007 such a practising certificate be restricted to an employee level for a period of 2 years.

4. That the respondent pay the costs of the Commissioner, fixed at $1,500.00.

5. The respondent be allowed the period of 12 months to pay the pecuniary penalty and the legal costs.

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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