Legal Services Commissioner v Thomson - [2011] QCAT 127

CITATION:

Legal Services Commissioner v Thomson [2011] QCAT 127

PARTIES:	Legal Services Commissioner (Applicant)
v
Robin John Thomson (Respondent)

APPLICATION NUMBER:

OCR197-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

28 February 2011

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Assisted by:
Ms Julie Cameron
(Practitioner Panel Member)
Ms Kathleen Keating
(Lay Panel Member)

DELIVERED ON:

30 March 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the respondent be publicly reprimanded.

2. That the respondent pay the applicant’s costs fixed at $1,000.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent was engaged in proceedings in the Federal Magistrates’ Court – where the respondent provided an answer to a question during a directions hearing that could have been construed as either careless or dishonest – whether the respondent’s actions constituted professional misconduct or unsatisfactory professional conduct

Legal Profession Act 2007, ss 418, 419, 456

Briginshaw v Briginshaw (1938) 60 CLR 336, applied
Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56, cited
LSC v Chadwick [2009] LPT 16, cited
LSC v Mullins [2006] LPT 12, cited
LSC v Sorban [2009] LPT 5, cited
LSC v Voll [2008] QCA 293, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Ms T Thomson of Counsel instructed by the Legal Services Commission
RESPONDENT:	Mr R P S Jackson of Counsel instructed by Brian Bartley & Associates

REASONS FOR DECISION

Mr Thomson, a solicitor admitted in 1969, has been charged by the Commissioner with a serious offence – that, at a hearing on 6 May 2005, he misled a Federal Magistrate and, thereby, committed an act of professional misconduct. Mr Thomson admits that he did mislead the Magistrate but, in effect, only through inadvertence and he denies that his conduct constituted professional misconduct.
Professional misconduct is one of what the Legal Profession Act 2007 calls its ‘key concepts’. It appears in s 419.
The other key concept is unsatisfactory professional conduct which is defined, in s 418, to mean conduct occurring in connection with the practice of law which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian lawyer.
Professional misconduct is defined to include unsatisfactory professional conduct if it involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; or, conduct that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
It will be seen that professional misconduct is the more serious charge. Mr Thomson is prepared to admit that he is guilty of unsatisfactory professional conduct, but not the more serious offence.
The question turns on whether or not Mr Thomson was deliberately dishonest in an exchange between him and the Federal Magistrate, or whether he was careless about the words he used.
The background of 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: [2011] QCAT 127
Decision Date: 30 March 2011

CaseChat Overview and Summary

The Legal Services Commissioner has brought proceedings against Thomson, a legal practitioner, in relation to alleged professional misconduct and unsatisfactory professional conduct. The proceedings took place in the Federal Court of Australia, where Thomson was engaged in proceedings before the Federal Magistrates’ Court. The issue at hand was whether Thomson’s response during a directions hearing amounted to professional misconduct or unsatisfactory professional conduct. Specifically, Thomson provided an answer to a question that could have been perceived as either careless or dishonest.

The court had to consider whether Thomson’s response during the hearing demonstrated a lack of care or honesty, and if such conduct warranted a disciplinary action. The Commissioner argued that Thomson’s answer was misleading and that this conduct reflected poorly on his professional integrity and competence. Thomson, on the other hand, maintained that his response was an honest mistake and that it did not warrant any disciplinary action.

After careful consideration of the evidence and submissions, the court found that Thomson’s response, while not amounting to the highest standards of professional conduct, did not rise to the level of professional misconduct. However, the court did find that Thomson’s conduct was unsatisfactory and reflected poorly on his professional integrity. Consequently, the court decided that a public reprimand was appropriate, along with an order for Thomson to pay the Commissioner’s costs, fixed at $1,000. This decision underscores the importance of maintaining high standards of professional conduct for legal practitioners.

Orders

Orders of the court

1. That the respondent be publicly reprimanded.

2. That the respondent pay the applicant’s costs fixed at $1,000.

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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