Legal Services Commissioner v Warren

[2018] QCAT 53

CITATION: Legal Services Commissioner v Warren
[2018] QCAT 53

PARTIES:	LEGAL SERVICES COMMISSIONER (Applicant/Appellant)
v ALEXIA MARGARET WARREN
(Respondent)
APPLICATION NUMBER:		OCR047-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Carmody
Assisted by:
Ms Julie Cameron (Legal panel member)
Dr Margaret Steinberg AM (Lay panel member)

DELIVERED ON: 15 February 2018

DELIVERED AT: Brisbane

ORDERS MADE:

THE TRIBUNAL ORDERS THAT:

1.     The practitioner pay the applicant’s costs fixed at the amount of $119,082.74.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the practitioner has been struck from the local roll of practitioners – where the commissioner applies for costs pursuant to s 462(5)(a) of the Legal Profession Act 2007 – where the tribunal must make an order fixing costs unless exceptional circumstances exist – where the practitioner has failed to comply with directions or point to any exceptional circumstances – where the tribunal orders the practitioner to pay the commissioner’s costs

Legal Profession Act 2007 (Qld) ss 443(3), 462(1), 462(5)(a)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107(1)

Legal Services Commissioner v Warren [2017] QCAT 158
R v Kelly [2000] 1 QB 198

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of
either party in accordance with s 32 of the Queensland Civil and Administrative

Tribunal Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

1. The parties were directed to file written submissions on the costs of disciplinary proceedings and compensation issues.

2. The registry advises that compensation has already been paid and the tribunal claim is no longer being pursued.

3. The commissioner filed costs submissions on 7 June 2017.

4. As the practitioner was non-compliant with directions to file hers substituted service by newspaper notice was allowed.  No material has been received by the registry from the practitioner since.

   The context

5. Disciplinary proceedings commenced in early 2013 and were contested over two days in 2015.  A professional misconduct finding was made and the practitioner’s name was removed from the roll on 26 May 2017.

6. The misconduct consisted of:

   ·failing to respond to a written notice issued by the commissioner under the Legal Profession Act 2007 (Qld);[1]

   ·failing to act competently and diligently in the performance of the conveyance of a client’s properties.

   [1]Pursuant to s 443(3). All references are to this Act unless otherwise stated.

7. The practitioner’s misconduct consisted of not forwarding key documents and failing to send a final statement of accounting despite numerous requests.[2] The tribunal rejected all of the practitioner’s claims about the sending and either receipt or non-receipt of a multitude of various communications (including letters, emails and phone calls) in relation to both charges as improbable.

   [2]Legal Services Commissioner v Warren [2017] QCAT 158 [130]-[131].

8. The commissioner applies for costs (assessed on a standard basis) of $119,082.74 under s 462(5)(a) of the Act.

9. The commissioner submits:

   ·the tribunal must order the practitioner to pay his costs unless satisfied of exceptional circumstances and must fix the order if possible;[3]  

   ·the words of s 462(1) allow little discretion when it comes to the liability of a disciplined practitioner for costs;

   ·the adjective “exceptional” means “out of the ordinary, or unusual, or special or uncommon”;[4]  

   ·he has a public duty to account for and recover public funds expended in the performance of his statutory functions;

   ·no exceptional circumstances are apparent and the practitioner does not point to any.

   [3]s 462(1); QCAT Act s 107(1).

   [4]R v Kelly [2000] 1 QB 198, 208.

10. The practitioner has the evidentiary onus of pointing to any suggested exceptional circumstances she knows about that are not apparent from the material.  None have been identified.  There is no indication that (a) the practitioner was forensically disadvantaged by the commissioner’s litigation conduct; (b) the dispute was of an unusual nature or complexity; (c) the financial circumstances of the practitioner are relevant; or (d) any other consideration with the effect of displacing or diminishing the presumption in favour of a costs order.

11. In the circumstances the tribunal cannot be satisfied of any exceptional circumstance or overriding interest of justice precluding the making of a costs order against the practitioner in the stated amount of $119,082.74. Order accordingly.