Legal Services Commissioner v Warren - [2017] QCAT 158

CITATION:	Legal Services Commissioner v Warren [2017] QCAT 158
PARTIES:	Legal Services Commissioner (Applicant)
v
Alexia Margaret Warren (Respondent)
APPLICATION NUMBER:	OCR047-13
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	24 February 2015
HEARD AT:	Brisbane
DECISION OF:	Justice David Thomas, President Assisted by: Ms Julie Cameron (Legal panel member) ~~Dr Susan Dann (Lay panel member)~~ Dr Margaret Steinberg AM[1]
DELIVERED ON:	26 May 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The Respondent’s name be removed from the local roll of practitioners. The Tribunal directs that: 2. The Legal Services Commissioner must file in the Tribunal four (4) copies and give to Alexia Margaret Warren one (1) copy of any submissions in relation to costs, by: 4:00pm on 7 June 2017. 3. Alexia Margaret Warren must file in the Tribunal four (4) copies and give to the Legal Services Commissioner one (1) copy of any submissions in relation to costs, by: 4:00pm on 19 June 2017. 4. Unless either party makes a request for an oral hearing by 19 June 2017, the appropriate order with respect to costs will be determined by the Tribunal on the papers after 19 June 2017. The Tribunal further directs that: 5. The complainants must file in the Tribunal four (4) copies and give to Alexia Margaret Warren one (1) copy of any further submissions in relation to the Notice of Intention to Make a Compensation Order, by: 4:00pm on 9 June 2017. 6. Alexia Margaret Warren must file in the Tribunal four (4) copies and give to the complainants one (1) copy of any submissions in relation to the Notice of Intention to Seek Compensation order, by: 4:00pm on 19 June 2017. 7. Unless either party requests an oral hearing by 19 June 2017, the Notice of Intention to Seek Compensation Order will be heard and determined on the papers after 19 June 2017.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – NEGELCT AND DELAY – where respondent acted for clients in relation to a sale of property and purchase of another – where respondent failed to communicate settlement statements, relevant documentation or a statement of account to her clients for a period of three years – where respondent has failed to release trust money held in trust account to clients – whether delay unsatisfactory professional conduct or professional misconduct PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where Legal Services Commissioner issued notice under s 443 LPA – where respondent failed to respond to that notice – where respondent failed to respond to inquiries of the Legal Services Commissioner generally in course of the matter – where respondent led untruthful evidence at hearing of the matter – whether professional misconduct – whether striking off an appropriate sanction Legal Profession Act 2007 (Qld) ss 418, 419, 429, 443 Adamson v Queensland Law Society [1990] 1 Qd R 489 Attorney-General v Bax [1999] 1…

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 158
Decision Date: 26 May 2017

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Warren, the Legal Services Commissioner sought disciplinary action against the respondent, a legal practitioner, alleging professional misconduct and unsatisfactory professional conduct in relation to her handling of a property sale and purchase transaction. The Legal Services Commissioner claimed that the respondent neglected and delayed in communicating settlement statements, relevant documentation, and a statement of account to her clients for a period of three years, and failed to release trust money held in her trust account to her clients. The Legal Services Commissioner also alleged that the respondent failed to respond to notices and inquiries, and provided untruthful evidence during the hearing.

The Tribunal was required to determine whether the respondent’s conduct amounted to professional misconduct or unsatisfactory professional conduct, and if so, what the appropriate sanction would be. The Tribunal found that the respondent’s conduct did amount to professional misconduct and unsatisfactory professional conduct, and that the appropriate sanction was to strike off the respondent’s name from the local roll of practitioners. The Tribunal also directed the Legal Services Commissioner and the complainants to file and exchange submissions in relation to costs and a compensation order by specified dates.

The Tribunal’s decision was based on the respondent’s failure to communicate with her clients, release trust money, and provide truthful evidence during the hearing. The Tribunal found that the respondent’s conduct demonstrated a lack of honesty, reliability, and trustworthiness, and that her failure to respond to notices and inquiries demonstrated a disregard for the legal profession’s obligations. The Tribunal also noted that the respondent had a history of disciplinary matters, which further supported the conclusion that striking off was the appropriate sanction. The orders of the Tribunal included the removal of the respondent’s name from the local roll of practitioners, and directions for the filing and exchange of submissions in relation to costs and a compensation order.

Orders

Orders of the court

1. The Respondent’s name be removed from the local roll of practitioners.

The Tribunal directs that:

2. The Legal Services Commissioner must file in the Tribunal four (4) copies and give to Alexia Margaret Warren one (1) copy of any submissions in relation to costs, by:

4:00pm on 7 June 2017.

3. Alexia Margaret Warren must file in the Tribunal four (4) copies and give to the Legal Services Commissioner one (1) copy of any submissions in relation to costs, by:

4:00pm on 19 June 2017.

4. Unless either party makes a request for an oral hearing by 19 June 2017, the appropriate order with respect to costs will be determined by the Tribunal on the papers after 19 June 2017.

The Tribunal further directs that:

5. The complainants must file in the Tribunal four (4) copies and give to Alexia Margaret Warren one (1) copy of any further submissions in relation to the Notice of Intention to Make a Compensation Order, by:

4:00pm on 9 June 2017.

6. Alexia Margaret Warren must file in the Tribunal four (4) copies and give to the complainants one (1) copy of any submissions in relation to the Notice of Intention to Seek Compensation order, by:

4:00pm on 19 June 2017.

7. Unless either party requests an oral hearing by 19 June 2017, the Notice of Intention to Seek Compensation Order will be heard and determined on the papers after 19 June 2017.

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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