Legal Services Commissioner v Wilson - [2013] QCAT 307

CITATION:

Legal Services Commissioner v Wilson [2013] QCAT 307

PARTIES:	Legal Services Commissioner (Applicant)
v
Alan Neil Wilson (Respondent)

APPLICATION NUMBER:

OCR154-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

25 March 2013; further written submissions received from the Applicant on 6 May 2013 and the Respondent on 22 May 2013

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

Assisted by:

Mr Ken Horsley
Practitioner Panel Member; and
Dr Susan Dann
Lay Panel Member

DELIVERED ON:

18 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That on each of the three charges contained in the discipline application filed 28 June 2010 Alan Neil Wilson is found guilty of professional misconduct.

2. That he be publicly reprimanded.

3. That he pay the Commissioner a fine of $5,000.00 within 180 days.

4. That he pay the Commissioner’s costs fixed at $2,500.00 within 60 days.

5. That, in the event he applies for a practising certificate he does so on the conditions that:

a. His practice as a solicitor will be limited or restricted to a part-time basis of not more than three days per week;

b. In the event he seeks a practising certificate with a lesser or no limitation or restriction, that he provide to the Queensland Law Society a report from his treating doctor advising of his capabilities; and

c. That he provide to the Queensland Law Society details of his ongoing medical treatment by way of six monthly reports from his treating doctor for a period of three years after receipt of a practising certificate.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS –PROFESSIONAL MISCONDUCT – PENALTY – where the respondent misappropriated funds from legal practice accounts – where the respondent submits the conduct was professional misconduct – where the respondent was suffering from a depressive condition at the time of the professional misconduct – where both the applicant and respondent agree that a public reprimand, the payment of the applicant’s costs and the payment of a pecuniary penalty are appropriate sanctions – where the applicant and respondent disagree about the amount of the pecuniary penalty – where the respondent has voluntarily withdrawn from legal practice – nature of appropriate penalty

Legal Profession Act 2007 (Qld), s 245

Attorney General v Bax [1999] 2 Qd R 9, cited
Queensland Law Society v Carberry [2000] QCA 450, cited
Legal Services Commissioner v Clair [2008] LPT 5, cited
Legal Services Commissioner v Lindley [2012] QCAT 673, distinguished
Legal Services Commissioner v Sorban [2009] LPT 5, distinguished

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms P Prasad Solicitor on behalf of the Legal Services Commissioner

RESPONDENT:

Mr B T Cohen Solicitor for Mr Wilson

REASONS FOR DECISION

Mr Wilson is 67. He was first admitted as a solicitor in December 1969.
In 2006 and 2007 he was a partner in a legal firm with another practitioner. On three occasions in those two years he produced fraudulent receipts for the purpose of misappropriating funds from the firm’s…

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: [2013] QCAT 307
Decision Date

CaseChat Overview and Summary

The case of Legal Services Commissioner v Wilson involved the Legal Services Commissioner as the applicant and Alan Neil Wilson as the respondent. The dispute centred on three charges of professional misconduct against Wilson, a former solicitor, arising from incidents where he misappropriated funds from his legal practice accounts. The case was heard at the Queensland Civil and Administrative Tribunal (QCAT) by Justice Alan Wilson, assisted by two panel members. The decision was delivered on 18 June 2013. The primary legal issues the court had to address were whether Wilson's actions constituted professional misconduct and, if so, what appropriate penalties should be imposed. The court also had to consider the mitigating circumstances surrounding Wilson's actions, particularly his mental health at the time of the misconduct.

The court determined that Wilson's actions did indeed constitute professional misconduct, as he had misappropriated funds from his legal practice accounts on three separate occasions, totaling $3,354.50. The court accepted the submissions from both parties that a public reprimand, the payment of costs, and a pecuniary penalty were appropriate sanctions. The court also accepted that Wilson's depressive condition, which had been diagnosed by his treating psychiatrist, significantly impacted his judgment and contributed to his misconduct. However, the court found that despite these mitigating circumstances, a penalty was necessary to reflect both general and personal deterrence principles. After considering the mitigating factors and the precedents provided by the Commissioner, the court decided on a fine of $5,000.00, to be paid within 180 days, and ordered that Wilson be publicly reprimanded. The court also imposed conditions on Wilson's potential return to legal practice, including a restriction to part-time work and ongoing psychiatric supervision.

The court's decision also included an order for Wilson to pay the Commissioner's costs of $2,500.00 within 60 days. The court granted an extension for Wilson to pay the fine, allowing him 180 days to do so, in consideration of his financial circumstances. The full orders of the Tribunal were that Wilson be publicly reprimanded, fined $5,000.00, and pay the Commissioner's costs of $2,500.00. Furthermore, any future application for a practising certificate by Wilson would be subject to conditions, including limited part-time practice, submission of a medical report, and ongoing medical treatment reports.

Orders