| CITATION: | Legal Services Commissioner v XBT [2018] QCAT 64 |
| PARTIES: | LEGAL SERVICES COMMISSIONER (Applicant/Appellant) | |
| v | ||
| XBT | ||
| APPLICATION NUMBER: | OCR032-14, OCR083-15 | |
| MATTER TYPE: | Occupational Regulation Matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Carmody Assisted by: Ms Megan Mahon, Legal Panel Member Dr Margaret Steinberg AM, Lay Panel Member |
| DELIVERED ON: | 7 March 2018 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | THE TRIBUNAL ORDERS THAT: 1. The practitioner is publicly reprimanded. 2. The practitioner is ordered to pay a fine of $750.00. 3. The practitioner is ordered to pay the commissioner’s assessed costs under the Queensland Civil and Administrative Tribunal rules by equal monthly instalments over a period of 3 years. 4. The application for non-publication is refused. | ||
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – FALSIFICATION OF DOCUMENTS AND TRANSACTIONS – where the practitioner admits to falsely witnessing a transfer document – whether mitigating circumstances exist – where the conduct is professional misconduct and the appropriate sanction is pecuniary – where the practitioner is ordered to pay the commissioner’s costs PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – THREATENING LETTERS – where the practitioner admits sending an email making remarks about a third party unbecoming of a solicitor and likely to bring the profession into disrepute – whether mitigating circumstances exist – where the conduct is unsatisfactory professional conduct and the appropriate sanction in all of the circumstances is a public reprimand PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the practitioner failed to comply with statutory notices requiring a response to disciplinary investigations – where the conduct is deemed professional misconduct – where the practitioner admits the conduct in question – whether mitigating circumstances exist PROFESSIONS AND TRADES – LAWYERS – OTHER MATTERS – where a non-publication order is unilaterally requested late – where the practitioner’s health and safety is a relevant concern – whether ordering a non-publication order defeats the purpose of a public reprimand and other statutory objects – where the commissioner is to be given the opportunity to be heard on the point Legal Profession Act 2007 (Qld) ss 418, 419, 443(3), 462(1), 472(1), 472(4), 476(1), 477, 656D Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 7(2), 90(1), 90(2)(b)(e), 125(1), 66(1) Attorney-General v Clough [2002] 1 Qd R 116 Legal Services Commissioner v Atkins Legal Services Commissioner v Bone | ||
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- Case
- [2018] QCAT 64
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the tribunal were the characterization of the admitted conduct as professional misconduct or unsatisfactory professional conduct and the determination of appropriate sanctions. The tribunal found the conduct to be both professional misconduct and unsatisfactory professional conduct. Regarding sanctions, the tribunal considered the respondent's candour and cooperation, the impact of the misconduct, and the need to uphold public confidence in the legal profession.
In its reasoning, the tribunal noted that the respondent's candour and cooperation were limited. The tribunal emphasised that there is a professional obligation for practitioners to respond properly to regulatory enquiries. The tribunal also considered the impact of the misconduct on the profession and public confidence, as well as the respondent's health and safety concerns. The tribunal concluded that a public reprimand and a pecuniary fine of $750 were appropriate sanctions, along with an order for the respondent to pay the commissioner's costs. The tribunal refused the respondent's application for a non-publication order, finding that it would defeat the purpose of the public reprimand and other statutory objects.
The tribunal ordered that the respondent be publicly reprimanded, pay a fine of $750, and pay the commissioner's costs by equal monthly instalments over a period of 3 years. The application for a non-publication order was refused.
Orders
Orders of the court
THE TRIBUNAL ORDERS THAT:
1. The practitioner is publicly reprimanded.
2. The practitioner is ordered to pay a fine of $750.00.
3. The practitioner is ordered to pay the commissioner’s assessed costs under the Queensland Civil and Administrative Tribunal rules by equal monthly instalments over a period of 3 years.
4. The application for non-publication is refused.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In Legal Services Commissioner v Cooper[15] the use of bad language in professional correspondence was found to be unsatisfactory conduct but not serious enough to call for the imposition of a sanction.[15][2011] QCAT 209.Candour and cooperation There is a professional obligation on practitioners to properly respond to any enquiry of their regulatory body. Failing to reply within prescribed time limits can have more severe disciplinary consequences than the suspected misconduct under investigation[16] because it demonstrates that the practitioner had a disregard for the investigative process and her professional obligations[17] and is deemed professional misconduct unless she had a reasonable excuse.[16] Council of Queensland Law Society Inc v Whitman [2003] QCA 438 [36].[17]Legal Services Commissioner v Browne [2004] NSWADT 63.Findings We are satisfied on the material that charge 2 of OCR032-14 amounts to unsatisfactory professional conduct and charges 1 and 3 of OCR032-14 and charge 2 of OCR083-15 are of professional misconduct.The costs issue The commissioner applies for a costs order in an unstated amount without any suggested basis of calculation. Losses already suffered by a practitioner, while technically irrelevant, commonly influence a disciplinary response and tend to incline the tribunal against a monetary penalty such as a fine especially where there is no escaping a costs order and no need for special deterrence.[18] Sometimes, the costs liability is therefore considered ahead of sanction issues. That approach is taken here.[18]Attorney-General v Clough [2002] 1 Qd R 116 [94]. An order requiring a person found guilty of a disciplinary offence to pay the stated or assessed costs of proceedings is the norm in tribunal proceedings.[19] The tribunal’s discretion not to do so[20] is limited to exceptional circumstances and matters arising in the conduct of the proceedings[21] but is not confined to only those implying fault on the part of regulatory authorities.[22][19]LPA s 462(1).[20]Legal Services Commissioner v Reeve (No 2) [2016] QCAT 486. [21]Legal Services Commissioner v Scott (No 2) [2009] LPT 009.[22]Legal Services Commissioner v Jackson [2017] QCAT 207. Withdrawal or dismissal of some charges is not exceptional per se.[23][23]Legal Services Commissioner v Baker(No 2) [2006] QCA 145 [56]-[57] where though succeeding on a few charges the practitioner was convicted on seven and removed from the roll. In R v Kelly[24] Lord Bingham of Cornhill CJ in a different context said:We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.[24][2000] QB 198, 208. The same test is applied here. In Legal Services Commissioner v Atkins[25] of 6 charges (3 of deceit) one was withdrawn and the others failed. The practitioner’s central argument in support of an indemnity costs application was that the commissioner’ case was hopeless on the known facts and was, therefore, proceeded with in bad faith or incompetency. Excessive delay in abandoning the unprovable case and between the filing and hearing dates was also relied on. These circumstances were ‘sufficiently exceptional’ to entitle the practitioner to an order for costs against the commissioner.[25][2009] LPT 010 [84].