Legal Services Commissioner v XBY - [2016] QCAT 102

CITATION:

Legal Services Commissioner v XBY
[2016] QCAT 102

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
XBY (Respondent)

APPLICATION NUMBER:

OCR153-13

MATTER TYPE:

Occupational Regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President
Assisted by:
Megan Mahon, Practitioner Panel Member
Julie Cork, Lay Panel Member

DELIVERED ON:

14 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent’s name is to be removed from the local roll

2. The application for non-publication order is granted

3. The Respondent is to pay the Applicant’s costs fixed in the amount of $2,500.00 within 60 days of the date of this order

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – where Legal Services Commissioner brought application for disciplinary proceedings against respondent practitioner – where respondent misrepresented progress of claim to client – where respondent misled client – whether respondent is guilty of professional misconduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – APPLICATION FOR NON-PUBLICATION

ORDER – where Legal Services Commissioner brought application for disciplinary proceedings against respondent practitioner – where respondent applied for non-publication of his name – where grounds for non-publication concern respondent’s mental health – whether it is appropriate to grant non-publication order

Legal Profession Act 2007 (Qld) ss 417, 418, 419, 462(1), 472, 477, 656D
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 7(2), 32, 66

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498
Attorney General v Bax [1999] 2 Qd R 9
A Solicitor v Council for the Law Society of New South Wales (2004) 216 CLR 253
Legal Services Commissioner v Bosscher [2014] QCAT 232

Legal Services Commissioner v Madden (2008)

QCA 301

Legal Services Commissioner v Sing [2007] LPT 005

Queensland Law Society v Mead (1997) QCA 83

Queensland Law Society Incorporated v Whitman (2003) QCA 438
Re Weare (1893) 2 QB 439

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

The Legal Services Commissioner alleges that in relation to nine conduct issues, the conduct of XBY (‘the practitioner’) should be categorised as professional misconduct as that conduct is defined in s 419 of the Legal Profession Act 2009 (Qld) (‘the Act’).

Background

The Legal Services Commissioner refers to the following conduct issues:
Conduct issue 1
The practitioner failed to carry out instructions to progress the interest of his client concerning payment claims made pursuant to the Act.
Conduct issue 2
The practitioner failed to carry out instructions to progress a claim in the District Court of Queensland and misled his client as to the steps taken to progress that claim, when such steps had not been taken.
Conduct issue 3
The practitioner failed to carry out his client’s instructions to make an application to set aside a judgment by default, misled his clients as to steps taken to pursue…

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: [2016] QCAT 102
Decision Date: 14 June 2016

CaseChat Overview and Summary

The Legal Services Commissioner brought an application for disciplinary proceedings against a respondent practitioner, XBY, alleging that he had misled a client regarding the progress of a claim. The Tribunal was required to determine whether the respondent was guilty of professional misconduct and whether it was appropriate to grant an application for non-publication of the respondent's name. The respondent applied for non-publication on the basis of his mental health.

In assessing the application, the Tribunal considered the seriousness of the allegations, the respondent's mental health, and the potential impact of publication on the respondent. The Tribunal found that the respondent was guilty of professional misconduct as he had indeed misled the client about the progress of the claim. In granting the application for non-publication, the Tribunal determined that the respondent's mental health was a significant factor and that publication of his name would cause him undue distress. The Tribunal ordered the respondent's name be removed from the local roll and that the application for non-publication be granted. The respondent was also ordered to pay the Legal Services Commissioner's costs of $2,500 within 60 days of the date of the order.

Orders

Orders of the court

1. The Respondent’s name is to be removed from the local roll

2. The application for non-publication order is granted

3. The Respondent is to pay the Applicant’s costs fixed in the amount of $2,500.00 within 60 days of the date of this order

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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