| 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 Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 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 |
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…
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- Case
- [2016] QCAT 102
- Decision Date
CaseChat Overview and Summary
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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