Leneham v Legal Services Commissioner

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SUPREME COURT OF QUEENSLAND

CITATION:

Leneham v Legal Services Commissioner [2017] QCA 137

PARTIES:

RUSSELL JAMES LENEHAM
(appellant)
v
LEGAL SERVICES COMMISSIONER
(respondent)

FILE NO/S:

Appeal No 10189 of 2016
QCAT No 11 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Disciplinary Proceedings

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2016] QCAT 314

DELIVERED ON:

20 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2017

JUDGES:

Philippides and McMurdo JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is allowed.

2.   The order of the Tribunal dated 8 September 2016 upholding Charge 2 and finding the conduct of the appellant to be unsatisfactory professional conduct is set aside.

3.   Charge 2 is dismissed.

4.   The parties are to provide submissions as to costs within fourteen (14) days.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – APPEALS – where the respondent filed a Discipline Application alleging six charges under the Legal Profession Act 2007 (Qld) (the Act) – where Charge 2 alleged a failure by the appellant to disclose in writing as soon as practicable a substantial change in the range of fees to be charged for work performed, contrary to s 315 of the Act – whether s 315 of the Act could apply to the appellant – whether Charge 2 could be determined as if it were one brought under s 316 of the Act – whether a rehearing which would allow amendment of Charge 2 would result in injustice

Legal Profession Act 2007 (Qld), s 7, s 308, s 315, s 316, s 468, s 701

Legal Services Commissioner v Leneham [2016] QCAT 314, related

COUNSEL:

A J H Morris QC for the appellant
M D Nicolson for the respondent

SOLICITORS:

Quinn & Scattini for the appellant
Legal Services Commission for the respondent

PHILIPPIDES JA: Background

  1. On 17 January 2014, the respondent filed a Discipline Application against the appellant in the Queensland Civil and Administrative Tribunal (the Tribunal) under s 452 of the Legal Profession Act 2007 (Qld) (the Act), which alleged six charges against the appellant under the Act, that constituted professional misconduct or unsatisfactory professional conduct. The conduct arose out of the law practice, Quinn & Scattini, being retained by the complainant, Sherry Jewell (the complainant), with respect to a Supreme Court action under Pt 4 of the Succession Act 1981 (Qld). The conduct the subject of the charges comprised failure to make costs disclosures in contravention of s 308 of the Act (Charge 1), failure to provide an updated costs disclosure in contravention of s 315 of the Act (Charge 2), charging excessive costs (Charges 3 and 4), failure to reasonably supervise Michael Seymour (Charge 5) and failure to comply with a Court ordered cost assessment order[1] (Charge 6).

    [1]That order was obtained against Michael Quinn, practising as Quinn & Scattini: AB at 36, 38.

  2. All charges…

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Details
Case
[2017] QCA 137
Decision Date

CaseChat Overview and Summary

In the case of Leneham v Legal Services Commissioner, the appellant, a legal practitioner, appealed a decision of the Legal Services Tribunal of Queensland, which had found his conduct to be unsatisfactory professional conduct. The Tribunal's decision arose from a Discipline Application filed by the respondent, the Legal Services Commissioner, alleging six charges against the appellant under the Legal Profession Act 2007 (Qld). Of particular concern was Charge 2, which alleged a failure by the appellant to disclose in writing a substantial change in the range of fees to be charged for work performed, contrary to s 315 of the Act.

The primary legal issue before the court was whether s 315 of the Act applied to the appellant. The appellant argued that s 315 imposed an obligation only on the “law practice” and not on a principal or employee. He further contended that he had not breached s 315 as he had no obligation under that section. Additionally, the appellant argued that Charge 2 should be considered as one brought under s 316 of the Act, which concerns misleading or deceptive conduct. He claimed that, if Charge 2 were to be read as one brought under s 316, the charge against him should fail. The respondent, on the other hand, maintained that the appellant was a principal of the law practice and thus subject to the strict liability provisions of s 701 of the Act.

The court found that the appellant had knowledge of the substantial changes in fees before the days leading up to the mediation and had direct access to information and factors that led to those changes. The court concluded that the Tribunal’s consideration and determination of Charge 2 were flawed, as the Tribunal did not properly apply the relevant statutory provisions. The court allowed the appeal, set aside the Tribunal’s order upholding Charge 2, and dismissed Charge 2. The parties were directed to provide submissions on costs within fourteen days.

Orders

Orders of the court

1. The appeal is allowed.

2. The order of the Tribunal dated 8 September 2016 upholding Charge 2 and finding the conduct of the appellant to be unsatisfactory professional conduct is set aside.

3. Charge 2 is dismissed.

4. The parties are to provide submissions as to costs within fourteen (14) days.

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

The Tribunal found that:[19]“As a result of [the appellant’s] role in the law practice, and particularly the regular file reviews, he had knowledge of the progress of matters and of the extent of the work which was being undertaken on matters in which he was the team leader in the law practice. In the context of those regular reviews, he had direct access to, and was aware of, information and factors which led to the substantial changes from the disclosure made by the law practice to the complainant. This information was available before the days leading up to the mediation.”[19]Leneham at [29] (emphasis added).The Tribunal’s consideration and determination of Charge 2 The Tribunal referred to the appellant’s contention that Charge 2 was to be read as one of contravention of s 315 and that the charge against him should fail as the only obligation imposed by s 315 was on the “law practice” and not a principal or employee.[20] The appellant’s argument was that there had been no failure by him to comply with s 315.[21] The appellant contended that only if s 315 had included the words “legal practitioner” (rather than law practice) and included the words “or could (with the benefit of hindsight) have become aware” would he have breached s 315.[22] The appellant further argued that there had been no contravention of s 315 at all; consequently, s 316 had no application.[23][20]Leneham at [41], [44].[21]Leneham at [46].[22]Leneham at [47].[23]Leneham at [46]. The Tribunal noted that, at the hearing, the appellant adopted a somewhat different approach referring to s 701(1), which provides, subject to some exceptions, that if a law practice contravenes any provision of the Act, each principal of the practice is taken to have contravened the same provision. It was contended that by virtue of s 701, a law practice’s contravention of s 315 had the effect that the liability of each “principal” of the law practice for that breach was essentially one of strict liability.[24] However, it was contended that the appellant could not be regarded as a “principal” of a law practice, as s 701 of the Act applied only when the practitioner was “actually” a principal, that is a partner, as opposed to one held out as a partner. Thus, the description of the appellant as a salaried partner and his being held out as a partner did not result in his assuming the “strict liability” of a “principal” under s 701 as he was not a principal of the law practice.[25] The respondent on the other hand argued that a Partnership Agreement did not need to be in writing, the appellant was a holder of a Principal Level Practising Certificate at the relevant time[26] and, having been held out as a partner of the firm, was caught by s 7(4)(b) of the Act which provided that:“A principal, of a law practice, is an Australian legal practitioner who is—…(b)a partner in the law practice if the law practice is a law firm …”[24]Leneham at [49].[25]Leneham at [49]-[52].[26]Leneham at [53].