THOMPSON and LEGAL PROFESSION COMPLAINTS COMMITTEE - [2011] WASAT 17

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: THOMPSON and LEGAL PROFESSION COMPLAINTS COMMITTEE [2011] WASAT 17

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
JUDGE T SHARP (DEPUTY PRESIDENT)
MS S GILLETT (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 2 FEBRUARY 2011

FILE NO/S: VR 185 of 2010

BETWEEN: DAVID THOMPSON
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
ROSS HARRISON
Second Respondent

Catchwords:

Professional discipline - Legal practitioners - Whether any reasonable prospect that practitioner might be found guilty of unsatisfactory conduct - Allegation of settling claim without instructions - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA), s 435

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent          :     Ms P Le Miere
Second Respondent      :     Self-represented

Solicitors:

Applicant:     Self-represented
First Respondent          :     Law Complaints Officer
Second Respondent      :     Self-represented

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Thompson sought a review of a decision of the Legal Profession Complaints Committee to dismiss a complaint against a legal practitioner, Mr Ross Harrison. Mr Thompson had complained that the practitioner accepted an offer to settle a workers compensation claim without instructions and that the practitioner pressured him into completing the settlement documents. The Complaints Committee concluded that there was no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct, and accordingly had dismissed the complaint.
The Tribunal reviewed the history of dealings between Mr Harrison and Mr Thompson as recorded in their correspondence. Having done so, the Tribunal concluded that the decision of the Complaints Committee should be affirmed, and Mr Thompson's application for review of the Committee's decision should be dismissed.

The issue

The applicant, Mr David Thompson, seeks a review, pursuant to s 435 of the Legal Profession Act 2008 (WA), of a decision by the Legal Profession Complaints Committee (Complaints Committee) to dismiss his complaints against a legal practitioner, Mr Ross Harrison.
The issue for determination in these proceedings is whether there is a reasonable likelihood that Mr Harrison would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct in relation to two allegations made by Mr Thompson. Mr Harrison had acted for Mr Thompson in relation to a workers compensation claim which was settled in May 2009, although the final documentation of the settlement was not completed until late July or early August 2009.
Mr Thompson's complaint was summarised by the Complaints Committee in a letter to him of 19 January 2010 as being a complaint that:
a) you did not instruct the practitioner to accept the settlement offer of $50,000.00 inclusive of costs made by the insurer by letter on 30 April 2009;
b)you felt threatened and pressured to do so following the practitioner's correspondence of 21 July 2009 in which the practitioner states: 'If you do not wish to proceed with the settlement we would not be in a position to continue to act for you, as in our opinion there would be a breakdown in the solicitor / client relationship such that it would be inappropriate for us to continue to act on your behalf.'
The Tribunal was provided with a book of documents which contained all of the relevant correspondence relating to the settlement of Mr Thompson's claim. Those documents reveal the following sequence of events.

The facts

In February 2009, Mr Harrison obtained a report from a medical specialist concerning the extent of Mr Thompson's disability attributable to an injury sustained at work in January 2006. On 25 February 2009, Mr Harrison wrote to Mr Thompson providing advice in light of that report. He suggested a settlement offer of $75,000 plus a contribution to costs and disbursements, but expressed the view that that offer was unlikely to be accepted and the insurer was likely to seek reductions on any settlement sum.
An offer in those terms was put to the insurer by letter dated 16 March 2009. The letter explained the various components of the offer in appropriate detail.
On 20 April 2009, the insurer wrote to the solicitors rejecting the offer, and making a counter offer of $40,000 made up of five components. One of those components was a contribution to costs and disbursements, including the specialist report, of $3,265.61.
On 24 April 2009, Mr Harrison wrote to Mr Thompson setting out a proposed counter offer of $57,600, utilising the same five components at figures adjusted to give the total of the proposed settlement. The proposed contribution for costs and disbursements was suggested at $3,500.
A file note made by Mr Harrison and dated 28 April 2009 records a telephone discussion with Mr Thompson which includes the notation 'ok to send our reply'. The following day, Mr Harrison wrote to the insurer proposing the settlement for $57,600 made up in the way suggested to Mr Thompson in the letter of 24 April 2009.
The insurer responded by facsimile dated 30 April 2009 rejecting the counter proposal, and making a fresh offer of a settlement for $50,000 made up of the same five components including a contribution to costs and disbursements of $3,500. It does not appear to be in dispute that Mr Harrison forwarded a copy of that facsimile to Mr Thompson the same day.
Mr Harrison's file copy of the facsimile of 30 April 2009 contains a handwritten annotation which records a telephone discussion with the client and reads 'will accept offer'. It is apparent that, on 5 May 2009, Mr Harrison rang the claims officer handling the matter for the insurer and accepted the settlement offer. That conversation was confirmed by the insurer by letter of 5 May 2009.
The various documents necessary to complete the settlement were then completed by the insurer and provided to the solicitors. On 12 May 2009, Mr Harrison wrote to Mr Thompson enclosing the various documents for signature. The letter advised:
Please note that acceptance of the sum offered by the Defendant and the signing of these papers will permanently finalise your claim for compensation and damages.
If you are satisfied and wish to proceed to settle the claim, please sign each document where marked with an 'x' and have an independent person over the age of 18 witness your signature on the documents and return them in its entirety to [the solicitors].
It is apparent that, on 26 May 2009, Mr Thompson attended Mr Harrison's office and expressed reservations about completing the settlement. Mr Thompson wrote to Mr Harrison the following day in terms which are not easy to understand, but which concluded with the following:
Who is paying $3,500 cost of disbursements [?]
$50,000 - $3,500 = $46,500
Mr Harrison responded to that letter by letter dated 3 June 2009. His letter recited the history of negotiations and the discussion which they had had at Mr Harrison's office on 26 May 2009. The letter concluded:
You indicated that you would not sign the document[s] on that occasion but would take the documents away. Should you not wish to proceed with the offer of settlement we will advise the insurer that you have decided not to sign the documents. The effect of this will be that you are likely to remain on compensation and receive medical expenses but should you wish to settle your claim in the future [the insurer] is unlikely to offer you any more than previously offered and may only be prepared to reduce their offer by the amounts you have received in the meantime by way of weekly payments of compensation. Alternatively, [the insurer] may attempt to insist that a binding agreement has been reached.
In any event we would appreciate your early instructions as to whether it is your intention to sign and return the documents or whether we should advise [the insurer] that you do not wish to proceed towards settlement of your claim.
On 11 June 2009, Mr Harrison again wrote to Mr Thompson, apparently in response to a letter from Mr Thompson dated 6 June 2009 (a copy of which was not included in the papers submitted to the Tribunal). The letter enclosed a further copy of the facsimile from the insurer dated 30 April 2009 and explained 'Accordingly, the offer was $46,500 plus $3,500 contribution to costs and disbursements. We sent you a copy of that offer on 30 April 2009 and you subsequently telephoned us to accept it.'
On 26 June 2009, Mr Thompson wrote to Mr Harrison. His letter included the following:
I refer to a letter from you dated 3/6/09. Yes I indicating [sic] I would accept an offer made by [the insurer] for $50,000. This was by phone, on the 30/4/09. This was not in writing.
I refer to the Memorandum of Agreement between the Shire of Sandstone and David Thompson. In this agreement is nothing about the 3,500 to costs and disbursement.
Mr Harrison replied on 3 July 2009. He explained that the Memorandum of Agreement contained a figure of $46,500 because the additional $3,500 was to be paid separately. Mr Harrison sought the return of the documents as a matter of urgency, because otherwise the insurer might conclude that Mr Thompson did not wish to finalise the claim and may not be prepared to reinstate the offer previously made. That observation was made in the context that, pending approval of registration of the settlement agreement, Mr Thompson was continuing to receive weekly payments of compensation.
Mr Thompson wrote again on 13 July 2009 to Mr Harrison enquiring about to whom the costs and disbursements would be paid and about certain other matters. On 21 July 2009, Mr Harrison responded in detail to those enquiries and explained in some detail the arrangements in relation to the payment of the costs and disbursements. After doing so the letter said:
If you do not wish to proceed with the settlement we will bill you for the sum of $3,408.85. If you do not wish to proceed with the settlement we would not be in a position to continue to act for you, as in our opinion there would be a breakdown in the solicitor/client relationship such that it would be inappropriate for us to continue to act on your behalf.
The letter then advised that, taking into account that a period of in excess of two months had elapsed and Mr Thompson had continued to be in receipt of payments for weekly compensation, the insurer may conclude that it was not his intention to finalise the claim. It continued:
As previously indicated, if you do not wish to sign the documents and accept the offer, that is a matter for your decision.
Following that correspondence, Mr Thompson signed the settlement documents and settlement proceeded. Proceeds of settlement were paid in accordance with the terms of settlement, so that Mr Thompson received $46,500 (after reimbursement to him of an advance payment to Medicare), and Mr Harrison's firm received $3,500 in payment of its costs and disbursements.

Likelihood of finding of unsatisfactory conduct

The first allegation against Mr Harrison is that he settled Mr Thompson's claim without instructions. The history of events outlined above suggest that there is no reasonable prospect that that allegation might be made out. The terms of the offer contained in the insurer's facsimile of 30 April 2009 were quite clear. The facsimile was provided to Mr Thompson in order to obtain his instructions. Mr Thompson does not suggest that he instructed Mr Harrison to make any counter offer after receipt of the offer of 30 April 2009. The most that could be said is that Mr Thompson might have somehow misunderstood the terms of the offer. Even if there were a misunderstanding, however, it is clear that the position was explained at some length in several letters, and probably at the meeting on 26 May 2009, before Mr Thompson signed the documents. The option of not signing the proposed agreement was explained by Mr Harrison in his correspondence with Mr Thompson. It is clear that the completion of the settlement occurred at a time when the offer that had been made, and the fact that the sum of $50,000 was inclusive of $3,500 for Mr Harrison's firm's costs and disbursements, had been clearly explained to Mr Thompson by Mr Harrison.
In our view there is no reasonable prospect that the Tribunal would find Mr Harrison guilty of unsatisfactory professional conduct or professional misconduct for settling the claim without instructions.
The second aspect of Mr Thompson's allegations is that he was threatened or pressured to settle by the practitioner's correspondence of 21 July 2009. We agree with the Complaints Committee that there is no reasonable prospect that the practitioner would be found guilty of that allegation. The alternatives open to the client were explained to Mr Thompson in Mr Harrison's letter of 21 July 2009. In particular, Mr Thompson was advised that were he to decline to sign the settlement papers, he could continue to receive weekly payments of compensation. Mr Harrison appropriately advised that that course of action may mean that the insurer might not be prepared to offer as much in final settlement of the claim in the facsimile of 30 April 2009. Mr Thompson was told that it was his decision whether or not to settle. The advice that Mr Harrison would not be in a position to continue to act for Mr Thompson given the breakdown of their relationship was appropriate advice in the circumstances as they had developed to that point.

Conclusion

For those reasons, we are of the view that the decision of the Complaints Committee to dismiss the complaints by Mr Thompson was the correct and preferable decision, and should be affirmed. The application for review of that decision should be dismissed.

Orders

1.The application is dismissed.

I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT