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Watts v Legal Services Commissioner

Watts v Legal Services Commissioner

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SUPREME COURT OF QUEENSLAND

CITATION:

Watts v Legal Services Commissioner [2016] QCA 224

PARTIES:

PETER JOHN WATTS
(appellant)
v
LEGAL SERVICES COMMISSIONER
(respondent)

FILE NO/S:

Appeal No 1294 of 2016
QCAT No 77 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2016] QCAT 4

DELIVERED ON:

6 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2016

JUDGES:

Margaret McMurdo P and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed.

2.   Set aside Order 1 made by the Tribunal on 8 January 2016.

3.   Order in substitution therefor:

“1.      (a)     The respondent, Peter John Watts, is publicly reprimanded for his professional misconduct the subject of the application to the Tribunal;

(b)     In the event that the respondent applies for a practising certificate, his application be accompanied by a contemporaneous report of a psychiatrist or a psychologist which expresses an opinion as to the risk of the respondent’s engaging in conduct of the kind for which he is publicly reprimanded; and

(c)     In the further event that such an application is granted, any practising certificate be issued subject to a condition that the respondent practise under the supervision of another certified legal practitioner and that he not have responsibility for operating a trust account.”

4.   Otherwise, confirm the orders of the Tribunal made on that date.

5.   The respondent to this appeal is to pay the appellant’s costs of the appeal on the standard basis.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the appellant admitted to six charges of disbursing trust money without authority – where the appellant admitted the conduct amounted to professional misconduct – where the Tribunal concluded that the appellant was not a fit and proper person to remain in legal practice, removing his name from the roll of practitioners – where the appellant appeals the order made on the basis that: (1) the Tribunal did not consider the treating clinical psychologist’s opinion as to his risk of re-offending; and (2) the Tribunal did not properly apply the test to determine whether the appellant’s name should be struck from the roll of practitioners – where the treating clinical psychologist’s opinion was that the risk of re-offending was very low – where an order removing a practitioner’s name from the roll of practitioners should only be made when the probability is that the practitioner is permanently unfit to practice – whether the Tribunal did not have regard to a material consideration – whether, if so, in the re-exercise of the discretion under s 456 of the Legal Profession Act 2007 (Qld), a different order should be imposed against the appellant in substitution of the removal order

Legal Profession Act 2007 (Qld), s 456

Burgess v McGarvie (Legal Services Commissioner) [2013] VSCA 142, considered
House v The King

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] QCA 224
Decision Date: 6 September 2016

CaseChat Overview and Summary

In the matter of Watts v Legal Services Commissioner, the appellant, Peter John Watts, a legal practitioner, was subject to disciplinary proceedings following admissions of professional misconduct involving the unauthorised disbursement of trust money. The Legal Services Tribunal concluded that Watts was unfit to remain in legal practice and ordered his removal from the roll of practitioners. The appellant appealed this decision, arguing that the Tribunal failed to consider the opinion of his treating clinical psychologist and misapplied the test for determining whether his name should be struck from the roll of practitioners. The tribunal had not taken into account the psychologist's opinion that the risk of Watts re-offending was very low, and had not correctly applied the test which requires a practitioner to be permanently unfit to practice before an order for removal can be made.

The court examined whether the Tribunal's failure to consider the psychologist's opinion and misapplication of the legal test constituted a material consideration that warranted the appeal. It was found that the Tribunal did not have regard to a relevant consideration, and as such, the Tribunal's order was flawed. The court held that the order removing Watts from the roll of practitioners was not appropriate and that a different order should be imposed in its place. The court set aside the order of removal and imposed a new order, which included a public reprimand, conditions for any future practising certificate applications, and a requirement for Watts to practise under supervision and without trust account responsibilities if his practising certificate application was granted.

The court also considered the costs of the appeal, determining that Watts was to pay the appellant's costs on the standard basis. The court's decision highlights the importance of considering all relevant factors in disciplinary proceedings, including expert opinions on the risk of re-offending, and the correct application of legal tests in determining the appropriate disciplinary action against a legal practitioner.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside Order 1 made by the Tribunal on 8 January 2016.

3. Order in substitution therefor:

“1. (a) The respondent, Peter John Watts, is publicly reprimanded for his professional misconduct the subject of the application to the Tribunal;

(b) In the event that the respondent applies for a practising certificate, his application be accompanied by a contemporaneous report of a psychiatrist or a psychologist which expresses an opinion as to the risk of the respondent’s engaging in conduct of the kind for which he is publicly reprimanded; and

(c) In the further event that such an application is granted, any practising certificate be issued subject to a condition that the respondent practise under the supervision of another certified legal practitioner and that he not have responsibility for operating a trust account.”

4. Otherwise, confirm the orders of the Tribunal made on that date.

5. The respondent to this appeal is to pay the appellant’s costs of the appeal on the standard basis.

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

Full text does not contain this section.

CITATION:	Watts v Legal Services Commissioner [2016] QCA 224
PARTIES:	PETER JOHN WATTS (appellant) v LEGAL SERVICES COMMISSIONER (respondent)
FILE NO/S:	Appeal No 1294 of 2016 QCAT No 77 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane – [2016] QCAT 4
DELIVERED ON:	6 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2016
JUDGES:	Margaret McMurdo P and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed. 2. Set aside Order 1 made by the Tribunal on 8 January 2016. 3. Order in substitution therefor: “1. (a) The respondent, Peter John Watts, is publicly reprimanded for his professional misconduct the subject of the application to the Tribunal; (b) In the event that the respondent applies for a practising certificate, his application be accompanied by a contemporaneous report of a psychiatrist or a psychologist which expresses an opinion as to the risk of the respondent’s engaging in conduct of the kind for which he is publicly reprimanded; and (c) In the further event that such an application is granted, any practising certificate be issued subject to a condition that the respondent practise under the supervision of another certified legal practitioner and that he not have responsibility for operating a trust account.” 4. Otherwise, confirm the orders of the Tribunal made on that date. 5. The respondent to this appeal is to pay the appellant’s costs of the appeal on the standard basis.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the appellant admitted to six charges of disbursing trust money without authority – where the appellant admitted the conduct amounted to professional misconduct – where the Tribunal concluded that the appellant was not a fit and proper person to remain in legal practice, removing his name from the roll of practitioners – where the appellant appeals the order made on the basis that: (1) the Tribunal did not consider the treating clinical psychologist’s opinion as to his risk of re-offending; and (2) the Tribunal did not properly apply the test to determine whether the appellant’s name should be struck from the roll of practitioners – where the treating clinical psychologist’s opinion was that the risk of re-offending was very low – where an order removing a practitioner’s name from the roll of practitioners should only be made when the probability is that the practitioner is permanently unfit to practice – whether the Tribunal did not have regard to a material consideration – whether, if so, in the re-exercise of the discretion under s 456 of the Legal Profession Act 2007 (Qld), a different order should be imposed against the appellant in substitution of the removal order Legal Profession Act 2007 (Qld), s 456 Burgess v McGarvie (Legal Services Commissioner) [2013] VSCA 142, considered House v The King