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- Unreported Judgment
Legal Services Commissioner v Fyfe  QCAT 3
Legal Services Commissioner (Applicant/Appellant)
Fiona Jayne Fyfe (Respondent)
Occupational Regulation matters
On the papers
Justice DG Thomas, President
Mrs Joanne Collins, Legal panel member
Dr Margaret Steinberg AM, Lay panel member
7 January 2016
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – REMEDIES – COMPENSATION ORDER – where practitioner found guilty of professional misconduct for failing to prosecute criminal injuries compensation claim – whether practitioner’s conduct contributed to complainant’s pecuniary loss – assessment of claim amount
Criminal Offence Victims Act 1995 (Qld) Schedule 1
Legal Profession Act 2007 (Qld) ss 456, 464, 466, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
Bertucci v Rauhina & Ors  QDC 399
Legal Services Commissioner v Fyfe  QCAT 269
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 (QCAT Act).
REASONS FOR DECISION
- The claimant, Graham Cecil Cotterill filed a Notice of Intention to Seek Compensation Order on 2 April 2014.
- The compensation claim relates to alleged pecuniary loss suffered as a result of the failure of Ms Fiona Fyfe to prosecute a claim on behalf of Mr Cotterill for criminal injuries compensation. The Tribunal previously found that Ms Fyfe’s failure amounted to professional misconduct.
The statutory framework
- The claim for compensation is made by Mr Cotterill pursuant to s 464 of the Legal Profession Act 2007 (the Act).
- Section 464(d)(1) of the Act provides that a compensation order includes:
An order that a law practice pay to a claimant an amount by way of compensation for pecuniary loss suffered because of the conduct that has been found to be unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner involved in the relevant practice.
- A “law practice” includes an Australian legal practitioner who is a sole practitioner. At the relevant time, Ms Fyfe was an Australian legal practitioner who was a sole practitioner.
- Unless the parties agree otherwise, a compensation order for pecuniary loss must not be made unless the Tribunal is satisfied:
- that the complainant has suffered pecuniary loss because of the conduct concerned; and
- it is in the interests of justice that an order of that type be made.
- A compensation order for pecuniary loss of an amount of more than $7,500 cannot be made unless the complainant and the law practice both consent to the order.
- In this case, no consent has been provided.
- Charges were brought by the Legal Services Commissioner against Ms Fyfe with respect to the matter in which she acted for Mr Cotterill concerning the claim under the Criminal Offence Victims Act 1995.
- In the disciplinary matter the following findings were made:
- Ms Fyfe’s neglect caused Mr Cotterill to lose rights he would otherwise have been able to pursue under the provisions of the Criminal Offence Victims Act 1995.
- In all the circumstances, including the fact that Mr Cotterill was deprived of his rights, Ms Fyfe’s conduct amounted to a substantial failure to maintain standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, and so amounted to professional misconduct.
- In the circumstances, it is clear that the pecuniary loss suffered by Mr Cotterill was suffered because of the conduct which was found to be professional misconduct. It is therefore in the interests of justice that a compensation order be made in favour of Mr Cotterill.
- In an affidavit filed with the Notice of Intention to Seek Compensation Order, Mr Cotterill identified the following injuries:
- Tooth knocked out from the left-hand side of his jaw;
- Deep cuts to the inside of his mouth;
- Facial bruising;
- Major bruising to his back with x-rays being taken;
- Heavy chest pain;
- The need to visit a cardiologist responsible for inserting a pace maker as a result of a heart condition suffered due to the assault.
- The Criminal Offence Victims Act 1995 prescribes the maximum payable amount under the Scheme as being $75,000. Schedule 1 to the Criminal Offence Victims Act lists a series of injuries and attributes percentages of the maximum scheme amount payable with respect to each of those injuries.
- By reference to that table, the following items may have been relevant to Mr Cotterill:
1% - 3%
$750 - $2250
3% - 5%
$2250 - $3750
1% - 12%
$750 - $9000
2% - 7%
$1500 - $5250
5% - 10%
$2250 - $7500
2% - 10%
$1500 – $7500
10% - 20%
$7500 - $15000
20% - 34%
$15000 - $25500
- In the case of Bertucci v Rauhina & Ors, compensation was ordered as follows:
- Loss/damage to teeth (1 tooth) – awarded at 8% of the scheme maximum which was the figure of $6,000.
- Mental/nervous shock – an award was made of $11,250.
- Bearing in mind the injuries suffered by Mr Cotterill, I find that the claim for criminal compensation on behalf of Mr Cotterill would have been for a sum in excess of $7,500. In those circumstances, it is ordered that Ms Fyfe pay to Mr Cotterill compensation for pecuniary loss in the sum of $7,500.
- Published Case Name:
Legal Services Commissioner v Fiona Jayne Fyfe
- Shortened Case Name:
Legal Services Commissioner v Fyfe
 QCAT 3
07 Jan 2016