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- Unreported Judgment
Legal Services Commissioner v Graham  QCAT 31
Legal Services Commissioner
Michael Anthony Graham
Occupational Regulation matters
On the papers
Justice DG Thomas, President
Ms Megan Mahon, Legal panel member
Ms Julie Cork, Lay panel member
2 February 2016
4:00pm on 2 March 2016.
4:00pm on 16 March 2016.
PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT – where respondent was appointed to conduct a costs assessment –where respondent charged with failure to maintain reasonable standards of competence and diligence due to failure to file certificate of cost assessment – where respondent admits charges – where respondent has previously been the subject of professional discipline – whether the conduct constituted professional misconduct or unsatisfactory professional conduct – appropriate penalty
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 asserts that between 4 June 2009 and 1 June 2011, Mr Graham failed to maintain reasonable standards of competence and diligence in relation to his conduct of a costs assessment in the matter of Pioneer Construction Materials Pty Ltd v Scoch & Ors (District Court matter 3175/03).
- The parties have filed an agreed statement of facts.
- By order of the Deputy Registrar of the District Court dated 25 May 2009, Mr Graham was appointed to conduct a cost assessment of the plaintiff’s costs in the matter.
- By letter of 4 June 2009, Patane Lawyers notified Mr Graham of his appointment and provided him with material in order to conduct the costs assessment.
- Between 28 July 2009 and 29 June 2010, Patane Lawyers communicated with Mr Graham’s office by email, telephone or letter on at least 25 occasions inquiring as to the progress of the costs assessment and/or requesting that the assessment be completed as soon as possible.
- By letter of 19 July 2010, Mr Graham advised Patane Lawyers that he had completed his assessment and that upon payment of an enclosed tax invoice he would file the certificate and deliver the certificate to the solicitors.
- By letter of 20 July 2010, Patane Lawyers forwarded a cheque in full payment of the tax invoice.
- Between 29 September 2010 and 2 March 2011, Patane Lawyers communicated with Mr Graham’s office by email, letter or telephone on at least 7 occasions requesting that the costs assessor’s certificate be filed as soon as possible.
- As at 18 May 2011, Mr Graham had not filed the certificate in accordance with Rule 737 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). On 19 May 2011, Patane Lawyers filed an application returnable on 1 June 2011 seeking rescission of the order of 25 May 2009, or alternatively to have Mr Graham file his certificate within three days.
- On 30 May 2011, Mr Graham filed two certificates relevant to the costs assessment.
- In addition to the agreed facts, Mr Graham filed an affidavit sworn on 17 August 2015.
- In the affidavit, Mr Graham refers to a number of health issues and concerns and also to procedural changes he has made in his office as a result of the complaint.
- As to health concerns Mr Graham deposes to the following:
- In December 2010 he was hospitalised as a result of a major cellulitis infection in his left leg.
- From late February to early March 2011 he underwent surgery to remove skin cancers which meant that he was unable to perform regular duties for most of March and April and the beginning of May 2011.
- Mr Graham has suffered hypertension for a number of years.
- His health concerns and related hospitalisation caused him significant anxiety and worry particularly during the period at the end of 2010 and the beginning of 2011.
- In relation to the changes to procedures Mr Graham outlines various mechanisms he has put in place to ensure that all forms of communication are promptly brought to his attention, dealt with, and actioned. These include a management system that involves an independent diary and checklist framework that captures each stage of the assessment process which is updated to ensure that nothing is overlooked. Mr Graham also refers to the fact that since September 2011, he has limited the number of cost assessments and cost consulting work performed by him to ensure that work is done in a timely way.
The positions of each party
- The Commissioner asserts:-
- Mr Graham failed to conduct a costs assessment within a reasonable time of being appointed, to follow a fair and efficient procedure on the costs assessment and to file costs certificate within 14 days after the assessment.
- These failures constitute a failure to maintain reasonable standards of competence and diligence and include failure to comply with the requirements of the UCPR.
- As to the decision in the matter of Legal Services Commissioner v Graham, the parties have indicated that as the disciplinary proceedings occurred in the same time period as the present conduct, for reasons of parity, the other matter is not intended to be taken into account in determining the appropriate orders to be made.
- In this earlier disciplinary proceedings, the Tribunal found that the conduct amounted to unsatisfactory professional conduct. In that case, the conduct involved a failure to abide by an agreement with the solicitors who retained Mr Graham to provide the costs statement or refund the retainer.
- In the current situation, Mr Graham’s failure amounted to a substantial delay rather than a complete failure to provide the certificates, although that delay caused the plaintiff’s matter to be unnecessarily prolonged, thereby causing inconvenience and distress to the plaintiffs, and culminated in the plaintiffs having to bring further proceedings before the certificates were finally delivered by the respondent.
- The respondent’s conduct amounts to unsatisfactory professional conduct. The respondent accepts that he did not maintain reasonable standards of competence and diligence with respect to his conduct of the costs assessment.
- In the circumstances the appropriate orders are:
- A public reprimand.
- A penalty.
- The respondent should be ordered to pay the applicant’s costs to be assessed on the Supreme Court scale of costs.
- The respondent asserts:-
- The conduct is properly characterised as unsatisfactory professional conduct and the appropriate penalty is that he be publicly reprimanded.
- In the earlier disciplinary proceedings the Tribunal decided that the conduct should appropriately be categorised as falling within the ambit of s 418 of the Legal Profession Act 2007 (Qld) (‘the Act’) as unsatisfactory professional conduct.
- In these circumstances the conduct is similar and so also should appropriately be categorised as unsatisfactory professional conduct.
- Those are mitigating factors to do with the respondent’s ill health during the period where he spent significant time away from his office.
- The respondent has undertaken many changes to his practice and has limited the amount of Court appointed work he has undertaken.
- The respondent has acknowledged his conduct amounts to unsatisfactory professional conduct, has cooperated in the proceedings (for example by concluding the agreed statement of facts) and has altered his work practices to ensure that such conduct does not again occur.
- The object in imposing a penalty is not to punish the practitioner, however the concern relates to principles of general and personal deterrence, there being no need, to protect the public in the circumstances of this case. The Tribunal may consider these objectives have been met because there have been two separate proceedings, each relating to the same time period which is 4 or 5 years ago, both proceedings have been appealed to the Court of Appeal on novel legal questions where Mr Graham has incurred his own and paid the applicant’s costs, and Mr Graham has made changes to his work practices to avoid any recurrence of these unacceptable delays.
Disposition of this matter
- Section 418 of the Act provides that unsatisfactory professional conduct includes conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
- In circumstances where the delay was approaching 2 years, the practitioner failed to respond to repeated requests from the instructing solicitors, the delay was aggravated by the need for the client to make a court application, and the delay plainly caused the client inconvenience and distress and unnecessarily prolonged the underlying proceedings. Therefore, Mr Graham’s conduct falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and so amounts to unsatisfactory professional conduct.
- As it relates to one matter alone, the conduct does not amount to a consistent failure to keep a reasonable standard of competence and diligence and so does not amount to professional misconduct.
- The Tribunal notes that each of the parties to these proceedings have made submissions along these lines.
- As has been conceded by the practitioner, his periods of ill health do not excuse the conduct but do go some way to explaining why the conduct occurred, and the information provided relating to changes in practice for the future do illustrate the fact that Mr Graham has recognised that changes were necessary and has taken steps to avoid such conduct in the future. This is to the credit of the respondent.
- However, it is necessary to send a strong message to members of the profession that conduct as exhibited by Mr Graham is unacceptable and the order which is made must take account of that fact.
- In the circumstances, the Tribunal concludes that, with these objectives in mind, the respondent should be publicly reprimanded and that a fine should be imposed.
- As to the level of the fine, the Tribunal takes into account the orders made by the Tribunal in the previous disciplinary matter and imposes a fine of $1,500.00.
- The Legal Services Commissioner has sought an order that its costs, as assessed, be paid.
- The respondent accepts it is appropriate that he pay the applicant’s costs but submits that those costs should be fixed.
- Section 107 of the QCAT Act provides that if the Tribunal makes a costs order under the Act or an enabling Act, the Tribunal must fix the costs if possible.
- Of course, the Tribunal can only do this if sufficient information is provided to enable an adequate assessment to be made with respect to costs.
- The respondent submits that, consistent with the order made in Legal Services Commissioner v Stower the costs should be fixed in the sum of $1,500.00. The respondent also refers to the matter of Legal Services Commissioner v Bussa where, in analogous circumstances, it was ordered that Mr Bussa pay the Commissioner’s costs fixed in the sum of $1,500.00.
- The respondent refers to the fact that he has cooperated with the investigation by agreeing to a statement of facts, and has contributed to an expeditious resolution of the matter by agreeing to a hearing on the papers.
- As to the level of complexity it is noted that the applicant’s submissions cover 5 pages of which page 1 is an index and page 3 sets out the relevant extracts from the legislation.
- The applicant has not had an opportunity to respond to the submissions made by the respondent with respect to costs.
- It would be appropriate that the Tribunal have the benefit of any submissions which the applicant might wish to make in response to paragraphs 20 to 23 of the submissions dated 18 August 2015 and if possible on to the question of costs. Following that submission, the respondent may elect to file submissions in response.
- I propose to allow each party 21 days to make their submissions, however if further time is required, each party is invited to inquire with the Tribunal as to a more appropriate timeframe.
- Following receipt of submissions in relation to costs from each party the Tribunal will consider the matter of costs on the papers.
- Therefore, the Tribunal makes the following orders:
- That the respondent be publicly reprimanded.
- That a pecuniary penalty be imposed in the sum of $1,500.00.
- In relation to costs:
4:00pm on 2 March 2016.
- The respondent is to file its response as to costs by:
4:00pm on 16 March 2016.
- The matter of costs will be determined thereafter on the papers.
Rule 737 of the UCPR requires that the costs assessor certificate be filed within 14 days of the completion of the assessment.
Affidavit of Michael Anthony Graham sworn 17 August 2015, paragraph 2.
Ibid, paragraph 3.
Ibid, paragraph 4.
Ibid, paragraph 5.
Ibid, paragraph 6.
Ibid, paragraph 8.
Submissions on behalf of the applicant filed 6 July 2015, paragraph 15.
 QCAT 552, confirmed on appeal in Graham v Legal Services Commissioner (No.1)  QCA 305.
Statement of agreed facts filed 24 June 2015, paragraph 5.
Submissions on behalf of the applicant filed 8 July 2015, at paragraph 18.
Ibid at paragraph 19.
Submissions on behalf of the respondent filed 18 August 2015, at paragraph 1.
Ibid, paragraph 2.
Ibid, paragraph 14.
Submissions on behalf of the respondent, filed 18 August 2015 at paragraph 15.
Ibid, paragraph 18.
Submissions on behalf of the respondent, filed 18 August 2015 at paragraph 16.
Submissions on behalf of the respondent, filed 18 August 2015 at paragraph 21.
 QCAT 64.
 QCAT 388.
Submissions on behalf of the respondent, filed 18 August 2015 at paragraph 23.
- Published Case Name:
Legal Services Commissioner v Michael Anthony Graham
- Shortened Case Name:
Legal Services Commissioner v Graham
 QCAT 31
02 Feb 2016