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  • Unreported Judgment

Legal Services Commissioner v Astley

 

[2019] QCAT 274

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Astley [2019] QCAT 274

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant)

v

KYLIE MAREE ASTLEY

(respondent)

APPLICATION NO/S:

OCR137-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

23 September 2019

HEARING DATE:

17 April 2018

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:

Ms Megan Mahon

Ms Patrice McKay

ORDERS:

  1. There is a finding that the Respondent engaged in unsatisfactory professional conduct.
  2. The Respondent shall pay a penalty of $750.
  3. There shall be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent worked as a legal officer for the Legal Services Commissioner – where the respondent failed to properly comprehend evidence which defeated a charge in a prosecution brought against a legal practitioner by the Legal Services Commissioner – where the respondent is charged with a failure to act with competence and diligence in the prosecution of that charge on behalf of the Legal Services Commissioner – whether the respondent has committed unsatisfactory professional conduct under s 418 of the Legal Profession Act 2007 – whether to order that the respondent be publicly reprimanded – whether to order that the respondent pay a penalty

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent is found to have engaged in unsatisfactory professional conduct – where the applicant has applied for a costs order – whether exceptional circumstances exist for the purposes of s 462(1) of Legal Profession Act 2008 (Qld)

Legal Profession Act 2007 (Qld), s 12, s 452, s 418, s 456, s 462

Legal Services Commissioner v Anderson [2009] LPT 1 Legal Services Commissioner v Bone [2013] QCAT 550

Legal Services Commissioner v Bentley [2016] QCAT 185

Legal Services Commissioner v Bone [2014] QCA 179

Legal Services Commissioner v Brown [2018] QCAT 263

Legal Services Commissioner v Krebs [2009] LPT 11 Legal Services Commissioner v Laylee & Anor [2016] QCAT 237

Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149

Legal Services Commissioner v McLelland [2006] LPT 13

Legal Services Commissioner v Meehan [2019] QCAT 17 Legal Services Commissioner v Rouyanian [2013] QCAT 57

APPEARANCES &

REPRESENTATION:

Applicant:

G R Rice QC of counsel, instructed by Legal Services Commissioner

Respondent:

G N Cranny, solicitor of Gilshenan & Luton

REASONS FOR DECISION

  1. [1]
    The applicant Legal Services Commissioner (‘LSC’) has brought a discipline application against the Respondent, Kylie Maree Astley, under s 452 of the Legal Profession Act 2007 (‘LPA’). The LSC has proceeded with one charge of unsatisfactory professional conduct:
  1. Between 17 January 2014 and 8 September 2015, the respondent failed to act with competence and diligence in the conduct of Charge 1 of a Discipline Application on behalf of the Legal Services Commissioner.
  1. [2]
    The Respondent has admitted the conduct as particularised in the discipline application, which is briefly summarised as follows.

The conduct

  1. [3]
    At all material times, the Respondent was a government legal officer[1] employed by the LSC. She was assigned to conduct an investigation under s 437 of the LPA into a solicitor, Mr Russell Leneham, and ultimately to prosecute a discipline application against him.
  2. [4]
    In November 2012, the Respondent received a copy of the complainant’s client file, which contained the following documents: 
  1. (a)
    a letter from Mr Leneham to the complainant dated 18 September 2008 enclosing in duplicate for her signature copies of a ‘Costs Disclosure and a Costs Agreement… to act on a speculative/deferred fee basis’;
  2. (b)
    a copy of a ‘Conditional Costs Agreement (Estate Litigation)’ between the complainant and Quinn & Scattini signed by the complainant on 29 September 2008 (‘the 2008 costs agreement’);
  3. (c)
    a copy of a ‘Costs Disclosure (Conditional Costs – Estate Litigation)’ document also signed by the complainant on 29 September 2008 (‘the 2008 costs disclosure’).
  1. [5]
    Despite the existence of these documents, when the Respondent briefed counsel to review her draft charges for a discipline application she did not include the 2008 costs agreement or the 2008 costs disclosure in the brief.
  2. [6]
    On the basis of the material briefed, counsel drafted a charge against Mr Leneham which substantially became Charge 1 of the discipline application filed in the Tribunal in January 2014. That charge alleged a failure to make costs disclosure in accordance with s 308 of the LPA.
  3. [7]
    The Respondent then included the 2008 costs agreement and the 2008 costs disclosure in an exhibit to an affidavit she filed in the Tribunal. That discipline application proceeded to hearing in September 2015 without any amendment to the charge. This was despite Mr Leneham having drawn to the Respondent’s attention on four occasions that there had been timely costs disclosure and that the LSC held evidence of that. 
  4. [8]
    During the course of the hearing, the Respondent was called to give evidence. She admitted under cross-examination that she had not properly comprehended the 2008 costs agreement or the 2008 costs disclosure. The charge was then withdrawn on instructions from the LSC.
  5. [9]
    Counsel who appeared for Mr Leneham at the hearing made a complaint to the LSC about the Respondent and the barrister she instructed. The Queensland Law Society (‘QLS’) then undertook an investigation into her conduct and produced a report to the LSC (the ‘investigation report’).
  6. [10]
    The complainant applied for access to that report under the Right to Information Act 2009. Although the LSC’s delegate determined not to release any of the information in the investigation report, the report in its entirety was inadvertently released to the complainant. Soon after, an article came to be published in The Australian newspaper which named the Respondent and referred to certain findings in the report, including that the conduct was ‘incompetence occasioned by ignorance’.

The Respondent

  1. [11]
    The Respondent was born in 1982 and at the time of the conduct was in her early 30s. She was admitted as a legal practitioner in January 2008. She has no previous adverse findings by a disciplinary body. She has filed an affidavit in these proceedings in which she details her professional experience and the circumstances surrounding the conduct in question.
  2. [12]
    Prior to commencing work for the LSC in 2011, she had some experience in property law, conveyancing and leasing and also in criminal defence and commercial leasing. She was employed by the LSC as an investigator, the lowest level of legally qualified employee, and her role was to assess incoming complaints to determine whether they contained an allegation about breach of the LPA. If so, she would write to the legal practitioner concerned seeking a response to the allegation, and then assess the material with a view to recommending appropriate action to the LSC.
  3. [13]
    Upon review of the complaint regarding Mr Leneham and his response, the Respondent recommended he be prosecuted for unsatisfactory professional conduct regarding costs and costs disclosure. The LSC decided to prosecute Mr Leneham and the Respondent was assigned to prosecute the matter with the assistance of counsel. This was the first file that the Respondent prosecuted for the LSC and the first significant litigation in her career. She states that, in her experience, an investigator was not usually assigned to prosecute a complaint they had investigated.
  4. [14]
    In her affidavit, the Respondent frankly details the difficulty she had with the Leneham matter. She states that she incorrectly believed the 2008 costs agreement to be a copy of a later 2010 agreement. She admits that she did not know how to handle Mr Leneham’s robust defence and notes that senior colleagues also considered him to be one of the most difficult litigators the LSC dealt with during her employment
  5. [15]
    To her credit, the Respondent does not seek to minimise, excuse or justify her conduct. She candidly recounts and admits her failings in prosecuting the matter. She explains that she became hardened to Mr Leneham’s submissions, as she considered a number of them to be without merit, and as a result did not properly consider them all, including those asserting that timely costs disclosure had been made in 2008. The Respondent says that she regrets this and acknowledges that she should have maintained a more open mind in respect of all Mr Leneham’s submissions.
  6. [16]
    Her affidavit then details the effect this prosecution has had on her. She was involuntarily transferred from the LSC and went from one temporary assignment within the Department of Justice and Attorney-General and Legal Aid to another. At the time of the hearing, she had not been successful in securing a position at the same level she was hired at in 2011 and attributed this, at least in part, to having to disclose the existence of this disciplinary matter to interviewers.
  7. [17]
    She states that as a result of this experience she has no intention of returning to the LSC or a position involving prosecutions. She describes the personal stress, anxiety and isolation from former colleagues that she has experienced.
  8. [18]
    The Respondent also recounts her extreme distress upon learning of the release of the unredacted investigation report and her complete humiliation on the subsequent publication of the article in The Australian. This caused her to feel a great deal of personal shame.

Characterisation of conduct

  1. [19]
    The parties are agreed that the Respondent’s conduct should be characterised as unsatisfactory professional conduct as defined under s 418 of the LPA. Nevertheless, this remains a matter for determination by the Tribunal.
  2. [20]
    Section 418 of the LPA provides:

418  Meaning of unsatisfactory professional conduct

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law 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.

  1. [21]
    It is well settled that not every professional failing constitutes unsatisfactory professional conduct. As Wilson J said in Legal Services Commissioner v Bone:[2]

Both ss 418 and 420 of the LPA contain flexible tests, such that not every error which a practitioner may make will constitute unsatisfactory professional conduct. Decided cases suggest, rather, that a finding of that kind will usually involve repeated errors or a significant departure from accepted standards of competence.[3]

  1. [22]
    In Legal Services Commissioner v Laylee & Anor,[4] Thomas J said:

The test required to determine whether conduct is unsatisfactory professional conduct is such that the relevant “falling short” does not embrace all cases of error but must be sufficiently substantial. There must be an appreciable departure from the standard for the conduct to be unsatisfactory professional conduct. An isolated instance, not involving unethical conduct, and more in the nature of conduct which might give rise to an assertion of negligence, is less likely to amount to unsatisfactory professional conduct. Serious, or repeated instances, are more likely to amount to unsatisfactory professional conduct or professional misconduct.

  1. [23]
    The Respondent failed continuously over a period of some 12 months to properly comprehend the evidence in the prosecution against Mr Leneham. This was despite Mr Leneham having drawn the existence of the documents which defeated the charge to her attention on four occasions during that time, annexing copies of the costs disclosure documents to his affidavit and making page references to where they appeared in the Respondent’s affidavit.
  2. [24]
    There is nothing before the Tribunal to indicate that this mistake by an inexperienced practitioner was dishonest or the fruit of a malicious motive. To her credit, the Respondent frankly admitted that she had failed to properly comprehend the evidence. It is clear that she only came to realise her error when she was cross-examined on this point in the Leneham hearing.
  3. [25]
    As discussed later, it is also clear that the Respondent should have been better supervised. That would likely have led to an earlier identification of the error and significantly lessened its impact in this matter.
  4. [26]
    Nevertheless, the Respondent’s failure was serious and continuing. In the Tribunal’s view, it amounts to an appreciable departure from the standard of competence and diligence which a member of the public is entitled to expect of a reasonably competent legal practitioner. The public is entitled to expect that a legal practitioner will properly read and appreciate the material relevant to their case and take steps promptly to deal with any errors brought to their attention. The failure to do so over 12 months, despite being alerted four times during that period, is a sufficiently substantial departure as to warrant characterisation as unsatisfactory professional misconduct.
  5. [27]
    This characterisation is supported by the comparable cases relied upon by the parties, though none is directly analogous to the present circumstances.
  6. [28]
    In Legal Services Commissioner v Rouyanian,[5] a solicitor took instructions in an area of law with which he was not familiar. He failed to consider a legislative provision which made his advice incorrect and defeated the proceedings he had instituted. He took steps to correct the advice immediately upon realising his error, though it must be noted that this was upon the first advice from opposing solicitors of the oversight. In the present case, the Respondent was advised of her error on four occasions.
  7. [29]
    In Legal Services Commissioner v McClelland,[6] a solicitor failed in 16 property transactions to provide a required certificate to the buyer based on a misreading of the relevant legislation. On that charge he was held to have engaged in unsatisfactory professional conduct.
  8. [30]
    While the conduct in each of those cases was occasioned by a failure to properly appreciate legislation, rather than evidence as in the present case, the Tribunal accepts the Respondent’s submission that these two cases are broadly analogous in that they involved a failure caused by ignorance of the existence of something.
  9. [31]
    In the related cases of Legal Services Commissioner v Anderson[7] and Legal Services Commissioner v Krebs,[8] a barrister and a solicitor respectively were found to have engaged in unsatisfactory professional conduct where their errors led to the wrongful conviction of their client. The solicitor’s conduct relevantly included a failure to brief counsel adequately, while the barrister’s impugned conduct included failure to reconsider the appropriateness of the instructing solicitor’s preferred defence strategy and to advise the client as to tactical considerations and the possibility of seeking an adjournment. It was the barrister’s first criminal defence matter and on a late brief.
  10. [32]
    Wilson J accepted that there was no malice or dishonesty in the barrister’s conduct and that that his inexperience was his downfall. His Honour relevantly noted:[9]

… the test of unsatisfactory professional conduct is an objective one, and inexperience cannot bear on the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. On the other hand, that inexperience may be taken into account in determining what sanction is appropriate in all the circumstances. [excluding citations]

  1. [33]
    Accordingly, the Respondent’s conduct should be characterised as unsatisfactory professional conduct. There will be a finding to that effect.

Appropriate orders

  1. [34]
    Having determined that the Respondent engaged in unsatisfactory professional conduct, the Tribunal’s discretion to make orders under s 456 is enlivened. It is a wide discretion which is exercised not to punish the practitioner, but for the protection of the public and the maintenance of proper professional standards.[10]
  2. [35]
    The parties have both submitted that the Tribunal should impose a pecuniary penalty of between $500 and $1,000 on the Respondent.[11] They disagree, however, as to whether a public reprimand ought also be ordered.
  3. [36]
    The LSC has conceded that personal deterrence is not an issue in this case. Being confronted with her errors in cross-examination during an open hearing would have been a harrowing experience for an inexperienced junior practitioner. The Tribunal accepts that the Respondent would be unlikely to commit a similar error and notes that she has expressly stated that she has no intention of returning to a position involving prosecutions.
  4. [37]
    As to general deterrence, the LSC submits that orders for a public reprimand and a penalty are appropriate, and relies on the following comments of Thomas J in Legal Services Commissioner v Bentley:[12]

[48] Another aspect of protection of the public is the maintenance of standards within the legal profession. If conduct is identified as being unsatisfactory professional conduct or professional misconduct, one of the aims of any sanction is to dissuade other practitioners from such conduct – essentially to warn practitioners that such conduct is not acceptable.

[49] That aim is best achieved by a public reprimand.

[50] In relation to general deterrence, the imposition of a fine serves to reinforce this objective.

  1. [38]
    The Tribunal agrees that it is appropriate to order that the Respondent pay a penalty and that this will serve general deterrence. In determining the amount of that penalty, this Tribunal has had regard both to the agreed range submitted by the parties and to the schedule of cases annexed to the LSC’s written submissions.[13]
  2. [39]
    In the cases of Anderson and Krebs, discussed above, the barrister and solicitor were each publicly reprimanded and required to pay a penalty of $2,500. In those cases, their client was convicted of manslaughter and served time in custody as a result of their incompetent handling of the trial. Those ramifications are clearly more serious than the present case where the charge was ultimately withdrawn albeit at a very late stage. It must, however, be noted that the present Respondent was advised of the error on four occasions prior to the hearing and Mr Leneham was required to defend the charge for a period of some 12 months.
  3. [40]
    In oral submissions, counsel for the LSC also drew the Tribunal’s attention to Legal Services Commissioner v Boundy.[14] That was a case of unacceptable delay by a sole practitioner in the administration of an estate in which the respondent frankly acknowledged his failing, made an open apology and cooperated with the authorities. The Tribunal accepted that work pressures and a range of long-term illnesses had contributed to the conduct. The Tribunal ordered a public reprimand and a $1,000 penalty. A public reprimand and a penalty of $1,000 was also ordered by the Court of Appeal in Legal Services Commissioner v Sheehy.[15] The practitioner, who acted for the wife in a matrimonial property settlement, completed a contract for sale, and received the balance of purchase monies into her trust account, in circumstances where she knew or ought to have known that the husband had terminated the contract for sale and did not consent to its completion.
  4. [41]
    In each of these cases, the practitioner was more experienced than the present Respondent. The amount of the penalty in this case should be moderated in recognition of that fact, consistent with the remarks of Wilson J referred to above. The following mitigating circumstances also warrant further moderation of the penalty.
  5. [42]
    The Respondent has frankly acknowledged her shortcomings and has done so since first realising her mistake during the course of cross-examination. The evidence of the Respondent explains to some extent her failure to comprehend the relevant evidence even in the face of multiple reminders from Mr Leneham as to its existence and effect. Those reminders were in the context of a vigorous defence of the charge and formed part of lengthy submissions containing various matters for the Respondent to attend to. Her admission that she had become hardened towards his submissions due to the nature of the litigation and her acknowledgement that she was wrong to react this way demonstrate insight into her conduct. It is not difficult to see how a junior and inexperienced practitioner could fall into error in this way. It is also in the Respondent’s favour that she frankly admitted to her supervisor her difficulties in understanding the submissions made by Mr Leneham at the time, even though further assistance from her superior was not forthcoming.
  6. [43]
    The Respondent cooperated fully with the present investigation.
  7. [44]
    In light of all of the circumstances of the case, and having regard to the above authorities, the Tribunal considers that a penalty in the amount of $750 is appropriate.
  8. [45]
    The Tribunal is not, however, inclined to order a public reprimand. Having regard to the fact that the QLS investigation report was released and the publicity that followed, the Tribunal considers that the warning function of a public reprimand has already been achieved. These circumstances are also sufficient to distinguish the present case from what the LSC describes as the preponderance of the cases before the Tribunal in which a public reprimand has been ordered.
  9. [46]
    Whilst it might not ordinarily be appropriate for the Tribunal to have regard to any actual or potential publicity in fashioning its orders, the circumstances of this case are far from ordinary. This was not publicity that arose simply as a result of the filing of the discipline application, but rather as a consequence of the error by the LSC’s delegate in releasing the investigation report. The Tribunal did not have the benefit of a copy of the investigation report in order to determine the extent to which the article is attributable to it rather than the discipline application, but it is clear enough on the face of the article that the report was relied on.
  10. [47]
    The Respondent has deposed to the public humiliation and ‘great deal of personal shame’ that she experienced upon publication of that article. It will have been seen by other practitioners who will be cognisant of the very serious consequences, both personal and professional, that befall practitioners who engage in unsatisfactory professional misconduct, and that this extends to government legal officers – even those employed by the LSC.
  11. [48]
    Legal Services Commissioner v Jackson,[16] which was relied on by the Respondent, provides support for the imposition of a fine in the absence of a public reprimand. In that case, the practitioner was found to have engaged in unsatisfactory professional conduct for charging excessive legal fees but also to have suffered collateral oppression by reason of the delay and conduct of the prosecution. In determining that a public reprimand was not warranted, Thomas J stated:[17]

[89]  The present case is not one which calls for the inclusion of a reprimand along with a monetary penalty. Opinions vary as to the occasions when it is desirable to add a reprimand to other orders in proceedings of this kind. In the present matter, I think that the finding and public recording of unsatisfactory professional conduct by the respondent along with the imposition of a fine will import a sufficient level of disgrace, and that the inclusion of a reprimand would result in an imbalance with the result in Scroope.

[90]  The delay and oppression suffered by the respondent through the conduct of these proceedings is also a factor that calls for moderation in the response of the Tribunal.

  1. [49]
    In oral submissions, counsel for the LSC argued that Jackson was an exception to the preponderance of cases. He sought to distinguish it for the criticism of the delay and conduct of the matter and because the decision in Scroope[18] had been used as a yardstick in reaching the decision that no reprimand was required. While I accept these differences, I do not consider them sufficient to deprive Jackson of any application to the present case. Its relevance lies principally in Thomas J’s recognition that it will not always be appropriate to include a reprimand alongside other orders. Here, rather than delay, oppression or any yardstick decision, I consider that the insufficient support offered to the Respondent in her conduct of the prosecution and the publicity following release of the investigation report are factors which call for moderation in the orders made by this Tribunal for the protection of the public.
  2. [50]
    The making of a public reprimand is a serious step and one that should not be taken lightly. The Tribunal has not been persuaded that this error by an inexperienced junior practitioner who was not adequately supervised warrants the imposition of a permanent public blemish on her professional record.[19]
  3. [51]
    In these circumstances, a public reprimand would be punitive. That is not the purpose for which the power under s 456 is exercised. The Tribunal is satisfied that the public finding of unsatisfactory professional conduct along with the imposition of a penalty is sufficient to mark the Tribunal’s disapproval of this conduct and fulfil the protective function of this jurisdiction.

Costs

  1. [52]
    Having found that the Respondent engaged in unsatisfactory professional conduct, the Tribunal must make an order requiring her to pay the LSC’s costs, unless satisfied that exceptional circumstances exist.[20]
  2. [53]
    ‘Exceptional circumstances’ are not defined under the LPA but the term was considered by the Court of Appeal in LSC v Bone.[21] There, Morrison JA, with whom Fraser and Gotterson JJA agreed, referred to Fryberg J’s consideration of the term in LSC v Scott (No 2).[22]  In determining that exceptional circumstances existed where eight charges were brought against the respondent, but only four were pressed in a very late change, His Honour adopted the following passage from Attorney-General (Qld) v Francis,[23] which considered the phrase ‘exceptional circumstances’ in a different context:[24]

The issue of what are exceptional circumstances in a particular case is one that depends on judicial determination. It is fruitless to attempt to define what exceptional circumstances might be but a practical working approach is to be found in the following passage from R v Kelly (Edward) [2000] QB 198 at 208, where Lord Bingham of Cornwall CJ had to construe the term in a statutory context. He said:

We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

  1. [54]
    It was submitted for the Respondent that exceptional circumstances exist in the present case. The Respondent relied on the release of the investigation report and that it was the LSC who had ultimate responsibility for the prosecution of the case against Mr Leneham and also to supervise and oversee the Respondent. Counsel for the LSC argued that those matters are not sufficient to displace the prima facie position under s 462. He pointed to the fact that the litigation was warranted and that it was conducted efficiently as powerful factors weighing in favour of an order for costs. 
  2. [55]
    Counsel for the LSC also argued that the mere fact of the breach having occurred in the course of the LSC’s work does not constitute exceptional circumstances. If that alone were sufficient, the consequence would be to create a small subset of lawyers who, whilst not exempt from disciplinary proceedings, are exempt from costs by virtue of their employment at the LSC. Of course, the Tribunal does not propose to make any such blanket costs exemption for employees of the LSC and any order as to costs here will be a reflection of the circumstances of this particular case alone.
  3. [56]
    I have already discussed the release of the investigation report and the Tribunal’s view that the newspaper article was written in reliance on it. Whilst this has some bearing on the consideration of ‘exceptional circumstances’, forming as it does a part of the broader context of this matter, the Tribunal considers that it is the issue of the alleged inadequacy of supervision which is most relevant to the determination of this question.
  4. [57]
    Turning then to that issue, the Respondent did not suggest that there was an absolute derogation of responsibility in terms of supervision but that any objective observer, looking at the matter now, could not fail to reach the conclusion that there needed to be more support and more assistance for the Respondent in the conduct of the litigation. The Tribunal is inclined to accept that submission.
  5. [58]
    The LSC has acknowledged that the prosecution against Mr Leneham was difficult and demanding. In those circumstances, it is, to say the least, curious that more support was not offered to such an inexperienced practitioner conducting her first prosecution. It is notable also that the Respondent was assigned to prosecute a complaint that she had also investigated. This, it seems, was not the usual practice within the LSC. The Respondent was assigned the prosecution with the assistance of counsel and that was intended to provide her with guidance and assistance. That arrangement, however, did not relieve the LSC of ultimate responsibility for the prosecution nor to provide adequate supervision to employed solicitors.
  6. [59]
    The LSC argued that reasonable supervision would not have uncovered the error in this matter, which at its base, was a failure to properly read the material. Counsel for the LSC submitted that standard supervision would not go so far as to have the superior read through the submissions with the junior lawyer and that even if that did happen, it would be unlikely to have uncovered the error unless the supervisor had actually done the Respondent’s work. Whilst it can be accepted that supervision does not extend to doing the work entrusted to the junior practitioner, this Tribunal cannot accept that it does not reasonably extend to reading through submissions with an inexperienced practitioner who has reported difficulty in understanding them.
  7. [60]
    It may well be that a supervisor would not descend to the question ‘Have you read the opponent’s material?’, but at the very least a supervisor would and should have asked ‘Are you sure?’ when told about the opponent’s repeated submissions that the LSC case was flawed. If the supervisor had read through the material with the Respondent and seen Mr Leneham’s repeated assertions that costs disclosure had been made and was proved by the LSC’s own evidence, a question as simple as that and an instruction to take a second look at the relevant evidence or to bring in the file for the supervisor to review would, or at least should, have led to an earlier identification of the Respondent’s failure. This is all the more so given that this was the Respondent’s very first prosecution and greater supervision than usual would have been appropriate. In the Tribunal’s view, there is good reason to believe that if appropriate support and assistance had been provided, this whole situation might have been avoided.
  8. [61]
    The Tribunal is satisfied that the circumstances just described are not regularly, routinely or normally encountered in discipline applications and that they constitute ‘exceptional circumstances’ under s 462(1). This conclusion is bolstered by reference to the release of the investigation report, occasioned by the error of the LSC’s delegate, which resulted in unnecessary publicity and humiliation to the Respondent.
  9. [62]
    There was no alternative submission for the LSC that an order for costs should be made notwithstanding the exceptional circumstances. Accordingly, there will be no order as to costs.

Conclusion and orders

  1. [63]
    For the reasons set out above, there will be the following orders:
    1. There is a finding that the Respondent engaged in unsatisfactory professional conduct.
    2. The Respondent shall pay a penalty of $750.
    3. There shall be no order as to costs.

Footnotes

[1]  See s 12(1)(a) of the LPA.

[2]  [2013] QCAT 550.

[3] Legal Services Commissioner v McLelland [2006] LPT 13; Legal Services Commissioner v Bradshaw [2008] LPT 9; Legal Services Commissioner v Bradshaw [2009] QCA 126; Legal Services Commissioner v Anderson [2009] LPT 001; Legal Services Commissioner v Krebs [2009] LPT 11; Legal Services Commissioner v Rouyanian [2013] QCAT 57; Scroope v Legal Services Commissioner [2013] NSWCA 178; and NSW Bar Association v Bland [2010] NSWADT 34.

[4]  [2016] QCAT 237.

[5]  [2013] QCAT 57.

[6]  [2006] LPT 13.

[7]  [2009] LPT 1.

[8]  [2009] LPT 11.

[9]  At [17].

[10] Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149 at [122]; and see Legal Services Commissioner v Meehan [2019] QCAT 17 at [31].

[11]  Pursuant to s 456(4)(a).

[12]  [2016] QCAT 185.

[13]  Annexure D, Applicant’s submissions.

[14]  [2018] QCAT 55.

[15]  [2018] QCA 151.

[16]  [2017] QCAT 449.

[17]  At [89]-[90].

[18] Scroope v Legal Services Commissioner [2013] NSWCA 178.

[19]Legal Services Commissioner v Brown [2018] QCAT 263 at [42].

[20]  LPA, s 462.

[21]  [2014] QCA 179.

[22]  [2009] LPT 9.

[23] Attorney-General (Qld) v Francis [2008] QCA 243.

[24]  At [92].

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Kylie Maree Astley

  • Shortened Case Name:

    Legal Services Commissioner v Astley

  • MNC:

    [2019] QCAT 274

  • Court:

    QCAT

  • Judge(s):

    Daubney P

  • Date:

    23 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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