Legal Services Commission v Windsor
[2015] QCAT 259
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- Unreported Judgment
- Legal Services Commission v Windsor[2015] QCAT 259
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Legal Services Commission v Windsor[2015] QCAT 259
Legal Services Commission v Windsor[2015] QCAT 259
CITATION: | Legal Services Commission v Windsor [2015] QCAT 259 |
PARTIES: | Legal Services Commission (Applicant/Appellant) v Ian Frederick Holmes Windsor (Respondent) |
APPLICATION NUMBER: | OCR126-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice Thomas, President Assisted by: Mrs Joanne Collins Practitioner panel member Ms Julie Cork Lay panel member |
DELIVERED ON: | 1 July 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where practitioner acted for the vendor in a contract for sale of land – where sellers were joint owners – where one joint owner failed to agree to extension of settlement date – where practitioner completed the contract for sale of land when he knew, or ought to have known, that the contract had been terminated by one of the joint owners – where practitioner transferred the settlement amount to the trust account of the consenting joint owner – whether unsatisfactory conduct or professional misconduct Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 Legal Profession Act 2007 (Qld) ss 418, 419, 456, 462 Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 Legal Services Commissioner v Bevan [2009] LPT 25 Legal Services Commissioner v Madden (No 2) [2008] QCA 301 |
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 charge
- [1]The Legal Services Commissioner asserts that on 17 February 2009 Mr Ian Windsor breached his professional obligations in that:
- Mr Windsor completed a contract for sale of land when he knew, or ought to have known, that the joint owner of the property, Mr Leigh Brander, had terminated the contract and had not consented to settlement; and/or
- Mr Windsor telegraphically transferred the settlement sum into the trust account of the solicitor for the other joint owner, Mrs Lei Brander, in circumstances where he knew, or ought to have known, that Mr Brander had not agreed to the settlement and had not authorised the transfer.
Background
- [2]The parties have filed an agreed statement of facts.
- [3]Mr Windsor was the principal of the legal firm Windsor Craig at Nambour, and acted on behalf of BRM Holdings Pty Ltd (BRM) in relation to a contract to purchase a property from Mr & Mrs Brander.
- [4]Mr & Mrs Brander had separated and were in the process of finalising their property affairs under the Family Law Act 1975. By consent order of the Federal Magistrates Court, Mr & Mrs Brander were ordered to sell the property.
- [5]At the time during which Mr Windsor acted in relation to the sale transaction, Mr Windsor was in a state of considerable personal distress as his father was in the final stages of a terminal illness.
- [6]The original contract settlement date was 19 December 2008.
- [7]At the request of Mr Brander, the settlement date was extended to 13 February 2009.
- [8]On 12 February 2009, Windsor Craig verbally requested a 14 day extension of the settlement date in order to secure finance.
- [9]By letter dated 13 February 2009 to the solicitors for Mr Brander and the solicitors for Mrs Brander, Windsor Craig requested an extension of the settlement date until 17 February 2009.
- [10]By letter dated 13 February 2009, solicitors for Mr Brander declined the extension request.
- [11]By letter dated 13 February 2009, solicitors for Mrs Brander agreed to the extension request.
- [12]By letter dated 17 February 2009 to Windsor Craig, the solicitors for Mr Brander terminated the contract.
- [13]By email dated 17 February 2009 to the solicitors for Mr Brander, Windsor Craig queried the purported termination in light of Mrs Brander’s agreement to the extension request.
- [14]By letter dated 17 February 2009 faxed to solicitors for Mr Brander and solicitors for Mrs Brander, Windsor Craig advised that BRM was ready, willing and able to settle and sought their further advice.
- [15]By email dated 17 February 2009 to the solicitor for Mr Brander and to Windsor Craig, the solicitor for Mrs Brander advised that Mr Brander’s termination was “erroneous” and that Mrs Brander was ready, willing and able to settle if the balance purchase price of $129,500 was paid to the trust account for the solicitors for Mrs Brander.
- [16]On 17 February 2009 Windsor Craig, on behalf of BRM and the solicitors acting for Mrs Brander, purported to complete the contract.
- [17]Following objection made on behalf of Mr Brander:
- The purchase price was promptly refunded to BRM; and
- The transfer document was promptly withdrawn from the office of the Registrar of Titles.
- [18]Mr Brander made a complaint to the Legal Services Commissioner concerning the conduct of the solicitor acting for Mrs Brander. In the course of that investigation, the conduct of Mr Windsor was also reviewed.
Discussion
- [19]Section 418 of the Legal Profession Act 2007 (the Act) provides:
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.
- [20]Section 419 of the Act provides:
a) Professional misconduct includes:
- unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
- conduct of an Australian legal practitioner … that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
- [21]As to conduct which is regarded as professional misconduct, reference is often made to the formulation of Thomas J in the case of Adamson v Queensland Law Society Incorporated,[1] which is “the test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional misconduct observed or approved by members of the profession of good repute and competency”.
- [22]The Legal Services Commissioner submits that because all three parties to the contract had not agreed to extend the settlement date from 13 February 2009 to 17 February 2009, there was no proper basis upon which it could be thought that the settlement date had been extended.[2]
- [23]The Legal Services Commissioner observes that Mr Windsor did not tender the balance of the purchase price to the solicitors for Mr Brander, nor seek from those solicitors any confirmation of settlement figures, payment details or Mr Brander’s authority to pay the monies to Mrs Brander’s solicitor.[3]
- [24]The Legal Services Commissioner asserts that Mr Windsor owed a legal duty and a professional duty to Mr Brander not to deal with the transfer contrary to Mr Brander’s interests and that, by making the payment and dealing with the transfer, Mr Windsor exposed Mr Brander to economic loss.
- [25]That formulation is not correct. In the circumstances described, a legal practitioner does not owe a legal duty or a professional duty to the other party in such a transaction, especially where that other party is represented.
- [26]The Legal Services Commissioner asserts that Mr Windsor failed to observe his obligations as a solicitor to deal with Mr Brander and his lawyer in good faith, and that his behaviour fell far short of the standard that a member of the public and the legal profession is entitled to expect of a solicitor.[4]
- [27]It is also overstating the position to say that Mr Windsor’s behaviour fell “far” short of the standard of behaviour a member of the public and legal profession is entitled to expect of a solicitor.
- [28]The Legal Services Commissioner refers to the case of Legal Services Commissioner v Bevan,[5] but it is difficult to see how that case is relevant in the current circumstances.
- [29]The Legal Services Commissioner submits that Mr Windsor’s conduct constitutes unsatisfactory professional conduct.[6]
- [30]In his submissions, Mr Windsor accepts that it was an error of judgment to have attempted to complete the contract without the consent of the second co-owner, Mr Brander.[7]
- [31]Mr Windsor concedes that, despite the willingness of the solicitor acting for Mrs Brander to complete the contract, he ought not to have attempted to do so.[8]
- [32]Mr Windsor expresses remorse for his error of judgment.[9]
- [33]Mr Windsor accepts that he is “guilty of charge 2 and that it constitutes unsatisfactory professional conduct”.[10]
- [34]It seems to have been common ground between the Legal Services Commissioner and Mr Windsor that the conduct was unsatisfactory professional conduct, and I so find on the basis that the conduct did fall short of the standard of conduct that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Penalty
- [35]Upon a finding that Mr Windsor has engaged in unsatisfactory professional conduct the Tribunal may make any order as it thinks fit, including one or more of the orders set out in s 456 of the Act.
- [36]It is well established that disciplinary penalties are not imposed as punishment, but rather are imposed with a view to protecting the community.[11]
- [37]There cannot be any suggestion that Mr Windsor’s conduct demonstrates unfitness to practice.
- [38]The Legal Services Commissioner submits (and suggests that Mr Windsor accepts) that deterrence of future conduct would be satisfied by ordering a public reprimand and a pecuniary penalty between $2,000.00 and $3,000.00.[12]
- [39]Contrary to what is said in the submissions by the Legal Services Commissioner, Mr Windsor does not accept that the suggested penalty range is appropriate.
- [40]In his submissions, Mr Windsor refers to a level of disagreement about the discussions which took place between the legal representatives for Mr Windsor and the legal representative for the Legal Services Commissioner.
- [41]Mr Windsor submits that the appropriate penalty, commensurate with the charge, would be a reprimand and a fine of $500.00.[13]
- [42]Mr Windsor was admitted to practice as a solicitor of the Supreme Court of Queensland on 24 April 1979 and has not previously been dealt with by any disciplinary body.
- [43]At the time of the conduct, Mr Windsor was suffering significant distress as a result of his father being in the late stages of a painful terminal illness.
- [44]There is no suggestion of dishonesty on Mr Windsor’s part and the Tribunal accepts that his conduct was no more than an error of judgment for which he has, appropriately, expressed remorse.
- [45]It is also relevant that Mr Windsor fully cooperated with the Legal Services Commissioner in relation to the investigation and the proceedings, to the extent of reaching agreement about the withdrawal of another charge which had been made by the Legal Services Commissioner.
- [46]Whilst Mr Windsor’s submissions outline concerns which he had in relation to the agreement around the statement of agreed facts and consequent submissions which he believed would be made in these proceedings, Mr Windsor has adhered to the agreement concerning the statement of agreed facts and continued to cooperate.
- [47]In relation to the conduct, there was no evidence that Mr Brander has suffered any prejudice.
- [48]In all the circumstances, and commensurate with the charge, it is ordered that:
- Mr Windsor be publicly reprimanded.
- Mr Windsor pay a fine of $500.00.
Costs
- [49]The Legal Services Commissioner has sought an order for costs.
- [50]Section 462(1) of the Act provides that the Tribunal must make an order requiring that a legal practitioner who has been found to have engaged in unsatisfactory professional conduct pay costs, unless the Tribunal is satisfied exceptional circumstances exist.
- [51]Mr Windsor submits that there are exceptional circumstances because of the fact that in the original application, the Legal Services Commissioner sought to allege that Mr Windsor had breached an undertaking in circumstances where this charge was “totally misconceived at inception”,[14] then subject to a great deal of discussion between the legal representatives,[15] and then finally withdrawn by consent.[16]
- [52]Mr Windsor submits that he was put to significant expense in successfully resisting the serious charge of breach of an undertaking and so there should be no order as to costs with respect to charge 2. [17]
- [53]The Legal Services Commissioner was justified in commencing these proceedings. This is demonstrated by the fact Mr Windsor agreed that his conduct amounted to unsatisfactory professional conduct.[18]
- [54]One set of circumstances gave rise to both charges. On that basis, it was necessary for the solicitors for Mr Windsor to take instructions as to all of the circumstances.
- [55]The submissions filed on behalf of Mr Windsor reveal that Mr Windsor was prepared to accept that the charge be withdrawn by consent, including that no question of costs would arise with respect to that withdrawal.[19] The caveat expressed by Mr Windsor was that this was done in the belief that there had been an agreement with respect to the characterisation of the second charge,[20] but that the Legal Services Commissioner went beyond the statement of agreed facts in its submissions.
- [56]Where the facts are common between the withdrawn charge and that which is found to be unsatisfactory professional conduct, and much of the work undertaken is analysing these common circumstances, exceptional circumstances are not shown. It is ordered that Mr Windsor pay the costs of the Legal Services Commissioner assessed on the Supreme Court scale.
Footnotes
[1][1990] 1 Qd R 498 at 507.
[2]Applicant’s submissions filed 11 December 2014, paragraph 34.
[3]Applicant’s submissions filed 11 December 2014, paragraph 35.
[4]Applicant’s submissions filed 11 December 2014, paragraph 36.
[5][2009] LPT 25; Applicant’s submissions filed 11 December 2014, paragraph 37.
[6]Applicant’s submissions filed 11 December 2014, paragraph 38.
[7]Respondent’s outline of submissions filed 24 December 2014, paragraph 30.
[8]Respondent’s outline of submissions filed 24 December 2014, paragraph 33.
[9]Respondent’s outline of submissions filed 24 December 2014, paragraph 34.
[10]Respondent’s outline of submissions filed 24 December 2014, paragraph 36.
[11]Legal Services Commissioner v Madden (No 2) [2008] QCA 301.
[12] Applicant’s submissions filed 11 December 2014, paragraph 45.
[13] Respondent’s outline of submissions filed 24 December 2014, paragraph 38.
[14]Respondent’s outline of submissions filed 24 December 2014, paragraph 43(a).
[15]Respondent’s outline of submissions filed 24 December 2014, paragraph 43(b)-(e).
[16]Respondent’s outline of submissions filed 24 December 2014, paragraph 43(f).
[17]Respondent’s outline of submissions filed 24 December 2014, paragraph 47.
[18]Respondent’s outline of submissions filed 24 December 2014, paragraph 36.
[19]Respondent’s outline of submissions filed 24 December 2014, paragraph 21.
[20]Respondent’s outline of submissions filed 24 December 2014, paragraph 21.