Legal Services Commissioner v Nguyen
[2015] QCAT 267
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- Unreported Judgment
- Legal Services Commissioner v Nguyen[2015] QCAT 267
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Legal Services Commissioner v Nguyen[2015] QCAT 267
Legal Services Commissioner v Nguyen[2015] QCAT 267
CITATION: | Legal Services Commissioner v Nguyen [2015] QCAT 267 |
PARTIES: | Legal Services Commissioner (Applicant/Appellant) v Sam Huu-Hai Nguyen (Respondent) |
APPLICATION NUMBER: | OCR402-12 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice Thomas, President Assisted by: Douglas Murphy QC (Legal Panel Member) Susan Jean Dann (Lay Panel Member) |
DELIVERED ON: | 7 July 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where barrister accepted a direct brief from a client with no instructing solicitor – where barrister failed to obtain client’s written acknowledgement that client had been informed of Rule 83 of the 2007 Barristers Rule in relation to direct briefs – where, under the Legal Profession Act 2007, conduct which consists of contravention of a relevant law is capable of constituting unsatisfactory professional conduct or professional misconduct - where contravention of the 2007 Barristers Rule is contravention of a relevant law – whether unsatisfactory professional conduct or professional misconduct 2007 Barristers Rule r 83 Acts Interpretation Act 1954 s 7 Legal Profession Act 2007 ss 418, 419(1)(a), 420(1)(a), 456, 462, 464, 464(d), 465(1), 465(2), 466(3) Queensland Civil and Administrative Tribunal Act 2009 s 32 Statutory Instruments Act 1992 s 7 Legal Services Commissioner v Rosser LPC 002/09 Legal Services Commissioner v Viktor Supranowicz LPC 003/09 |
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
- [1]The Legal Services Commissioner asserts between 10 October 2010 and 20 March 2011 Mr Sam Nguyen, in acting directly for Ms Dusanka Aleksic, breached Rule 83 of the 2007 Barristers Rule.
Background
- [2]The parties have agreed a statement of facts.
- [3]Between 1 September 2010 and 11 October 2010, Ms Aleksic instructed Mr Nguyen to act on her behalf in a complaint for discrimination against the Commonwealth Bank of Australia.
- [4]During the period that Mr Nguyen acted on behalf of Ms Aleksic:
- Ms Aleksic did not engage any instructing solicitor in the matter.
- Mr Nguyen failed to inform Ms Aleksic in writing of the matters set out in Rule 83(a) of the 2007 Barristers Rule in relation to direct briefs.
- Mr Nguyen failed to obtain a written acknowledgment signed by Ms Aleksic that she had been informed of the matters set out in Rule 83(a).
- [5]In the course of the investigation by the Legal Services Commissioner, Mr Nguyen acknowledged that he did, during the relevant period of time, act on behalf of Ms Aleksic without instructing solicitors. Mr Nguyen has been cooperative and has not denied non-compliance with the requirements of Rule 83.
Discussion
- [6]The Legal Profession Act 2007 (the Act) defines “unsatisfactory professional conduct” as including conduct of an Australian legal practitioner 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]
- [7]The Act defines professional misconduct as including unsatisfactory professional conduct if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence.[2]
- [8]Conduct which consists of a contravention of a relevant law is capable of constituting unsatisfactory professional conduct or professional misconduct.[3]
- [9]A relevant law includes the Act. A contravention of the Act includes a contravention of a regulation or legal profession rules.[4]
- [10]In the circumstances, Mr Nguyen’s conduct consists of a contravention of a relevant law.
- [11]His conduct, in doing this, 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 amounts to unsatisfactory professional conduct as that term is described in s 418 of the Act.
Sanction
- [12]Upon a finding of unsatisfactory professional conduct, the Tribunal may make any order it thinks fit, including any one or more of the orders outlined in s 456 of the Act.
- [13]Those orders include that the name of the practitioner be removed from the local roll, that the practitioner’s local practising certificate be suspended or cancelled, that the practitioner be publicly reprimanded or that the practitioner pay a penalty of a stated amount, not more than $100,000.
- [14]It is well accepted that the object of imposing a sanction is not to punish the practitioner but to protect the public. An element of public protection is to deter other practitioners from becoming involved in similar conduct.
- [15]Reference has been made to the case of Legal Services Commissioner v Christopher James Rosser[5] where there was a breach of Rules 83 and 84 of the Barristers Rule of 2004.
- [16]In that case, the respondent was publicly reprimanded and ordered to pay a fine of $1,000, as well as costs.
- [17]Reference is also made to the decision in Legal Services Commissioner v Viktor Supranowicz[6], where the practitioner breached Rule 80 of the Barristers Rule of 1995 and also failed to appropriately render an account. In that case, the practitioner received a public reprimand but in the circumstances, no pecuniary penalty was imposed. The practitioner was ordered to pay the Legal Services Commissioner’s costs.
- [18]In this case, Mr Nguyen was cooperative with the Legal Services Commissioner, acknowledging the facts from the outset and ultimately agreeing to a statement of agreed facts.
- [19]In the circumstances, it is ordered that:
- The respondent be publicly reprimanded.
- That the respondent pay a fine of $1,000, payable within 30 days of the date of the order in this matter.
Costs
- [20]Under s 462 of the Act, the Legal Services Commissioner is entitled to an order for costs in his favour unless exceptional circumstances exist.[7]
- [21]In this case there are no exceptional circumstances, so it is ordered that the respondent pay the applicants costs assessed on the Supreme Court scale.
Compensation order
- [22]In this matter, a notice of intention to seek a compensation order has been made by the complainant, Ms Aleksic.
- [23]Section 464 of the Act deals with a compensation order.
- [24]According to s 464, a compensation order includes:
- a)an order that a law practice can not recover or must repay the whole or a stated part of the amount that the law practice charged for a complaint for stated legal services;
- d)an order that a law practice pay a complainant an amount by way of compensation for pecuniary loss suffered because of conduct that has been found to be-
…
- (i)unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner involved in the relevant practice.
- [25]A compensation order that relates to payment of compensation for pecuniary loss (as described in s 464(d)) must not be made unless the Tribunal is satisfied:[8]
- 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.
- [26]A compensation order cannot be made for pecuniary loss for which the complainant has received or is entitled to receive:[9]
- compensation under an order that has been made by a court; or
- compensation from the fidelity fund, or a fund of another jurisdiction under a corresponding law of that jurisdiction, if a claim for payment from the fidelity fund has been made or decided.
- [27]Pursuant to s 466(3) of the Act a compensation order requiring payment of an amount of more than $7,500 by way of monetary compensation for pecuniary loss (as contemplated by s 464(d)) must not be made unless the complainant and the law practice both consent to the order.
- [28]To enable consideration of the compensation order being sought by Ms Aleksic, it is ordered that:
- Ms Aleksic file and serve any further submissions which she wishes to make, by:
4:00pm on 7 August 2015.
- Mr Nguyen file and serve any submissions upon which he wishes to rely in relation to the application for compensation order, by:
4:00pm on 4 September 2015.
- Unless either Ms Aleksic or Mr Nguyen require an oral hearing, the matter of the compensation order will be determined on the papers pursuant to s 32 of the QCAT Act.
Footnotes
[1]Legal Profession Act 2007 (Qld) s 418.
[2]Ibid s 419(1)(a).
[3]Ibid s 420(1)(a).
[4]Acts Interpretation Act 1954 (Qld) s 7; Statutory Instruments Act 1992 (Qld) s 7.
[5]LPC 002/09, dated 1 September 2010.
[6]LPC 003/09, dated 7 December 2009.
[7]Legal Profession Act 2007 (Qld) s 462(1).
[8]Ibid s 465(1).
[9]Ibid s 465(2).