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Legal Services Commissioner v Mould[2015] QCAT 440

Legal Services Commissioner v Mould[2015] QCAT 440

CITATION:

Legal Services Commissioner v Mould [2015] QCAT 440

PARTIES:

Legal Services Commissioner

(Applicant)

 

v

 

John-Paul Mould

(Respondent)

APPLICATION NUMBER:

OCR358-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

1 July 2015

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

Assisted by

P McKay, Lay Panel Member

J Collins, Legal Panel Member

DELIVERED ON:

16 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

THE TRIBUNAL ORDERS THAT:

  1. the respondent is publicly reprimanded.
  2. the respondent must pay a pecuniary penalty of $3,000.00 within sixty (60) days from the date of this decision.
  3. costs reserved.
  4. the applicant must file submissions regarding the distribution of costs of and incidental to the proceedings by 4:00PM, 6 November 2015.
  5. the respondent must file submissions in reply regarding the distribution of costs of and incidental to the proceedings by 4:00PM, 20 November 2015.
  6. the application for costs will be determined by the Tribunal on the papers in Brisbane not before 23 November 2015, unless either party files an application for an oral hearing.

CATCHWORDS:

OCCUPATIONAL REGULATION – LEGAL PROFESSION – DISCIPLINE – UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT – where the respondent was the principal solicitor for a law firm – where the respondent acted on behalf of two clients in respect of a matter – where the respondent withdrew from acting on behalf of the complainant – where the respondent believed that the complainant had executed a speculative costs agreement – where the respondent arranged for the complainant to execute a speculative costs agreement before formally terminating the retainer – where the complainant subsequently retained another legal practice in respect of the same matter – where the other legal practice secured a favourable settlement – where the other legal practice charged the complainant for professional services up to the prescribed statutory threshold for speculative personal injury claims – where the respondent possessed outstanding outlays and disbursements – where the respondent commenced proceedings against the complainant for the payment of professional service fees in accordance with the speculative costs retainer – where a Magistrate dismissed the claim as patently untenable – whether the commencement of legal proceedings against the complainant, a former client, amounted to an abuse of process or improper conduct – whether the commencement of legal proceedings constituted unsatisfactory professional conduct or professional misconduct.

OCCUPATIONAL REGULATION – LEGAL PROFESSION – DISCIPLINE – UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT – where the respondent was the principal solicitor for a law firm – where the respondent maintained a protocol for charging new clients for advice obtained by telephone – where the protocol involved administrative officers discharging the statutorily prescribed disclosure obligations prior to transferring the client to the respondent – where the respondent charged two clients for advice provided over the telephone – where neither client executed a valid costs agreement – where the respondent commenced debt recovery proceedings against one client – whether the charging for telephone advice and/or commencement of debt recovery proceedings amounted to improper conduct – whether the respondent committed unsatisfactory professional conduct or professional misconduct. 

OCCUPATIONAL REGULATION – LEGAL PROFESSION – DISCIPLINE – UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT – where the respondent was the principal solicitor for a law firm – where the respondent commenced ex parte debt recovery proceedings against a complainant – where the debt recovery proceedings were supported by an affidavit of debt – where the affidavit of debt was discovered to be false in a material particular, namely that the complainant had paid the debt – where the respondent had an established practice whereby an administrative officer would ensure the accuracy of certain factual statements contained within the affidavit – whether the respondent engaged in unsatisfactory professional conduct or professional misconduct by swearing a false affidavit which was used to secure default judgment in debt recovery proceedings before the Magistrates Court. 

Australian Solicitors Conduct Rules 2012 (Qld), rr 21.3.1, 37.1.

Legal Profession Act 2007 (Qld), ss 300, 316, 319, 322, 418, 419, 420.

Angus v Clifford [1891] 2 Ch 449

Baker v Legal Services Commissioner (No 2) [2006] 2 Qd R 243

Beach Petroleum NL v Abbott Tout Russell Kennedy (1999) 48 NSWLR 1

Branir v Owston Nominees Pty Ltd (No 2) (2001) 117 FCR 424

Briginshaw v Briginshaw (1938) 60 CLR 336

Council of Queensland Law Society v Wright [2001] QCA 58

Council of the Queensland Law Society Inc v Cummings [2004] QCA 138

CT Bowring and Co (Insurance) Ltd v Corsi Partners Ltd [1994] 2 Loyd’s Rep 567

Fidock v Legal Profession Complaints Committee [2013] WASCA 108

Giudice v Legal Profession Complaints Committee [2014] WASCA 115

Griffiths v Evans [1953] 2 All ER 1364

Integrated Computer Services Pty ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11,110

Law Society of New South Wales v McNamara (1980) 47 NSWLR 72

Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249

Luxmoore-May v Messenger May Baverstock (1990) 1 WLR 1009

Medical Board of Queensland v Bayliss [2000] 1 QldR 598

Pegrum v Fatharly (1996) 14 WAR 92

Pillai v Messiter (No 2) (1983) 16 NSWLR 197

RBCW Diamond (Pty) Ltd v Da Gloria [2007] NSWSC 1325

Re Bannister (1975) 5 ACTR 100

Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19

Steindl Nomines Pty Ltd v Laghaifar [2003] 2 Qd R 638

The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239

Transport Industries Insurance v Longmuir [1997] 1 VR 125

APPEARANCES: N V Weston for the applicant

 A J H Morris QC for the respondent

REASONS FOR DECISION

  1. [1]
    At issue in this case is whether and what disciplinary action needs to be taken against the practitioner under the Legal Profession Act 2007 (the Act) for billing and related litigation practices of his legal firm during the period 2008-10.
  2. [2]
    The practitioner was admitted as a solicitor in 1999 and has no disciplinary history.  He was the principal of a busy practice with three branches and was heavily reliant on administrative staff and employed solicitors for its efficient and profitable operation.
  3. [3]
    A business manager, Ms Helen Passfield, was responsible for bookkeeping, financial information and fee recovery.  One of her duties was to double check the accuracy of judgment documents before filing.
  4. [4]
    The practitioner is liable to discipline if the Tribunal is satisfied (in the Briginshaw[1] sense) that the alleged conduct by itself, in conjunction or in totality fell short of the standard of reasonable competence and diligence a member of the public is entitled to expect of a legal practitioner (unsatisfactory professional conduct)[2] and substantial continuing failures to reach or keep a reasonable standard of competent legal practice (professional misconduct).[3]
  5. [5]
    Conduct is capable of constituting one or another category of prescribed conduct if it offends established common law principles, contravenes relevant laws such as the Act or consumer protection legislation, regulations or a legal profession rule like the Australian Solicitors’ Conduct Rules 2012 (Qld).[4]
  6. [6]
    The difference between unprofessional conduct and professional misconduct is one of degree.
  7. [7]
    In Pillai v Messiter (No 2)[5] Kirby P (as he then was) noted that in a medical context professional misconduct means more than mere negligence or incompetence and “includes a deliberate departure from accepted standards or such negligence as, although not deliberate, to portray indifference and abuse of the privileges” of membership of a profession.
  8. [8]
    His Honour also emphasised that in light of the potential consequences for a practitioner such a finding should only be made where it is necessary to protect the public from “delinquents and wrong doers … [or] seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements”.
  9. [9]
    Thus civil negligence by a legal practitioner may fall short of expected professional standards or even amount to professional misconduct warranting severe sanction if the conduct in question was needlessly risky or dangerous despite being neither deliberate nor reckless and the consequences less severe than those that might have been.[6]
  10. [10]
    Likewise, not properly or inadequately supervising administrative and legal staff may likewise amount to professional misconduct especially in financial matters depending on the seriousness of the failure involved.

THE ALLEGATIONS

  1. [11]
    The amended discipline application alleges six charges of prescribed conduct based on complaints of three dissatisfied former clients of the practitioner’s practice. 
  2. [12]
    Charge 1 alleges professional misconduct for suing Mc over non-payment of a bill of legal costs in 2008.  The Commissioner contends the practice was not even arguably entitled to succeed because no fees were properly chargeable in the first place because of the statutory cap on fees chargeable in speculative matters.
  3. [13]
    Charges 2, 3, 6 and 7 relate to disputed bills for preliminary telephone advice to A and F and subsequent court action to recover the unpaid amounts as a “debt” which on the Commissioner’s case could not be sustained either legally or evidentially.
  4. [14]
    The central proposition is that the practitioner “ought to have known” that the disputed fees were not “properly chargeable” by the practice and that the debt claims against Mc, A and F could not be “properly established” consistently with his professional duties and responsibilities.
  5. [15]
    Charge 8 alleges professional misconduct for negligently swearing an affidavit of debt in default proceedings in the recovery action against F.  The affidavit deposed to the debt as being outstanding in December 2009 when it had in fact been fully paid in September.
  6. [16]
    It is not alleged that the practitioner knowingly did anything “wrong” but rather that what he did wrong was not know that what he or the practice did was “wrong”.  His “fault” lies in not knowing that the law and facts were firmly against him in charging and suing professional fees for legal work he had not been retained to provide or was statute barred from claiming.
  7. [17]
    The alleged conduct is not seriously contested, but any liability to sanction is.  The respondent claims that viewed fairly in context any actions he is professionally accountable for were honest and within the limits of professionalism.  He goes as far as and accusing the Commissioner of “wanton” behaviour in proceeding against him for no good reason.
  8. [18]
    Enforcement of minimum standards of competence and professional conduct are enforced to protect consumers against loss due to under-performance and thus maintain community confidence in the administration of justice and the reputation of the legal profession within the State. 
  9. [19]
    Competence is a basis of admission and the continuing right to provide legal services. It is an essential incident of the professional relationship.[7]  An allegation of incompetence is an assertion of “cheating the customer”.[8]   Despite its pivotal role, however, the relevant concept is an indefinite one and its practical content defies precise definition. It doubtlessly includes specialist legal learning, knowledge, and skills, technical proficiency and practical expertise.  However, even the most accomplished or talented lawyers will not provide “professional” legal services unless “they are disciplined and supported by constructive work habits, personal integrity, and a complex of attitudes and values, such as conscientiousness”.[9]
  10. [20]
    Legal incompetence, by contrast, is measured by the extent to which a lawyer’s performance of legal work demonstrates a lack of these characteristics.
  11. [21]
    Diligence is a separate incident of professionalism as well as an overlapping aspect of the broader duty of competence.  It denotes laxity, laziness, dereliction or a lack of due care and attention.
  12. [22]
    Charge 1 clearly alleges incompetence. The others are more concerned with diligence.  However, all raise ethical and personal integrity related issues.

CHARGE 1

  1. [23]
    The factual basis of this charge is identified at [19] – [20] of the statement of agreed facts and a timeline is at [2] – [11] of the applicant’s outline of submissions.[10]
  2. [24]
    In short Mc and her husband retained the practice to act for both of them in relation to personal injury and property damage claims arising out of a car accident in 2004.  Mc was the driver most at fault.  The property claim was transferred to another firm in 2005 and settled out of court in 2006.  The personal injuries file was later sent to Carter Capner lawyers to finalise because the practice was conflicted.
  3. [25]
    The conflict of interest arguably frustrated the practice’s retainer from inception.[11]  There is also disagreement about whether the 2007 “no win – no fee” costs agreement cured the frustration of the retainer, survived termination by the practice when the file was transferred, had retrospective effect or was entirely performed.
  4. [26]
    Charging and suing for fees and disbursements when none are properly owed is as improper as rendering an exorbitant bill.[12]
  5. [27]
    Practitioners are also relevantly obliged to use their professional advantage and knowledge of court processes responsibly and not make allegations or claims without a proper legal basis[13] or position to take advantage of a client, especially one who is unrepresented for the purposes of advancing his or her own contrary financial interests.
  6. [28]
    The Commissioner asserts that no competent lawyer could have genuinely formed the opinion on the material then available that there was any proper basis for alleging indebtedness against Mc or an entitlement to invoke the coercive power of the court to enforce payment.
  7. [29]
    The Commissioner contends that commencing proceedings against a former client to recover an additional sum of unpaid fees in the circumstances breaches the paramount duty to the court and amounts to an abuse of its process because it squanders valuable court time and resources, and causes unnecessary discomfort, cost and inconvenience.[14]
  8. [30]
    The only costs agreement that Mc had entered into with the practice was a “no win, no fee” agreement executed shortly before termination its retainer and could not be relied on to justify the claim because, apart from any other objection, it was stature barred.  Accordingly, in bringing an unsustainable case against Mc the practitioner’s conduct was intellectually dishonest and fell substantially short of a reasonable standard of competent legal practice.
  9. [31]
    In reality, the allegation the Commissioner proceeded on is not that the practice (for which the practitioner is responsible) did not know the relevant law, but instead of faithfully observing it the practitioner unsuccessfully tried to circumvent it for his own financial gain at the client’s expense.
  10. [32]
    However, a weak but arguable case must be distinguished from the hopeless and those doomed to fail.  A lawyer may ethically put forward a claim based on a good faith but wrong interpretation of the law or advance a reasonable argument against its application in the circumstances of a particular case.[15]
  11. [33]
    The Commissioner’s case is based on the premise that even if contractual or other legal liability could be proved, the practitioner ought to have known that his claim for a liquidated debt against Mc was precluded by statute.
  12. [34]
    The practitioner’s position has always been that despite the statutory limitation the practice was still entitled to be paid in full for the work it had done but to the date of termination under a valid costs agreement which took precedence over all prior arrangements and was in force at the time her file was handed over to Carter Capner.  She was not entitled to deny or repudiate it and, as a matter of law, could probable be held liable to pay the practice the billed amount under cl 12.4 of the conditional costs agreement.
  13. [35]
    Clause 11.1 of the conditional costs agreement allowed Mc to change solicitors by giving written notice at any time subject to the right of the practice to charge for fees up to that date.
  14. [36]
    The practitioner says that he thought that Mc had authorised payment of the practice’s fees up to termination out of settlement proceeds in the personal injuries claim.  The practitioner also asserts that the Tribunal should find, on the basis of Exhibit SLL8 of the affidavit of Sara Lane, that Carter Capner undertook to preserve the practitioner’s fees, or at least that such a proposition cannot be disproved.
  15. [37]
    He complains that instead of paying his fees in accordance with an undertaking even proportionately, Carter Capner paid themselves nearly $7,000 for costs and outlays and about $1,600 to the solicitors handling Mc’s property damage file leaving him with nothing except outlays of $2,745 for two costs assessments and $3,000 in court costs for the failed debt claim.
  16. [38]
    Be that as it may, the Commissioner contends that even if there was a valid retainer and assuming, in his favour, that he honestly (if unreasonably) believed the practice had a contractual or other right to recover fees he should still have realised that it was legally unenforceable against Mc, because the maximum amount of costs chargeable by a legal practice for work done on the personal injuries matter under the so called 50 – 50 rule in s 347 of the Act.
  17. [39]
    The rule in brief is that a law practice is entitled to charge a client in a speculative personal injury matter no more than half the amount to which the client is entitled under a judgment or settlement after deducting any refunds the client is required to pay and the total amount of disbursements for which the client is liable.  In this case the full amount of $4,327 from Mc’s settlement proceeds of $10,000 had already been paid to Carter Capner before the practice delivered the contentious bill to Mc.
  18. [40]
    In relation to s 347 of the Act, the practitioner says that he has not recovered anything from Mc and the 50/50 rule only applies where the law practice charges and recovers.
  19. [41]
    Admittedly, the Magistrate did not see it that way.  She found that after termination the only way the practitioner could recover any part of the legal fees payable under the 50/50 rule would be by an agreed apportionment with Carter Capner.  However, as Mr Morris QC points out, the magistrate did not consider the applicability of s 347 of the Act to situations where - as here - more than one practice acts or the billing practice did not “recover” any fees from the personal injury claim.
  20. [42]
    The Tribunal is not reasonably satisfied having regard to the nature, seriousness and consequences of a finding of professional misconduct that the practitioner abused the processes of the court by suing Mc when he ought to have known that the practice had no arguable legal right to recover at least a proportion of the billed costs.
  21. [43]
    The practitioner’s assertion that on the information he had he honestly and reasonably, but mistakenly, thought that the practice had a valid retainer and entitlement to claim about $8,000 in legal costs based on it or the 2007 “no win – no fee” costs agreement and disputed client authority for breach of contract against Mc, as well as a quantum meruit or in restitution is not so fanciful as to be inherently improbable.  The fact that the magistrate disagreed is no more than a contrary legal opinion. 
  22. [44]
    Disciplinary bodies should be slow to make an adverse misconduct finding based on negligence or incompetence where the conduct engaged in is honest and involves an exercise of opinion and judgment which, in the very nature of things, legally may turn out to be wrong.[16] 
  23. [45]
    The Commissioner has not proven that the conduct of the practitioner was substantially substandard or even unsatisfactory from a professional point of view.
  24. [46]
    Moreover, in its publication “No Win – No Fee Costs Agreement” the Legal Services Commission warns clients who change law firms before resolution of their “both law firms may charge (them) legal fees” under the 50/50 rule after finalisation.  It goes on to explain:-

If you change firms and the 50/50 rules applies to your claim, there may be a dispute as to what each firm is entitled to.  Although the courts have not decided this issue yet, the Legal Services Commission believes that the rule (caps the total costs payable by the client to all firms that may have been retained to act in the matter) to ensure that a client receives a fair proportion of any settlement or judgment.

  1. [47]
    Thus, the possibility of the capped amount being divided proportionately between successive law firms depending on the amount of work done by each of them is clearly flagged.  So is the grey area around the client’s limited liability.  Until the position is clarified by the courts a competent and ethical practitioner is perfectly entitled to argue against the Commission’s interpretation.
  2. [48]
    Of course, if in the unlikely event it turns out to be correct, the construction of s 347 contended for by the practitioner would lead to unintended if not absurd results because it would not achieve the stated goal of increasing practical access to justice for the disadvantaged to enforce a right that would otherwise be impossible by allowing them to pay the lawyer no more than half of the proceeds of success.
  3. [49]
    Putting such a client through the distress of legal proceedings where the outcome is doubtful at best and potentially ruinous for her is hardly laudable even if it is technically open.  It is clearly contrary to the spirit of social service and social justice that is said to characterise and distinguish the legal profession from other callings.  A model practitioner would probably not have chased fees in the same circumstances.  But not all competent practitioners are paragons of virtue and the community is not entitled to expect them to be beyond moral reproach.
  4. [50]
    Solicitors are no less human than other members of the community.  They do not share standards or values in common.  They must adhere to minimum requirements but cannot be expected to be held liable to discipline for being heartless or miserly.  They are as imperfect and fallible as the rest of us.
  5. [51]
    Some personality traits or behaviours may be inconsistent with the due exercise of professional skill and care without any risk of being described as noble or decent.
  6. [52]
    The Tribunal finds that the practitioner advanced a legal argument which, although tenuous and incorrect, was reasonably arguable at the time of filing the claim.  This does not fall short of the standard of competence and diligence the community is entitled to expect from Australian legal practitioners.  The allegation of professional misconduct or unsatisfactory professional misconduct comprising of Charge 1 is, therefore, not substantiated. 

CHARGES 2 AND 3

  1. [53]
    Charge 2 of the disciplinary application relates to an invoice rendered to A on 14 August 2010 on account of purported professional fees and outlays.
  2. [54]
    Charge 3 of the disciplinary application relates to an application filed on 15 March 2010 within the minor civil dispute jurisdiction of the Queensland Civil and Administrative Tribunal for purported outstanding legal fees and interest in respect of the unpaid invoice rendered on 14 August 2010.
  3. [55]
    The applicant argues that the respondent failed to meet his professional obligations by rendering an invoice seeking the recovery of legal costs without the respondent having entered into a valid costs agreement with the complainant.  The applicant asserts that seeking the recovery of legal costs without legal foundation constitutes unsatisfactory professional conduct. 
  4. [56]
    The applicant further argues that the respondent failed to meet his professional obligations by filing an application in the minor civil dispute jurisdiction of the Queensland Civil and Administrative Tribunal in respect of the invoice.  The applicant asserts that commencing spurious proceedings for the recovery of a debt without any, or with a dubious, legal foundation is unsatisfactory professional conduct.
  5. [57]
    The applicant has not raised any of the following issues
    1. whether the respondent complied with the disclosure obligations prescribed under s 308 of the Legal Profession Act 2007 (Qld);
    2. whether any such purported compliance with the prescribed disclosure obligations is rendered invalid for non-compliance with the formal requirements prescribed under s 310(1) of the Legal Profession Act 2007 (Qld);
    3. whether non-compliance with the formalities or substance of the disclosure obligation renders any amount for legal costs, regardless of whether recovered in accordance with the retainer or costs agreement, enlivens within the complainant a right to decline to make payment of legal costs until a costs assessment is completed;[17]
    4. whether non-compliance with the formalities or substance of the disclosure obligation renders any amount for legal costs precludes the commencement or maintenance of any legal proceedings seeking recovery of the legal costs until a costs assessment is completed;[18]
    5. whether the amount charged for legal costs is excessive or otherwise exorbitant.
  6. [58]
    It would be inappropriate for the Tribunal to resolve this application in favour of the applicant on any of the abovementioned grounds, as it would have the effect of unfairly taking the respondent by surprise. 
  7. [59]
    However, the written submissions of the applicant and respondent fairly raise the questions of whether: (a) a valid retainer had been formed between the applicant and respondent; and (b) a valid costs agreement had been formed between the applicant and respondent.
  8. [60]
    The submissions advanced for the applicant appear to conflate a “retainer” with a “costs agreement”.  A “retainer”, in a legal context, is a contract between a solicitor or law practice and client whereby the former agrees to deliver specified legal services to the latter in exchange for monetary or other consideration.[19]  A “costs agreement” is an agreement between the solicitor or law practice and client regarding payment for legal costs and services.[20]
  9. [61]
    The distinction between a “retainer” and a “costs agreement” is reflected in the Legal Profession Act 2007 (Qld), which provides that:

a costs agreement may be between a client and law practice retained by the client…[21] (emphasis added)

  1. [62]
    Through utilising the past participle form of the verb “retain”, the legislation impliedly accepts that the retainer between the law practice and client may crystallise at a time anterior to the execution of the costs agreement.  However, it does not operate to exclude the possibility of a retainer forming contemporaneously with the costs agreement.
  2. [63]
    The retainer and costs agreement discharge distinct and separable functions, and one does not mutually imply the existence of the other.  The retainer gives rise to the liability to pay legal costs for services rendered.  The costs agreement defines the nature and quantum of the legal costs payable for services rendered.  However, the absence of a costs agreement may, in limited circumstances, extirpate or ameliorate a client’s obligation to make payment for professional services.
  3. [64]
    This distribution of functions is reflected in s 319 of the Legal Profession Act 2007 (Qld), which provides that:
  1. (1)
    … legal costs are recoverable -
  1. (a)
    under a costs agreement…
  1. (b)
    … under the applicable scale of costs;
  1. (c)
    … according to the fair and reasonable value of the legal services provided.[22]
  1. [65]
    Accordingly, if legal costs are not recoverable under a costs agreement, but a retainer exists between the solicitor or law practice and the client, the client may be required to pay legal costs in accordance with the applicable scale of costs or according to the fair and reasonable value for the legal services.  However, the existence of the retainer is a predicate for liability to pay any costs, the absence of which generally precludes the recovery of legal fees.[23] 
  2. [66]
    A retainer is merely a contract between solicitor and client for the delivery of legal services of the former in exchange for consideration, ordinarily monetary, from the latter.  Therefore, it must be established on the available evidence in accordance with the principles governing any other contract.[24]
  3. [67]
    There is some uncertainty about where the onus of proof to establish the existence of a retainer lies.  Ordinarily, the principle that he or she who asserts must prove would militate in favour of requiring the respondent to establish the existence of the retainer.  This is further supported by the public policy in ensuring that legal practitioners maintain appropriate professional standards, and the burdensome nature of requiring the applicant to negative the existence of the retainer.  Nevertheless, negativing the existence of the retainer is the integral or essential fact underpinning Charges 2 and 3 of the disciplinary application. 
  4. [68]
    Although in this case the location of the onus of proof would not modify my decision, I would be inclined to hold that the applicant possessed the onus to negative the existence of a retainer. 
  5. [69]
    There is some authority supporting the proposition that where a solicitor and client’s views diverge in respect of the construction of a retainer, the Tribunal should prefer the interpretation advanced by the client.  In Griffiths v Evans Denning LJ observed:

I would observe that where there is a difference between a solicitor and his client on it, the courts have said for the last hundred years or more that the word of the client is to be preferred to the word of the solicitor, or, at any rate, more weight is to be given to it: see Crossley v Crowther, per Sir George J Turner V-C; Re Paine, per Warrington J. The reason is plain. It is because the client is ignorant and the solicitor is, or should be, learned. If the solicitor does not take the precaution of getting a written retainer, he has only himself to thank for being at variance with his client over it and must take the consequences…[25]

  1. [70]
    In my view, the obiter in Griffiths should be treated with a degree of caution.  The relative credibility of witnesses or parties is not a matter for a priori legal presumption.  Rather, it is a factual question which should be determined on the basis of evidence adduced during the proceedings, and the verbal and non-verbal communication of witnesses involved.  Accordingly, the position advanced in Griffiths should be treated as an abstract principle of public policy which may have some bearing, but cannot control or determine, on judicial assessment of the evidence produced during the proceedings. 
  2. [71]
    Notably, however, Denning LJ’s remarks in Griffiths were limited to the interpretation or construction of the scope of a retainer, not in respect of the existence of the retainer.  This is more appropriately disposed of in accordance with the ordinary principles of contractual formation.
  3. [72]
    There are, at least, three legally recognised categories of retainer: (a) express retainers; (b) presumed retainers; and (c) implied retainers.
  4. [73]
    An express retainer will arise where a written or oral agreement was formed in respect of the delivery of legal services which perspicuously discloses the essential elements required to establish the existence of the retainer.  This will, at least, include agreement, intention to create legal relations, sufficient certainty, the exchange of consideration and compliance with any legislative formalities.  Due to the numerous disputes which may emanate from the scope or terms of the retainer, it is highly desirable, and robust professional practice, to ensure the express retainer is reduced into writing.  
  5. [74]
    On the evidence presented during the proceedings, the Tribunal is not reasonably satisfied that an express written or oral retainer was executed between the complainant and respondent. 
  6. [75]
    A presumed retainer arises where the legal practitioner and client possess an arrangement which may be accurately described as a de facto solicitor-client relationship.  The difference between a presumed and implied retainer is a question of degree, not quality.[26]  Where a relationship bears the traditional hallmarks of a solicitor-client relationship, the Tribunal may presume the existence of a retainer.  As held by Justice Ipp in Pegrum v Fatharly:

The present case is of course concerned with the existence of an implied agreement of retainer between a solicitor and a person alleged to be his client. In Groom v Crocker [1939] 1 KB 194 Scott LJ said at 222 in regard to the contractual relationship between solicitor and client: "The relationship is normally started by a retainer, but the retainer will be presumed if the conduct of the two parties shows that the relationship of solicitor and client has in fact been established between them."

A contractual relationship of solicitor and client will therefore be presumed if it is proved that the relationship of solicitor and client existed de facto between a solicitor and another person. Upon proof of that kind it would not be necessary to prove when, where, by whom or in what particular words the agreement of retainer was made. Applying the rule expressed by Thomas J in Australian Energy Ltd v Lennard Oil NL, the de facto relationship of solicitor and client has to be a necessary and clear inference from the proved facts before a retainer will be presumed.[27]

  1. [76]
    The Tribunal is not satisfied that a presumed retainer existed between the respondent and the complainant.  The brevity of exchange between the respondent and complainant, insufficiency of disclosure, lack of apparent agreement as to the proposed schedule of fees, limited discussion of the scope of the retainer, and absence of actual representation by the respondent on behalf of the complainant demonstrates that the relationship does not display the archetypal characteristics of a solicitor-client relationship.
  2. [77]
    An implied retainer arises where the circumstances are such that the existence of a retainer may be inferred from the conduct, behaviour and words of the parties.  As held by McHugh JA in Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd:

A bilateral contract of this type exists independently of and indeed precedes what the parties do. Consequently, it is an error "to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed": Howard, Contract, Reliance and Business Transactions [1987] Journal of Business Law at 127. Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (Court of Appeal) (11/11/88) The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract… (emphasis added)[28]

  1. [78]
    The process was also described in Branir v Owston Nominees Pty Ltd (No 2) by Allsop J (with whom Drummond and Mansfield JJ agreed) in the following manner:

[Contracts] can also arise when business people speak and act and order their affairs in a way without necessarily stopping for the formalities of dotting i's and crossing t's or where they think they have done so. Here, the i's were not dotted and the t's were not crossed … Sometimes this failure occurs because, having discussed the commercial essentials and having put in place necessary structural matters, the parties go about their commercial business on the clear basis of some manifested mutual assent, without ensuring the exhaustive completeness of documentation. In such circumstances … if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract. Sometimes this is said to be a process of inference or implication. For my part, I would see it as the inferring of a real intention expressed through, or to be found in, a body of conduct, including, sometimes, communications, even if it be the case that the parties did not consciously advert to, or discuss, some aspect of the relationship and say: 'and we hereby agree to be bound' in this or that respect. The essential question in such cases is whether the parties' conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract.[29]

  1. [79]
    Notwithstanding this, the authorities establish that the Tribunal should only infer the existence of a contract in a clear case.[30]
  2. [80]
    The evidence here demonstrates that no formal disclosure took place prior to the telephone enquiry. There was limited discussion of the scope of the retainer, and no apparent meaningful discussion of the applicable scale or schedule of fees.  The evidence does not appear to establish the existence on the part of the complainant of an intention to create legal relations.  Indeed, the evidence is more consistent with a preliminary enquiry in respect of potential and prospective legal proceedings. 
  3. [81]
    The Tribunal is of the view that it is not reasonably arguable that a retainer existed between the complainant and the respondent.  The terms of the retainer cannot be meaningfully described, nor can it be properly concluded that the complainant agreed to any relevant schedule or scale of fees.
  4. [82]
    In the absence of a valid retainer or costs agreement, the respondent lacked any contractual basis for seeking to recover fees for professional services from the complainant.  A competent practitioner can be reasonably expected to have turned his or her mind to the legal foundation for seeking to recover professional fees from the complainant prior to rendering an invoice or bill.[31] 
  5. [83]
    Although the respondent might claim that he relied on his administrative staff to ensure the accuracy of the bill rendered to the respondent or the performance of proper disclosure, a solicitor cannot merely shift the blame onto non-professionals in the office, or accept assurances from staff that everything is in order or correct.[32] A fortiori, a principal of a law firm cannot blindly rely on an established system to properly function to discharge their legal responsibilities. 
  6. [84]
    The Tribunal is reasonably satisfied that the respondent committed unsatisfactory professional conduct by falling short of the standard of competence and diligence that the community is entitled to expect from a reasonably competent Australian legal practitioner by rendering a bill requiring the payment of professional legal fees without any legal foundation. 
  7. [85]
    The Tribunal also finds that there is no reasonably arguable case that a retainer existed at the time of the telephone enquiry.  Any such retainer would be hopelessly uncertain and lack the required clarity in respect of essential terms, such as the schedule or scale of fees, and the precise scope of the retainer.  Accordingly, the Tribunal is reasonably satisfied that the respondent committed unsatisfactory professional conduct by instituting legal proceedings to enforce a bill rendered without legal foundation.

CHARGES 6 AND 7

  1. [86]
    Charge 6 of the disciplinary application asserts that the respondent committed unsatisfactory professional conduct by proffering an invoice for professional in respect of a 17 minute telephone enquiry on 20 April 2010.
  2. [87]
    Charge 7 of the disciplinary application asserts that the respondent committed unsatisfactory professional conduct by initiating and maintaining legal proceedings on 10 September 2010 in respect of the bill rendered on 20 April 2010.
  3. [88]
    The Tribunal observes that the applicant did not raise the following issues:
    1. whether the respondent complied with the disclosure obligations prescribed under s 308 of the Legal Profession Act 2007 (Qld);
    2. whether any such purported compliance with the prescribed disclosure obligations is rendered invalid for non-compliance with the formal requirements prescribed under s 310(1) of the Legal Profession Act 2007 (Qld);
    3. whether non-compliance with the formalities or substance of the disclosure obligation renders any amount for legal costs, regardless of whether recovered in accordance with the retainer or costs agreement, enlivens within the complainant a right to decline to make payment of legal costs until a costs assessment is completed;[33]
    4. whether non-compliance with the formalities or substance of the disclosure obligation renders any amount for legal costs precludes the commencement or maintenance of any legal proceedings seeking recovery of the legal costs until a costs assessment is completed;[34]
    5. whether the amount charged for legal costs is excessive or otherwise exorbitant.
  4. [89]
    As discussed earlier, it would be inappropriate for the Tribunal to resolve this application in favour of the applicant on any of the abovementioned grounds, as it would have the effect of unfairly taking the respondent by surprise. 
  5. [90]
    Despite the superficial similarities between Charges 2 and 6, there are important points of difference.  During the telephone enquiry on 20 April 2010, the respondent discussed more extensively the method of calculating fees with the complainant. The complainant and the respondent had jointly resolved that the respondent would take specific actions to obtain information to assist in the prosecution of the defence.  The scope of the retainer was more clearly defined, although there remained some residual uncertainty.  Furthermore, the complainant made payment in satisfaction of the asserted debt on 13 September 2010.  Finally, having regard to the fact that the complainant’s partner would be required to resist criminal proceedings, there was greater urgency attached to the procurement of legal representation. 
  6. [91]
    In the Tribunal’s view, the content of the telephone conversation and conduct of the parties was sufficient to give rise to, at least, a reasonably arguable case that a formal retainer had formed between the complainant and respondent.  The existence of the formal retainer is the legal basis for the complainant’s liability to make payment in satisfaction of the bill.
  7. [92]
    The quantum of liability is fixed under s 319 of the Legal Profession Act 2007 (Qld).  However, as the applicant has not charged the respondent with invoicing the complainant for an amount in excess of that properly chargeable under the relevant legislation, it would be inappropriate for the Tribunal to inquire into that matter.  Nevertheless, it would appear that the amount the respondent charged the complainant was not wholly unreasonable or unfair having regard to his seniority and apparent experience, the nature of the services provided, and his position within the legal practice. 
  8. [93]
    The Tribunal, therefore, is not reasonably satisfied that the bill was improperly rendered to the complainant.  Therefore, Charge 6 is not proved.
  9. [94]
    In relation to Charge 7, the respondent instituted minor debt recovery proceedings in the Queensland Civil and Administrative Tribunal on 10 September 2010.  The complainant made payment in full satisfaction of the asserted debt on 13 September 2010.  The respondent thereafter maintained proceedings until 17 December 2010 when he received default judgment against the complainant.  On 27 April 2011, after the complainant lodging a complaint against the respondent, the respondent filed a second application to withdraw the first application for a default judgment.
  10. [95]
    The Tribunal finds that the respondent possessed a reasonable argument that the complainant was liable for the amount owing in the invoice.  The Tribunal, therefore, must conclude that the institution of proceedings to recover the amount owing from the complainant did not fall short of the standard of competence and diligence the community is entitled to expect from a reasonable legal practitioner.
  11. [96]
    Nevertheless, the respondent was also alleged to have improperly maintained proceedings.  The respondent has furnished no reasonably satisfactory explanation for the maintenance of proceedings after 13 September 2010, let alone for the application for a default judgment, secured on 17 December 2010.  The respondent has also not provided a satisfactory explanation for failing to seek the vacation of the default judgment until 27 April 2011. 
  12. [97]
    The respondent was obliged to discontinue or withdraw proceedings within a reasonable time after payment was made by the complainant.  The respondent was also required to take reasonable steps to satisfy himself, at appropriate intervals, that there remained a proper basis for maintaining the legal proceedings.  The respondent cannot seek to avoid personal responsibility for this erroneous conduct by relying on a procedural or substantive defect within the system associated with the management of his legal practice, or error committed by his administrative personnel.[35] 
  13. [98]
    The Tribunal is reasonably satisfied that the negligent or careless maintenance of legal proceedings after 13 September 2010, at which point there was no debt owed by the complainant to the respondent, fell short of the standard of competence and diligence the community is entitled to expect from a reasonable legal practitioner. 
  14. [99]
    The Tribunal, therefore, finds that the respondent committed unsatisfactory professional conduct in respect of Charge 7.

CHARGE 8

  1. [100]
    Charge 8 of the disciplinary application asserts that the respondent committed unsatisfactory professional conduct or professional misconduct by making an affidavit, which was filed with the Queensland Civil and Administrative Tribunal, which was false in a material particular.
  2. [101]
    On 16 December 2010 the respondent executed an affidavit in support of a request for default judgment from the Queensland Civil and Administrative Tribunal.  The affidavit claimed that the complainant had not paid an amount in full satisfaction of the debt asserted in Charges 6 and 7.  On 17 December 2010 the affidavit was filed in the Queensland Civil and Administrative Tribunal in support of a successful application for default judgment.
  3. [102]
    The applicable law was described by the Western Australian Court of Appeal recently in Giudice v Legal Profession Complaints Committee[36] and Fidock v Legal Profession Complaints Committee.[37]  In Giudice, Martin CJ, with whom the other members of the Court of Appeal agreed, held that:

As this court has pointed out, when a practitioner provides information or makes a statement to a court which is false or misleading, there are (at least) three categories of case in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct.  First, the practitioner might know that the statement or information is false or misleading.  Second, the practitioner might have a reckless disregard to the question of whether the statement or information is false or misleading, and third, the practitioner might be negligent or careless.  Because the first two categories will only apply if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act.  In cases falling within the third category - that of negligence or carelessness - whether or not the practitioner's conduct is either unsatisfactory professional conduct or professional misconduct will depend upon the nature and degree of negligence or carelessness involved. (emphasis added) (footnotes omitted)[38]

  1. [103]
    Allegations that the respondent made the false statement fraudulently or recklessly require a specific factual finding regarding the state of the respondent’s mind.  Such findings should not be reached lightly, having regard to the sliding scale expounded in Briginshaw.[39]
  2. [104]
    Nevertheless, the Tribunal cannot rely exclusively on the statements and evidence produced by the respondent.  As was held in Angus v Clifford by Bowen LJ:

A man may tell a lie about the state of his own mind, just as much as he can tell a lie about the state of the weather, or the state of his own digestion.  It makes, to be sure, the inquiry a difficult and complicated one, and probably an obscure one, as to what the state of his mind may have been, but once arrive at the inference of fact that the state of his mind was to his own knowledge not that which he describes it as being, then he has told a lie, just as if he made an intentional misstatement of something outside his own mind, and visible to the eyes of all men.  A great deal of the argument which has been addressed to the Court, arises, as it seems to me, under cover of the fallacious use, first of all, of the principle that you cannot look into a man's mind.  It is said you cannot do that:  therefore, what follows?  It is said that you are to have fixed rules to tell you that he must have meant something, one way or the other, when certain exterior phenomena arise.  The answer is that there is no such thing as an absolute criterion which gives you a certain index to a man's mind.  There is nothing outside his mind which is an absolute indication of what is going on inside.  So far from saying that you cannot look into a man's mind, you must look into it, if you are going to find fraud against him; and unless you think you see what must have been in his mind, you cannot find him guilty of fraud.[40] 

  1. [105]
    Applying the Briginshaw standard, and giving due weight to the remarks of Bowen LJ in Angus, it is not reasonably open to the Tribunal to find that the false affidavit was made fraudulently or recklessly.  There is nothing on the evidence indicating that the respondent intentionally sought to mislead the Tribunal, or consciously disregarded the risk that the material contained in the affidavit was false.  Indeed, his reaction following the discovery of the material inaccuracy appears to vitiate both propositions.
  2. [106]
    Accordingly, the Tribunal does not find that the respondent fraudulently or recklessly misled the Queensland Civil and Administrative Tribunal to secure a default judgment.
  3. [107]
    However, as is made clear in Guidice and Fidock, the Tribunal may find that a negligent or careless misstatement contained within an affidavit or statement presented to a court or tribunal may amount to professional misconduct or unsatisfactory professional conduct.[41]  The importance of the veracity of statements presented by legal practitioners to the Tribunal was discussed by the Queensland Court of Appeal in Council of Queensland Law Society v Wright:

The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners’ submissions to the court. (emphasis added)[42]

  1. [108]
    Indeed, the situation arising in Charge 8 appears to have been contemplated in Fidock v Legal Profession Complaints Committee, where the Court held in a unanimous judgment that:

[F]or example, a misleading statement to the court made by a practitioner on a matter of importance to the disposition of the case, where the misstatement is made as a result of gross carelessness, may, depending on all the circumstances, involve a 'substantial … failure to reach or maintain a reasonable standard of competence and diligence' and thereby constitute professional misconduct within the meaning of s 403 of the 2008 Act. The importance of practitioners providing reliable information to the court applies with heightened force to a solemn occasion such as the swearing of an affidavit by a solicitor.  Its significance is underscored where the affidavit is in support of an ex parte application.[43]

  1. [109]
    Whether conduct complained of constitutes unsatisfactory professional conduct, professional misconduct or non-sanctionable conduct will depend on the nature and degree of the negligence or carelessness involved.[44]
  2. [110]
    The subject matter of the misstatement was the non-payment of a debt.  The claim filed before the Queensland Civil and Administrative Tribunal was for the recovery of an unpaid debt.
  3. [111]
    The subject matter of the false statement was an integral, indeed the central, fact necessary to establish the cause of action.  If this fact were incorrect or inaccurate, the respondent’s claim would not only be groundless, but the relief sought would already have been obtained.  In such circumstances, it was encumbent on the respondent to take reasonable steps to independently satisfy himself, at the very least, that the central fact the subject of his affidavit and claim was correct.  There is no evidence that the respondent took any reasonable steps to ensure the veracity of his affidavit.
  4. [112]
    The obligation of the respondent to take reasonable steps to ensure the veracity of his affidavit is underscored by his overarching duties to the Court and the administration of justice.  It is further emphasised by the ex parte nature of the proceedings, where the absence of the complainant precluded any opportunity to contradict false statements made by the respondent.  In ex parte proceedings, the duty of the respondent to ensure that correct statements of law and fact is presented to the court or tribunal is further pronounced.
  5. [113]
    The respondent again claims that he relied on the expertise and diligence of his administrative personnel to ensure the accuracy of the affidavit filed with the Court.  However, the respondent possesses non-delegable supervisorial responsibilities under s 37.1 of the Australian Solicitors Conduct Rules 2012 (Qld).  Furthermore, the respondent, as the principal of the legal practice, could not merely accept assurances from staff that the material contained in the affidavit, especially where it relates to an essential or integral fact forming the foundation of the proceedings, was correct and accurate.[45] 
  6. [114]
    The Tribunal finds that the making of an affidavit false in material particulars and filed in support of an ex parte application for default judgment in minor debt recovery proceedings against an unrepresented client falls short of the standard of competence and diligence the community is entitled to expect from a reasonably competent legal practitioner.  The Tribunal finds, however, that the conduct of the respondent was merely negligent or careless.  Despite its gravity, it is, therefore, not substandard to the substantial degree required for a finding of professional misconduct.  
  7. [115]
    Accordingly, the Tribunal concludes that the respondent committed unsatisfactory professional conduct in respect of Charge 8.

PENALTY

  1. [116]
    The Tribunal finds that the respondent has committed four instances of unsatisfactory professional conduct. 
  2. [117]
    The objectives of disciplinary proceedings include: (a) protection of the community; (b) general deterrence; (c) specific deterrence; and (d) maintaining professional standards of competence and diligence.
  3. [118]
    The Tribunal sees the most important disciplinary objectives in constructing an appropriate penalty as avoiding or reducing the repetition of professional shortcomings, not only by the solicitor concerned, but by other practitioners as well,[46]  and enforcement of professional standards of competence and diligence. 
  4. [119]
    The conduct of the respondent in wrongfully charging a client, improperly instituting or maintaining minor debt recovery proceedings against two clients, and making a false statement which was filed in the Tribunal, constitute grave breaches of professional standards and ethics. 
  5. [120]
    His unjustified commencement and maintenance of minor debt recovery proceedings against two clients has brought the legal profession into disrepute.  Furthermore, the procurement of a default judgment in ex parte proceedings on the basis of a false affidavit risks significantly undermining public confidence in the administration of justice.  In such circumstances, the Tribunal notes that the respondent does not appear to fully acknowledge the seriousness, or appreciate the gravity, of his poor behaviour.
  6. [121]
    However, the Tribunal is satisfied that the respondent’s conduct was not deliberate or intentional, and primarily derived from carelessness and reliance on unsatisfactory organisational systems.  Furthermore, the respondent has not been the subject of any prior adverse disciplinary findings. With appropriate modifications to his practice arrangements, which the Tribunal is satisfied that the respondent would implement on the conclusion of these proceedings, the Tribunal is not of the view that the respondent would present as a significant or unacceptable risk to the community.
  7. [122]
    Principal legal practitioners responsible for the management of their legal practice must ensure adequate supervision of their administrative personnel and operations, and the adoption of procedures with appropriate procedural safeguards to prevent the improper charging of clients or maintenance of proceedings.  Lawyers must also be acutely aware of the fact that they are personally responsible for the accuracy of all information contained within affidavits filed before the Tribunal.
  8. [123]
    The Commissioner submits that a reprimand and fine of $10,000 to $12,000 is an appropriate global penalty in the circumstances.
  9. [124]
    However, having regard to the circumstances of the case, including the basis of liability, the relevant disciplinary objectives (especially deterrence) and the fact that the practitioner has not previously been disciplined, the Tribunal should require that the respondent be publicly reprimanded and impose a pecuniary penalty of $3,000.00.

COSTS

  1. [125]
    The applicant has been successful in only four of its charges in the original disciplinary application.  Furthermore, the applicant has only been found to have committed unsatisfactory professional conduct in respect of two charges which the applicant claimed amounted to professional misconduct.
  2. [126]
    In such circumstances, it is appropriate that the Tribunal reserves its decision as to costs and invites further submissions from the parties.

ORDERS

  1. [127]
    It is the decision of the Tribunal that:
    1. the respondent is publicly reprimanded.
    2. the respondent must pay a pecuniary penalty of $3,000.00 within sixty (60) days from the date of this decision.
    3. costs reserved.
    4. the applicant must file submissions regarding the distribution of costs of and incidental to the proceedings by 4:00PM, 6 November 2015.
    5. the respondent must file submissions in reply regarding the distribution of costs of and incidental to the proceedings by 4:00PM, 20 November 2015.
    6. the application for costs will be determined by the Tribunal on the papers in Brisbane not before 23 November 2015, unless either party files an application for an oral hearing.

Footnotes

[1]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 which identifies the nature, seriousness and consequences of a disputed allegation as logically affecting the answer to the question whether the issue has been proved to the required level of persuasion.  In a disciplinary setting substandard professional performance must clearly be the most probable interpretation or explanation for the state of affairs being inquired into. See Transport Industries Insurance v Longmuir [1997] 1 VR 125, 141.

[2]Legal Profession Act 2007 (Qld) s 418.

[3]Legal Profession Act 2007 (Qld) s 419.

[4]Legal Profession Act 2007 (Qld) s 420.

[5]  (1983) 16 NSWLR 197, 200-202.

[6]Medical Board of Queensland v Bayliss [2000] 1 Qd R 598.

[7]Re Bannister (1975) 5 ACTR 100, 104 per Fox J.

[8]  Frankel, “Curing Lawyers in competence:  Premium Non Nocere” (1977) 10 Creighton L Rev 613, 619.

[9]  cf McKay, “Competence and the professionally responsible lawyer” (1980) 29 Emory LJ 91, 98.

[10]  Filed 30 March 2015.

[11]  Compare Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249, 263.

[12]Baker v Legal Services Commissioner No 2 [2006] 2 Qd R 243.

[13]Australian Solicitors Conduct Rules 2012 (Qld), r 21.3.1.

[14]  GE Dal Pont, Lawyers Professional Responsiblilties, 5th ed at [17.250]; CT Bowring and Co (Insurance) Ltd v Corsi Partners Ltd [1994] 2 Loyd’s Rep 567, 580 per Millett LJ.

[15]RBCW Diamond (Pty) Ltd v Da Gloria [2007] NSWSC 1325 at [21] per Rothman J; cf Steindl Nomines Pty Ltd v Laghaifar [2003] 2 Qd R 638 at [24] per Davies JA.

[16]Luxmoore-May v Messenger May Baverstock (1990) 1 WLR 1009, 1020.

[17]Legal Profession Act 2007 (Qld) s 316(1).

[18]Legal Profession Act 2007 (Qld) s 316(2).

[19]Beach Petroleum NL v Abbott Tout Russell Kennedy (1999) 48 NSWLR 1.

[20]Legal Profession Act 2007 (Qld) s 300.

[21]Legal Profession Act 2007 (Qld) s 322(1)(a). 

[22]Legal Profession Act 2007 (Qld) s 319(1)(a)-(c). 

[23]  This is subject to any equitable or restitutionary claims which may be open to the legal practitioner, such as quantum meruit or unjust enrichment. 

[24]Beach Petroleum NL v Abbott Tout Russell Kennedy (1999) 48 NSWLR 1.

[25]Griffiths v Evans [1953] 2 All ER 1364, 1369.

[26]  For this reason, it might be more appropriate to regard a presumed retainer as a subspecies of implied retainer.  This is because the conditions necessary to establish an implied retainer will almost always be satisfied if it can be established that there is a presumed retainer. 

[27]Pegrum v Fatharly (1996) 14 WAR 92, 93-94.

[28]Integrated Computer Services Pty ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11,110, 11,117.

[29]Branir v Owston Nominees Pty Ltd (No 2) (2001) 117 FCR 424, [369].

[30]The Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239, [2661].

[31]Australian Solicitors Conduct Rules 2012 (Qld), r 37.1.

[32]Council of the Queensland Law Society Inc v Cummings [2004] QCA 138; Law Society of New South Wales v McNamara (1980) 47 NSWLR 72.

[33]Legal Profession Act 2007 (Qld) s 316(1).

[34]Legal Profession Act 2007 (Qld) s 316(2).

[35]Council of the Queensland Law Society Inc v Cummings [2004] QCA 138; Law Society of New South Wales v McNamara (1980) 47 NSWLR 72.

[36]Giudice v Legal Profession Complaints Committee [2014] WASCA 115.

[37]Fidock v Legal Profession Complaints Committee [2013] WASCA 108.

[38]Giudice v Legal Profession Complaints Committee [2014] WASCA 115, [8].

[39]Briginshaw v Briginshaw (1938) 60 CLR 336, 353-354, 361-362.

[40]Angus v Clifford [1891] 2 Ch 449, 470-471.

[41]  See further, Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19, 25.

[42]Council of Queensland Law Society v Wright [2001] QCA 58, [67].

[43]Fidock v Legal Practitioners Complaint Committee [2013] WASCA 108, [102].

[44]Giudice v Legal Profession Complaints Committee [2014] WASCA 115, [8].

[45]Council of the Queensland Law Society Inc v Cummings [2004] QCA 138; Law Society of New South Wales v McNamara (1980) 47 NSWLR 72.

[46]  Sir Henry Benson, Report of the Royal Commission on Legal Services (1979), [25.27].

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v John-Paul Mould

  • Shortened Case Name:

    Legal Services Commissioner v Mould

  • MNC:

    [2015] QCAT 440

  • Court:

    QCAT

  • Judge(s):

    Carmody J

  • Date:

    16 Oct 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Angus v Clifford (1891) 2 Ch 449
2 citations
Jump To
Cite 1 - (1891) 2 Ch 449
Cite 2 - (1891) 2 Ch 449
Baker v Legal Services Commissioner[2006] 2 Qd R 249; [2006] QCA 145
2 citations
Jump To
Cite 1 - [2006] 2 Qd R 249
Cite 2 - [2006] 2 Qd R 249
Baker v Legal Services Commissioner (No 2) [2006] 2 Qd R 243
2 citations
Jump To
Cite 1 - [2006] 2 Qd R 243
Cite 2 - [2006] 2 Qd R 243
Beach Petroleum NL v Kennedy & Ors (1999) 48 NSWLR 1
3 citations
Jump To
Cite 1 - (1999) 48 NSWLR 1
Cite 2 - (1999) 48 NSWLR 1
Cite 3 - (1999) 48 NSWLR 1
Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
2 citations
Jump To
Cite 1 - (2001) 117 FCR 424
Cite 2 - (2001) 117 FCR 424
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Council of the Queensland Law Society Inc v Cummings; ex parte Attorney-General & Minister for Justice [2004] QCA 138
4 citations
Jump To
Cite 1 - [2004] QCA 138
Cite 2 - [2004] QCA 138
Cite 3 - [2004] QCA 138
Cite 4 - [2004] QCA 138
CT Bowring and Co (Insurance) Ltd v Corsi Partners Ltd [1994] 2 Loyd’s Rep 567
2 citations
Jump To
Cite 1 - [1994] 2 Loyd’s Rep 567
Cite 2 - [1994] 2 Loyd’s Rep 567
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
3 citations
Jump To
Cite 1 - [2013] WASCA 108
Cite 2 - [2013] WASCA 108
Cite 3 - [2013] WASCA 108
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
4 citations
Jump To
Cite 1 - [2014] WASCA 115
Cite 2 - [2014] WASCA 115
Cite 3 - [2014] WASCA 115
Cite 4 - [2014] WASCA 115
Griffiths v Evans (1953) 2 All E.R. 1364
2 citations
Jump To
Cite 1 - (1953) 2 All E.R. 1364
Cite 2 - (1953) 2 All E.R. 1364
Groom v Crocker (1939) 1 KB 194
1 citation
Jump To
Cite 1 - (1939) 1 KB 194
Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110
2 citations
Jump To
Cite 1 - (1988) 5 BPR 11,110
Cite 2 - (1988) 5 BPR 11,110
Law Society of New South Wales v McNamara (1980) 47 NSWLR 72
4 citations
Jump To
Cite 1 - (1980) 47 NSWLR 72
Cite 2 - (1980) 47 NSWLR 72
Cite 3 - (1980) 47 NSWLR 72
Cite 4 - (1980) 47 NSWLR 72
Luxmoore-May v Messenger May Baverstock (1990) 1 WLR 1009
2 citations
Jump To
Cite 1 - (1990) 1 WLR 1009
Cite 2 - (1990) 1 WLR 1009
Medical Board of Queensland v Bayliss[2000] 1 Qd R 598; [1999] QCA 59
2 citations
Jump To
Cite 1 - [2000] 1 Qd R 598
Cite 2 - [2000] 1 Qd R 598
Medical Board of Queensland v Bayliss (1977) 10 Creighton L Rev 613
1 citation
Jump To
Cite 1 - (1977) 10 Creighton L Rev 613
Medical Board of Queensland v Bayliss (1980) 29 Emory LJ 91
1 citation
Jump To
Cite 1 - (1980) 29 Emory LJ 91
Pergrum v Fatharly (1996) 14 WAR 92
2 citations
Jump To
Cite 1 - (1996) 14 WAR 92
Cite 2 - (1996) 14 WAR 92
Pillai v Messiter (No 2) (1983) 16 NSWLR 197
2 citations
Jump To
Cite 1 - (1983) 16 NSWLR 197
Cite 2 - (1983) 16 NSWLR 197
RBCW Diamond (Pty) Ltd v Da Gloria [2007] NSWSC 1325
2 citations
Jump To
Cite 1 - [2007] NSWSC 1325
Cite 2 - [2007] NSWSC 1325
Re Bannister; Ex parte Hartstein (1975) 5 ACTR 100
2 citations
Jump To
Cite 1 - (1975) 5 ACTR 100
Cite 2 - (1975) 5 ACTR 100
Re Mayes and the Legal Practitioners Act [1974] 1 N.S.W.L.R 19
2 citations
Jump To
Cite 1 - [1974] 1 N.S.W.L.R 19
Cite 2 - [1974] 1 N.S.W.L.R 19
Steindl Nomines Pty Ltd v Laghaifar [2003] 2 Qd R 638
2 citations
Jump To
Cite 1 - [2003] 2 Qd R 638
Cite 2 - [2003] 2 Qd R 638
The Bell Group Ltd (in liq) v Westpac Banking Corporation [2008] WASC 239
2 citations
Jump To
Cite 1 - [2008] WASC 239
Cite 2 - [2008] WASC 239
The Council of the Qld Law Society Inc v Wright [2001] QCA 58
2 citations
Jump To
Cite 1 - [2001] QCA 58
Cite 2 - [2001] QCA 58
Transport Industries Insurance Co Ltd v Longmuir (1997) 1 VR 125
2 citations
Jump To
Cite 1 - (1997) 1 VR 125
Cite 2 - (1997) 1 VR 125

Cases Citing

Case NameFull CitationFrequency
Legal Services Commissioner v Laylee [2016] QCAT 2372 citations
1

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