Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2015
  4. Legal Services Commissioner v Penny (No 2) - [2015] QCAT 478

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Legal Services Commissioner v Penny (No 2)[2015] QCAT 478

Legal Services Commissioner v Penny (No 2)[2015] QCAT 478

CITATION:

Legal Services Commissioner v Penny (No 2) [2015] QCAT 478

PARTIES:

Legal Services Commissioner

(Applicant/Appellant)

v

Rhonda Carol Penny

(Respondent)

APPLICATION NUMBER:

OCR424-12

MATTER TYPE:

Occupational Regulation Matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Justice D Thomas, President

Assisted by:

Dr John Kees de Groot, Practitioner Panel Member

Ms Julie Cork, Lay Panel Member

DELIVERED ON:

1 December 2015

DELIVERED AT:

Brisbane 

ORDERS MADE:

  1. The Tribunal refuses to make a compensation order pursuant to Part 4.10, Chapter 4 of the Legal Profession Act 2007 (Qld).

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT – COMPENSATION ORDER – where the respondent was found to have committed unsatisfactory professional conduct in relation to a client – where the client’s son is the claimant seeking a compensation order against the respondent – whether the claimant’s loss is a result of the conduct identified as unsatisfactory professional conduct – whether a compensation order is in the interests of justice.

Legal Profession Act 2007 (Qld) ss 464, 465(1), 466(3), Schedule 2

Queensland Civil and Administrative Act 2009 (Qld) s 32

Legal Services Commissioner v Penny [2015] QCAT 108

APPEARANCES and REPRESENTATION (if any):

The claim for compensation was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

  1. [1]
    The complainant, Mr Kenneth Mew, filed a Notice of Intention to Seek Compensation Order on 20 March 2013. The compensation claim relates to pecuniary loss which Mr Mew says he suffered because of the conduct of Ms Rhonda Penny, the lawyer acting for his father, Mr Kenneth Mew (Senior).
  2. [2]
    Mr Mew’s claim is for:
    1. fees paid for legal advice from his lawyer, and
    2. loss of income from a taxi license he “would have inherited”.

The statutory framework

  1. [3]
    Mr Mew seeks a compensation order.  This term is defined in section 464 of the Legal Profession Act 2007 (Qld) (the Act).
  2. [4]
    Section 464(d)(i) of the Act provides that a compensation order includes:

an order that a law practice pay to a complainant an amount by way of compensation for pecuniary loss suffered because of conduct that has been found to be unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner involved in the relevant practice.

  1. [5]
    In this context, a “law practice” means an Australian legal practitioner who is a sole practitioner.[1]  Ms Penny was an Australian legal practitioner who was a sole practitioner.
  2. [6]
    Unless the parties agree, a compensation order for pecuniary loss must not be made unless the Tribunal is satisfied:
    1. that the complainant has suffered pecuniary loss because of the conduct concerned; and
    2. it is in the interests of justice that an order of that type be made.[2]
  3. [7]
    A compensation order requiring payment of an amount of more than $7,500 by way of monetary compensation for pecuniary loss must not be made unless the complainant and the law practice both consent to the order.[3]

Discussion

  1. [8]
    Mr Mew filed a Notice of Intention to Seek Compensation Order which, in accordance with QCAT Practice Direction Number 2 of 2010, was served upon Ms Penny.
  2. [9]
    Ms Penny notes that Mr Mew sought no directions to progress or facilitate the determination of the compensation claim.[4] In response, the Legal Services Commissioner has referred to the Practice Direction, submitting that all the Practice Direction requires for the compensation request to be “pressed” is that the Legal Services Commissioner file the complainant’s Notice of Intention to Seek Compensation Order and serve a copy on the respondent practitioner.[5]
  3. [10]
    The Legal Services Commissioner submits that the Practice Direction sets out a simple and efficient procedure whereby the Notice of Intention is filed and served, the respondent practitioner has an opportunity to respond, and the Tribunal determines the compensation request on that material at the hearing of the substantive matter.[6]
  4. [11]
    In this case, the Tribunal did not determine the compensation request at the hearing of the substantive matter. Once the substantive matter was determined, the Tribunal gave the parties the opportunity to file further submissions as to compensation if they wished.
  5. [12]
    The reason for this approach was that the determination of the claim for a compensation order must depend upon the identification of the conduct as either unsatisfactory professional conduct or professional misconduct.
  6. [13]
    This flows very clearly from ss 464(d) and 465(1) of the Act.
  7. [14]
    It is only after the relevant conduct is identified that it is possible to consider whether the claimant suffered pecuniary loss because of that conduct.
  8. [15]
    At the time the Notice of Intention to Seek Compensation Order and Ms Penny’s initial submissions were filed, it was not known what conduct might have been identified as being unsatisfactory professional conduct or professional misconduct, if any. As a matter of procedural fairness, the Tribunal ordered that the parties make whatever additional submissions they wished in light of the findings in the substantive matter.
  9. [16]
    The Legal Services Commissioner made contact with the complainant who indicated that he did not wish to respond to Ms Penny’s submission with respect to compensation.[7] 
  10. [17]
    Ms Penny’s conduct that was found to have been unsatisfactory professional conduct was:[8]
    1. The failure to review the Enduring Power of Attorney document with      Mr Kenneth Mew (Senior).
    2. The failure, in the case of the Enduring Power of Attorney, to follow     the capacity guidelines issued by the Public Guardian.
    3. The failure to prepare a detailed attendance record and notes of the client conference with Mr Kenneth Mew (Senior).
    4. The failure to maintain a client file.
  11. [18]
    In the Notice of Intention to Seek Compensation Order the financial losses, as described by Mr Mew, are:[9]
    1. Legal advice up to QCAT inquiry on 17 March 2009 amounted to $12,307.
    2. Legal advice since QCAT is well in excess of $10,000 and increasing.
    3. Loss of income from the taxi license which I would have inherited had Rhonda Penny acted with the competence expected of a law professional. (As at 7 March 2013, this amount was said to be $59,126 and increasing at $2,400 per month).
  12. [19]
    The total claimed in the Notice of Intention to Seek Compensation amounts to well in excess of $80,000.
  13. [20]
    In her submissions, Ms Penny points to the fact that there has been no consent by her for monetary compensation in excess of $7,500.  On that basis, s 466(3) of the Act limits any compensation to a total figure of $7,500.
  14. [21]
    Because of the operation of s 466(3), the maximum order which can be made is $7,500.
  15. [22]
    As to the substance of the compensation claim, Ms Penny submits that:
    1. Part of the compensation claim relates to the loss of income from a taxi license.  Mr Kenneth Mew (Senior) changed his will to leave the taxi license to his grandchildren rather than to Mr Mew.  Mr Mew commenced Supreme Court proceedings which, at the time of the submissions, were being defended.  There is no causal connection between the conduct found to be unsatisfactory professional conduct and the loss in relation to the taxi license.  Moreover, if the 2008 will is found to be valid, Mr Mew will not inherit the license.  If it is not found to be valid, he will inherit the license and will, on that basis, suffer no loss.[10]
    2. As to the claim for legal fees, it is not clear from the documents filed what the legal fees related to.  No connection with the relevant conduct found to be unsatisfactory professional conduct exists.[11]
  16. [23]
    Mr Mew provides no detail as to how any of the losses arose because of the conduct found to be unsatisfactory professional conduct. 
  17. [24]
    It is clear that the changing of Mr Kenneth Mew’s (Senior) will did not happen because of the conduct found to be unsatisfactory professional conduct.  It follows that the loss of income did not occur because of that conduct. 
  18. [25]
    There is an account attached to the Notice of Intention to Seek Compensation Order dated 31 March 2010.  No dollar figures are included against the items listed.  The description includes items such as ‘reading letter from Rhonda Penny re: building work’, ‘research property law issues and regulation issues raised by R Penny’, and ‘reading letter from Rhonda Penny: building work’.
  19. [26]
    Because of the dates, it seems that the QCAT hearing to which reference is made was a guardianship hearing relating to Mr Kenneth Mew (Senior).
  20. [27]
    There is no evidence that the legal fees identified were incurred because of the conduct found to be unsatisfactory professional conduct.
  21. [28]
    In the circumstances, I find that the pecuniary loss identified by Mr Mew and the subject of the Notice of Intention to Seek Compensation Order which was filed on 20 March 2013 was not pecuniary loss suffered because of the conduct of Ms Penny which was found by the Tribunal to be unsatisfactory professional conduct. 
  22. [29]
    Therefore, the Tribunal has no basis to make a compensation order pursuant to Part 4.10, Chapter 4 of the Act.

Footnotes

[1]Legal Profession Act 2007 (Qld), Schedule 2.

[2]Ibid, s 465(1).

[3]Ibid, s 466(3).

[4]Respondent’s submissions dated 15 October 2013, paragraph 12.

[5]Submissions on behalf of the applicant re compensation filed 20 May 2015, paragraph 6.

[6]Submissions on behalf of the applicant re compensation filed 20 May 2015, paragraph 7.

[7]Submissions on behalf of the applicant re compensation filed 20 May 2015, paragraph 9.

[8]Legal Services Commissioner v Penny [2015] QCAT 108.

[9]Notice of intention to seek compensation order filed 20 March 2013.

[10]Submissions of the respondent filed 15 October 2013, paragraph 14.

[11]Submissions of the respondent filed 15 October 2013, paragraph 15

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Rhonda Carol Penny (No 2)

  • Shortened Case Name:

    Legal Services Commissioner v Penny (No 2)

  • MNC:

    [2015] QCAT 478

  • Court:

    QCAT

  • Judge(s):

    Thomas P

  • Date:

    01 Dec 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
Legal Services Commissioner v Penny [2015] QCAT 108
2 citations
Jump To
Cite 1 - [2015] QCAT 108
Cite 2 - [2015] QCAT 108

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.