Legal Services Commissioner v Given (No 2)
[2015] QCAT 479
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- Unreported Judgment
- Legal Services Commissioner v Given (No 2)[2015] QCAT 479
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Legal Services Commissioner v Given (No 2)[2015] QCAT 479
Legal Services Commissioner v Given (No 2)[2015] QCAT 479
CITATION: | Legal Services Commissioner v Given (No 2) [2015] QCAT 479 |
PARTIES: | Legal Services Commissioner (Applicant/Appellant) |
v | |
Ross Alexander Given (Respondent) |
APPLICATION NUMBER: | OCR030-13 |
MATTER TYPE: | Occupational Regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice David Thomas, President Assisted by: Mr Ken Horsley (Practitioner Panel Member) Dr Julian Lamont (Lay Panel Member) |
DELIVERED ON: | 4 December 2015 |
DELIVERED AT: | Brisbane |
ORDER MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE –DISCIPLINARY PROCEEDINGS – COMPENSATION ORDER – where the Respondent, an Australian legal practitioner, was found to have engaged in unsatisfactory professional conduct for failing to prepare adequate notes of a client interview in relation to the preparation of an enduring power of attorney and will, and failing to conduct the interview with his client alone – where complainant subsequently sought compensation under s 464 of the Legal Profession Act 2007– whether there is sufficient causal connection between the finding of unsatisfactory professional conduct and the claimed losses incurred by the complainant – whether adequate notes and conducting interview alone would have prevented the losses subsequently incurred by the complainant Legal Profession Act 2007 (Qld) ss 464, 464(a), 464(d), 465(1), 466(3), Schedule 2. Queensland Civil and Administrative Tribunal Act 2009 s 32 Legal Services Commissioner v Ross Given [2015] QCAT 225. |
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 Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- [1]Mrs Elizabeth Ann Bywater has made a claim for a compensation order pursuant to section 464 of the Legal Profession Act 2007 (Qld) (‘the Act’).
The statutory framework
- [2]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 the conduct that has been found to be unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner involved in the relevant practice.
- [3]In this context, a ‘law practice’ includes an Australian legal practitioner who is a sole practitioner.[1] It is understood that Mr Given was an Australian legal practitioner who was a sole practitioner at the time the unsatisfactory professional conduct took place.
- [4]Unless the parties agree, a compensation order for pecuniary loss must not be made unless the Tribunal is satisfied:
- 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.[2]
- [5]Section 466(3) of the Act has the effect that a compensation order for pecuniary loss of an amount of more than $7,500 must not be made unless the complainant and the law practice both consent to the order.
- [6]In this case no consent has been provided and, as has been correctly identified by Mrs Bywater in her submissions dated 3 July 2015, the highest amount which can be claimed in this case, with respect to pecuniary loss, is $7,500.[3]
Discussion
- [7]Mrs Bywater made submissions, in paragraphs 1 to 6, in her Notice of Intention to Seek Compensation Order which was filed on 27 May 2013.
- [8]Messrs Maurice Blackburn were retained by Mrs Bywater in the context of other proceedings and generously agreed, in view of Mrs Bywater’s precarious financial and health position, to assist her in making further submissions which were delivered on 3 July 2015.
- [9]Mr Given delivered submissions in response as to compensation.
- [10]The claim for a compensation order has, it seems, been made by reference to the following types of compensation orders which can be made under the Act:
- an order that a law practice cannot recover or must repay the whole or a stated part of the amount that the law practice charged a complainant for stated legal services;[4] and
- 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.[5]
- [11]The claim for a compensation order of the type contemplated in s 464(a) of the Act has been made with respect to a charge for legal services made by Mr Given to Mr Bywater for the sum said to be $3,211.00.[6]
- [12]Mrs Bywater submits that both the Will prepared by Mr Given and also the Enduring Power of Attorney were subsequently held to be invalid as a result of separate proceedings in QCAT and also the Supreme Court of Queensland.[7]
- [13]Of course, different questions arose for consideration in the disciplinary proceedings as compared with those which would have been considered in relation to any challenge to either the Wills or the Enduring Power of Attorney.
- [14]Attachment A referred to in paragraph 1 of Mrs Bywater’s Notice of Intention to Seek Compensation Order contains a copy of a cheque to Givens Legal Service which is in the amount of $2,000.00 and also two statements of account from Givens Legal Service, one in the sum of $440.00 which is described as “re: POA and Will” and a second in the sum of $220.00 which is described as “re: Will”.
- [15]There is no evidence with respect to the figure mentioned of $3,211.00, with the only accounts obviously relevant to the Will and Enduring Power of Attorney being those in the sums of $440.00 and $220.00. Nothing submitted by Mrs Bywater totals the figure of $3,211.00 and there is no explanation as to the services to which the cheque in the sum of $2,000.00 related. Mr Given also acted for Mr Bywater in relation to other proceedings.
- [16]The Act does not prescribe the circumstances in which a compensation order of the type contemplated by s 464(a) can be made. This is in contrast to a compensation order of the type contemplated by s 464(d), where it is proscribed that such an order can only be made where a claimant has suffered pecuniary loss because of the conduct found to be unsatisfactory professional conduct.[8]
- [17]However, it must be the case that an order of the type contemplated by s 464(a) might only be made in circumstances where the relevant conduct would lead to the conclusion that it is in the interests of justice that the costs be refunded or repaid. Circumstances could include where, due to the conduct, the services were of little assistance.
- [18]The relevant conduct of Mr Given was the failure to prepare adequate notes and the failure to conduct the interview with Mr Bywater alone.[9] This conduct did not unreasonably increase the legal fees charged by Mr Given nor did that conduct mean that the services were of no value (when compared with the $660.00 which has been identified by Mrs Bywater).
- [19]Under those circumstances, the Tribunal will not make an order for repayment of these fees.
- [20]The balance of the claims appears to be for pecuniary loss said to have been suffered because of the conduct. The relevant compensation order is identified in s 464(d) of the Act.
- [21]In considering these claims, it is necessary to identify the conduct and then consider whether the pecuniary loss flows from that conduct. In this case the conduct was the failure to prepare adequate notes and the failure to conduct the interview with Mr Bywater alone.
- [22]Losses suffered as a result of an assertion that the Will and Enduring Power of Attorney should never have been created are not in the nature of pecuniary loss suffered because of the conduct in failing to prepare adequate notes or in failing to conduct the interview with Mr Bywater alone.
- [23]By reference to the paragraph numbers in the Notice of Intention to Seek Compensation Order, the following is the position as to each of the claims.
- [24]Paragraph 2 refers to legal costs incurred with Butler McDermott Lawyers in bringing an application to QCAT concerning the Power of Attorney “created improperly by Mr Given”. The Tribunal finds that this loss was not suffered because of the conduct identified to be unsatisfactory professional conduct.
- [25]Paragraph 3 refers to fees asserted to have been incurred with Butler McDermott Lawyers which flowed from the application concerning the Enduring Power of Attorney created by Mr Given. These fees were incurred by Mrs Bywater in seeking to re-instate her role as Mr Bywater’s administrator and guardian; the position prior to “Ross Given’s creation of the invalid Enduring Power of Attorney”. The Tribunal finds that these fees were not suffered or incurred because of the conduct which was found to have been unsatisfactory professional conduct.
- [26]Paragraph 4 identifies fees which relate to legal costs in relation to proceedings for Proof in Solemn Form of Mr Bywater’s last Will. These fees are identified as falling in a category of loss which “would not have been incurred but for the creation of the 2009 Will by Ross Given.” The Tribunal finds that the loss was not pecuniary loss suffered because of the conduct identified by the Tribunal as unsatisfactory professional conduct.
- [27]Paragraph 5 suggests that the settlement in relation to Mr Bywater’s Will was entered into purely on a commercial basis. The paragraph asserts that it was necessary for the estate to “pay the further expense of $80,000 which would not have been incurred but for the creation of the 2009 Will by Ross Given”. The Tribunal finds that these fees were not in the nature of pecuniary loss suffered because of the conduct found to be unsatisfactory professional conduct.
- [28]Finally, paragraph 6 refers to fees incurred by Mrs Bywater in relation to the complaint against Mr Given and the subsequent proceedings by the Legal Services Commissioner. It is said that these fees “would not have been incurred but for the creation of the 2009 Wills by Ross Given”.
- [29]In support of this claim, Mrs Bywater refers to ‘Exhibit E’ in outlining the costs she incurred as a result of Mr Given’s conduct, including the preparation of affidavit material for the claim. Exhibit E includes the following:
- Butler McDermott Lawyers tax invoice dated 30.01.2012 totalling $1302.49 which refers to “professional fees and disbursements with GST” and includes postal charges.
- Butler McDermott Lawyers tax invoice dated 14.05.2013 for $4316.06. The invoice also refers to “professional fees and disbursements with GST” and includes firm disbursements for telephone charges, STD charges and postal charges.
- [30]There is no clear indication of how these fees arose because of the relevant conduct of Mr Given or that they concerned the preparation of Mrs Bywater’s affidavit in these proceedings. Based on the evidence, it is not possible to discern how the figure of $5618.55 is derived.
- [31]An additional matter was raised in the submissions of 3 July 2015, where it is asserted that the absence of detailed notes in the preparation of the relevant documents and the inclusion of Ms Winifred Bywater in the attendance made the matters more complex than they would otherwise have been.[10]
- [32]With the benefit of findings in Legal Services Commissioner v Given[11] and appropriately recognising the way in which Part 4.10 of the Act is intended to operate, the submissions of 3 July 2015 seek to identify a pecuniary loss which happened because of the conduct which was found to be unsatisfactory professional conduct. This is the correct approach.
- [33]Having correctly identified this issue, the submissions of 3 July 2015 proceed to assert “as a result of the attendances of Mr Given, our client has incurred costs in the amount of $172,724.69 as detailed in her affidavit material. This does not include her costs to date in the professional negligence proceedings against Mr Given”.[12]
- [34]The focus on the analysis must be on pecuniary loss which happened because of the conduct. This is not the same as loss that happened because of the attendances of Mr Given.
- [35]The submission does not identify the loss which arose from the asserted added complexity which is said to have occurred because of the conduct found to be unsatisfactory professional conduct. It does not, for example, identify whether additional steps were necessary, or additional evidence had to be prepared or additional advice given. The evidence filed on behalf of Mrs Bywater (e.g. the invoices) does not reveal any loss flowing because of any added complexity.
- [36]It was not the finding of the Tribunal that the presence of Mrs Bywater during parts of the interview process meant that the terms of the documents would have been any different had she not been present. It was also not the finding that, had written notes been taken, the outcome would have been different.
- [37]In those circumstances, it is not possible to identify, in the costs of $172,724.69 referred to, any cost which is a pecuniary loss suffered because of the conduct found to be unsatisfactory professional conduct.
- [38]The invoices which are contained in the material relate to matters described as “claim against R A Given”. The descriptions are generic and do not suggest the particular services to which the fees relate. For example, there are descriptions such as “producing any document”, “letter short or formal”, “attending on telephone to”, and “solicitor attending legal”.[13] These describe the type of service but not what was done. There is no description which would enable the conclusion to be drawn that the relevant fees related to the disciplinary proceedings commenced by the Legal Services Commissioner, as opposed to a claim for professional negligence against Mr Given. Such a claim is mentioned in Mrs Bywater’s submissions.
- [39]On that basis, it is not possible, with adequate certainty, to identify what pecuniary loss (if any) flowed from the conduct of Mr Given which was found to be unsatisfactory professional conduct.
- [40]In the submissions filed 3 July 2015, reference is made to the impact of the proceedings upon Mrs Bywater.
- [41]Such matters are not, of course, relevant to whether the pecuniary loss was suffered because of the conduct which was found to be unsatisfactory professional conduct.
- [42]However, they would likely be relevant to the second limb of the test to make a compensation order which is outlined in s 465(1) of the Act.
- [43]Section 465(1)(b) provides that a compensation order relating to pecuniary loss suffered because of conduct that has been found to be unsatisfactory professional conduct cannot be made unless the Tribunal is satisfied that it is in the interests of justice that an order of that type be made.
- [44]The matters listed in relation to the impact of the proceedings on Mrs Bywater would, in the circumstances, be relevant to the second question whether the interests of justice require that an order be made.
- [45]However, it is necessary to satisfy both limbs and as has been outlined, as to the elements of pecuniary loss identified, the first limb is not satisfied. It is not established that Mrs Bywater suffered pecuniary loss because of the conduct found to be unsatisfactory professional conduct.
- [46]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, dictionary.
[2] Ibid s 465(1).
[3] Mrs Bywater’s submissions dated 3 July 2015, paragraph 4.5; Legal Profession Act 2007 (Qld) s 466(3).
[4] Legal Profession Act 2007 (Qld) s 464(a).
[5] Ibid s 464(d).
[6] Notice of Intention to Seek Compensation Order filed 27 May 2013, paragraph 1; Mrs Bywater’s submissions filed 3 July 2015, paragraph 4.3(a).
[7] Mrs Bywater’s submissions filed 3 July 2015, para 4.3(b).
[8] Legal Profession Act 2007 (Qld) s 465(1).
[9] Legal Services Commissioner v Ross Given [2015] QCAT 225.
[10] Mrs Bywater’s submissions filed 3 July 2015, paragraph 4.3(c).
[11] [2015] QCAT 225.
[12] Mrs Bywater’s submissions filed 3 July 2015, paragraph 4.3(d).
[13] Notice of Intention to Seek Compensation Order filed 27 May 2013, Exhibit B.