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Legal Services Commissioner v Nguyen QCAT 1
Legal Services Commissioner v Nguyen  QCAT 1
Legal Services Commissioner (Applicant/Appellant)
Mr Sam Huu-Hai Nguyen (Respondent)
Occupational Regulation matters
On the papers
Justice DG Thomas, President
Douglas Murphy QC (Legal Panel Member)
Susan Jean Dann (Lay Panel Member)
7 January 2016
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – REMEDIES – COMPENSATION ORDER – where barrister in breach of rule 83 of the Barristers Rule 2007 – where barrister found guilty of unsatisfactory professional conduct for breach of rule 83 – whether loss subject of the compensation order was sufficiently connected to the disciplinary charges made out against the barrister
Barristers Rule 2007 r 83
Legal Profession Act 2007 (Qld) ss 418, 464, 465, 466
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
Legal Services Commissioner v Nguyen  QCAT 267
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
- Mr Sam Huu-Hai Nguyen is a barrister who was found guilty of unsatisfactory professional conduct for accepting a direct brief from a client, Ms Dusanka Aleksic, without obtaining Ms Aleksic’s written consent acknowledging that the brief was in contravention of rule 83 of the 2007 Barristers Rule.
- Ms Dusanka Aleksic has made a claim for a compensation order pursuant to s 464 of the Legal Profession Act 2007 (Qld) (the Act) for:
- reimbursement of legal costs for both Ms Aleksic’s discrimination and her WorkCover case, paid to Mr Nguyen;
- reimbursement of further legal costs incurred by Ms Aleksic in an attempt to rectify Mr Nguyen’s negligence (paid to McLaughlins Lawyers) the sum of which was in excess of $21,000.
- compensation for financial hardship due to Mr Nguyen allegedly sabotaging Ms Aleksic’s discrimination and WorkCover case resulting in a lost case and loss of compensation of $20,000.
- compensation for legal travel expenses including petrol and parking incurred when Ms Aleksic travelled from Gold Coast to Brisbane for over 7 months, alleged to be incurred due to Mr Nguyen’s negligence.
The statutory framework
- Section 464 of the Act deals with the meaning of “compensation order”.
- A compensation order includes an order that a law practice must repay the whole or a stated part of the amount that the law practice charged a complainant for stated legal services.
- A compensation order is also 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.
- As to the compensation order which deals with payment of pecuniary loss (as contemplated by s 464(d)), the order cannot be made unless the Tribunal is satisfied:
- that the complainant has suffered pecuniary loss because of the conduct concerned; and
- that it is in the best interests of justice that an order of this type be made.
- Further, in relation to the compensation order relating to pecuniary loss of the type mentioned in s 464(d), the compensation order is limited to $7,500 unless the complainant and the law practice both consent to the order.
- The Act does not prescribe limitations on the circumstances in which a compensation order of the type contemplated by s 464(a) can be made.
- However, given that the right to a compensation order arises in the context of disciplinary proceedings, it must follow that the Tribunal should have regard to the connection between the conduct found to be unsatisfactory professional conduct or professional misconduct, and the costs which are the subject of the claim for a compensation order.
- It is therefore necessary to:
- identify the relevant conduct of the practitioner; and
- identify the costs and pecuniary loss which happened because of the conduct.
- The charge brought by the Legal Services Commissioner against Mr Nguyen was as follows:
- Breach of rule 83 of the Barristers Rule – between 10 October 2010 and 20 March 2011 Mr Nguyen, in acting directly for Dusanka Aleksic, breached rule 83 of the Barristers Rule 2007.
- Mr Nguyen failed to inform the client in writing of the matters set out in subsection (a) of rule 83.
- Mr Nguyen failed to obtain a written acknowledgment, signed by the client, that she had been informed of the matters set out in subsection (a) of rule 83.
- Consistent with the charge which had been brought by the Legal Services Commissioner, the Tribunal found that:
- Mr Nguyen failed to comply with the requirements of Rule 83(a) and failed to obtain a written acknowledgment signed by Ms Aleksic that she had been informed of the matter set out in rule 83(a).
- Conduct which consists of a contravention of a relevant law is capable of constituting unsatisfactory professional conduct or professional misconduct, such law including contravention of a Regulation or Legal Professional Rules, such as rule 83.
- By contravening the Barristers Rule, Mr Nguyen’s conduct fell short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner and so amounted to unsatisfactory professional conduct as that term is described in s 418 of the Act.
- As explained above, it is necessary to identify whether costs and loss which formed the basis of the claim for a compensation order happened because of the conduct which was found to be unsatisfactory professional conduct.
- The conduct found to be unsatisfactory professional conduct was failing to comply with the Barristers Rule, which required certain disclosures to be made to the client and for the client to acknowledge that those disclosures had been made.
- As to each element of the claim for compensation order:
- Reimbursement of legal costs for both the discrimination and WorkCover case were paid in cash: there is no assertion by Ms Aleksic that these costs happened because of, or in fact had any connection with, the conduct, namely the breach of rule 83.
- Reimbursement of further legal costs incurred in an attempt to rectify Mr Nguyen’s negligence: Ms Aleksic submits that the case was forwarded to another solicitor because of Mr Nguyen’s lack of attention and because he ‘deliberately sabotaged my case’. Again, it is not possible to identify that these expenses were incurred because of the conduct which was the subject of the charges and, consequently, the findings of the Tribunal.
- Compensation for financial hardship due to Mr Nguyen’s allegedly sabotaging the discrimination and WorkCover cases resulting in lost case and loss of compensation of $20,000: no submission is made as to how or why Mr Nguyen is alleged to have sabotaged the discrimination and WorkCover cases. There is no submission that the financial hardship referred to arose because of the conduct, namely the breach by Mr Nguyen of Rule 83.
- Compensation for legal travel expenses, both petrol and parking, in travelling from the Gold Coast to Brisbane, which is said to have occurred due to Mr Nguyen’s negligence: the submissions do not suggest that these expenses happened because of the conduct, namely the breach by Mr Nguyen of Rule 83. It is hard to see how such expenses can have any connection with that conduct.
- In the circumstances, the Tribunal finds that the losses which are the subject of the Notice of Intention to Seek a Compensation Order did not occur because of the conduct which was the subject of the charge, and which was found by the Tribunal to be unsatisfactory professional conduct.
- In the circumstances, the application for the compensation order is refused.
- Published Case Name:
Legal Services Commissioner v Sam Huu-Hai Nguyen
- Shortened Case Name:
Legal Services Commissioner v Nguyen
 QCAT 1
07 Jan 2016