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Legal Services Commissioner v Douglas[2016] QCAT 119

Legal Services Commissioner v Douglas[2016] QCAT 119

CITATION:

Legal Services Commissioner v Douglas [2016] QCAT 119

PARTIES:

Legal Services Commissioner

(Applicant/Appellant)

v

Robert Gary Douglas

(Respondent)

APPLICATION NUMBER:

OCR241-12

MATTER TYPE:

Occupational Regulation Matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas

Assisted by:

Mr Scott Anderson, Legal panel member

Ms Julie Cork, Lay panel member

DELIVERED ON:

3 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The claim for a Compensation Order is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent was found guilty of unsatisfactory professional conduct in proceedings before the Tribunal for acting on behalf of both parties in a matrimonial dispute – where the respondent’s former client filed a Notice of Intention to seek Compensation Order against the respondent – whether the claimant’s loss is a result of the respondent’s conduct identified as unsatisfactory professional conduct – whether compensation order is in the interests of justice

Legal Profession Act 2007 (Qld) ss 464, 465, 466

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Legal Services Commissioner v Douglas [2015] QCAT 210

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 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

  1. [1]
    Mr Roger Dean has filed a Notice of Intention to Seek a Compensation Order upon the finding that the conduct of Mr Robert Gary Douglas amounted to unsatisfactory professional conduct.

Background

  1. [2]
    Mr Dean relies upon a statement which he made on 20 September 2012 and also a further statement and submissions which he filed on 4 November 2015.
  2. [3]
    Mr Dean’s claim relates to legal costs he incurred in dealing with a matrimonial property which was the subject of consent orders made at the time that Mr Douglas was acting on behalf of Mr Dean. The claim comprises the following fees:[1]
    1. Pippa Coleman & Associates: $12,095.84.[2]
    2. Clark McEwan, Certified Practising Accountants: $220.00
    3. Hartley Healy: $400.00
    4. Schultz, Toomey, O'Brien Lawyers: $752.50
    5. Crilly Lawyers: $590.18
    6. Bennett Carrol Solicitors: $572.00
  3. [4]
    Mr Dean says that these various expenses were incurred in relation to the transferring of the former matrimonial home and dealing with the associated mortgage. Following the consent orders which were made whilst Mr Douglas was acting for Mr Dean, various disputes continued to take place between Mr Dean and his former spouse. Mr Dean states in his submissions filed 4 November 2015, that the consent orders which were agreed with his former spouse had not been what he had wanted and that he had not understood the effect of the orders which had been made concerning the matrimonial home and the associated mortgage.
  4. [5]
    Moreover, his former wife managed to obtain transfer papers which enabled her to remove Mr Dean’s name from the title. This occurred in the following circumstances:

“The lawyers at the time Pippa Coleman had arranged for me to go to their office to sign the transfer papers and then they would be retaining the forms at their office until such time as our Court hearing but unfortunately when Nicole Dean had arrived for her appointment to sign the documents she reached over the counter and snatched the transfer documents and ran out of the building.  She managed to go straight to the Nambour Titles Office with consent orders 2007 that Robert Douglas had made in her favour and the titles office transferred me off the title.”[3]

  1. [6]
    He says further:

“The transfer documents probably should never have been done given that my lawyer Lyn Selby from Pippa Coleman was the transferee but Nicole Dean changed the form and she signed on behalf of the lawyer.  This is an absolute disgrace that this happened and again it only could of happened because of Robert Douglas gross misconduct.”[4]

  1. [7]
    Mr Dean questions the consent order which was made and suggests “Robert Douglas made sure Nicole Dean’s interests were looked after, she got everything that she wanted but I received nothing that I had asked for because he was working behind my back the whole time helping and supporting Nicole Dean.”[5]
  2. [8]
    The fees from Clark McEwan were related to instructions that he gave them to work out the percentage on the order which “was heavily in favour of the other party”, according to Mr Dean.
  3. [9]
    Mr Dean records:

“This was an extremely stressful time for myself and my wife (Natalie Dean) which was put upon myself because of Robert Douglas gross misconduct plain and simple! These law firms were over a 3 year period as I was desperately trying to get my name off this mortgage as it was stopping me and my wife to get our own home loan, the fact that I was liable for a $216,912.28 debt and no security over the property I was a risk and no bank would approve a home loan for myself and my wife (Natalie Dean).”[6] 

  1. [10]
    Mr Dean continues “I would never have agreed to Robert Douglas acting for myself and for my ex-wife Nicole Dean at the same time as anybody knows that is a conflict of interest and I find it very insulting on my intelligence that Robert Douglas would think otherwise.” As to that, Mr Dean submits that Robert Douglas:

“Should have been honest with me from the start but Robert Douglas never ever mentioned to me at all that he was no longer acting for myself but now acting for Nicole Dean, I would of disengaged Baker Lawyers (Robert Douglas) and this would have resulted in a totally different outcome.  Given that he has been found guilty of the charge not gaining my written permission and in respect of that this unnecessary stress and all of my out of pocket expenses is from the follow on effect of that.”[7]

  1. [11]
    In relation to the need for Mr Dean to seek an order that he be trustee for the sale of the former matrimonial property, Mr Dean refers to a decision by the Judge which is said to be “that this should never have been allowed to happen to me in the first place and that unfortunately Mr Dean’s rights were not protected by his lawyer at the time”.[8]

Discussion

  1. [12]
    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”.[9]
  2. [13]
    Unless the parties agree, a Compensation Order of that type must not be made unless the Tribunal is satisfied:
    1. That the complainant has suffered pecuniary loss because of the conduct which was found to be unsatisfactory professional conduct and
    2. That it is in the best interests of justice that an order of this type be made.[10]
  3. [14]
    In relation to a Compensation Order of this type, a Compensation Order requiring payment of an amount of more than $7,500.00 by way of monetary compensation must not be made unless the complainant and the law practice both consent to the order.[11]
  4. [15]
    The question which is central to the claim made by Mr Dean is whether the pecuniary losses about which he claims (the fees which he has paid to the law firms and the accountants) is pecuniary loss suffered “because of conduct that has been found to be unsatisfactory professional conduct”.
  5. [16]
    The conduct which was found to be unsatisfactory professional conduct was that Mr Douglas acted on behalf of both parties in a transaction, in circumstances where he did not take adequate steps to ensure that details of the arrangements between Mr Douglas and Mr Dean were clearly spelt out so that there could be no confusion, and the relationship of trust which existed between Mr Douglas and Mr Dean was not put at risk.[12]
  6. [17]
    In his submissions concerning the Compensation Order[13] Mr Douglas contested the assertion by Mr Dean that Mr Douglas acting for both Mr and Mrs Dean resulted in the terms of a settlement heavily favouring Mrs Dean.[14] Mr Douglas submits that this conclusion is not correct as the terms of the order had effectively been concluded at the Legal Aid conference when at the time, Mr Douglas acted on behalf of Mr Dean and Freedom Law acted on behalf of Mrs Dean.[15] 
  7. [18]
    Mr Douglas had in the context of the substantive proceedings, submitted that he thought he was assisting both parties by finalising outstanding matters in circumstances where the terms had been agreed, his understanding was that the parties were no longer in dispute but had a common interest in the finalisation of outstanding matters, and his only purpose in acting for both sides was to file the application and obtain the consent orders.[16]  He also provided evidence that he charged no fee.
  8. [19]
    In the proceedings brought by the Legal Services Commissioner, there were no allegations by the Commissioner, and no finding by the Tribunal that the conduct, which was found to be unsatisfactory professional conduct, involved Mr Douglas preferring the interest of Mrs Dean over Mr Dean. No aspect of the disciplinary application, or finding, related to the terms of the consent order or the settlement which was reached between the parties.
  9. [20]
    The pecuniary loss suffered by Mr Dean, and which is the subject of the claim for Compensation Order, was incurred in relation to continuing disputes between Mr Dean and Mrs Dean.  As Mr Dean points out, the dispute was made worse because Mrs Dean “snatched the transfer documents and ran out of the building” and later is said to have signed documents on behalf of the lawyer. 
  10. [21]
    If Mr Douglas acted negligently in relation to the advice which he provided to Mr Dean during the settlement conference which led to the consent orders being made, then Mr Dean has the opportunity to take the proceedings to recover losses which he asserts would flow from the alleged negligence.
  11. [22]
    In the context of the regime imposed by the Legal Profession Act 2007 (Qld), in relation to compensation orders of the type which Mr Dean is seeking, the loss must be found to have occurred or been suffered “because of” the conduct.
  12. [23]
    The Tribunal finds that, in this case, the pecuniary loss identified by Mr Dean was not suffered because of the conduct which was found to be unsatisfactory professional conduct.
  13. [24]
    The claim for a Compensation Order is therefore dismissed.

Footnotes

[1] Roger Dean Notice of Intention to Seek Compensation Order, filed 28 March 2013.

[2] Submissions on behalf of Roger Dean filed 4 November 2015, attachments, under “Pippa Coleman & Associates”.

[3] Submissions on behalf of Roger Dean filed 4 November 2015, page 1.

[4] Ibid, page 1.

[5] Ibid.

[6] Ibid, page 2, Question 4.

[7] Submissions on behalf of Roger Dean filed 4 November 2015, page 2, Question 4.

[8] Ibid, page 3.

[9] Legal Profession Act 2007 (Qld), s 464(d).

[10] Ibid, s 465(1).

[11] Ibid, s 466(3).

[12] Legal Services Commissioner v Douglas [2015] QCAT 210 at [17].

[13] Respondent’s Submissions in relation to Notice of Intention to seek compensation order filed 2 October 2015.

[14] Ibid, 2.

[15] Ibid, 2.

[16] Legal Services Commissioner v Douglas [2015] QCAT 210 at [15].

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Douglas

  • Shortened Case Name:

    Legal Services Commissioner v Douglas

  • MNC:

    [2016] QCAT 119

  • Court:

    QCAT

  • Judge(s):

    Justice DG Thomas

  • Date:

    03 Mar 2016

Appeal Status

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

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