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Legal Services Commissioner v Cooper QCAT 122
Legal Services Commissioner v Cooper  QCAT 122
Legal Services Commissioner (Applicant/Appellant)
Adam Karl Hope Cooper
Occupational Regulation matters
On the papers
Justice DG Thomas, President
Mr Ken Horsley, Legal panel member
Dr Margaret Steinberg AM, Lay panel member
14 March 2016
4:00pm on 4 April 2016.
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT – where the applicant brought disciplinary proceedings against the respondent for not exercising his forensic judgment in bringing proceedings on behalf of his client – where the respondent filed a notice of child abuse in the Federal Magistrates Court – where the respondent had advised his client that he did not think the allegation amounted to abuse under the Family Law Act 1975 (Cth) – where the respondent brought the proceedings anyway and later withdrew them – whether the respondent’s conduct in bringing the proceedings constitutes unsatisfactory professional conduct or professional misconduct
Australian Solicitors Conduct Rules 2012 (Qld) r 17.1
Family Law Act 1975 (Cth) s 4(1)
Legal Profession Act 2007 (Qld) ss 418, 419, 419(1)(a), 456, 462(1), 462(5)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 107
Adamson v Queensland Law Society Incorporated  1 Qd R 498
McClelland & Anor v Perpetual Trustee Co Ltd  QCA 281
Steindl Nominees Pty Ltd v Laghaifar  2 Qd R 683
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- The Legal Services Commissioner alleges that Mr Cooper failed to maintain reasonable standards of competence and diligence whilst acting in Family Court proceedings.
- Specifically the Commissioner alleges that in breach of his duty to the Court, Mr Cooper has, during the course of those proceedings:
- Failed to exercise his forensic judgment called for in the matter independently; and/or
- Caused a notice of child abuse alleging child abuse or risk of child abuse to be filed in the Federal Magistrates Court of Australia in circumstances where he knew or ought to have known that the facts as alleged in the notice did not constitute “abuse” as defined in section 4(1) of the Family Law Act 1975 (Cth); and/or
- Caused the notice of child abuse alleging child abuse or risk of child abuse to be filed in the Federal Magistrates Court of Australia on behalf of his client in circumstances where he had advised his client that the facts as alleged by his client did not, in his view, constitute child abuse.
- Mr Cooper acted on behalf of his client, the applicant father in proceedings before the Federal Magistrates Court of Australia.
- Mr Cooper received instructions from his client to raise with the solicitors for his client’s wife (and the respondent mother) her failure to maintain the brakes in the car in which the respondent mother transported the parties’ child.
- There were communications about this issue but no agreement was reached, even as to the underlying facts.
- Mr Cooper advised his client that not fixing brakes did not, in his view, amount to child abuse.
- Mr Cooper prepared a notice of child abuse and an affidavit on behalf of his client.
- Mr Cooper caused to be filed on behalf of his client a “notice of child abuse or family violence” and an affidavit by his client.
- The “notice of child abuse” provided as follows:
“Before you complete items 6-13 you should carefully read the definition of “abuse” in s 4(1) of the Family Law Act as follows:
Abuse, in relation to a child, means:
- An assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in a state or territory in which the act constituting the assault occurs; or
- A person involving the child in sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.”
- The notice of child abuse alleged that the following facts constituted risk of abuse:
“Pursuant to the orders of X date, in these proceedings, Ms X is in possession of a motor vehicle registration number XXXXXX. That vehicle is regularly used by Ms X to transport the child … such vehicle has been recently mechanically assessed as having a failing brake system. Despite repeated requests Ms X refuses to give any assurance that she will not transport … in the vehicle prior to the brake system being repaired.”
- The Mother’s solicitors wrote to Mr Cooper requesting that the notice of child abuse be withdrawn.
- Mr Cooper then wrote to the Court seeking for the notice of child abuse to be withdrawn.
- On X date, the Mother’s solicitors filed an application seeking that the notice of child abuse be struck out and that Mr Cooper’s client pay the Mother’s costs of and incidental to the notice of child abuse and application on an indemnity basis.
- The Federal Magistrate ordered that the notice of child abuse filed on X date be discontinued.
- It was ordered that the respondent’s client pay the Mother costs in relation to her application of X date with respect to the notice of child abuse.
- It is not clear whether the order made by the Federal Magistrate was in response to the communications from Mr Cooper or in response to the application filed by the mother’s solicitors.
- It is also not clear whether the order to pay costs was made on an indemnity basis.
The Parties’ Submissions
- The Legal Services Commissioner asserts the following:
- a)That Mr Cooper is guilty of professional misconduct.
- b)Whilst acting for the husband in the matrimonial proceedings, the respondent filed a baseless notice of child abuse after already having advised his client that the facts as alleged by his client did not constitute child abuse as defined in the relevant legislation.
- In doing so, Mr Cooper failed to exercise his forensic judgment independently.
- The conduct in this case is “without precedent” in Queensland. There is no allegation that Mr Cooper did not attend properly to his client’s case. Rather it could be said that he was overtly attentive to his client to the detriment of his duty to the Court.
- It is a fundamental tenant of practice that a practitioner’s paramount duty is to the Court and to the administration of justice. As is required by the Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’), “a solicitor representing a client in a matter that is before the Court must not act as a mere mouthpiece of the client and must exercise the forensic judgments called for during the case independently.”
- By filing the baseless notice of child abuse, the respondent put the opposing party to the trouble and defence of defending the notice and put the Court to the trouble and expense of dealing with it. Mr Cooper’s conduct amounts to a “clear and flagrant abuse of the Court’s process and, by engaging in this conduct, the respondent breached his paramount duty to the Court and the administration of justice, as well as his fundamental duty to exercise his forensic judgment and act independently of his client”.
- The conduct falls substantially short of the standard of professional conduct required of the profession in the Courts. Therefore the conduct should properly be characterised as professional misconduct.
- In response, the respondent’s submissions assert:
- The respondent admits that the conduct amounted to unsatisfactory professional conduct within a meaning of section 418 of the Legal Profession Act 2007 (Qld) (‘The Act’).
- No evidence was filed and so the determination “on the papers” must, in its scope, be limited to the allegations made by the applicant and admitted by the respondent.
- The applicant’s case against the respondent is defined by the charge and the particulars and the Tribunal’s jurisdiction is confined to determining the application upon those admitted allegations.
- There is no allegation that, or from which the Tribunal could properly infer that, Mr Cooper’s conduct amounted to a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, as that term is used in section 419(1)(a) of the Act when describing professional misconduct.
- The language used in the charge “failed to maintain reasonable standards of competence and diligence” is the language of section 418 of the Act which deals with unsatisfactory professional conduct.
- Particularly having regard to the principles derived from Briginshaw v Briginshaw there is no “square allegation of professional misconduct and any proper foundation in the particulars for such a serious allegation”.
- In the context of the practitioner’s duty, it is not sufficient that the Court considers that the practitioner advances a hopeless case. The litigant is entitled to be heard … the position is different if the Court concludes that there has been improper time wasting by the advocate or the advocate has knowingly leant himself to an abuse of process.
- The practitioner does not breach any duty by advancing a case which the practitioner regards as likely or very likely to fail.
- To succeed, the allegation must be that the case advanced by the practitioner was “hopeless or unarguable and the respondent knew that”. The particulars are not capable of sustaining the charge, certainly not a finding of professional misconduct.
- The applicant’s submissions regarding the fact that the notice is “baseless” should be ignored as such an allegation is not part of the applicant’s case.
- There should be no finding that the practitioner engaged in professional misconduct. Such a serious finding should not be made without clear foundation in the evidence which in this case is confined to the admitted allegations, as no evidence has been filed on either side.
- The Commissioner filed submissions in reply in which the Commissioner stated that:
- The discipline application uses the formulation which refers to the respondent being guilty of “professional misconduct and/or unsatisfactory professional conduct”, and the language in question namely “failed to maintain reasonable standards of competence and diligence” is language used in both section 418 and section 419 of the Act, so is equally applicable to both types of conduct.
- The facts alleged in the particulars of charge and admitted are sufficient to support a finding that the case advanced by Mr Cooper was hopeless or unarguable and the respondent knew that.
- Whilst the specific words “baseless” and “abuse of process” were not used in the discipline application those words were used in the submissions by way of describing or summarising the more lengthy allegations contained in the particulars. Clearly, particulars 1.17(b) and 1.17(c) contain allegations against the respondent consistent with the proposition that the notice was baseless and an abuse or process.
- Section 418 of the Act defines unsatisfactory professional conduct as including conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
- Professional misconduct is defined by section 419 of the Act as unsatisfactory professional conduct which involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence. The Commissioner is correct that the language used in the charges is common to both.
- As to conduct which is professional misconduct, in Adamson v Queensland Law Society Incorporated Thomas J formulated the test as:
“The test to be applied is whether whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.”
- As no evidence has been filed in this case, the factual basis upon which the application will be determined is limited to that which can be identified as being admitted in the discipline application.
- The Practitioner’s paramount duty is to the Court and to the administration of justice. The Legal Practitioner must exercise the forensic judgment called upon during a case independently and consistently with the paramount duty to the Court and the administration of justice and must not simply be a mouthpiece for a client.
- These obligations and duties are appropriately recognised in the ASCR.
- The practitioner will breach these duties if the practitioner knowingly advances a case which, as the Commissioner puts it, is hopeless and unarguable. In particular where the solicitor’s conduct appears to be associated with an improper collateral purpose unrelated to proper conduct of Court proceedings, or properly asserting a client’s rights such as, improper time wasting and delay.
- The respondent suggests that the charge, at any level, should fail based upon the wording of the charge and particulars. Yet, the respondent admits that the conduct constituted unsatisfactory professional conduct within the meaning of section 418 of the Act.
- The submission that the charge and particulars are not sufficient to support a finding of either unsatisfactory professional conduct or professional misconduct is incorrect.
- The charge and particulars, which are admitted in every respect:
- Assert that the respondent advised his client that not fixing brakes did not, in his view, amount to child abuse.
- Sets out the definition of abuse which does not, on its face, include fixing brakes.
- Describes that within a few weeks of filing the notice, the respondent withdrew the notice which, within a further few weeks, was a subject of an order that it be discontinued. 
- From the facts which have been admitted, it seems clear the respondent did not believe the conduct amounted to child abuse and moreover that conclusion is supported by the definition of child abuse which is admitted. In addition, the respondent sought to withdraw the proceedings, which were dismissed with costs.
- Whether conduct amounts to unsatisfactory professional conduct or professional misconduct (or either) is assessed by reference to the facts of each case. As between unsatisfactory professional conduct and professional misconduct, it is a matter of degree.
- Reliance on the admitted aspects of a disciplinary application with no evidence being called means that there is very little detail upon which the assessment of the conduct can be made. For example, there is no detail about the view held by the practitioner or the surrounding circumstances.
- Despite that lack of detailed evidence, based on the fact that the conduct so clearly does not fall within the admitted definition, and that the respondent admits he believed the conduct did not amount to child abuse, but still instituted the proceedings, the Tribunal finds that the conduct of Mr Cooper was conduct which fell short of the standards which the public is entitled to expect of a reasonably competent practitioner.
- The question is whether the conduct was sufficiently substantial or consistent to warrant a finding of professional misconduct as opposed to unsatisfactory professional conduct.
- The conduct was certainly not consistent or repeated. The charge relates to conduct which occurred on just one occasion, with respect to one client, and over a very short duration. The notice was filed on X date and on 3 December 2010, Mr Cooper wrote to the Court seeking that the notice be withdrawn. It seems that Mr Cooper responded immediately to a request from the mother’s solicitors which was made the day before, i.e. on 2 December 2010.
- In considering the characterisation of the conduct of Mr Cooper, it is necessary to consider his actions in relation to this entire incident.
- Here, it seems that Mr Cooper made an error, realised the error, and corrected it within a matter of weeks, immediately after being asked to do so by his opponent.
- In those circumstances, when viewed as a whole, Mr Cooper’s conduct was not a consistent failure, nor was it a sufficiently substantial failure warranting a finding of professional misconduct.
- It is well established that disciplinary penalties are not imposed as punishment of the practitioner but rather in the interests of protection of the community from unsuitable practitioners. An aspect of the protection of the public is maintenance of proper professional standards. Of relevance to this aspect is the need to deter other practitioners from being involved in similar conduct.
- The Commissioner submits that it would be appropriate to send a message to the respondent and the profession that conduct, such as that which the subject of the current proceedings, is unacceptable.
- The Commissioner submits that there should be a public reprimand and also a pecuniary penalty in the range of $4,000.00 to $6,000.00.
- The respondent submits that, as to the trouble and expense of defending the notice (referred to by the Commissioner) the Judge made orders with respect to costs and that such matters are dealt with by the relevant Court in the exercise of its disciplinary jurisdiction over practitioner’s appearing before it including ordering, on occasions, that the practitioner pay the costs personally. The respondent submits that this jurisdiction is compensatory and a casual connection must be established between the serious dereliction in the performance of the practitioner’s duty to the Court and the opposing party incurring costs.
- The respondent submits that the Tribunal should approach the question of sanction by reference to the principles expressed in these cases.
- Of course, sanctions in this jurisdiction are not aimed to be compensatory. They are directed towards protection of the public. The Tribunal has an additional jurisdiction with respect to Compensation Orders which includes costs and pecuniary loss.
- It is not correct to suggest that the Tribunal should approach the question of sanction by reference to the principles expressed in the cases to which the respondent refers.
- The respondent accepts that his conduct, which he admits to be unsatisfactory professional conduct, requires some sanction. The respondent submits that “the serious sting of a public reprimand” appropriately satisfies the need for the sanction and also serves as a personal and general deterrence. He further submits that imposing a pecuniary penalty at the level suggested by the applicant (approximately 4 times the quantum of the Family Court costs order against the client) would be to impermissibly punish him and would not give the respondent appropriate credit for his cooperation which, he submits, went beyond merely admitting the charge and the allegations, to admitting that his conduct amounted to unsatisfactory professional conduct.
- The applicant submits that whilst the respondent admitted the charge and particulars and that the conduct amounted to unsatisfactory professional conduct, and subsequently consented to orders expediting the matter and dispensing with any directions hearing or compulsory conference, in the submissions the respondent “takes the peculiar course of attacking the validity of the applicant’s charge and particulars after having admitted them”. The applicant submits that this approach has prolonged the proceedings by requiring submissions in reply which, in the applicant’s submission, amounts to something substantially less than full cooperation.
- In this case, the principle issue in relation to sanction is the need to protect the public by deterring other practitioners from engaging in similar conduct.
- The Tribunal takes into account that Mr Cooper has been a legal practitioner since 2001, and has not been the subject of any previous disciplinary findings.
- In relation to these proceedings, the practitioner has cooperated with the Commissioner in admitting the charge and particulars and that his conduct amounted to unsatisfactory professional conduct, consenting to orders expediting a matter and dispensing with any directions hearing or compulsory conference. This will result in the decision in this matter being made within 12 months of the initial filing date. As to the submissions filed on behalf of the practitioner, it is, of course, the practitioner’s entitlement to contest the proceedings and to take independent advice as to this issue. The submissions filed do not fall in the category of those which demonstrate lack of participation in the process or submissions which are without merit.
- The imposition of a reprimand, without a fine, does not represent sufficient deterrence to other practitioners from undertaking similar conduct. The Tribunal considers that a fine is necessary.
- In the result, the Tribunal orders that:
- The practitioner be publicly reprimanded.
- There be a fine in the sum of $2,500.00.
- Upon the finding that the respondent has engaged in unsatisfactory professional conduct, the Tribunal must make an order requiring him to pay costs unless exceptional circumstances exist.
- The Commissioner seeks an order for costs to be assessed.
- The respondent accepts that it is appropriate that there be an order that he pay the Commissioner’s costs.
- As to the quantum of costs, the respondent submits that as the applicant employs salaried lawyers, it is inappropriate to order costs by reference to any Court scale in those circumstances where no member of the independent bar was retained.
- The respondent submits that the costs must be reasonable and just in the circumstances and that the cooperation of the respondent meant that the matter progressed in an efficient way and, in all the circumstances, the appropriate order would be to fix the costs at $1,500.00. In response, the applicant submits that pursuant to section 462(5) of the Act, the Tribunal may make an order for costs in “a stated amounted or … for an unstated amount but must state the basis on which the amount must be decided”.
- The Commissioner points to the fact that the Tribunal has on many occasions made orders for stated amounts when the relevant amount has been agreed between the parties and has also made orders that the costs be agreed or assessed.
- Where possible, the Tribunal must fix the costs.
- In this case, no detail or information has been provided with respect to the appropriate level of costs. On that basis, whilst the Tribunal always aims to fix costs, this is not possible in these circumstances.
- The other option open to the Tribunal is to make an order that costs be paid with the amount unstated, but on the grounds that the costs will be calculated on the basis that costs would be calculated were the matter in the Supreme Court of Queensland.
- The Commissioner observes that there has been no discussion between the parties as to the appropriate figure for costs, as has happened in the past, when it was possible to suggest a figure to the Tribunal at which the costs would be fixed.
- Discussion of that type between the parties is to be encouraged so that the Tribunal is in a position to fix the costs and so complete the matter finally as part of the decision.
- The Tribunal will allow the party’s time to undertake discussions in light of what is said in these reasons.
- The Tribunal therefore orders that the parties make any further submissions which they wish to make in relation to costs including the order sought to be made within 21 days of the date of this order. After that time, unless one of the parties requires otherwise, the Tribunal will make an order as to costs.
 Submissions on Behalf of the Applicant, Hearing on the Papers filed 14 August 2015, paragraph 5.
 Ibid, paragraph 11.
 Ibid, paragraph 11.
 Ibid, paragraph 13.
 Ibid, paragraph 14.
 Australian Solicitors Conduct Rules 2012 (Qld) r 17.1.
 Submissions on Behalf of the Applicant, Hearing on the Papers filed 14 August 2015, paragraph 15.
 Ibid, paragraph 16.
 Submissions on behalf of the respondent filed 22 September 2015, paragraphs 10-11.
 Ibid, paragraph 2.
 Ibid, paragraph 5.
 Ibid, paragraph 6.
 Ibid, paragraph 6.
 Ibid, paragraph 7; Steindl Nominees Pty Ltd v Laghaifar  2 Qd R 683 at 692 per Williams JA with whom Philippides J agreed.
 Submissions on behalf of the respondent filed 22 September 2015, paragraph 8.
 Ibid, paragraph 9.
 Submissions in Reply on Behalf of the Applicant, Hearing on the Papers filed 21 October 2015, paragraph 6, 8.
 Legal Profession Act 2007 (Qld) s 419(1)(a).
  1 Qd R 498 at 507.
 Submissions on behalf of the respondent filed 22 September 2015, paragraph 10.
 Application order – disciplinary proceedings filed 24 April 2015, paragraphs 1-7.
 Ibid, paragraphs 1.13, 1.15.
 Submissions on behalf of the respondent filed 22 September 2015, paragraph 15; McClelland & Anor v Perpetual Trustee Co Ltd  QCA 281.
 Legal Profession Act 2007 (Qld) s 456.
 Submissions on behalf of the respondent filed 22 September 2015, paragraph 17.
 Submissions in reply on behalf of the Applicant, Hearing on Papers filed 21 October 2015, paragraph 15.
 Legal Profession Act 2007 (Qld) s 462(1).
 Submissions on behalf of the respondent filed 22 September 2015, paragraph 18.
 Ibid, paragraph 20.
 Submissions in reply on behalf of the Applicant, Hearing on Papers filed 21 October 2015, paragraph 19.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107.
- Published Case Name:
Legal Services Commissioner v Cooper
- Shortened Case Name:
Legal Services Commissioner v Cooper
 QCAT 122
Justice DG Thomas, President
14 Mar 2016