Legal Services Commissioner v Mugford (No 2)
[2016] QCAT 416
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Legal Services Commissioner v Mugford (No 2)[2016] QCAT 416
- Add to List
Legal Services Commissioner v Mugford (No 2)[2016] QCAT 416
Legal Services Commissioner v Mugford (No 2)[2016] QCAT 416
CITATION: | Legal Services Commissioner v Mugford (No 2) [2016] QCAT 416 |
PARTIES: | Legal Services Commissioner (Applicant) |
v | |
Rodney Jeffrey Kenneth Mugford (Respondent) |
APPLICATION NUMBER: | OCR009-14 & OCR165-14 |
MATTER TYPE: | Occupational Regulation Matters |
HEARING DATE: | On the Papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice DG Thomas, President Assisted by: Megan Mahon, Legal panel member Julie Cork, Lay panel member |
DELIVERED ON: | 11 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent was found to have engaged in unsatisfactory professional conduct – where the respondent’s client filed a Notice of Intention to Seek Compensation Order – where the respondent failed to advise the client that an application for property settlement needed to be made with 12 months of the date of divorce – where the client incurred costs in seeking an extension of time from the Court – whether the making of a Compensation Order is in the interests of justice Legal Profession Act 2007 (Qld) ss 464, 464(a), 464(d), 466(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 |
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
- [1]Ms Wills filed a Notice of Intention to Seek Compensation Order in the Tribunal on 2 April 2014.
- [2]One of the charges laid against Mr Mugford concerned his conduct of a matrimonial property settlement on behalf of his client Ms Wills.
- [3]Mr Mugford admitted that he did not advise his client that an application for property settlement should have been lodged within 12 months of the date of the divorce and, that he did not lodge the application within the prescribed time.
- [4]Mr Mugford conceded it was his responsibility to have monitored the time limits and that he had control over the matter at the time of the failure to either advise his client, or to lodge the application.
- [5]As to this charge, the Tribunal found that Mr Mugford’s conduct fell substantially 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. In other words, the conduct was found to have been professional misconduct.
- [6]Under section 464 of the Legal Profession Act 2007 (Qld) (‘LPA’) a compensation order includes the following:
- 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…
- 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.
- [7]An order as to compensation relating to pecuniary loss (b) above) must not be made unless the Tribunal is satisfied:
- the complainant has suffered pecuniary loss because of the conduct of the practitioner; and
- it is in the interests of justice that an order of that type be made.
- [8]A compensation order requiring payment of pecuniary loss of greater than $7,500.00 must not be made unless the complainant and the law practice both consent to the order.[1]
- [9]The Notice of Intention to Seek Compensation Order refers to the following documentation being attached:
- Application for extension of leave.
- Federal Court granting extension of leave.
- Letter from Jennifer Rice, McKays Solicitors to the Legal Services Commission.
- Costs relating to going to court to obtain extension of leave.
- Copy of receipts from Mr Mugford.
- [10]As a result of Mr Mugford’s conduct, it was necessary for Ms Wills to seek an extension of time from the Federal Court. Fortunately, that extension of time was granted. However, there was a cost involved in seeking the extension and that cost is a pecuniary loss suffered by Ms Wills as a result of the conduct of Mr Mugford which led to the findings made by the Tribunal.
- [11]In the circumstances of Mr Mugford’s conduct, it is in the interests of justice that an order be made requiring him to pay this pecuniary loss suffered as a result of his conduct. Because of the limitations in section 466(3) of the LPA such an order is limited to $7,500.00 as Mr Mugford has not consented to a sum greater than this.
- [12]In a letter to Ms Wills from McKays Solicitors dated 23 December 2011,[2] reference is made to a tax invoice being forwarded to Mr Mugford. The letter reads, “you will shortly receive our tax invoice. However, as discussed at Court, we are first sending this to Mr Rodney Mugford and requesting that he pay it as he should have filed proceedings within the statutory limit.”
- [13]Regrettably, this tax invoice was not included with the papers provided by Ms Wills. The tax invoice which sets out the fees incurred as to the application for the extension would have been evidence of the level of pecuniary loss suffered by Ms Wills.
- [14]In a subsequent letter from McKays Solicitors dated 17 July 2016,[3] the following reference is made “we note the outstanding amount of $28,724.74 being held in abeyance until your claim against Mr Mugford was finalised.”
- [15]It is a reasonable conclusion from this letter that the fees charged by McKays Solicitors with respect of the application to proceed with the property settlement outside the statutory time limit was $28,724.74.
- [16]Receipts contained in the paperwork provided by Ms Wills demonstrate that this sum was subsequently paid by her after she had instructed McKays Solicitors that she did not wish to proceed with a negligence claim against Mr Mugford.
- [17]The Tribunal is satisfied that the pecuniary loss suffered by Ms Wills in making payments to McKays Solicitors to seek the extension of time which was necessary as a result of the actions of Mr Mugford is at least the sum of $7,500.00 which is the limit provided by section 466(3) of the Act.
- [18]A compensation order also includes an order that a law practice repay the whole or a stated part of an amount that the law practice charged a complainant for stated legal services.
- [19]In this case, legal services were charged by Mr Mugford. In the papers, which were attached to the Notice of Intention to Seek Compensation filed on behalf of Ms Wills, there are receipts for monies paid to Mr Mugford on 1 May 2008, 28 February 2009, 27 March 2009, 16 September 2009, 1 November 2010, 15 November 2010, 2 March 2011 and 8 March 2011. Mr Mugford acted for Ms Wills in relation to obtaining the divorce as well as the property settlement. The divorce was effected on 20 September 2009.
- [20]The monies paid to Mr Mugford before that date are likely to have related to the cost of the divorce. The monies paid after the date, that is monies paid 1 November 2010, 15 November 2010, 2 March 2011 and 8 March 2011 relate to service for which Ms Wills obtained no value due to the conduct of Mr Mugford.
- [21]The total sums so paid were $1,574.00.
- [22]The Tribunal also makes a compensation order in the sum of $1,574.00 being compensation of the type referred to in section 464(a) of the LPA.
- [23]The Tribunal makes compensation orders against Mr Mugford in favour of Ms Wills as follows:
- An order of the type mentioned in section 464(a) of the LPA in the sum of $1,574.00.
- An order of the type mentioned in section 464(d) of the LPA in the sum of $7,500.00.