Legal Services Commissioner v Reeve (No 3)
[2016] QCAT 487
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- Unreported Judgment
- Legal Services Commissioner v Reeve (No 3)[2016] QCAT 487
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Legal Services Commissioner v Reeve (No 3)[2016] QCAT 487
Legal Services Commissioner v Reeve (No 3)[2016] QCAT 487
CITATION: | Legal Services Commissioner v Reeve (No 3) [2016] QCAT 487 |
PARTIES: | Legal Services Commissioner (Applicant) |
v | |
Mr Christopher Parker Reeve (Respondent) |
APPLICATION NUMBER: | OCR267-13 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice DG Thomas, President Assisted by: Ms Megan Mahon, Legal panel member Dr Margaret Steinberg, Lay panel member |
DELIVERED ON: | 22 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – where the respondent was found to have engaged in unsatisfactory professional conduct – where the complainant filed a Notice of Intention to Seek Compensation Order – where the parties were ordered to file further submissions – where compensation can be awarded for pecuniary loss due to the conduct that has been found to be unsatisfactory professional conduct pursuant to section 464 of the Legal Profession Act 2007 (Qld) – whether it is in the interests of justice that such an order be made Legal Profession Act 2007 (Qld) ss 464, 464(d), 465(1) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 Legal Services Commissioner v Reeve [2016] QCAT 209 |
REPRESENTATION:
APPLICANT: | A.D. Scott instructed by the Legal Services Commissioner |
RESPONDENT: | J.P. Mould instructed by Mr Reeve |
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]In this matter, the complainant, Mr Smith, was allowed the opportunity to file submissions concerning his Notice of Intention to Seek Compensation Order, which was filed on 22 September 2014, and the respondent was also given the opportunity to file submissions in response.
- [2]No further substantive submissions were filed by the applicant or the respondent, so the matter will be determined based upon the Notice of Intention to Seek Compensation Order which was filed on 22 September 2014 with the affidavit of Paul William Smith which was sworn 5 May 2014.
- [3]Mr Smith filed a “Notice of Intention to Seek Compensation Order” in the Tribunal claiming compensation of $2,337.50 plus interest from 3 April 2009. An affidavit by Mr Smith was filed in support of the claim.
- [4]The Tribunal ordered that:
- Mr Smith file submissions by reference to sections 464 and 465 LPA as to the basis upon which he is entitled to a compensation order with respect to the sum of $2,337.50 plus interest from 3 April 2009, by:
4:00pm on 22 August 2016.
- The respondent file submissions in reply, by:
4:00pm 19 September 2016.
- [5]Mr Smith subsequently indicated to the applicant that he would make a claim for $2,337.50 plus interest from 3 April 2009, based upon the material which has been previously submitted by him.
- [6]The respondent did not file any submissions but asserted that the claim for compensation had been abandoned.[1]
Background facts
- [7]The facts leading up to payment on 3 April 2009 of the sum of $2,337.50 into the trust account operated by Mr Reeve are set out in the reasons for decision delivered 21 July 2016.[2]
- [8]After settlement, Mr Reeve paid out the sum of $2,337.50 – as to $1,650.61 for professional fees relating to the conveyance and as to the sum of $1,836.89 by way of cheque to Mr Reeve’s client.[3]
- [9]Mr Smith swears that:
“At no time had I agreed for a reduction in the purchase price in the amount of $2,337.50 before settlement. I proceeded to settlement on the basis that I was paying half of the cost of the rendering works on the unit, which amounted to $2,337.50. I had agreed to pay this amount on the basis that it would be held in trust until the rendering works on the unit was completed and only then will it be paid to Noosa Rendering. The respondent had at no time prior to this letter advised me that the amount of $2,337.50 was a reduction in the purchase price. I advised the respondent of this by letter dated 23 November 2009.”[4]
Discussion
- [10]Section 464 of the LPA describes a number of different types of compensation orders, which can be made.
- [11]One such order is set out in section 464(d) of the LPA as follows:
- 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...[5]
- [12]Unless the parties agree, a compensation order of the type mentioned in section 464(d) must not be made unless the Tribunal making the order is satisfied that the complainant has suffered pecuniary loss because of the conduct concerned and that it is in the interest of justice that an order of this type be made.[6]
- [13]As is clear, the Tribunal cannot make a compensation order for pecuniary loss suffered unless the complainant demonstrates to the Tribunal that he or she has suffered pecuniary loss because of the conduct concerned.
- [14]This was the reason why, in the decision which was handed down, the Tribunal set out a description of the relevant provisions and ordered that Mr Smith file submissions by reference to sections 464 and 465 of the LPA as to the basis upon which he is entitled to a compensation order.
- [15]Whether Mr Smith has suffered a pecuniary loss depends upon his entitlement to the sum of $2,337.50. Unless Mr Smith establishes that he has such an entitlement, no pecuniary loss will be suffered.
- [16]If Mr Smith establishes that he has such an entitlement and also establishes that the conduct which was found to be unsatisfactory professional conduct led to him being deprived of the entitlement, then it may be possible to establish pecuniary loss in those circumstances.
- [17]Whether Mr Smith had an entitlement depends upon the arrangements between the parties to the original transaction, namely the arrangements between Mr Smith as the vendor of a unit and Ms Stephen as the purchaser of the unit.
- [18]In the reasons for decision, the Tribunal observed that:
“it is very difficult to determine the nature of the arrangements which were concluded between the parties when no evidence is available from the purchaser or the vendor’s agent, who took part in crucial discussions and the evidence contained in the affidavits which were filed was in the briefest of terms, and none was tested.”[7]
- [19]The reasons continue:
“for current purposes, it is not necessary to come to a final conclusion about what was to happen, between the vendor and the purchaser, as to the final disposition of the money in question.”[8]
“for the purpose of these disciplinary proceedings, it is not necessary for the Tribunal to endeavour to resolve whatever disagreement there might be between the vendor and the purchaser over what would ultimately have been the disposition of the sum of $2,337.50. It is noted that no proceedings have been commenced in relation to this.”[9]
- [20]And further:
“based upon the documents available, the Tribunal finds it was not clear that there was any resolution of the matter by 31 March (concluding with Mr Reeve sending the letter).”[10]
- [21]It would, of course, have been open to Mr Smith to commence legal proceedings claiming the sum of $2,337.50. No doubt, in the context of those proceedings, the evidence about the arrangements would have been tested so as to enable the person deciding the matter to make the necessary findings.
- [22]In the circumstances, it is not possible to be satisfied as to the entitlement to the sum of $2337.50, and so it is not possible to be satisfied that any pecuniary loss was suffered because of the conduct which was found to be unsatisfactory professional conduct in relation to charge 1.
- [23]In those circumstances, the Tribunal orders that the claim for compensation order is dismissed.
Footnotes
[1] Submissions on behalf of the respondent in relation to costs, filed 19 September 2016, paragraph 6.
[2] Legal Services Commissioner v Reeve [2016] QCAT 209 at [4] – [29].
[3] Legal Services Commissioner v Reeve [2016] QCAT 209 at [30].
[4] Affidavit of Paul William Smith sworn 5 May 2014, paragraph 24.
[5] Legal Profession Act 2007 (Qld) s 464(d).
[6] Ibid, s 465(1).
[7] Legal Services Commissioner v Reeve [2016] QCAT 209 at 56.
[8] Ibid, at 63.
[9] Ibid, at 69.
[10] Ibid, at 70.