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Legal Services Commissioner v Jackson[2017] QCAT 207

Legal Services Commissioner v Jackson[2017] QCAT 207

CITATION:

Legal Services Commissioner v Jackson [2017] QCAT 207

PARTIES:

Legal Services Commissioner

(Applicant)

v

Amanda Lee Jackson

(Respondent)

APPLICATION NUMBER:

OCR120-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

Assisted by:

Ms Joanne Collins (Legal panel member)

Dr Margaret Steinberg (Lay panel member)

DELIVERED ON:

26 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. In relation to Charge 1, the Tribunal concludes that the conduct of Ms Jackson amounted to unsatisfactory professional conduct.
  1. Charges 2, 3 and 4 are dismissed.
  1. The Legal Services Commissioner must file in the Tribunal and give to Amanda Lee Jackson one (1) copy of any submissions on sanction and costs, by:

4:00pm on 18 July 2017.

  1. Amanda Lee Jackson must file in the Tribunal and give to the Legal Services Commissioner one (1) copy of any submissions on sanction and costs in reply, by:

4:00pm on 8 August 2017.

  1. Unless either of the parties requests an oral hearing before 8 August 2017, the matter will be determined on the papers after 8 August 2017.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – SOLICITOR’S COSTS – where applicant alleged respondent overcharged her clients – where previous finding by District Court as to assessment of costs – where retainer agreement did not provide respondent could charge for care and consideration – where respondent charged for work done after termination of the retainer – whether respondent entitled to charge for those costs in the circumstances – whether unsatisfactory professional conduct or professional misconduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – TRUST MONEY – where applicant alleged respondent made trust account disbursements without authority – where respondent referred to trust account authorities in retainer agreement, in separate letter and two handwritten authorities appearing on invoices rendered – whether the words of the trust account authorities authorises the disbursements made – whether the trust account authorities were operative at the time the disbursements were made – whether unsatisfactory professional conduct or professional misconduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where applicant alleged respondent failed to maintain reasonable standards of competence and diligence in claiming a lien over the client file which delayed the administration of the estate – where communications between respondent and client’s new law firm – where offer by respondent to release files – where clients new law firm instructed no urgent need for release of files – where respondent outlined concerns to applicant – whether conduct fell below the standard of competence and diligence – whether unsatisfactory conduct or professional misconduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where applicant alleges respondent failed to respond to notice issued under section 443(3) Legal Profession Act 2007 (Qld) – where applicant issued notice requesting information on respondent’s lien  and itemised account in support of lien – where respondent responded outlining claim for lien and advising no account exists – where applicant issued second notice in response – whether applicant can compel practitioner to create a document – whether respondent adequately responded to first notice – whether applicant should have issued second notice – whether unsatisfactory conduct or professional misconduct

Legal Profession Act 1987 (NSW) s 208Q

Legal Profession Act 2007 (Qld) ss 249, 343, 418, 419, 420, 435, 436, 443

Legal Profession Regulation 2007 (Qld) s 58

Legal Profession (Solicitors) Rule 2007 (Qld) r 7.3

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

Adamson v Queensland Law Society Inc [1990] 1 Qd R 498

Barratt v Gough-Thomas [1950] 2 All ER 1048

Bolger v Bolger (1985) 82 FR 46

Bolster v McCallum (1966) 85 WN (NSW) 281

Carter Newell’s Bill of Costs [1996] 2 Qd R 13

Council of the Queensland Law Society Inc v Roche [2003] QCA 469

D’Allesandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198

De Pardo v Legal Practitioners Complaints Committee (1999) 170 ALR 709

Flower & Hart v White Industries (1999) 87 FCR 134

General Medical Council v Spackman [1943] AC 627 AT 637

Gridiger v Council of the Law Society NSW [1999] NSWSC 904

In re a Solicitor [1993] QB 69

In re E (Enduring Power of Attorney) [2001] Ch 364

John Hope & Co v Glendinning [1911] AC 419

Johns v Law Society of NSW [1982] 2 NSWLR 1

Law Society of New South Wales v Foreman (1994) 34 NSWLR 408

Law Society of NSW v Konstantinidis [1999] NSWADT 109

Legal Profession Complaints Committee v O'Halloran [2013] WASC 430

Legal Services Commissioner v Bone (2013) QCAT 550

Legal Services Commissioner v Clapin [2011] QCAT 339

Legal Services Commissioner v Keddie [2012] NSWADT 106

Legal Services Commissioner v King [2013] QCAT 260

Legal Services Commissioner v King (No 2) [2013] QCAT 558

Legal Services Commissioner v Petschler [2015] QCAT 284

Legal Services Commissioner v Rowlands [2010] QCAT 154

Legal Services Commissioner v Tsalidis (2012) NSWADT 160

Lep Air Services v Rolloswin Ltd [1973] AC 331

Nikolaidis v Legal Services Commissioner [2007] NSWCA 130

Re Moore [1996] QSC 212

Re Jalmoon Pty Ltd [1986] 2 Qd R 264

Scroope v Legal Services Commissioner [2013] NSWCA 178

Tobin v Melrose [1951] SASR 139

Veghelyi v Law Society of NSW [1995] NSWCA 483

White v Bini [2003] FCA 669
Wilks v Medical Board of South Australia [2010] SASC 287

Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

REPRESENTATION:

APPLICANT:

AD Scott instructed by the Legal Services Commissioner

RESPONDENT:

AL Jackson on her own behalf

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 applicant has brought the following charges against the respondent.

Charge 1: Charging excessive legal costs

  1. [1]
    On or about 15 April 2008, Ms Jackson charged her former clients, Irene Elizabeth Southwell and Irene Joyce Kennedy, excessive legal costs.

Charge 2: Transfer of trust money without authority

  1. [2]
    On 15 April 2008, Ms Jackson breached section 249(1)(b) of the Legal Profession Act 2007 (Qld) (‘LPA’) by transferring trust funds held on the clients’ behalf to her general account in the amounts of $3,842.50 and $49,246.30 respectively, without authority to do so.

Charge 3: Failing to maintain reasonable standards of competence and diligence.

  1. [3]
    Between 29 July 2008 and 19 December 2008, Ms Jackson, in breach of her duty as a solicitor, failed to maintain reasonable standards of competence or diligence as expected by a member of the public in relation to the transfer of the clients’ file to the clients’ new solicitors, Crouch & Co, in that she:
    1. Claimed a lien over the client file which she knew or ought to have known was not supported by a valid claim for unpaid professional fees; and
    2. Thereby delayed the administration of the estate.

Charge 4: Breach of section 443(3) LPA

  1. [4]
    Ms Jackson failed to respond to a written notice issued on 21 August 2008 by the Commissioner, pursuant to section 443(3) LPA.

Background

  1. [5]
    Irene Raps and Irene Kennedy entered into a retainer agreement with Ms Jackson on 10 December 2007.[1]
  2. [6]
    A trust account authority dated 10 December 2007, was signed by the clients.[2]
  3. [7]
    A handwritten authority (the first handwritten authority) appears on Invoice No 872 and is dated 10 December 2007.[3]
  4. [8]
    A handwritten authority (the second handwritten authority) appears on Invoice No. 898, also dated 10 December 2007.[4]
  5. [9]
    Ms Jackson says she was given “express instructions of 1 February 2008 confirmed in writing together with the progress report on 12 February 2008”,[5] that Hartwell’s be appointed as the ‘joint expert’ costs assessor.
  6. [10]
    On 12 February 2008, Ms Jackson says that Steve Hartwell was engaged to provide a costs assessment of the Estate file. Ms Jackson says that the client selected the costs assessor.[6] No document engaging Mr Hartwell is in evidence.
  7. [11]
    On 12 February 2008, Crouch & Co wrote to Ms Jackson advising that they had received instructions from the clients to act in the administration of the Coutts Estate.[7]
  8. [12]
    On the same day, Ms Jackson replied to Crouch & Co advising of her requirements for the release of the files.[8] The letter tells Crouch & Co that Ms Jackson’s firm “…already have a costs assessor coming to assess the files this afternoon…” and that the costs as assessed would have to be paid in full prior to release of the file.[9]
  9. [13]
    On 20 February 2008, Hartwell’s provided the costs statement to Ms Jackson.[10]
  10. [14]
    On 26 February 2008, Ms Jackson sent an email to Steve Hartwell about the costs assessment.[11]
  11. [15]
    On the same day, Mr Hartwell replied to that email.[12]
  12. [16]
    On 27 February 2008, Mr Hartwell provided a further review to Ms Jackson.[13]
  13. [17]
    On 10 March 2008, Hartwell’s finalised the costs assessments which were sent to Ms Jackson.[14]
  14. [18]
    The evidence before the Tribunal does not indicate that any of the Costs Statements prepared by Hartwell’s were forwarded to the clients.
  15. [19]
    On 13 March 2008, Ms Jackson sought advice from Counsel in relation to termination of the retainer agreement (by way of the letter of 12 February).
  16. [20]
    On 27 March 2008,[15] the barrister advised that he believed the letter received from Crouch & Co “amounts to a repudiation of the terms of the retainer and that it is open to instructing solicitors to accept the repudiation and terminate the retainer or to allow the retainer to remain on foot and act in accordance with its terms”.[16] The barrister advised further that, “the briefed trust account authority also specifically provides that ‘this Authority is to continue until revoked by us.’ I am instructed that there has not been a revocation of the trust account authority”.[17]
  17. [21]
    Ms Jackson sent her clients three bills by letter dated 15 April 2008:
    1. Invoice #922 dated 3 April 2008 for work done 5 December 2007 – 12 February 2008, in the amount of $3,571.60;[18]
    2. Invoice #872 dated 14 April 2008 for work done 15 October 2007 – 1 April 2008, in the amount of $13,055.85;[19]
    3. Invoice #898 dated 15 April 2008 for work done 17 October 2007 – 14 April 2008, in the amount of $50,786.30.[20]
  18. [22]
    Ms Jackson made payment of each bill in full by making transfers from her trust account to her general account.[21]
  19. [23]
    Amounts of $3,842.50 (Invoice #872) and $49,246.30 (Invoice #898) transferred on 15 April 2008 are the amounts subject of the trust account withdrawals referred to in charge 2.
  20. [24]
    On 15 April 2008, by letter to Irene Raps, Ms Jackson set out her requirements for the transfer of the client file and claimed a “Solicitors Lien” for unpaid fees in respect of the Coutts Estate file, the re-opened Estate of Elaine Mary Coutts file and the Warrant file.[22] Ms Jackson states that the files would not be released until “any reasonable claim for Solicitors Lien for unpaid fees on a copy of this file is met”.
  21. [25]
    As to handing over the files to Crouch and Co, in relation to the Warrant file, Ms Jackson referred to “Extra Ordinary conditions for release of a copy of this file”.[23] Ms Jackson refers to a personal undertaking given to the Queensland Police Service and to the Coroners Courts, from which she “has not been released from this obligation”. Ms Jackson requires “release from the writers [sic] undertaking or express order permitting the writer to release copies of documents to the Executors or their Solicitors” before she can release the file.[24]
  22. [26]
    On 23 April 2008, Crouch & Co provided Ms Jackson with signed authorities from the clients for release of the client files and any remaining trust account funds.
  23. [27]
    On 30 April 2008, correspondence followed between Ms Jackson and Crouch & Co in regards to the requirements for the file handover in which Ms Jackson questioned the adequacy of the authorities provided.
  24. [28]
    By letters dated 1 May 2008 and 6 May 2008, Crouch & Co replied to Ms Jackson.
  25. [29]
    By letter dated 7 May 2008, Ms Jackson replied to Crouch & Co:
  26. [30]
    On 16 May 2008, Crouch & Co made a formal complaint to the Commission about Ms Jackson’s refusal to transfer the files.
  27. [31]
    On 29 May 2008, an audit of Ms Jackson’s trust account was conducted by Bob Hills & Associates in relation to the Coutts Estate files.[25] This audit did not reveal any error or breaches with respect to Ms Jackson’s trust account.
  28. [32]
    On 6 June 2008, Ms Jackson proposed to the Executors the delivery of the client files of the Estate of Leo Coutts and Elaine Coutts, the warrant file, the files regarding the Queensland Law Society complaint, the Commissioner’s complaint and relating to release of client material from the Legal Services Commissioner to the Executors. Ms Jackson further proposed release of the client documents from the deceased’s home and the safe custody packet to Irene Kennedy, by registered mail with notice to the parties.
  29. [33]
    Ms Jackson’s proposal was refused by the Commissioner on 11 June 2008, upon the advice of Crouch & Co.
  30. [34]
    On 20 June 2008, Ms Jackson obtained a release of the undertaking she gave to the Coroners Court.[26]
  31. [35]
    On 24 June 2008, Ms Jackson sent the following to the Legal Services Commissioner:[27]
    1. Box labelled Coutts Warrant File (1 of 3) containing the warrant files being the original covered by the warrant at the time the warrant was given.
    2. Envelope labelled Coutts Warrant File (2 of 3) containing Volume. 1 Warrant file on the Estate of the Late Leo John Coutts (Deceased) – Closed Court Proceedings
    3. Envelope labelled Coutts Warrant File (3 of 3) containing Volume. 2 Warrant file on the Estate of the Late Leo John Coutts (Deceased) Cost Assessment Release of File
    4. Box labelled Personal Papers 1, 2, 3, 4 and 5 of 6 containing personal papers of the Late Leo John Coutts and the Late Elaine Mary Coutts
    5. 3 taped wire baskets labelled Personal Papers 6 of 6 that were used to transport the personal papers.
    6. Box Labelled Estate of John Leo Coutts 1 and 2 of 2.
    7. Box Labelled File Estate Leo John Coutts for release to the executors.
    8. Box labelled Personal Papers 1, 2, and 3 of 4 containing personal papers of the Late Leo John Coutts and the Late Elaine Mary Coutts
    9. 3 taped wire baskets labelled Personal Papers 4 of 4 that were used to transport the personal papers.
    10. The original safe custody packet held in relation to the Estate of the Late Elaine Mary Coutts
    11. Envelope marked Estate of Elaine Mary Coutts containing Volume 1 file regarding the estate of Elaine Mary Coutts (deceased).
    12. Envelope marked File prepared for release to executors Estate of Elaine Mary Coutts
    13. Box Labelled Files AL Jackson re Estate of Leo John Coutts 1 and 2 of 2.
  32. [36]
    On 24 July 2008, the Commission told Ms Jackson that the Commission had completed a review of the files and intended to release the client file to Crouch & Co. The Commissioner requested Ms Jackson’s submissions on release of the file by close of business on 31 July 2008.[28]
  33. [37]
    By letter dated 30 July 2008 faxed to the Commissioner, Ms Jackson responded to the proposal to release the files seeking more information.[29] Ms Jackson raised a number of issues and claimed a lien over the material intended to be released.
  34. [38]
    On 11 August 2008, the Commissioner issued a further notice to Ms Jackson providing an update on the status of the investigation into the complaint made by Crouch & Co and responding to Ms Jackson’s submissions on the lien and release of the files, as well as giving notice pursuant to section 443(1) LPA.[30]
  35. [39]
    On 18 August 2008, Ms Jackson responded to the letter dated 11 August 2008, including the section 443(1) notice.[31]
  36. [40]
    On 21 August 2008, the Commissioner sent a further letter advising Ms Jackson that she had not provided a full explanation for the basis of the claimed lien or any account in support. The Commissioner also gave Ms Jackson further written notice, pursuant to section 443(3) LPA, that if her failure to comply continued for a further 14 days, she may be dealt with for professional misconduct.
  37. [41]
    On 28 August 2008, by way of letter to the Legal Services Commission, Ms Jackson provided information regarding the trust authorities.
  38. [42]
    By letter dated 3 September 2008, sent by facsimile from Ms Jackson to the Legal Services Commission, Ms Jackson referred to the notice pursuant to section 443(1) reminding the Commissioner that on 18 August 2008 an explanation was provided.  Ms Jackson also said “do not let the lien argument alone stop your decision on this point”.
  39. [43]
    By letter dated 8 September 2008, from Legal Services Commission to Ms Jackson, Legal Services Commission noted that no response had been received to the notice issues pursuant to section 344(3).
  40. [44]
    By letter dated 16 October 2008, from the respondent to the Legal Services Commission, Ms Jackson again referred to the argument concerning the lien and again indicated that the Legal Services Commission should take the action it thought fit “without regard to my lien”.  
  41. [45]
    On 25 November 2008, Crouch & Co referred the matter to the District Court for a costs assessment on behalf of the clients.
  42. [46]
    On 18 December 2008, the bills were referred for assessment by order of McGill DCJ in the District Court of Queensland. The result of the assessment was that Ms Jackson’s legal costs were reduced, overall, by an amount of 51%.
  43. [47]
    The costs assessor found, and McGill DCJ confirmed, that Ms Jackson charged for ‘care and consideration’ when there was no provision in the retainer agreement for such a charge. Additionally, it was found that there was no provision for the amounts relating to preparation of an itemised account, research, administrative tasks at solicitor’s rates and for tasks performed once the retainer had been terminated.[32]
  44. [48]
    On 23 April 2012, the District Court delivered its decision.[33]
  45. [49]
    In May 2012, the Commissioner released the client files to Crouch & Co.  The Commissioner did this without further reference to the respondent.

Submissions

Charge 1

Commissioner’s Submissions

  1. [50]
    Charge 1 is that on or about 15 April 2008, Ms Jackson charged her former clients, Irene Elizabeth Southwell and Irene Joyce Kennedy, excessive legal costs.
  2. [51]
    The Commissioner submits that Ms Jackson’s conduct involved three instances of excessive charging:[34]
    1. For care and consideration when it was clear that under the agreement Ms Jackson had no entitlement to charge for care and consideration;
    2. For the costs of preparing the bill of costs;
    3. For work performed after the retainer was terminated on 12 February 2008, by letter from Crouch & Co.
  3. [52]
    McGill DCJ found that there was no basis to charge for any of these items.[35] It is submitted that in charging for these items, Ms Jackson’s conduct fell below the required standard of competence and diligence.
  4. [53]
    The Commissioner submits that the LPA identifies a threshold of 15% reduction in costs as capable of instituting an investigation into misconduct.
  5. [54]
    Section 343(2) LPA provides, if the costs assessor or court reduces the legal costs payable by 15% or more, the costs assessor may, or the court may direct the registrar for the court to, refer the matter to the Commissioner to consider whether disciplinary action should be taken against an Australian legal practitioner.
  6. [55]
    Section 343(3)(a) states that if the costs assessor or a court considers the legal costs charged by a law practice are grossly excessive, the costs assessor must, or the court may direct the registrar for the court to, refer the matter to the Commissioner to consider whether disciplinary action should be taken against the practitioner.
  7. [56]
    Disciplinary action was taken in cases where the excess was 63%,[36] 47%,[37] 39%,[38] and 62%[39] respectively, and the excesses in this case are comparable.
  8. [57]
    In Scroope v Legal Services Commissioner,[40] where a client was overcharged by an amount of 63%, the legal practitioner was found guilty of unsatisfactory professional conduct on appeal from a finding of professional misconduct, owing to his firm not having an accurate system of billing in place and the bill being approved by his supervising partner.[41]
  9. [58]
    In Legal Profession Complaints Committee v O'Halloran,[42] the legal practitioner was struck off for overcharging 5 clients in excess of 39% each over a period of 12 years in circumstances where those clients were vulnerable, being personal injury plaintiffs.
  10. [59]
    In Veghelyi v Law Society of NSW,[43] the legal practitioner was struck off for wilfully and grossly overcharging 12 clients, making threats to an arbitrator and making trust account disbursements without authority.
  11. [60]
    The Commissioner submits that the solicitor does not escape responsibility for any consequent overcharging by sedulously adopting the assessor’s advice, or by delegating the preparation of the bill to an assistant.[44]
  12. [61]
    There is no evidence that the Executors agreed to be bound by the assessment of a costs assessor.[45] The retainer agreement provides that the costs assessor was to be engaged in the event of a “dispute as to costs” and there was none.[46] It would appear Ms Jackson engaged the costs assessor because of “tensions” that had arisen in the matter.[47]
  13. [62]
    It is submitted that, regardless of any contractual rights Ms Jackson might have had to rely on the costs assessor, Ms Jackson still had a professional responsibility to exercise competence and diligence.[48] As was said in Law Society of New South Wales v Foreman:[49]

No amount of costs agreements, pamphlets and discussion with vulnerable clients can excuse unnecessary over-servicing, excessive time charges and over-charging where it goes beyond the bounds of professional propriety…

…if costs agreements of this kind are to be obtained from clients, it is necessary that the solicitor obtaining them consider carefully her fiduciary and other duties…

  1. [63]
    In any event, only the first of the three bills was prepared by Hartwell’s Costs Assessors. The other two were prepared by Ms Jackson based on drafts from Hartwell’s.[50]
  2. [64]
    The Commissioner submits that while a solicitor would be entitled to place some reliance on the professional advice of a costs assessor, the existence of advice does not absolve Ms Jackson from exercising her own competence and diligence to avoid charging for clearly un-chargeable items such as those identified.[51]
  3. [65]
    The costs charged by Ms Jackson were excessive. The costs were deliberately or dishonestly overcharged, in line with Urban, O'Halloran and Keddie.[52] Ms Jackson’s overcharging was lower than that in Urban but higher than in O'Halloran and Keddie, which warrants a finding of professional misconduct.[53]

Ms Jackson’s Submissions

  1. [66]
    Ms Jackson submits that the bills of costs were prepared by a duly qualified assessor,[54] which were uncontested, and that they were not actually charged or prepared by her.
  2. [67]
    The Commissioner’s only evidence as to her ‘personal’ misconduct, is that she signed a letter enclosing the unsigned bills, and that she was a sole practitioner at the time.[55]
  3. [68]
    The mere fact that a bill of costs is “taxed down” is no proof of misconduct by overcharging.[56] No evidence of personal implication in misconduct in the preparation of the bill, or egregious misconduct or deliberate conduct has been inferred by the Commissioner, as was required in Nikolaidis.[57]
  4. [69]
    Ms Jackson further contends that the charge is unsustainable on its face, as the construction of the charge does not allow the Tribunal to consider the underlying conduct or the course of conduct in issuing the bills, which was found to be determinant to characterisation of the conduct in Scroope v Legal Services Commissioner.[58] As issuing a bill is the only submission of misconduct made by the Commissioner, the charge is invalid.
  5. [70]
    Ms Jackson submits further that to rely on McGill DCJ’s decision in the District Court alone in establishing guilt of the overcharging would lead the Tribunal into error, as was found in Nikolaidis.[59] Ms Jackson argues that because the only evidence led by the Commissioner is the costs proceeding, the charge must be dismissed.[60]
  6. [71]
    Ms Jackson submits that there can be no charge for misconduct in relation to billing for ‘care and consideration’. Ms Jackson contends that the amounts charged for ‘care and consideration’ were not charged in the traditional definition of the term, being “a mark-up or uplift fee that is not based on specific work done”, but rather to account for “numerous specific tasks charged by that collective term in the bill even though the work was done and is properly chargeable as individual items”.[61] Ms Jackson says it was reasonable to charge for those sums as the work was actually done on the file, as per the retainer agreement. The error was in form, not quantum.[62]
  7. [72]
    On whether Mr Hartwell’s costs of assessment should have been included in Ms Jackson’s legal costs, Ms Jackson submits it was reasonable to include those fees in the bills rendered to the client, as the client expected to pay the bill and expected that it would be paid from the funds in trust. Mr Hartwell was also a ‘joint expert’ retained for the file, for which his fee was treated as an outlay and included in the bill.[63] Ms Jackson refers to the retainer agreement and to the “express instructions of 1 February 2008 confirmed in writing together with the progress report on 12 February 2008” as evidence of this.[64]

Disposition – Charge 1

  1. [73]
    Ms Jackson has contended that the charge is invalid and unsustainable.  The basis of this contention is that the formulation of the first paragraph of the charge is that Ms Jackson charged her former clients excessive legal costs. In this context, Ms Jackson refers to the fact that there is no evidence of personal implication in this conduct in the preparation of the bill, and no egregious misconduct or deliberate conduct has been inferred. 
  2. [74]
    The question of evidence is not relevant to whether the charge can be dismissed on a preliminary basis.  The wording of the charge follows the formulation in section 420(1)(b) LPA which provides that charging of excessive legal costs in connection with the practice of law is capable of constituting unsatisfactory professional conduct or professional misconduct. 
  3. [75]
    In the particulars which are contained in Charge 1, reference is made to the taxation of costs and to the decision of McGill DCJ which itself raises a number of factual issues which led to the reduction in the costs referred to in the particulars, and which are relevant to conduct. 
  4. [76]
    The tribunal must consider whether the conduct of the respondent amounted to unsatisfactory professional conduct or the more serious professional misconduct, or neither. In considering this question, reference must be had to the relevant definitions contained in the LPA.
  5. [77]
    Section 418 LPA provides that unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law 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.
  6. [78]
    Section 419 LPA provides that:

(1) Professional misconduct includes –

  1. (a)
    unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
  1. (b)
    conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
  1. [79]
    In relation to professional misconduct, Justice James Thomas in the case of Adamson v Queensland Law Society,[65] said:

The test to be applied is 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.

  1. [80]
    Section 420 LPA describes conduct which can constitute unsatisfactory professional conduct or professional misconduct.
  2. [81]
    Section 420(1)(b) LPA provides:
  1. (1)
    The following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct —

 (a) …

 (b)  charging of excessive legal costs in connection with the practice of law

  1. [82]
    Section 420 LPA does not provide that the conduct referred to in the section must be unsatisfactory professional conduct or professional misconduct, just that it is capable of constituting unsatisfactory professional conduct or professional misconduct.
  2. [83]
    Section 420 is expressly said not to limit section 418 LPA or section 419 LPA.
  3. [84]
    Whilst section 418 LPA and section 419 LPA are inclusive definitions, the relevant conduct should be considered by reference to the definitions to determine whether the practitioner’s conduct falls within a definition, that is, 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.
  4. [85]
    Ms Jackson has referred to a number of authorities, particularly Nikolaidis v Legal Services Commissioner[66] and D’Allesandro v Legal Practitioners Complaints Committee.[67]
  5. [86]
    Ms Jackson refers, for example, to the fact that the charge in Nikolaidis was the “deliberate” charging of grossly excessive amounts of costs and the need to focus on the conduct of the practitioner. Ms Jackson submits that no such assertions are made in the charges brought in these proceedings. 
  6. [87]
    Care should be taken when considering previous decisions, particularly from other jurisdictions where the legislative scheme might be different or where no scheme was in place.
  7. [88]
    For example, at the relevant time in New South Wales, “professional misconduct and unsatisfactory professional conduct” were defined to include “conduct that is declared to be professional misconduct under any provisions of this Act”.[68] 
  8. [89]
    Section 208Q[69] in subsection (2), provided that for the purposes of the Act ‘deliberate charging of grossly excessive amounts of costs’ was declared to be professional misconduct. 
  9. [90]
    Hence, the inclusion of such an allegation in the charge and the analysis of that issue in the reasons. No such issue arises in this case because of the definitions used in the Queensland Act. 
  10. [91]
    The New South Wales Act was ultimately changed, removing the reference to “deliberate” and containing similar provisions to those which appear in the Queensland legislation.[70]
  11. [92]
    The same caution must be applied when considering the authorities which discuss the “common law” approach to disciplinary proceedings.
  12. [93]
    Whilst these authorities might provide broad guidance, the requirement for this Tribunal is to have regard initially to the relevant definitions. Whilst the definitions are inclusive definitions and so other conduct might be included, conduct which falls within either of the definitions in section 418 LPA or section 419LPA will be either unsatisfactory professional conduct or professional misconduct. 
  13. [94]
    Ms Jackson refers to the only evidence being that the bill was reduced on taxation.  The submission is that to rely upon the decision of McGill DCJ in the District Court proceedings alone would lead the Tribunal into error as described in Nikolaidis. 
  14. [95]
    It is a well-established principle that a Tribunal not bound by the rules of evidence may take into account relevant findings of another court or tribunal.[71]
  15. [96]
    In Nikolaidis, the observation was made that a disparity between a bill of costs as rendered and a bill of costs as taxed did not necessarily lead to the conclusion of overcharging, and the evaluative judgment of the Tribunal or Court, based upon practical legal experience, is relied on in deciding whether the difference amounts to gross overcharging.[72] 
  16. [97]
    It is undoubtedly the case (and is broadly accepted) that whilst the taxed amount is not necessarily the sole factor to be taken into account, the Tribunal is entitled to rely upon the taxed amount as the appropriate standard, and to determine, by reference to that taxed amount, that the amount in fact charged was grossly excessive. In D’Allesandro, the court concluded that there was no basis upon which it should interfere with that approach.[73]
  17. [98]
    The decision of McGill DCJ is significant in that it deals with the assessment of the quantum of the costs upon which the Tribunal is entitled to rely as the appropriate standard to consider whether the amount in fact charged was grossly excessive. Importantly, the reasons also undertake an analysis of the reasons why the reductions were made. These reasons are significant in considering the particular circumstances and the conduct of the practitioner in those circumstances. 
  18. [99]
    As has been outlined in a number of the authorities,[74] the assessment of the practitioner’s conduct is dependent upon a range of factors of which the discrepancy between costs charged and costs taxed is one.
  19. [100]
    Reference has been made to other factors including difficulty, novelty or complexity, experience of the practitioner, quality of the work, the amount of time spent and any retainer agreement.[75] Where there is a retainer agreement, which governs the practitioner/client relationship, and which is the basis on which the practitioner agreed to act in the matter, the terms of this agreement are of particular significance.
  20. [101]
    The charge relates to charging excessive fees.
  21. [102]
    The Tribunal must determine whether the fees charged were excessive. The Tribunal has evidence as to the amount charged and the amount allowed by McGill DCJ.
  22. [103]
    Ms Jackson has submitted that the Tribunal must assess the fair and reasonable figure for fees, in deciding this question.[76] What the Tribunal must do is decide what Ms Jackson should have charged in determining if the charge was excessive. In doing this, the Tribunal must take into account all of the circumstances in which the accounts were rendered.
  23. [104]
    These circumstances include that, for two of the matters, a retainer agreement was entered into. The basis on which professional fees are charged under retainer agreements is generally very different from the basis on which professional fees are charged under court rules or assessed historically on taxations of costs.
  24. [105]
    Many practitioners, like the respondent in this case, require clients to enter into retainer agreements (called variously retainer agreements or client agreements or fee agreements). Such agreements are commonplace. Some of the terms of such agreements are mandated by the LPA.
  25. [106]
    These agreements set out the terms on which the practitioner is prepared to act for the client. They are often prepared in standard form by the practitioner. The practitioner is familiar with the terms.
  26. [107]
    As was observed by McGill DCJ,[77] many clients would never have understood the complexity of assessments before the advent of retainer agreements which provide for payment of fees based on the hours worked at the rates set out in the agreement. In many ways, the retainer agreement (on this basis) will provide the client with a greater level of understanding and more certainty around fees by providing for charges based on work done at an hourly rate.
  27. [108]
    The retainer agreement is the basis which determines the fees that the practitioner is entitled, under the agreement, to charge. Importantly, the taxation of costs and decision of McGill DCJ set out the calculation of this figure by reference to the requirements of the retainer agreement. This is the maximum figure that the practitioner should charge the client.
  28. [109]
    As was observed by French J in De Pardo v Legal Practitioners Complaints Committee,[78] one of the cases referred to by Ms Jackson, even where the practitioner complies with the retainer agreement it might still be the case that the conduct is inappropriate.  In D’Allesandro,[79] Ipp J observed:

There is, furthermore, strong authority to the effect that the existence of an agreement between a legal practitioner and client, as to the amount of costs payable by the latter, is no bar to disciplinary proceedings against the practitioner involving complaints of unethical overcharging.

  1. [110]
    This has been the basis, in some cases, for the observation that the assessment may not be the end of the consideration.
  2. [111]
    At a minimum, however, from the practitioners’ perspective, the practitioner must comply with the terms of the agreement.  At a minimum, the practitioner’s conduct must be considered by reference to compliance with the terms of the retainer agreement. 
  3. [112]
    The practitioner must understand the terms of the retainer agreement, which the practitioner requires that the client enter into as a condition of the practitioner being prepared to act. This is a level of competence and diligence which the public is entitled to expect of a legal practitioner.[80]
  4. [113]
    Practitioners who do not comply with the terms of their retainer agreements will fail to achieve the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
  5. [114]
    Ms Jackson has made submissions about the need to identify the conduct of the practitioner and in that context has submitted that the disallowance of items on a taxation is not sufficient to underpin a conclusion that the conduct of the practitioner falls below the required standards.[81]
  6. [115]
    In D’Allesandro,[82] Ipp J referred to the fact that the arguments advanced on taxation had been regarded as “very attractive in some respects”, indicating a view that those submissions were at least reasonably arguable. Ipp J regarded this as a highly relevant factor to be taken into account in determining whether the amount charged under the bill of costs was grossly excessive. His Honour concluded:[83] 

If a practitioner claims a fee on a reasonably arguable, but wrong basis, it could hardly be said that his or her conduct in so charging is to be characterised in any way as unprofessional.

  1. [116]
    This is a very different position from the circumstances where the practitioner ignores the provisions of the retainer agreement in charging fees to a client beyond those which are allowed under the terms imposed by the practitioner as conditions upon which the practitioner is prepared to act.
  2. [117]
    In those instances, it is not just the case that there is a valid (or appropriately arguably valid) claim but the quantum might be within a range of figures. Where the terms of the retainer agreement are ignored, the fee should never have been imposed.
  3. [118]
    In those circumstances, the claims are not reasonably arguable. This leads to the opposite conclusion to that which was expressed by Ipp J in D’Allesandro.
  4. [119]
    The retainer agreements entered into by the parties in this case were in clear terms.
  5. [120]
    Provision is made that “the firm charges fees according to the time spent on the matter”.[84]
  6. [121]
    Rates are specified for various categories, which include partner, associate, solicitor, article clerk, paralegal and consultant. 
  7. [122]
    The agreement provides that the charge will be on the basis of a six minute unit, for each unit or part thereof charged at one-tenth of the hourly rate applicable. The retainer warns the client that there is potential for the time charging to result in a different figure from the charges which might be derived using the relevant courts scales, and those scales are attached to the agreement. 
  8. [123]
    There is no allowance for care and consideration in the retainer agreement. 
  9. [124]
    Ms Jackson submits that the amounts which were charged for care and consideration in her accounts were not charged in the same way as “care and consideration” would be charged under the court scales. Rather, care and consideration was charged by Ms Jackson to account for “numerous specific tasks charged by that collective term in the bill even though the work was done and is properly chargeable as individual items”. Ms Jackson asserts that the error is in form, not quantum. 
  10. [125]
    That argument is unsustainable. 
  11. [126]
    In this case, the parties entered into an agreement, which defined the obligations of the clients with respect to fees. The practitioner required that the retainer agreement be entered into. 
  12. [127]
    The practitioner’s rights are defined by reference to the retainer agreement. As there is no provision in the retainer agreement for a charge such as that which is asserted by Ms Jackson as falling under the heading “care and consideration”, no such charge in that category can be made by the client. 
  13. [128]
    The Tribunal concludes that the retainer agreement between the parties did not allow for care and consideration and no charge should have been made. Acting to a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner, this should have been obvious to Ms Jackson who had reviewed the draft itemised accounts and was familiar with the terms of the retainer agreement. 
  14. [129]
    The Tribunal notes that Judge McGill also came to this conclusion.[85] 
  15. [130]
    Ms Jackson purported to make a charge with respect to a cost of drawing the itemised accounts. Ms Jackson submitted that the client expected to pay for the costs assessor’s fees, particularly as the costs assessor was to be a “joint expert” for which the fee was to be treated as an outlay included in the bill.[86] 
  16. [131]
    Ms Jackson refers to the terms of the retainer agreement and also to an express instruction given on 1 February 2008. 
  17. [132]
    Item 5, which is contained in the reference schedule to the retainer agreement, deals with the costs of an independent costs assessor.  Item 5 is said to apply where there is a dispute regarding the invoice and an independent costs assessor becomes involved to resolve that dispute.  Those circumstances did not occur in this case and so Item 5 is not relevant. There is no other provision in the retainer agreement, which deals with the costs of preparation of the itemised bill. 
  18. [133]
    The conversation said to have occurred on 1 February and confirmed in the letter of 12 February does not provide that the client would pay the costs of preparing an itemised bill.
  19. [134]
    The letter does not contain any sufficiently clear agreement that the clients would pay Hartwell’s fees. The words used "Obviously Mr Hartwell will render an invoice for his attendances in preparing the costs assessment" are ambiguous. If such an unusual obligation was intended to be imposed it should have be done in clear terms.
  20. [135]
    On the basis of the communication on 12 February, it could not be said that the client would have expected to pay for the cost of preparation of the itemised bill, or that the payment would be made from funds in trust or that there was provision of express instructions as to that matter. 
  21. [136]
    At common law, a solicitor is not entitled to charge for preparing an itemised bill.[87] 
  22. [137]
    In the circumstances, there was no clear entitlement to claim for the cost of preparing the itemised bill. Again, this would have been obvious to a practitioner acting to a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner in the circumstances. 
  23. [138]
    The Tribunal notes that Judge McGill dealt with this matter in the reasons in similar terms.[88] 
  24. [139]
    The third issue raised by the applicant concerns the charging of work done after termination of the retainer. 
  25. [140]
    Dispute arose concerning a letter dated 12 February 2008, which was sent from Crouch & Co to Ms Jackson which indicated that Crouch & Co had been instructed to act in the administration of the estate. 
  26. [141]
    Ms Jackson’s submission is that the letter was not effective to terminate the retainer as it was not expressed in language that was sufficiently definite, clear or precise. 
  27. [142]
    The letter read:

We now have instructions from Irene Elizabeth Raps and Irene Joyce Kennedy who are the executors named in the last will of the abovenamed who now instruct that they want us to act for them in the administration of the estate. 

We would be pleased if you could advise your requirements in order to allow transfer of the file. 

We have received your fax dated 11 February 2007.  In view of these latest instructions we ask you to take no further steps in the estate’s administration.

  1. [143]
    The Tribunal concludes that the letter was sufficiently clear to indicate to Ms Jackson that her retainer had been terminated.  The letter makes it clear that Crouch & Co had been asked to act in the matter in which Ms Jackson had been acting and that Ms Jackson was asked to transfer her file. The words used were, in the Tribunal’s view, sufficiently clear and precise to communicate to Ms Jackson that her instructions were terminated. 
  2. [144]
    The letter also made it clear that Ms Jackson was to take no further steps in the estate’s administration. 
  3. [145]
    In the circumstances, Ms Jackson had no entitlement to make any claim with respect to costs incurred after the termination of the retainer on 12 February 2008. 
  4. [146]
    Judge McGill dealt with this issue in similar terms.[89] 
  5. [147]
    The Tribunal concludes that no fees associated with those three items (care and consideration, preparation of the bill and costs incurred after termination) should have been charged. The charges should not have been included in the accounts. It was not a matter where a percentage was taxed off the account where a larger quantum might have been reasonably and properly arguable. To the contrary, the entitlement was not arguable. No charge should have been made.
  6. [148]
    The fact that these charges should not have been made was obvious from Ms Jackson’s standard retainer agreement and must have been obvious to Ms Jackson. The fact that they were charged was obvious (including to Ms Jackson) from the face of the assessments and the accounts which were rendered, in itemised form, to include all those items. It is clear (as the Tribunal has found in these reasons) that Ms Jackson reviewed the assessments.
  7. [149]
    Ms Jackson has referred to an arrangement with the client by which she asserts it was agreed a “joint expert” would determine the fees.  Ms Jackson says that the accounts were not prepared by her.
  8. [150]
    The basis on which Mr Hartwell was appointed was not clear.
  9. [151]
    The terms of the retainer agreement do not apply - there was no dispute about costs, as is required by the retainer agreement.
  10. [152]
    The letter sent by Ms Jackson on 12 February 2008 to the clients was not clear and could not be regarded as any agreement that Hartwell’s would act in the capacity as joint expert.
  11. [153]
    In any event, the circumstances reveal that Hartwell’s did not act as an independent decision maker in the role they undertook.
  12. [154]
    No evidence was available to the Tribunal to establish that the relevant draft Hartwell’s assessments were sent to the clients. The Tribunal finds that the assessments were not sent to the clients. This is not consistent with the suggestion that Mr Hartwell was a joint expert.
  13. [155]
    In a letter dated 26 February 2008, Ms Jackson questioned the draft assessment in one matter.  In communications, Ms Jackson demonstrated that she had reviewed the assessments. The Tribunal finds that Ms Jackson reviewed the assessments.
  14. [156]
    Ms Jackson required Hartwell’s to undertake a further review and assessment. Ms Jackson asked Mr Hartwell to review what he had done.
  15. [157]
    Mr Hartwell responded making observations such as "Perhaps we could increase the claim for care and consideration" and "obviously we have misinterpreted some notes. Perhaps you could have your staff mark the amendments required and we will then amend the costs statement” and “We have, nevertheless, amended the bill in accordance with your instructions.”
  16. [158]
    His language was that of a person aiming to accommodate the requirements of Ms Jackson not acting as an independent jointly appointed expert.
  17. [159]
    In that context, Mr Hartwell provided advice to Ms Jackson about a possible dispute over the assessments and offered to represent Ms Jackson in that context.
  18. [160]
    These circumstances are very different, and can be distinguished, from the cases referred to by Ms Jackson, where the billing process was handled completely by another competent lawyer within the firm, who had the carriage of the relevant matters and without any involvement of, or interference by, the lawyer who was the subject of the disciplinary proceedings.
  19. [161]
    Unlike those cases, Ms Jackson was the solicitor with the conduct of the matter and had a role in reviewing the detail and particulars of the invoices rendered, and who sent the invoices.
  20. [162]
    An overall figure of 51% was taxed from the 3 accounts. As to the two accounts to which the retainer agreements were relevant, the figure was 46%.
  21. [163]
    Section 343(2) LPA provides that if the costs assessor or court reduces the legal costs payable by 15% or more, the costs assessor or the court may direct the registrar for the court to refer the matter to the Commissioner to consider whether disciplinary action should be taken against an Australian legal practitioner. 
  22. [164]
    Section 343(3)(a) LPA provides that if the costs assessor or a court consider the legal costs charged by a law practice are grossly excessive, the costs assessor or the court may direct the registrar for the court to refer the matter to the Commissioner to consider whether disciplinary action should be taken against the practitioner.  
  23. [165]
    These provisions are unhelpful in defining at what level costs become excessive. 
  24. [166]
    Comparing subsections (2) and (3), it would seem to follow that a reduction of 15% is not excessive. 
  25. [167]
    With an overall reduction of an excess of 50% and reduction on the two accounts which were the subject to the retainer agreements at a figure just under 50%, the Tribunal concludes that the respondent charged excessive fees. 
  26. [168]
    As to the underlying conduct, significant charges were made by Ms Jackson for care and consideration, preparation of itemised accounts, and work done after termination of the retainer where there was no entitlement under the terms of the relevant retainer agreement. 
  27. [169]
    The fact that the charges were made was obvious to the respondent from the itemised accounts. The fact that the charges should not have been made was obvious to the respondent from the provisions of the retainer agreement and the circumstances at the time. 
  28. [170]
    The Tribunal finds that the conduct which led to the charging of the excessive fees was conduct which fell below the standard of competence and diligence a member of the public is entitled to expect of an Australian legal practitioner. On this basis, the conduct was, at the very least, unsatisfactory professional conduct.
  29. [171]
    The LPA does not provide that charging of excessive fees is professional misconduct. Section 420 provides that it might be either unsatisfactory professional conduct or professional misconduct.
  30. [172]
    The Legal Services Commissioner asserts that the costs were deliberately or dishonestly overcharged. There is no evidence of dishonesty, or any deliberate intention in that respect. That submission is without merit.
  31. [173]
    The conduct in this case occurred with respect to one client on one occasion, and as to costs, was over a very limited time frame. 
  32. [174]
    The Commissioner has compared the level of reduction in some of the cases with that which occurred in this case in submitting that finding of professional misconduct should be made.
  33. [175]
    The conduct in these cases were much more serious than that of Ms Jackson.
  34. [176]
    For example, O'Halloran,[90] involved a practitioner overcharging 5 of his clients over a period of 12 years where the overcharging was in excess of 39% for each client. Additionally, those clients were vulnerable personal injury clients. Similarly, the practitioner in Veghelyi v Law Society of NSW,[91] was found to have wilfully overcharged 12 of his clients and to have made trust account disbursements without authority.
  35. [177]
    Scroope v Legal Services Commissioner,[92] is at least comparable in the sense that a single client had been overcharged by an amount of 63%, but in that case the practitioner’s bill had been approved by his supervising partner. The practitioner’s conduct was found to be unsatisfactory professional conduct, on appeal from a finding of professional misconduct.
  36. [178]
    As is clear from the authorities, the level of reduction is a factor which is taken into account but it is not the sole factor or indeed the determinative factor. It is just one aspect of the conduct which is considered. 
  37. [179]
    Some of the areas of reduction at the taxation, which contributed to the overall level of reduction, were attributable to areas where there might arguably have been a range. In other areas, such as charging for care and consideration, the charge should simply not have been made.
  38. [180]
    Whilst it is not an excuse for the conduct, it is relevant that Ms Jackson had access to an assessment from a costs assessor in formulating the account which was rendered to the client. 
  39. [181]
    Taking all of the conduct and the circumstances into account, the Tribunal concludes that the conduct amounted to unsatisfactory professional conduct, but not professional misconduct. 

Charge 2

The Commissioner’s submissions

  1. [182]
    The Commissioner submitted that the trust account authority contained in the retainer agreement only authorised disbursements from the trust account for the purpose of paying outgoings and other costs payable by the firm or any associated company. It was submitted that the authority does not authorise deductions made for professional fees, and merely gives effect to section 58(3)(a)(iii) of the Regulations.[93]
  2. [183]
    In reference to the second trust account authority (dated 10 December 2007), the Commissioner submits that the authority also only authorised disbursements to pay for outlays expended on the file. It did not authorise disbursements for professional fees.
  3. [184]
    The Commissioner submits that the trust account authorities were impliedly revoked by the clients when they appointed Crouch & Co to finalise their estate matter,[94] citing the case of In re E (Enduring Power of Attorney),[95] by way of analogy drawn between revocation of agency by conduct at common law and the actions of the clients in the present case. In that case, it was accepted that:[96]

…there may be implied revocation by an act which is inconsistent with the continuation of the agency, coming to the notice of the agent.

  1. [185]
    Crouch & Co wrote to Ms Jackson on 12 February 2008 advising that they had received instructions from the clients to act in the administration of the Coutts Estate.[97]
  2. [186]
    The Commissioner relies on the decision of McGill DCJ in Southwell v Jackson.[98]
  3. [187]
    The Commissioner submits that Ms Jackson’s trust account withdrawals on 15 April 2008, after her retainer had been terminated by her clients, were, therefore, unauthorised.
  4. [188]
    The Commissioner submits further that Ms Jackson had initially accepted and understood the effect of the letter to mean that the retainer had been terminated, by way of:
    1. Ms Jackson’s reply to Crouch & Co on the same day, advising of her requirements for the release of the file;[99]
    2. A handwritten file note on the client file, dated 7 February 2008 in relation to payout of the client’s legal lender stating: “HOLD – Instruction to cease acting 12/2/08”;[100]
    3. The cost assessor’s reasons in Southwell v Jackson record an email sent to the client’s legal lender from Ms Jackson, wherein she advises, “I am sorry we will not be able to pay out this loan tomorrow as the client has withdrawn instructions”.[101]
  5. [189]
    The Commissioner submitted that the trust account authority contained in the retainer agreement ceased to have any effect once Ms Jackson’s retainer was terminated,[102] citing Lep Air Services v Rolloswin Ltd.[103]
  6. [190]
    The reference to Lep Air footnoted in the Commissioner’s submissions refers to the judgment of Lord Diplock, who states:[104]

The rescission of the contract puts an end to the primary obligations of the party not in default to perform any of his contractual promises which he has not already performed by the time of the rescission… The primary obligations of the party in default to perform any of the promises made by him and remaining unperformed likewise come to an end as does his right to continue to perform them.

  1. [191]
    An isolated failure would ordinarily be unsatisfactory professional conduct.[105] Ms Jackson’s conduct in making the unauthorised withdrawals should be seen as part of her ongoing course of conduct, as amounting to professional misconduct.[106]

Ms Jackson’s submissions

  1. [192]
    As to scope of the various trust account authorities identified by Ms Jackson, she submits that the words “fees statutory duties and other proper outlays” as they appear in the second trust account authority (dated 10 December 2007) cover the disbursements she made from the trust account. Ms Jackson submits that “clearly fees means professional fees, statutory duties means statutory duties like stamp duty and outlays includes disbursements”.[107]
  2. [193]
    Ms Jackson continues, “fees has its plain meaning…the applicant offers no explanation of…how the general use of the word fees would not include the specification of professional fees”.[108] Ms Jackson submits further that “costs and fees can be used interchangeably as seen by ‘professional costs’ and ‘memorandum of fees’,” in reference to the words used in the second trust account authority.[109]
  3. [194]
    Ms Jackson submits that, because neither the trust auditor (Bob Hills & Associates), nor the QLS raised the issue of whether the trust account authorities covered the trust account disbursements made by Ms Jackson, both entities were satisfied that the authorities covered the disbursements made.[110] Ms Jackson concludes, “The trust audits confirm the trust transfers made by the respondent are in order and the applicant has not challenged the trust audits”.[111]
  4. [195]
    In her letter to the Legal Services Commission dated 28 August 2008, Ms Jackson refers to the following documents in respect of the complaint made about her regarding misuse of trust monies:[112]
    1. Client Agreement dated 10 December 2007;
    2. Trust Account Authority dated 10 December 2007 – which Ms Jackson claims in the letter is “the single most essential document” in regard to the complaint;
    3. Invoice with handwritten authority dated 10 December 2007 (Invoice No 872);
    4. Invoice with handwritten authority dated 10 December 2007 (Invoice No 898);
    5. Correspondence to the clients dated 10 December 2007 enclosing copies of all these documents for their records.
  5. [196]
    Ms Jackson referred to the audit of her trust account conducted by Bob Hills & Associates in relation to the Coutts Estate on 29 May 2008. The audit testing conducted “did not reveal any evidence that trust funds had not been accounted for correctly and that all funds and events on the file were bona fide and under authority for the duration of the matters”.[113] This was faxed to the Commissioner on 16 June 2008 as part of the investigation of the complaint made by Tim Crouch of Crouch & Co.[114]
  6. [197]
    Ms Jackson submits that the trust account authority contained in the retainer agreement was to survive the end of the retainer agreement, by operation of the words “as and when those fees and outgoings are incurred and at any time prior to or after finalization of the matter” (emphasis added by Ms Jackson).[115]
  7. [198]
    As to the second trust account authority and the two handwritten authorities, Ms Jackson says these are valid despite the termination of the retainer, by operation of the words in the second authority, “on which I/we are responsible for the payment of fees as per the memorandum of fees to be forwarded to us or other notification from Legal Link.” (Emphasis added by Ms Jackson).[116]
  8. [199]
    As to Lep Air, the respondent submits that the case is not comparable to the present facts, as Lep Air dealt with “the law of securities specifically termination of guarantee in the circumstances of wrongdoing of the party benefiting from the guarantee”. Ms Jackson submits further, “In no way can the law of securities be directly applied to the law of trusts”. Ms Jackson says she could not find an Australian case citing Lep Air in reference to trust law.[117]

Disposition – Charge 2

  1. [200]
    Section 249(1) LPA provides:

Holding, disbursing and accounting for trust money 

  1. (1)
    A law practice must –
  1. (a)
    hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received; and
  1. (b)
    disburse the trust money only under a direction given by the person.
  1. [201]
    The relevant parts of section 58 of the Legal Profession Regulation 2007 (Qld) (“Regulation”) provides:
  1. (3)
    The law practice may withdraw the trust money –
  1. (a)
    if –
  1. (i)
    the money is withdrawn in accordance with a costs agreement that complies with the legislation under which it is made and that authorises the withdrawal; or
  1. (ii)
    the money is withdrawn in accordance with instructions that have been received by the practice and that authorise the withdrawal; or

…

  1. (b)
    if, before effecting the withdrawal, the practice gives or sends to the person—
  1. (i)
    a request for payment, referring to the proposed withdrawal; or
  1. (ii)
    a written notice of withdrawal.
  1. [202]
    If there is no trust authorisation, then the provisions of section 58(4) apply.
  2. [203]
    Pursuant to section 420(1)(a) LPA, conduct constituting a contravention of a relevant law is capable of constituting unsatisfactory professional conduct or professional misconduct.
  3. [204]
    A trust account authority was contained in the retainer agreement.  Clause 17(iii) reads:

The client hereby expressly direct and authorises the firm to retain or deduct from your Trust Account or in any way deal with money on the client’s behalf in the firms trust account for the purpose of paying any fees, costs outgoing any interest payable by my/our company or payable by the firm to any Government Department or other person or persons in respect to the above mentioned matter and such costs and outgoings and interest may be drawn by the firm as and when those fees and outgoings are incurred and at any time prior to or after finalisation of the matter.

  1. [205]
    A further trust account authority was executed on the same date (10 December) and reads as follows:[118]

I/We, Irene Elizabeth Southwell Raps

[Address omitted]

And Irene Joyce Kennedy

[Address omitted]

Hereby authorise and direct the payout of any monies held or received into your Trust Account on our behalf to Legal Link for professional costs on any file of mine or on which I/we are responsible for the payment of fees, statutory duties, and other proper outlays expended on any file of mine or on which I/we are responsible for the payment of fees as per the memorandum of fees to be forwarded to us or other notification from Legal Link.

The authority is to continue until revoked by us.

IRENE ELIZABETH SOUTHWELL RAPS

IRENE JOYCE KENNEDY

10 / December / 2007

  1. [206]
    There were also two handwritten authorities. One appears on Invoice 872 rendered for $9,213.35 in respect of responding to the Coroner’s Court warrant and preparing the files released under the warrant.[119] The other appears on Invoice 898 rendered for $1,540.00 in respect of probate in the Estate of Leo John Coutts and a transmissions application.[120] Both authorities are dated 10 December 2007:

10 December 2007

We, Irene Elizabeth Southwell + Irene Joyce Kennedy accept this invoice + authorise transfer in payment in due course.

J Raps

I J Kennedy

We, Irene Elizabeth Raps + Irene Joyce Kennedy acknowledge and authorise transfer from trust in due course.

J Raps

I J Kennedy

  1. [207]
    The hand written authorities are not relevant.  They specifically refer to the invoices which were dated 10 December 2007. The amounts referred to in the invoices were not the subject of the trust transfers which took place on 15 April 2008.
  2. [208]
    The trust account authority contained in the retainer agreement allows deduction from the trust account “for the purpose of paying any fees, costs outgoings and interest payable by my/our company or payable by the firm to any Government Department or other person”. It continues that “such costs and outgoings and interest may be drawn by the firm as and when those fees and outgoings are incurred and at any time prior to or after finalisation of the matter”.
  3. [209]
    The Tribunal is of the view that the trust account authority applies to the amounts referred to on the invoices.
  4. [210]
    The authority uses the word “payable by my/our company” but, in the context, this obviously relates to the clients, in that it means “payable by the client”.
  5. [211]
    The word “cost” is used interchangeably with the word “fees”. This is clear from the use of those words in the final lines where reference is made to “such costs and outgoings” and then to “those fees and outgoings”.
  6. [212]
    Thus, the authority allows deduction from the trust account for the purpose of paying fees and outgoings payable by the client. It allows the monies to be drawn by the firm as and when the fees and outgoings are incurred and at any time prior to or after finalisation of the matter.
  7. [213]
    The applicant has submitted that the authority authorises disbursements only for the purpose of paying outgoings and other costs payable “by the firm or an associated company”.[121]
  8. [214]
    This meaning must be underpinned by the conclusion that the words “my/our company” are referring to a company associated with the respondent.
  9. [215]
    Based upon the fact that the second line refers to “your trust account”, had the reference to company been intended to be a company associated with the respondent, the trust account authority would have used the words “your” rather than “my/our”.
  10. [216]
    Whilst the authority is not well drafted, the better view of the meaning is that the authority allows disbursement of professional fees, outgoings and interest payable by either the client or payable by the firm.
  11. [217]
    The second trust account authority was executed on the same date as the retainer agreement.
  12. [218]
    In the submissions by the applicant, the words highlighted to illustrate the interpretation advanced by the applicant are “for the payment of fees, statutory duties and other proper outlays expended” … “as per the memorandum of fees to be forwarded to us or other notification from Legal Link”.
  13. [219]
    The applicant submits that the authority merely authorised disbursement to pay for “outlays” expended on the file and did not authorise disbursements for professional fees.
  14. [220]
    The applicant’s submissions ignore some of the words in the authority.  For example, the authority refers expressly to “for professional costs”.  Again, the authority is badly drafted.  It seems to be repetitive in the last few lines.
  15. [221]
    By reference to all the words used in the authority, it would appear to be as follows:

Hereby authorise and direct the payment of any monies held or received into your trust account on our behalf to Legal Link for professional costs on any file of mine, or (on any file) on which I/we are responsible for payment of fees, statutory duties and other proper outlays…. As per the memorandum of fees to be forwarded to us or other notification from Legal Link. [emphasis added]

  1. [222]
    The effect is that the authority does extend to payment with respect to professional costs (but, oddly, perhaps not outlays).
  2. [223]
    The second matter raised is whether the authorities were operative at the time the payments were made. The Tribunal has found that the letter from Crouch & Co to Ms Jackson dated 12 February 2008 terminated the retainer.
  3. [224]
    The question is whether the authority granted by the first and second trust account authorities survived the termination of the retainer. The question is one of construction of the words used in each of the trust account authorities.
  4. [225]
    The second authority was granted in the context of the retainer. It operates only until revoked. Nothing in this authority suggests that it would operate after the retainer agreement is terminated.
  5. [226]
    The Tribunal concludes that the termination of the retainer impliedly caused the revocation of the second authority.
  6. [227]
    A different position applies with respect to the authority, which is contained in the retainer agreement itself.
  7. [228]
    The applicant asserts that the trust account authority contained in the retainer agreement ceased to have effect once the retainer was terminated.[122]
  8. [229]
    The applicant cites Lep Air Services v Rolloswin Ltd.[123]
  9. [230]
    Ms Jackson submits that Lep Air dealt with the law of securities, specifically termination of guarantee in circumstances of wrong doing of the party benefiting from the guarantee, and asserts, that “in no way can the law of securities be directly applied to the law of trust”.
  10. [231]
    The trust account authority in the retainer agreement is expressly said to be operative to enable the funds to be drawn by the firm “at any time prior to or after finalisation of the matter”.
  11. [232]
    No submissions have been made to the Tribunal, or cases referred to, which suggest that trust account authorities can only operate while a retainer agreement is current.
  12. [233]
    On that basis, it is a matter for the parties to agree matters such as the operation of a trust account authority. For example, the parties may have thought it necessary to ensure the survival of the trust account authorities beyond the termination of the retainer as a safeguard to the practitioner.
  13. [234]
    In this case, the parties have agreed the period during which the authority is operative “at any time up to or after the finalisation of the matter”.
  14. [235]
    Thus, the trust account authority contained in the retainer agreement was in force.
  15. [236]
    In those circumstances, the provisions of section 58(4) do not apply.
  16. [237]
    The conduct did not fall below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
  17. [238]
    The relevant invoices were forwarded by the respondent to the clients with the letter of 15 April 2008. As to each of the invoices, (in clauses 7 and 9) the respondent said:

We enclose the itemised invoice in taxable form.

In accordance with our Retainer and Trust Account Authority held we have transferred funds from Trust in payment of the itemised Invoice in taxable form and Counsel’s Invoice.  We enclose the Office Account Receipt for your records

  1. [239]
    No evidence was before the Tribunal that a request for payment, referring to the proposed withdrawal, or a written notice of withdrawal, were sent. The letter dated 15 April 2008 suggests otherwise.
  2. [240]
    On that basis, it is likely that the requirements of section 58 were not complied with.
  3. [241]
    In Legal Services Commissioner v King,[124] Justice Fryberg decided:

Section 58 does not oblige a legal practitioner to do anything. It prescribes a procedure for the purposes of s 258(1)(b) of the Legal Profession Act 2007. That section too does not oblige a practitioner to do anything. It simply confers a permission.

  1. [242]
    It was in the context of the decision in King, that the Legal Services Commissioner sought leave to amend the particulars so as not to rely upon a “breach” of section 58.
  2. [243]
    Instead, the Legal Services Commissioner relies upon a breach of section 249(1)(b) LPA.  The particular is that “she disbursed trust money without a direction from her former clients in circumstances where the disbursement was not otherwise authorised by law”.
  3. [244]
    Section 249(1)(b) does not include the words “in circumstances where the disbursement was not otherwise authorised by law”, but that may not be relevant in the current circumstances.
  4. [245]
    The Tribunal has found that the disbursements were authorised by the trust authority, which was contained in the retainer agreement. There was a direction to disburse the monies in accordance with that authority.
  5. [246]
    Therefore, there has been no breach of section 249(1)(b) LPA.
  6. [247]
    Even if the drawing of trust funds did involve a breach of section 249(1) LPA, due to the termination of the retainer and implied revocation of the authority this was not immediately obvious.  For example, the trust account audit conducted by Bob Hills & Associates in relation to the Coutts’ Estate on 29 May 2008 “did not reveal any evidence that trust funds had not been accounted for correctly and that all funds and events on the file were bona fide and under authority for the duration of the matters”.[125]
  7. [248]
    It was something about which there might be more than one fluctuation of mind about the correct answer.[126] Relevant to the conduct of Ms Jackson, she reasonably acted in the belief that the authority was in place.
  8. [249]
    In the circumstances, the Tribunal finds that the conduct of the respondent did not fall 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.
  9. [250]
    Charge 2 is dismissed.

Charge 3

The Commissioner’s submissions

  1. [251]
    The Legal Services Commissioner submits that the respondent satisfied her own claim of lien by transferring the amounts claimed from her trust account to her general account on 15 April 2008 (the amount subject of charge 2).[127]
  2. [252]
    The lien is then not based on a valid claim to legal fees thereby delaying the administration of her clients’ estate.[128] Ms Jackson never produced to the clients or to the Commissioner any evidence of the liens she claimed.[129] A valid basis for a lien “requires that the solicitor make a specific demand for costs…must be premised upon a legally enforceable claim for costs and not a vague assertion that there will be more costs determined and claimed in the future”.[130]
  3. [253]
    In a letter dated 29 July 2008 to Ms Jackson, the Commissioner advised that rule 7.3 Legal Profession (Solicitors) Rule 2007 provides that a solicitor must, when requested to do so, give to the client of any person authorised by the client any documents related to the retainer to which the client is entitled. The Commission further advised, “it is clear from the wording of the rule, and accepted practice, that the clients’ entitlement is to the original documents not mere copies”.[131]
  4. [254]
    The Commissioner submits that Ms Jackson’s letter of 15 April 2008 to Crouch & Co was “particularly literal and obstructionist” which included “unreasonable expectations in respect of what Crouch & Co was required to do to obtain the files”.[132] The Commissioner submits, “subsequent correspondence demonstrates that the respondent remained inflexible and unhelpful, despite the intervention of the applicant”.[133]
  5. [255]
    In the Commissioner’s ultimate submission, Ms Jackson’s reliance on the lien delayed the administration of the estate until the District Court ordered the release of the files to the costs assessor on 18 December 2008.[134]
  6. [256]
    As to conduct, it was further submitted that while Ms Jackson’s refusal to hand over the file technically occurred over a period of 5 months, ultimately the clients were obliged to obtain a court order for the costs assessment, which was then challenged by Ms Jackson. As a result, it was just over 4 years from the date of Crouch & Co’s first request for the file until the file was finally handed over and the administration of the estate could continue.[135]
  7. [257]
    In Legal Services Commissioner v Rowlands,[136] the practitioner failed to render an itemised bill of costs or deliver up the client files and trust monies when asked, which amounted to professional misconduct.[137] The conduct is similar here and amounts to professional misconduct.

Ms Jackson’s submissions

  1. [258]
    Ms Jackson submits that the charge is vague. She states, “It has not been established what duty is alleged to have been breached let alone that it was breached. Duties in relation to transfer of files could include duty of confidentiality, to act only on lawful instructions, as solicitor, as trustee, as custodian, as bailee and so on”.[138]
  2. [259]
    Ms Jackson submits that she cannot be guilty in connection with failure to transfer files from the Commission’s possession. Ms Jackson submits, “without possession of the files, the respondent could not personally transfer the client’s files to the new solicitors… the applicant kept the files and denied the respondent control over the files”.[139] Ms Jackson submits that the Commission did not have power to keep the files or to deny Ms Jackson control over the files or to transfer the files to Crouch & Co. Ms Jackson states the onus is on the Commission to prove they had these powers and that they were properly exercised.[140]
  3. [260]
    Further, Ms Jackson states she could not lawfully authorise the Legal Services Commission to transfer the client files to Crouch & Co. Ms Jackson did not have possession or control over the files and so she is therefore not guilty of any misconduct in relation to the delay in transferring the files.[141]
  4. [261]
    Ms Jackson also claims that she made several attempts to have the estate files delivered to the clients. Ms Jackson refers to a proposal of 6 June 2008,[142] which was refused by the Commissioner on 11 June 2008,[143] upon the advice of Crouch & Co.[144] Ms Jackson says she was told by letter from the Commissioner on 23 June 2008 that:[145]

Mr Crouch has instructed specifically that they do not wish to have some of the estate documents sent to them by registered post or any other means…I ask that you retain the documents referred to under the headings ‘Safe Custody’ and ‘Client Documents from the Deceased’s Home’ in your 20 June 2008 facsimile. Alternatively, if you are not prepared to retain those documents, I ask that you include them in the material that is provided to the Commission.

  1. [262]
    Ms Jackson submits that “the choice not to receive the documents is inexplicable…the client would not accept the files”.[146] She concludes, “Any delay in releasing files to the client’s new solicitors is not the respondent’s delay but rather the applicant’s delay in releasing”.[147]
  2. [263]
    Ms Jackson has also made submissions on the particularisation of the conduct period referred to in the charge. For example, Ms Jackson states:
    1. On 24 July 2008, the Commissioner stated he was happy to receive Ms Jackson’s submissions on release of the file by close of business on 31 July 2008. The Commissioner then set the start date for the charge as 29 July 2008. Ms Jackson states she could not have committed the charge prior to making the submissions invited by the Commissioner.[148]
    2. There was further correspondence from the Commissioner to Ms Jackson on 11 August 2008 in consideration of Ms Jackson’s submissions on the release of the file.[149] Ms Jackson responded to this letter, as directed in the Commissioner’s letter, on 18 August 2008.[150] Ms Jackson submits it is unreasonable to commence the charge period before the 18 August 2008, as she was merely complying with the Commissioner’s directions.
    3. The client files were required for the costs assessment proceeding. It is unreasonable to include this period in the charge period.[151]
  3. [264]
    Ms Jackson then states the relevant period of the charge should be 29 July 2008 to 19 December 2008,[152] which somewhat contradicts the rest of her argument, as it is precisely the charge period particularised by the Legal Services Commissioner in respect of Charge 3.

Disposition – Charge 3

  1. [265]
    Charge 3 is that between 29 July 2008 and 19 December 2008, the respondent, in breach of her duty as a solicitor, failed to maintain reasonable standards of competence or diligence as expected by a member of the public in relation to the transfer of the client’s file to the client’s new solicitor, Crouch & Co.
  2. [266]
    In the particulars, reference is made to correspondence dating back to 12 February 2008.
  3. [267]
    The particulars of the charge are that between 29 July 2008 and 19 December 2008, the respondent failed to maintain reasonable standards of competence or diligence in that she:
    1. Claimed the lien over the client file which she knew or ought to have known was not supported by a valid claim for unpaid professional fees; and
    2. Thereby delayed the administration of the estate.
  4. [268]
    Both (a) and (b) above are elements of the charge – the conduct must be viewed by reference to the charge.
  5. [269]
    The applicant submits that the respondent claimed a lien over the files “for payment of as yet undetermined professional fees”, which was not, in the applicant’s submission, a valid basis for a lien. The applicant’s submissions state that the basis for a lien requires that the solicitor make a specified demand for costs which may then be satisfied by the client paying those costs.
  6. [270]
    The applicant refers to a number of authorities which the applicant submits support that proposition.[153]
  7. [271]
    In the case of White v Bini,[154] not referred to by the applicant, Finkelstein J notes:[155]

A solicitor’s retaining lien is the right to withhold possession of documents or other personal property until the client pays his costs.

  1. [272]
    His Honour continues:[156]

I note that Mr Bini’s costs had not been taxed when he originally asserted his lien; a bill of costs in taxable form was delivered eleven months later.  It was once the case that a lien did not arise until a bill of costs had been rendered … Presumably this was to prevent a solicitor from holding his client to ransom by failing to render a prompt bill. On the other hand, the absence of a lien would leave the solicitor unprotected until he prepared his bill. There is now authority that a party’s failure to provide a bill will not stand in the way of a lien.

  1. [273]
    The Queensland case to which Justice Finkelstein refers is Re Jalmoon Pty Ltd.[157]  The head note to that case reads:

That the failure to render a bill, or the absence of taxation or agreement as to the amount of costs, does not stand in the way of a lien.

  1. [274]
    In the submissions, the applicant refers to the dealings between the parties prior to the relevant period which is identified in the disciplinary application, and refers to a number of communications.
  2. [275]
    The particulars refer to a letter dated 15 April 2008 from the respondent to her “then former” clients. The requirements which the respondent sought concerning the hand over of files were contained in that letter.
  3. [276]
    In relation to the appropriate requirements for handover, the respondent spoke with, and sought information from, the ethics guidance officer at the Queensland Law Society.[158]
  4. [277]
    It is fair to say that as between the new law firm, Crouch & Co and the respondent there was little agreement about the steps which would be necessary to arrange the file handover.
  5. [278]
    It would have been wise for both firms to have communicated more to deal with the issues in the interests of the clients.
  6. [279]
    After some months, the respondent forwarded a letter to the clients directly on 6 June 2008.
  7. [280]
    At the time, it is clear that the respondent did not believe Crouch & Co had provided adequate authority to enable the client material to be released.  Thus, the respondent resorted to communication directly with the Executors, being the people who were the clients and who, therefore, could safely be provided with the information. What the Executors did with the information (e.g. providing it to their lawyers) was of course a matter for them once it was delivered.
  8. [281]
    The letter outlined the concerns which the respondent had, namely:

The authority provided in writing from Crouch & Co is inadequate to permit release because it does not specify material to be released, does not provide clear authority and direction, your signatures are not witnessed and the signatory has not been identified by identity check.  Accordingly we cannot be sure what it is you want us to do or even that the document has in fact been signed by you.  Neither you nor your solicitor has responded to our requests that you attend to these matters in writing or attend our office in person to enable release of the client material.

  1. [282]
    The respondent proposed what appears to be a sensible solution which was that all of the material would be provided directly to the Executors either by the Executors attending at the office in person or by the material being forwarded to the Executors by registered mail.
  2. [283]
    Had that offer been accepted, the position as to release of documents would have been resolved.
  3. [284]
    The applicant sought advice from Mr Tim Crouch and wrote to the respondent on 11 June 2008. In the letter, the applicant informs the respondent that staff from the Legal Services Commission contacted Mr Crouch who “informed this office that his clients do not require the urgent release of the estate files to them personally”. The letter continued that the applicant anticipated receipt of the full files by 18 June 2008.[159]  No reasons for the refusal were provided.
  4. [285]
    It follows that, and the Tribunal so finds, at the time, there was no urgent need for the Executors to have access to the files. These were the clear instructions given by the clients and communicated by their lawyer who was aware of the needs of the Estate in which he was acting.
  5. [286]
    The respondent then sought release of undertakings from the Coroners Court which she had given in relation to some documents associated with the death of Mr Coutts. It was necessary for her to apply to the Coroners Court for a release of the undertaking and this was reflected in letters dated 16 June 2008 which were provided to the applicant and also to Mr Crouch.
  6. [287]
    The matter was to be mentioned before the Coroners Court on 18 June, but was finally dealt with on 20 June.
  7. [288]
    From a letter dated 18 June from Legal Services Commission to Ms Jackson,[160] it seems that there was a discussion with Ms Syme from the Legal Services Commissioner on 12 June regarding the files being forwarded to the clients on completion of the investigation by the Commission.
  8. [289]
    The letter reads:

In closing, I refer to your discussion with Ms Syme of the Commission on 12 June 2008 in which you sought reassurance that the Commission would forward the requested files to your clients on completion of our investigation.  I confirm the advice provided by Ms Syme that the Commission arrange for delivery of those files to your client (Ms Kennedy and Ms Rapps) should it be decided that they are the appropriate recipient of that material…

  1. [290]
    In a letter dated 20 June 2008,[161] the respondent clarified her understanding of the conversation which was as follows:
    1. I enquired if you wanted originals and you answered yes;
    2. I enquired what you would do with them when you were finished and you answered give them to the party entitled to them;
    3. I advised I considered that they would have to be returned to me but when releasing material to you I would give authority for you to give client material directly to the executors if they had provided proper authority and direction to you to obtain it
  2. [291]
    In response, the Legal Service Commission wrote to Ms Jackson on 23 June 2008, confirming again that the clients did not require release of the estate documents to them personally and specifically did not wish to have some of the estate documents sent to them by registered post or any other means. The letter asked that Ms Jackson retain some of the documents, or if she was not prepared to retain the documents, include the documents in the material provided to the Commission.
  3. [292]
    Therefore, by 25 June 2015, when the documents were delivered to the Legal Service Commission, the respondent had made a proposal to deliver all documents to the clients which would have accommodated her concerns and would have meant that it was possible for the clients to provide all the documents to their lawyers. This was not taken up.
  4. [293]
    As indicated in the particulars, on 24 July the Legal Services Commission indicated that a decision had been made to release certain files (listed 1 to 7 in a table contained in the letter of 24 July) to Mr Crouch prior to the completion of the investigation.
  5. [294]
    On 29 July 2008, the respondent sought information as to the basis upon which the decision to release the files had been taken. A response was forwarded by way of letter dated 29 July 2008.
  6. [295]
    In the letter dated 30 July 2008,[162] a number of issues are raised by the respondent with respect to the decision to release the documents.  These issues were, essentially, those raised from the outset, particularly to do with the authority being given for the material to be released.  The matter of the lien was also raised for the first time.
  7. [296]
    Of course, at this stage, Ms Jackson did not have physical possession of the material – possession being with the applicant.
  8. [297]
    After 30 July, correspondence was sent between the applicant and the respondent in relation to the question of the lien and as to the other issues and concerns raised by the respondent.[163] 
  9. [298]
    A letter dated 3 September 2008 from Ms Jackson to the Commissioner, again set out the respondent’s concerns with the action proposed by the applicant in releasing the files. One of those concerns was that the applicant had no power to act in the way proposed. This concern was never substantially addressed in any of the communications.
  10. [299]
    In the letter, under the heading “progress from here” the respondent says:

Do not let the lien argument alone stop your decision on this point.  I reserve my rights to claim further fees.  On this point, I am the only person harmed by your intended actions to release documents to Mr Crouch.

I realise you want to hand the material to Crouch & Co, that has been apparent from the start, however my obligation to the estate and to my professional indemnity insurer, is to ensure that you act thoughtfully on the point, particularly in relation to:

  1. (a)
    The absence of legislative authority for you to release the files to Crouch & Co;
  2. (b)
    The absence of appropriate authority from the person entitled to me to release the material to Crouch & Co;
  3. (c)
    Whether your decision will aid fair investigation and resolution of the complaint is in the interest of all those you have an obligation to.
  1. [300]
    As is obvious, from that point, it was open to the applicant to provide the material to the clients or to Crouch & Co. This did not occur.
  2. [301]
    The respondent forwarded a further letter to the Legal Services Commission on 16 October 2008.
  3. [302]
    The letter follows the respondent having ascertained from Mr Crouch that he understood the file could not be handed to him because the respondent had claimed a lien. This seems surprising given what was said in the letter dated 3 September 2008.
  4. [303]
    In the letter of 16 October 2008, Ms Jackson says:

To make my lien the focus of this argument is not reasonable.  I have never required retention of the file for lien alone.  I have tried in many ways to release the file directly to the executors because of the absence of any proper authority to give the file to anyone other than the executors directly and the desirability that the estate be continuously managed.  My intended actions to release the file have been prevented at every turn with the assistance of your office.

  1. [304]
    The letter continues:

If you insist you have legislative authority to:

(i) Hand my files to Mr Crouch; and

(ii) Release me from my obligations to the estate of Mr Coutts regarding privacy, confidentially and risk management,

And you consider it proper at this stage of your involvement to hand my files to Mr Crouch then you may do so without regard to my lien.

To be perfectly clear, if you have the authority to take my files and release them to Mr Crouch and can release me from my responsibilities then I am happy for you to act.  I do not insist you respect my lien.  I will not allow your respect of my lien to mask the real issue of this matter which is Mr Crouch has not provided proper authority to obtain documentation from me and for some reason he will not allow me to release documentation directly to the executors.

  1. [305]
    This sets out the concerns which had been expressed by Ms Jackson, including the authority of the Commissioner to deal with the files other than to return them to the source from which they were produced, pursuant to the requirements of the section 443(3) notice, and whether in those circumstances the release of the files would create a liability in relation to Ms Jackson, because of irregularities in the relevant authorities. Ms Jackson expressly did not rely upon the lien. 
  2. [306]
    Yet even at this time, the file was not released by the applicant to the clients or Crouch & Co. 
  3. [307]
    As is recorded in the later particulars, the District Court process of taxation took some time and finally in May 2012, the applicant released the client files to Crouch & Co.
  4. [308]
    From the material which was filed in the Tribunal, it seems this was done without permission from, or further communication with, the respondent.
  5. [309]
    In the submissions, the respondent has submitted that:
    1. The respondent did not have possession of the files; and
    2. No authority and direction had been given by the client to the respondent to authorise and direct a third party (the applicant) to deal with any files.[164]
  6. [310]
    The respondent submits that, had the applicant returned the files obtained from the respondent under section 443(1) LPA to the respondent in July 2008, when the applicant no longer required them, the applicant would have enabled the respondent to transfer the client file to the client in accordance with the authority and direction held by her.[165]
  7. [311]
    The applicant was invited to file submissions in response to those which were delivered by the respondent but declined to do so saying, “the basis of this charge is comprehensively set out and justified in the applicant’s original submissions. It is not proposed to recapitulate those submissions here”.[166] Of course, the original submissions did not deal with all of the communications which took place between the parties which are set out in these reasons.
  8. [312]
    Charge 3 is confined to a limited period of time namely 29 July 2008 to 19 December 2008 and to the conduct specified. It is asserted that between these two dates the respondent failed to maintain a reasonable standard of competence or diligence in that the respondent:
    1. Claimed a lien over the client file which she knew, or ought to have known, was not supported by a valid claim for unpaid professional fees; and
    2. Thereby delayed the administration of the estate.
  9. [313]
    Some of the events which occurred before the date period referred to are relevant as background circumstances.
  10. [314]
    For example, before the issue of the lien had arisen, the respondent had made an offer that would have resulted in all files being delivered to the Executors. This would have satisfied both the request for the files and also the concerns which the respondent had (partly due to advice given by the Queensland Law Society) concerning the requirements which she should impose prudently in being prepared to hand over the files.
  11. [315]
    At the time, the clients communicated through their solicitor that they did not urgently require the files.
  12. [316]
    From the communications to which reference has been made in these reasons (much of which was not dealt with either in the particulars or refuted in the submissions by the applicant), it seems clear that:
    1. After the applicant had indicated that he intended to deliver the files to Crouch & Co, the respondent raised a number of concerns only one of which was related to the lien;
    2. There was active discussion surrounding those concerns but, by 3 September 2008, the respondent had indicated that the lien argument alone should not prevent the applicant putting the decision into effect and instead the respondent would reserve her rights to claim further fees. Despite this, and even after a further indication on 16 October 2008, the respondent did not put its decision to deliver the files to Mr Crouch into effect. It is hard to see how the approach of the respondent delayed the administration of the estate by reference to a lien until 19 December 2008 in circumstances where the applicant did not take steps to deliver the file, even after the reliance on the lien was abandoned on 3 September 2008.
  13. [317]
    Bearing in mind all the communications, particularly the letters of 3 September 2008 and 16 October 2008, it seems the charge boils down to a proposition that by making a claim for a lien (which was just one of a number of concerns raised by the respondent in relation to the steps proposed by the applicant), which led to a delay in the administration of the estate of just one month, in circumstances where the clients (through their solicitor) had made it clear that they did not urgently require the files, the respondent’s conduct should be regarded as professional misconduct.[167]
  14. [318]
    In all the circumstances, the conduct of the respondent identified in the charge, over that very short period of time was not conduct which fell below the standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal practitioner.
  15. [319]
    Charge 3 is dismissed.

Charge 4

The Commissioner’s submissions

  1. [320]
    On 11 August 2008, the Commissioner wrote to Ms Jackson seeking an explanation of the basis of her claimed lien, and a copy of her itemised account in support of it.[168] Ms Jackson was directed to provide that response by 18 August 2008.
  2. [321]
    Ms Jackson sent two faxes on 18 August 2008, which the Commissioner submit give some explanation for the claimed lien, but which did not provide any account or other evidence in support of the lien.[169]
  3. [322]
    The Commissioner sent a further letter on 21 August 2008, advising Ms Jackson that she had not provided a full explanation for the basis of the claimed lien or any account in support. The Commissioner also gave Ms Jackson further written notice, pursuant to section 443(3) LPA, that if her failure to comply continued for a further 14 days, she may be dealt with for professional misconduct.
  4. [323]
    Ms Jackson had until 4 September 2008 to respond to that notice adequately and she did not. Ms Jackson’s submission that she responded to the notice is misconceived,[170] as the responses did not give an explanation, did not engage with the queries in the notice and were argumentative.[171]
  5. [324]
    The Commissioner submits Ms Jackson’s argument that the notice issued on 11 August 2008 is invalid because the LPA only allows the issuing of one notice,[172] is misconceived. The Commissioner submits that the two notices concern different subject matters, as the 5 June 2008 notice concerned a response to the Crouch & Co complaint, and the 11 August 2008 notice concerned Ms Jackson’s claim of a lien.[173]
  6. [325]
    The Commissioner submits Ms Jackson’s argument that the Commissioner had no power to compel her to create an itemised bill which invalidates the notice,[174] is misconceived. The Commissioner submits that Ms Jackson’s breach was not in failing to create a document in response to the section 443(3) notice, but rather failing to comply with the requirement to provide an explanation for the basis of the lien.[175]
  7. [326]
    Further, the Commissioner submits Ms Jackson’s submission that the notice was invalid is also misconceived.[176] The Commissioner submits that the jurisdiction to issue a section 443(3) notice is enlivened when there is an investigation under either sections 435 or 436. Section 435 makes it clear that there may be an investigation of a complaint or an “investigation matter”. The Commissioner submits it is clear that an investigation may commence without a complaint, and therefore, a notice can be issued under section 443 even where there is no complaint to which the investigation relates.[177]
  8. [327]
    Ms Jackson has not offered any reasonable excuse for her continued failure to comply with the notice and, accordingly, the Commissioner submits that Ms Jackson has committed professional misconduct.

Ms Jackson’s submissions

  1. [328]
    Ms Jackson submits section 443(3) permits the Commissioner to issue a written notice. Section 443(3) does not require Ms Jackson to do anything. Ms Jackson, therefore, cannot commit an offence against section 443(3). The charge is invalid and must be dismissed.[178]
  2. [329]
    Ms Jackson submits the charge of failing to respond to a section 443(3) notice does not meet the specification of the power to charge contained in section 443(4)(b), which states:

The commissioner may apply to the tribunal for an order in relation to the charge that the practitioner has committed professional misconduct as stated in (a) as if the application were an application in relation to a complaint against the practitioner.

  1. [330]
    The charge does not comply with that section and is invalid.[179]
  2. [331]
    Ms Jackson submits further that the Commissioner cannot prove Ms Jackson failed to respond to a written notice issued on 21 August 2008, because the evidence presented shows that the Commissioner received at least three responses.[180] Those letters, on a reasonable description, are responses to the notice and are about lien. Ms Jackson submits she has not failed to respond.[181]
  3. [332]
    Ms Jackson submits the scope of the charge “failure to respond” does not include “making a response but an inadequate response”. The initial charge of “failing to respond” would have to require a more specific description for that to be the case.[182]
  4. [333]
    Ms Jackson submits a section 443(1) LPA request was issued on 5 June 2008, and a second request in August. Ms Jackson submits that the proper construction of section 443(1) LPA does not permit multiple requests as “there is no scope expressly provided in the section for multiple requests… The use of the word “or” in section 443(1)(a) LPA is an important limitation on the applicant’s power… The applicant did not have power under section 443 LPA to issue the August requirement because, inter alia, the power under section 443(1) LPA had already been exercised and there is no power for multiple requirements”.[183]
  5. [334]
    Further, the Commissioner’s August notice required compliance by way of an explanation for the lien, and production of a copy of a document supporting the lien. Ms Jackson submits this demand exceeds the powers of section 443(1) LPA which limits demands to a single requirement by use of word “or”. The Act provides that the Commissioner can require an explanation or an appearance or production.[184]
  6. [335]
    Ms Jackson submits further that the Commissioner’s notice does not require preparation of an itemised bill because such an interpretation is not within the plain meaning of the request. As the bill did not exist, Ms Jackson could not produce a copy and was not required under the legislation to produce a copy.[185]
  7. [336]
    Ms Jackson submits she gave explanation for the lien to the best of her ability in two letters to the Commission. Ms Jackson submits that “It seems that the applicant will only acknowledge having a response if he accepts the content of the response”.[186]

Disposition – Charge 4

  1. [337]
    Section 443(1) LPA allows the Commissioner, in the course of an investigation into a legal practitioners’ conduct to:
    1. require an Australian legal practitioner who is the subject of the investigation—
    1. to give the entity, in writing or personally, within a stated reasonable time a full explanation of the matter being investigated; or
    2. …
    3. to produce to the entity within a stated reasonable time any document in the practitioner's custody, possession or control that the practitioner is entitled at law to produce
  2. [338]
    If the practitioner fails to comply with the requirement (imposed by force of section 443(1) LPA) the Commissioner may give the practitioner written notice that, if the failure continues for a further 14 days after the notice is given, the practitioner may be dealt with for professional misconduct.[187]
  3. [339]
    The Commissioner issued the first notice under section 443(1) to Ms Jackson on 11 August 2008. The notice read:[188]

Accordingly, pursuant to section 443(1) of the Act, I now require you  to provide the following explanation and information:

  1. Explanation of the basis for your claimed lien; and
  2. A copy of your itemised account in support of that lien.
  1. [340]
    The Commissioner required that information by 18 August 2008.
  2. [341]
    As to the lien, the response from Ms Jackson, which was dated 1 August 2008 was as follows:

3.  You have made further demand pursuant to the Act that I explain the basis of the Lien and prepare an itemised account by Monday 18 August 2008. There are a number of issues that arise from this:-

a.  you hold the boxes of material for work from Tuesday 15 April 2008 to the present in protecting the interests of the Estate in certain material. Accordingly you already have full detail about the nature and volume! of the work;

b.  you are aware a copy of that material is With the Cost Assessor;

c.  the Cost Assessor's assessment will not be available by close of business Monday 18 August 2008. I will not be attempting to make an itemised cost assessment myself to meet your timeline:

d. the existence of a Lien is sufficient, the amount of the costs will be a complex question. I do not wish to guess recoverable costs because this is a complex and extraordinary question, however value of time spent would be in the order of $40,000.00;

e.  the Lien arises because necessary work was done to protect the interests of the Estate. My duty of care regarding much of the material I delivered to you is to the Estate. The duty to the Estate may conflict with the demands of the Executors of the 1972 Will or their Solicitor if their demands are not in strict accordance with the duty to the Estate.

The matter with the Coroners Court is a clear example of duty to the Estate, it does not need the Retainer or the agreement of the Executors of the 1972 Will to be required of me or to be chargeable to the Estate.

  1. [342]
    The Commissioner forwarded a further letter on 21 August 2008, which contained a notice pursuant to section 443(3) LPA.
  2. [343]
    The relevant part of that letter is as follows:

Further to my letter of 11 August 2008, in which you were directed to provide an explanation of the basis for your lien and a copy of your itemised account in support of your lien, you have provided neither an explanation nor an invoice.

Accordingly, I hereby give you written notice pursuant to section 443(3) of the Legal Profession Act 2007 that you may be dealt with for professional misconduct if your failure to comply with that direction continues for a further 14 days - that is to say beyond 4 September 2008.

Please note that the Act provides at section 443(4) that you will be taken to have committed professional misconduct if you fail without reasonable excuse to provide me with the explanation by that date.

  1. [344]
    The section 443(3) notice seems to ignore the communication from the respondent on 18 August 2008. Whilst the letter from the Commissioner dated 21 August 2008 refers to the facsimile of 18 August 2008, the notice reads, “you have provided neither an explanation nor an invoice”.  That was incorrect.
  2. [345]
    In the letter dated 3 September 2008 from the respondent to the Legal Services Commission, the respondent draws attention to this fact. The respondent says, referring to the letter of 21 August 2008 from the Legal Services Commission:

You go on to require pursuant to “section 443(1) of the Act, an explanation of the basis for the claimed lien and a copy of the itemised account in support of that lien”.  On 18 August 2008, by correspondence I provided you with an explanation at item 3.

In your correspondence dated 21 August 2008, you state “you have provide neither an explanation nor an invoice”.  With respect, the explanation has been provided on 18 August 2008.  Do you discount it? Apparently you do, it seems in your view a solicitor should act on demands of a solicitor for the executors of a Will, even if this is without competent authority and direction from the executors of that Will and is contrary to the solicitor’s obligation to others including the estate and the Coroners Court 

  1. [346]
    By way of letter dated 8 September 2008 from the Legal Services Commission to the respondent, the Legal Services Commission notes that the information required by the section 443(3) notice was not provided by 4 September and states “pursuant to section 443(4) you may be dealt with for professional misconduct for failing to comply with my request without reasonable excuse”.
  2. [347]
    The letter from the respondent dated 18 August 2008 referred to the section 443(1) notice. The letter dated 18 August provided the respondent’s explanation in paragraphs d and e.  In paragraphs a, b and c, the respondent makes it clear that there was no itemised account in support of that lien.
  3. [348]
    Section 443(1) notice cannot compel a practitioner to prepare a document. The power is limited to requiring the practitioner to produce a document.[189] The Applicant was told that the document does not exist.
  4. [349]
    It is clear that the response did not provide an explanation which the Commissioner believed was plausible. However, the notice was not ignored and an answer to the question requiring the explanation was provided. It is obvious that in some cases, an explanation that the Commissioner does not think is plausible will be provided.  This is to be expected in the context of an investigation (in aid of which a section 443(3) notice can be issued).  No doubt, as in this case, those matters will be the subject of disciplinary proceedings. 
  5. [350]
    In answer to the question requiring production of the itemised account, the response made it clear that there was no such document in existence. 
  6. [351]
    In the circumstances, the notice pursuant to section 443(3) LPA should not have been issued.
  7. [352]
    Charge 4 is dismissed.

Sanction and Costs

  1. [353]
    The Tribunal invites the parties to make further submissions as to the appropriate sanction as to Ms Jackson’s conduct which was the subject of Charge 1 and regarding costs of the proceedings.
  2. [354]
    Accordingly, the Tribunal directs that:
    1. The Legal Services Commissioner must file in the Tribunal and give to Amanda Lee Jackson one (1) copy of any submissions on sanction and costs, by:

4:00pm on 18 July 2017.

  1. Amanda Lee Jackson must file in the Tribunal and give to the Legal Services Commissioner one (1) copy of any submissions on sanction and costs in reply, by:

4:00pm on 8 August 2017.

  1. Unless either of the parties requests an oral hearing before 8 August, the matter will be determined on the papers after 8 August 2017.

Footnotes

[1]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE1 at pg 1-7.

[2]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ15 at pg 1-115.

[3]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ15 at pg 1-117.

[4]Ibid, Exhibit AJ15 at pg 121.

[5]Submissions on Behalf of the Respondent – Hearing on the Papers, filed 15 July 2015 at footnote 96; referring to Affidavit of AL Jackson, sworn, Exhibit ALJ6.

[6]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [109].

[7]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE-1 at pg 1-27.

[8]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE-1 at pg 1-28.

[9]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE1.

[10]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE4 page 4-1.

[11]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE4 page 4-6.

[12]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE4 page 4-5.

[13]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE4 page 4-7.

[14]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE4 page 4-9.

[15]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ18 pg 137.

[16]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ18 at pg 138.

[17]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ18 at pg 138..

[18]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE1, pg 1-53.

[19]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE1, pg 1-103 to 1-105.

[20]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE1, pg 1-63.

[21]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE1 at 1-107.

[22]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE1.

[23]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE1, pg 1-46 at clause 9.8.

[24]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE1, pg 1-47.

[25]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ15 at pg 107

[26]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ13 pg 53.

[27]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ14 pg 96 to 103.

[28]Affidavit of DJ Edwards, sworn 24 April 2014, Exhibit DJE2.

[29]Affidavit of DJ Edwards, sworn 24 April 2014, Exhibit DJE4.

[30]Affidavit of DJ Edwards, sworn 29 April 2014, Exhibit DJE5.

[31]Affidavit of DJ Edwards, sworn 29 April 2014, Exhibit DJE6.

[32]Submissions on Behalf of the Applicant – Hearing on the Papers, 30 April 2014 at [27] referring to Southwell v Jackson [2012] QDC 62.

[33]Southwell v Jackson [2012] QDC 65.

[34]Further Submissions of the Applicant, filed 16 February 2016 at [8].

[35]Southwell v Jackson [2012] QDC 65.

[36]Scroope v Legal Services Commissioner [2013] NSWCA 178.

[37]Legal Profession Complaints Committee v O'Halloran [2013] WASC 430.

[38]Ibid.

[39]Veghelyi v Law Society of NSW [1995] NSWCA 483.

[40][2013] NSWCA 178.

[41]Ibid at [49]-[51].

[42][2013] WASC 430.

[43][1995] NSWCA 483.

[44]Transcript, pg 18 ll 41.

[45]Further Submissions of the Applicant, 16 February 2016 at [11].

[46]Further Submissions of the Applicant, 16 February 2016 at [10].

[47]Transcript, pg 34 ll 35-45.

[48]Further Submissions of the Applicant, 16 February 2016 at [14].

[49](1994) 34 NSWLR 408 at 422 and 437; cited with approval in Council of the Queensland Law Society Inc v Roche [2003] QCA 469 at [32].

[50]Transcript, pg 42 ll 35-40.

[51]Flower & Hart v White Industries (1999) 87 FCR 134 at [57].

[52]Submissions on Behalf of the Applicant – Hearing on the Papers, 30 April 2014 at [28].

[53]Submissions on Behalf of the Applicant – Hearing on the Papers, 30 April 2014 at [69].

[54]Submissions on Behalf of the Respondent – Hearing On the Papers, 15 July 2015 at [109]-[112].

[55]Submissions on Behalf of the Respondent – Hearing On the Papers, 15 July 2015 at [103]-[104].

[56]De Pardo v Legal Practitioners Complaints Committee (1999) 170 ALR 709 at [46]; referred also to D’Alessandro and Nikolaidis.

[57]Submissions on Behalf of the Respondent – Hearing On the Papers, 15 July 2015 at [81]-[82].

[58][2013] NSWCA 178; Submissions on Behalf of the Respondent – Hearing On the Papers, 15 July 2015 at [84]-[89].

[59]Submissions on Behalf of the Respondent – Hearing On the Papers, 15 July 2015 at [94].

[60]Submissions on Behalf of the Respondent – Hearing On the Papers, 15 July 2015 at [102].

[61]Submissions on Behalf of the Respondent – Hearing On the Papers, 15 July 2015 at [137]-[138].

[62]Submissions on Behalf of the Respondent – Hearing On the Papers, 15 July 2015 at [141].

[63]Submissions on Behalf of the Respondent – Hearing On the Papers, 15 July 2015 at [199]-[189].

[64]Affidavit of AL Jackson, sworn, Ex ALJ6.

[65][1990] 1 Qd R 498, 507.

[66][2007] NSWCA 130. 

[67](1995) 15 WAR 198. 

[68]Section 127(1)(c), Legal Profession Act 1987 (NSW). 

[69]Legal Profession Act 1987 (NSW). 

[70]Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 at [111]. 

[71]General Medical Council v Spackman [1943] Ac 627 AT 637; Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 288, 303; In re a Solicitor [1993] QB 69; Wilks v Medical Board of South Australia [2010] SASC 287.

[72]Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 at [117]. 

[73]D’Allesandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 at 220, 221; Legal Services Commissioner v Keddie [2012] NSWADT 106 at 17; De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335 at [45]. 

[74]De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335 at [45]. 

[75]D’Allesandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 at 214. 

[76]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [174].

[77]Southwell v Jackson [2012] QDC 65 at [46].

[78](2000) FCA 335 at 45.

[79](1995) 15 WAR 198 at 211. 

[80]See sections 418, 419 LPA.

[81]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [171], referring to Legal Services Commissioner v Bone (2013) QCAT 550 at 73.

[82](1995) 15 WAR 198. 

[83]D’Allesandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 at 223. 

[84]Para 3, retainer agreement. 

[85]Southwell v Jackson [2012] QDC 65 at [37], [41] and [43]. 

[86]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015. 

[87]Carter Newell’s Bill of Costs [1996] 2 Qd R 13 at 19; Re Moore [1996] QSC 212. 

[88]Southwell v Jackson [2012] QDC 65 at [44]-[46]. 

[89]Southwell v Jackson [2012] QDC 65 at [55]-[61].

[90][2013] WASC 430.

[91][1995] NSWCA 483.

[92][2013] NSWCA 178.

[93]Further Submissions of the Applicant, 16 February 2016 at [21].

[94]Further Submissions of the Applicant, 16 February 2016 at [23].

[95][2001] Ch 364 at 371.

[96][2001] Ch 364 at [16].

[97]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE-1 at pg 1-27.

[98][2012] QDC 65 at [58].

[99]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE-1 at pg 1-28.

[100]Affidavit of DJ Edwards, sworn 16 February 2016, Exhibit DJE-1 at pg 1-26.

[101]Affidavit of DJ Edwards, sworn 24 April 2014, Ex DJE12 page 7.

[102]Further Submissions of the Applicant, 16 February 2016 at [21].

[103][1973] AC 331 at 350.C to 350.E.

[104][1973] AC 331 at 350.C.

[105]Legal Services Commissioner v King (No 2) [2013] QCAT 558; Legal Services Commissioner v Clapin [2011] QCAT 339; Legal Services Commissioner v Petschler [2015] QCAT 284

[106]Submissions on Behalf of the Applicant – Hearing On the Papers, 30 April 2014 at [70] – [72].

[107]Further Submissions of the Respondent, 10 June 2016 at [34(c)]

[108]Ibid at [34(d)].

[109]Further Submissions of the Respondent, 10 June 2016 at [34(e)].

[110]Further Submissions of the Respondent, 10 June 2016 at [34], [36].

[111]Further Submissions of the Respondent, 10 June 2016 at [37].

[112]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ15 at pg 1-112

[113]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ15 at pg 107.

[114]Affidavit of AL Jackson, sworn 29 June 2015, Exhibit AJ15 at pg 106.

[115]Submissions on Behalf of the Respondent – Hearing On the Papers, 15 July 2015 at [293].

[116]Ibid at [300] – [302].

[117]Further Submissions of the Respondent, 10 June 2016 at [27] – [28].

[118]Affidavit of AL Jackson, sworn 29 June 2015, Ex AJ15 at pg 1-115.

[119]Affidavit of AL Jackson, sworn 29 June 2015, Ex AJ15 at pg 1-117.

[120]Ibid, Ex AJ15 at pg 121.

[121]Further Submissions of the Applicant, 16 February 2016 at [21].

[122]Further Submissions of the Applicant, 16 February 2016.

[123]1973 AC 331 at 350 C2350E.

[124][2013] QCAT 260 at [57].

[125]Affidavit of AL Jackson sworn 29 June 2015, Exhibit AJ15 at p 107.

[126]As McPherson JA observed when discussing the survival of guarantee rights after termination of the head agreement: Wharf Street Pty Ltd v Amstar Learning Pty Ltd [2004] QCA 256.

[127]Submissions on behalf of the Applicant – Hearing On the Papers, 30 April 2014 at [57].

[128]Submissions on behalf of the Applicant – Hearing On the Papers, 30 April 2014 at [58].

[129]Submissions on behalf of the Applicant – Hearing On the Papers, 30 April 2014 at [57].

[130]Submissions on behalf of the Applicant – Hearing On the Papers, 30 April 2014 at [57].

[131]Affidavit of DJ Edwards, sworn 24 April 2014, Exhibit DJE3.

[132]Submissions on behalf of the Applicant – Hearing On the Papers, 30 April 2014 at [54].

[133]Submissions on behalf of the Applicant – Hearing On the Papers, 30 April 2014 at [56].

[134]Submissions on behalf of the Applicant – Hearing On the Papers, 30 April 2014 at [58].

[135]Submissions on behalf of the Applicant – Hearing On the Papers, 30 April 2014 at [73].

[136][2010] QCAT 154.

[137]Submissions on behalf of the Applicant – Hearing On the Papers, 30 April 2014 at [74].

[138]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [350].

[139]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [370]-[371].

[140]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [399].

[141]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [405].

[142]Affidavit of AL Jackson, sworn 29 June 2015, Ex ALJ14 pg 92.

[143]Affidavit of AL Jackson, sworn 29 June 2015, Ex ALJ14 pg 93.

[144]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [417(c)].

[145]Affidavit of AL Jackson, sworn 29 June 2015, Ex ALJ14 pg 93.

[146]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [417(c)].

[147]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [419].

[148]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [421]-[422].

[149]Affidavit of DJ Edwards, sworn 2014, Exhibit DJE5.

[150]Affidavit of DJ Edwards, sworn 2014, Exhibit DJE6.

[151]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [436]-[439].

[152]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [454].

[153]See John Hope & Co v Glendinning [1911] AC 419 at 430-431; Barratt v Gough-Thomas [1950] 2 All ER 1048 at 1053; Tobin v Melrose [1951] SASR 139 at 143; Bolster v McCallum (1966) 85 WN (pt 1) (NSW) 281 at 286; Johns v Law Society of NSW [1982] 2 NSWLR 1 at 18 -1 19; and Bolger v Bolger (1985) 82 FR 46 at 49.

[154][2003] FCA 669.

[155][2003] FCA 669 at [6].

[156][2003] FCA 669 at [7].

[157][1986] 2 Qd R 264.

[158]Example, email S Shepherd of the QLS to Amanda Lee Jackson, dated 22 April 2008; Exhibit AJ8; Affidavit of AL Jackson sworn 29 June 2015.

[159]Letter from Legal Services Commissioner to Ms Amanda Lee Jackson, dated 11 June 2008.

[160]Letter from the Legal Services Commission to Ms Amanda Lee Jackson, dated 18 June 2008.

[161]Letter from the respondent to the Legal Services Commission, dated 20 June 2008.

[162]Referred to in the Amended Disciplinary Application at particular 3.11.

[163]Letter from the Legal Services Commission to Ms Amanda Lee Jackson, dated 11 August 2008; letter from Legal Link to Legal Services Commission, dated 18 August 2008; letter from the Legal Services Commission to Ms Amanda Lee Jackson, dated 21 August 2008; letter from respondent to Legal Services Commission dated 3 September 2008.

[164]Submissions on Behalf of the Respondent – Hearing on the Papers, paragraph 409.

[165]Submissions on Behalf of the Respondent – Hearing on the Papers, paragraph 415.

[166]Further Submissions of the Applicant, 16 February 2016, paragraph 25.

[167]The applicant suggests that the conduct should be regarded as professional misconduct, Submissions of the Applicant at [76].

[168]Affidavit of DJ Edwards, sworn 29 April 2014, paragraph 26; Particulars of Charge 4, items 4.2-4.5.

[169]Affidavit of DJ Edwards, sworn 29 April 2014, paragraph 26; Exhibit DJE10.

[170]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [531].

[171]Further Submissions of the Applicant, 16 February 2016 at [32].

[172]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [575].

[173]Further Submissions of the Applicant, 16 February 2016 at [30].

[174]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [582].

[175]Further Submissions of the Applicant, 16 February 2016 at [31].

[176]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [588] – [606].

[177]Further Submissions of the Applicant, 16 February 2016 at [33].

[178]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [523].

[179]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [524] – [526].

[180]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [531].

[181]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [541].

[182]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [542].

[183]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [576].

[184]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [579].

[185]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [582] – [585].

[186]Submissions on Behalf of the Respondent – Hearing on the Papers, 15 July 2015 at [617]-[627].

[187]Section 443(3) LPA.

[188]Affidavit of DJ Edwards, sworn 24 April 2014, Exhibit DJE5.

[189]Section 443(1)(a)(iii) LPA.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Jackson

  • Shortened Case Name:

    Legal Services Commissioner v Jackson

  • MNC:

    [2017] QCAT 207

  • Court:

    QCAT

  • Judge(s):

    Thomas P

  • Date:

    26 Jun 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Adamson v Queensland Law Society Incorporated[1990] 1 Qd R 498; [1989] QSCFC 145
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 498
Cite 2 - [1990] 1 Qd R 498
Barratt v Gough-Thomas [1950] 2 All ER 1048
2 citations
Jump To
Cite 1 - [1950] 2 All ER 1048
Cite 2 - [1950] 2 All ER 1048
Bolger v Bolger (1985) 82 FR 46
2 citations
Jump To
Cite 1 - (1985) 82 FR 46
Cite 2 - (1985) 82 FR 46
Bolster v McCallum (1966) 85 WN NSW 281
1 citation
Jump To
Cite 1 - (1966) 85 WN NSW 281
Bolster v McCallum & Anor. (1966) 85 WN (Pt 1) (NSW) 281
1 citation
Jump To
Cite 1 - (1966) 85 WN (Pt 1) (NSW) 281
Council of the Queensland Law Society Inc v Roche[2004] 2 Qd R 574; [2003] QCA 469
2 citations
Jump To
Cite 1 - [2003] QCA 469
Cite 2 - [2003] QCA 469
DA'lessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
7 citations
Jump To
Cite 1 - (1995) 15 WAR 198
Cite 2 - (1995) 15 WAR 198
Cite 3 - (1995) 15 WAR 198
Cite 4 - (1995) 15 WAR 198
Cite 5 - (1995) 15 WAR 198
Cite 6 - (1995) 15 WAR 198
Cite 7 - (1995) 15 WAR 198
De Pardo v Legal Practitioners Complaints Committee (1999) 170 ALR 709
2 citations
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Cite 1 - (1999) 170 ALR 709
Cite 2 - (1999) 170 ALR 709
De Pardo v Legal Practitioners Complaints Committee (2000) FCA 335
3 citations
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Cite 1 - (2000) FCA 335
Cite 2 - (2000) FCA 335
Cite 3 - (2000) FCA 335
Di Marco Investments Pty Ltd v Body Corporate for "Number 1" [2010] QCAT 154
2 citations
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Cite 1 - [2010] QCAT 154
Cite 2 - [2010] QCAT 154
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134
2 citations
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Cite 1 - (1999) 87 FCR 134
Cite 2 - (1999) 87 FCR 134
General Medical Council v Spackman (1943) AC 627
2 citations
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Cite 1 - (1943) AC 627
Cite 2 - (1943) AC 627
Gridiger v Council of the Law Society NSW [1999] NSWSC 904
1 citation
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Cite 1 - [1999] NSWSC 904
In re E (Enduring Power of Attorney) [2001] Ch 364
3 citations
Jump To
Cite 1 - [2001] Ch 364
Cite 2 - [2001] Ch 364
Cite 3 - [2001] Ch 364
John Hope & Co v Glendinning [1911] AC 419
2 citations
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Cite 1 - [1911] AC 419
Cite 2 - [1911] AC 419
Johns v Law Society of New South Wales (1982) 2 NSWLR 1
2 citations
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Cite 1 - (1982) 2 NSWLR 1
Cite 2 - (1982) 2 NSWLR 1
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
2 citations
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Cite 1 - (1994) 34 NSWLR 408
Cite 2 - (1994) 34 NSWLR 408
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
4 citations
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Cite 1 - [2013] WASC 430
Cite 2 - [2013] WASC 430
Cite 3 - [2013] WASC 430
Cite 4 - [2013] WASC 430
Legal Services Commission v Petschler [2015] QCAT 284
2 citations
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Cite 1 - [2015] QCAT 284
Cite 2 - [2015] QCAT 284
Legal Services Commissioner v Bone [2013] QCAT 550
2 citations
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Cite 1 - [2013] QCAT 550
Cite 2 - [2013] QCAT 550
Legal Services Commissioner v Clapin [2011] QCAT 339
2 citations
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Cite 1 - [2011] QCAT 339
Cite 2 - [2011] QCAT 339
Legal Services Commissioner v Keddie [2012] NSWADT 106
2 citations
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Cite 1 - [2012] NSWADT 106
Cite 2 - [2012] NSWADT 106
Legal Services Commissioner v King [2013] QCAT 260
2 citations
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Cite 1 - [2013] QCAT 260
Cite 2 - [2013] QCAT 260
Legal Services Commissioner v King (No 2) [2013] QCAT 558
2 citations
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Cite 1 - [2013] QCAT 558
Cite 2 - [2013] QCAT 558
Legal Services Commissioner v Tsalidis (2012) NSWADT 160
1 citation
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Cite 1 - (2012) NSWADT 160
Moschi v Lep Air Services Ltd. (1973) AC 331
4 citations
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Cite 1 - (1973) AC 331
Cite 2 - (1973) AC 331
Cite 3 - (1973) AC 331
Cite 4 - (1973) AC 331
Nikolaidis v Legal Services Commissioner [2007] NSWCA 130
4 citations
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Cite 1 - [2007] NSWCA 130
Cite 2 - [2007] NSWCA 130
Cite 3 - [2007] NSWCA 130
Cite 4 - [2007] NSWCA 130
NSW v Konstantinidis [1999] NSWADT 109
1 citation
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Cite 1 - [1999] NSWADT 109
Panel Logistics Pty Ltd v Wagners Concrete Brisbane Pty Ltd [2012] QDC 62
1 citation
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Cite 1 - [2012] QDC 62
Re a solicitor [1993] QB 69
2 citations
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Cite 1 - [1993] QB 69
Cite 2 - [1993] QB 69
Re Carter Newell's Bill of Costs [1996] 2 Qd R 13
2 citations
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Cite 1 - [1996] 2 Qd R 13
Cite 2 - [1996] 2 Qd R 13
Re Jalmoon Pty Ltd[1986] 2 Qd R 264; [1986] QSC 199
2 citations
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Cite 1 - [1986] 2 Qd R 264
Cite 2 - [1986] 2 Qd R 264
Re Moore [1996] QSC 212
2 citations
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Cite 1 - [1996] QSC 212
Cite 2 - [1996] QSC 212
Scroope v Legal Services Commissioner [2013] NSWCA 178
6 citations
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Cite 1 - [2013] NSWCA 178
Cite 2 - [2013] NSWCA 178
Cite 3 - [2013] NSWCA 178
Cite 4 - [2013] NSWCA 178
Cite 5 - [2013] NSWCA 178
Cite 6 - [2013] NSWCA 178
Southwell v Jackson [2012] QDC 65
7 citations
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Cite 1 - [2012] QDC 65
Cite 2 - [2012] QDC 65
Cite 3 - [2012] QDC 65
Cite 4 - [2012] QDC 65
Cite 5 - [2012] QDC 65
Cite 6 - [2012] QDC 65
Cite 7 - [2012] QDC 65
Tobin v Melrose [1951] SASR 139
2 citations
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Cite 1 - [1951] SASR 139
Cite 2 - [1951] SASR 139
Veghelyi v The Law Society of New South Wales [1995] NSWCA 483
4 citations
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Cite 1 - [1995] NSWCA 483
Cite 2 - [1995] NSWCA 483
Cite 3 - [1995] NSWCA 483
Cite 4 - [1995] NSWCA 483
Wharf St Pty Ltd v Amstar Learning Pty Ltd [2004] QCA 256
1 citation
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Cite 1 - [2004] QCA 256
White v Bini [2003] FCA 669
4 citations
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Cite 1 - [2003] FCA 669
Cite 2 - [2003] FCA 669
Cite 3 - [2003] FCA 669
Cite 4 - [2003] FCA 669
Wilks v Medical Board of South Australia [2010] SASC 287
2 citations
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Cite 1 - [2010] SASC 287
Cite 2 - [2010] SASC 287
Ziems v Prothonotary of the Supreme Court of N.S.W. (1957) 97 CLR 279
2 citations
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Cite 1 - (1957) 97 CLR 279
Cite 2 - (1957) 97 CLR 279

Cases Citing

Case NameFull CitationFrequency
D.M. Wright & Associates v Murrell (No 2) [2021] QDC 1411 citation
Legal Services Commissioner v Chapman [2023] QCAT 3571 citation
Legal Services Commissioner v Munt [2023] QCAT 4794 citations
Legal Services Commissioner v Peter Leslie Challen [2019] QCAT 2732 citations
Legal Services Commissioner v Reid (No 3) [2017] QCAT 4712 citations
Legal Services Commissioner v XBT [2018] QCAT 643 citations
1

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