Legal Service Commissioner v Richards
[2017] QCAT 384
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- Unreported Judgment
- Legal Service Commissioner v Richards[2017] QCAT 384
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Legal Service Commissioner v Richards[2017] QCAT 384
Legal Service Commissioner v Richards[2017] QCAT 384
CITATION: | Legal Service Commissioner v Richards [2017] QCAT 384 |
PARTIES: | Legal Service Commissioner (Applicant) v Darryl William Richards (Respondent) |
APPLICATION NUMBER: | OCR234-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Hon J B Thomas, Judicial Member Assisted by: Mr Geoffrey Sinclair Dr Margaret Steinberg |
DELIVERED ON: | 8 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where evidence showed a complainant's attempt to make compensation claim against respondent in disciplinary proceeding – no proper claim or evidence filed – party against whom such an order could be made not served – desirability of concluding any compensation proceedings at same time as disciplinary decision – disciplinary decision adjourned and directions given to enable compensation claim to be made and served before final determination of both matters Legal Profession Act 2007 (Qld), s 452, s 456, s 464, s 465 Legal Services Commissioner v Ho [2017] QCAT |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]The Legal Services Commissioner ("the Commissioner") has brought a disciplinary application against the respondent solicitor, Mr Richards, under s 452 of the Legal Profession Act 2007 (the “LPA”). Seeking that disciplinary orders be made against him.
- [2]A disciplinary tribunal has been duly constituted, and it has been directed that the matter be determined on the papers. Material has been provided to the tribunal and panel to make the necessary findings and determination of sanction under s 456 of the LPA.
- [3]It seems that during the pendency of these proceedings, QCAT was advised by the Commissioner that a complainant, Mr Borland, desired a compensation order to be made in his favour. A document presumably prepared by Mr Borland was provided to QCAT listing various kinds of expenses totalling $337,138.77.
- [4]The document is unaccompanied by any explanation, but on its face there is an item headed “legal costs” which coincides with evidence on file of the legal costs rendered to Mr Borland and his companies by Mr Richards on behalf of his firm, Certus Legal Group, for services between 31 March 2014 and 20 August 2015.
- [5]The question arises whether a compensation claim has been made, and whether the necessary parties have been served to enable such a claim to be determined.
A compensation claim?
- [6]QCAT has jurisdiction to make a compensation order after completing a hearing of a discipline application if it makes a finding of unsatisfactory professional conduct or professional misconduct against an Australian legal practitioner.[1]
- [7]
- [8]During preparation for hearing of the disciplinary application, the Commissioner, by letter of 14 December 2016, advised Mr Borland (who was a complainant in relation to the discipline application), of his right to make a compensation application, noting that the maximum amount of compensation payable for pecuniary loss was $7,500, and asking him to advise whether he wished to seek a compensation order.
- [9]The letter raised the possibility of Mr Borland obtaining independent advice, and indicated that the Commissioner did not act for him and could not provide legal advice. A “Notice of Intention to Seek Compensation” form was enclosed, and the commissioner’s letter stated, “should you wish to seek compensation, you should return the notice together with your supporting documents to the Commissioner for filing in the Tribunal.”
- [10]The only known response from Mr Borland is the unexplained lists of legal costs and other costs noted above, which was in due course sent to QCAT.
- [11]At this stage, no actual claim has been made for compensation, but we have notice of a potential claim. Unfortunately the potential claim ignores the fact that compensation claims in this jurisdiction are effectively capped at $7,500[4], and it is not immediately apparent how any of the items listed by Mr Borland can amount to "pecuniary loss because of the conduct concerned" (s 465(1)(a)). However, in the circumstances it seems desirable that Mr Borland be given one final opportunity to file a claim and provide material substantiating it if he is so minded.
- [12]A compensation order could only be made against “the practice” as distinct from the Australian Legal Practitioner (Mr Richards) against whom the disciplinary proceeding is brought. In this case, the evidence suggests that the only party against whom such a claim could be brought would be Certus Legal Group.
- [13]Directions to facilitate the opportunity to make such a claim will be included in the order.
The principal application against Mr Richards
- [14]It is highly desirable that all questions of disciplinary response and compensation be determined by the one Tribunal at the one time.[5]
- [15]The Commissioner and Mr Richards reached common ground on the appropriate disciplinary response. In effect, the proposal is that there should be:
- a public reprimand;
- a fine in the order of $2,000 to $3,000; and
- that the respondent pay the applicant’s costs fixed in the amount of $7,000.
- [16]Final consideration and formulation of the disciplinary orders should await resolution of the procedural problems concerning the potential compensation claim. Reasons will then be published detailing Mr Richard’s misconduct and the disciplinary response of this Tribunal.
- [17]In the meantime, the following directions are given:-
- The application for disciplinary order is adjourned to 7 March 2018 for further hearing on the papers.
- With respect to a possible compensation claim foreshadowed by Adam Borland the Tribunal directs that:
- (a)The Registrar of QCAT is forthwith to:
- notify Mr Adam Borland of 41 Flinders Parade, Scarborough, Queensland 4020 or such other address as may be appropriate, that if he intends to make a compensation claim against the respondent Richards and or the law practice responsible for Mr Richards’ actions, he must:
- File in QCAT and serve upon Certus Legal Group Ltd and the other respondent Richards a notice of intention to seek compensation, together with any reasons justifying the making of a compensation order under s 464 of the Legal Profession Act 2007, and provide such supporting evidence as he intends to rely on, on or before 14 December 2017; and
- provide forthwith to Mr Borland, Certus Legal Group Ltd and the respondent Richards a copy of these reasons for judgment.
- (b)Certus Legal Group Ltd and Mr Richards may, if they see fit, respond to any material filed on behalf of Mr Borland on or before 4 February 2018, and forthwith provide a copy of such material to Mr Borland, and file copies of such material in QCAT.
- (c)Mr Borland may, if he sees fit, reply to such material, and if he does, must file a copy of such material in QCAT on or before 18 February 2018.
- The date for determination of this proceeding, and for consideration by this Tribunal of any further material received is 7 March 2018, such determination to be on the papers.
- (a)