Legal Services Commissioner v Ho
[2017] QCAT 386
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- Unreported Judgment
- Legal Services Commissioner v Ho[2017] QCAT 386
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Legal Services Commissioner v Ho[2017] QCAT 386
Legal Services Commissioner v Ho[2017] QCAT 386
CITATION: | Legal Services Commissioner v Ho [2017] QCAT 386 |
PARTIES: | Legal Services Commissioner (Applicant) |
v | |
Chun Man Andrew Ho (Respondent) | |
APPLICATION NUMBER: | OCR144-16 |
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: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – ORDERS – where the original Tribunal found that the respondent had engaged in unsatisfactory professional conduct – where a complainant filed a compensation claim seeking compensation for legal fees relating to the unsatisfactory professional conduct, and for two days’ worth of wages lost in bringing a guardianship application to remedy the unsatisfactory professional conduct – whether the compensation claim should be allowed – relevant considerations in assessment – desirability of concurrent determination of disciplinary application and compensation claim Legal Profession Act 2007 (Qld), s 464, s 452, s 456, s 598, s 599 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 172, s 180 |
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
Jurisdiction
- [1]This is a claim for compensation under s 464 of the Legal Profession Act 2007 ("the LPA"). It is brought by Ms Christine McDonald, whose complaint led to the bringing of disciplinary proceedings by the Legal Services Commissioner against the respondent solicitor.
- [2]Sections 452 and 456 of the LPA make it clear that a compensation order may be made in favour of a complainant in the course of any discipline application, but this can only happen after the Tribunal makes a finding of unsatisfactory professional conduct or professional misconduct against a respondent practitioner.
- [3]Ms McDonald exercised her right to pursue such a claim, and while the disciplinary proceedings against Mr Ho were pending, filed a "Notice of Intention to Seek a Compensation Order" along with details in support of her claim.
- [4]A QCAT Tribunal ("the original Tribunal"), in due course, dealt with the disciplinary proceeding insofar as Mr Ho was concerned, but postponed determination of Ms McDonald's compensation claim. That original Tribunal cannot now be reassembled because of the resignation of its presiding member.
- [5]A fresh Tribunal has now been constituted, and for reasons stated below[1] it has jurisdiction to deal with Ms McDonald's undetermined claim.
Relevant facts
- [6]For present purposes, it is not necessary to restate in detail the actions of Mr Ho that led to the original Tribunal's finding of unsatisfactory professional conduct against him and its making of orders, including a public reprimand, a fine of $2000 and a costs order.
- [7]It is sufficient to indicate that:
- At the material time in July 2013, Mr Ho was a relatively inexperienced solicitor, 28 years old. He was in the employment of the law practice of Wheldon & Associates;
- His actions in obtaining a Power of Attorney and Will from an intellectually disabled 50 year old woman (“Merrilyn”) in favour of Merrilyn’s sister Madonna, on the instructions of Madonna’s husband, were well below the standard of professional conduct necessary in such a situation, and were found to constitute unsatisfactory professional conduct;
- Following his actions, the present complainant, Ms McDonald, who was also a sister of Merrilyn, applied to QCAT for the appointment of a guardian and administrator for Merrilyn;
- After a two day hearing, on 21 May 2014 that QCAT Tribunal found that Merrilyn did not have the capacity to understand the nature and effect of the Enduring Power of Attorney prepared by Mr Ho and his firm, and it found the Enduring Power of Attorney to be invalid;
- Ms McDonald also complained to the Legal Services Commissioner about Mr Ho’s conduct, and the Commissioner proceeded to bring the disciplinary action against Mr Ho;
- In the course of those proceedings, Ms McDonald filed a compensation application for loss resulting from Mr Ho’s conduct;
- The original Tribunal dealt with the misconduct of Mr Ho and ordered a public reprimand, a fine of $2,000, and made a costs order against Mr Ho;
- The above events, including the QCAT determination in subparagraph (d) above, and the subsequent determination by the original Tribunal against Mr Ho show that the concerns of Ms McDonald were well founded.
- [8]In its Reasons for Judgment, the original Tribunal (Justice DG Thomas, Mr Sheehy and Dr Dann) noted the compensation claim, but observed that under the relevant legislation such an order could only be made against the “law practice”[2] that is to say, against Wheldon & Associates.
- [9]That Tribunal also noted certain difficulties, as to which submissions at that stage had not been made, namely:
- whether the pecuniary loss claimed by Ms McDonald was loss which “occurred because of the conduct concerned”;[3]
- whether the proceedings to appoint a guardian and administrator might have become necessary at some stage in any event, independently of the actions of Mr Ho; and
- whether the claim for reimbursement of the legal fees charged could be made in favour of a complainant who was not the client of the solicitor or law firm.
- [10]Accordingly, the Tribunal decided not to deal with the compensation claim at that time and directed that the “Notice of Intention to Seek Compensation Order” be served on Wheldon & Associates, that the complainant file and serve any further submissions on that firm by a given date, and that Wheldon & Associates file and serve any submissions in reply by a given date.
- [11]Subsequently, neither the complainant nor Wheldon and Associates has seen fit to make any submissions on any of these issues, or on the compensation claim.
Reconstitution of Tribunal: Determination in two stages
- [12]The original Tribunal intended to reconvene to determine the compensation claim, but that became impossible when Justice D G Thomas resigned from office.
- [13]When the office of a judicial officer or Tribunal member forms terminates before that officer has completed a matter over which jurisdiction exists, the undetermined matter may be determined by some other member of that Court or Tribunal appointed or allocated to that task. It has therefore been necessary to re-constitute the Tribunal to deal with the unfinished business.
- [14]In the normal course, a compensation order under Part 4.10 of the LPA is made at the same time as the imposition of the sanction. A finding of unsatisfactory professional conduct or of professional misconduct is a pre-condition to the making of a compensation order. Further, the making of a compensation order could conceivably be a relevant consideration in formulating a combination of appropriate orders, just as in the criminal courts the question of a “restitution” order may sometimes be a relevant factor in fine-tuning the overall result.
- [15]For these reasons, I think it highly desirable that any compensation claim should be considered and determined at the same time as the principal disciplinary determination. As a matter of course, directions should be given to ensure that any claim for compensation will be able to be determined at the time of the disciplinary determination. Normally one would expect this to be raised at the compulsory conference.
- [16]Steps, however, were not taken in the present case to ensure that all interested parties were served, and the original Tribunal decided that the disciplinary aspects of the proceeding could be disposed of then and there without determination of the compensation claim.
- [17]In the event, it has become necessary for a new Tribunal to be appointed to deal with the undetermined claim.
- [18]QCAT has jurisdiction to hear and to decide a discipline application,[4] and the making of a compensation order is a recognised part of that process,[5] which has not yet been exercised. In order to exercise such jurisdiction it has been necessary to constitute a new Tribunal comprising a judicial member along with a panel under s 598 and 599 of the LPA. The President, or in this instance the Acting President, had the power to nominate the judicial officer to constitute the Tribunal and has done so,[6] and panel members have been appointed in accordance with ss 598 and 599.
The compensation claim
- [19]Ms McDonald’s claim consists of two items as to which she has stated:
“I am seeking compensation for two day’s pay for the application and subsequent hearing of the matter to the then adult guardian that was necessary to challenge the POA for Merrilyn Lowrey who had an intellectual disability.
Further I seek compensation for the invoice relating to charges from Wheldon & Associates for costs and disbursements for Wills and POA as Merrilyn Lowrey did not engage Wheldon & Associates to do said work.”
- [20]The claims are quantified at:
- $550, being the amount of the invoice issued by Wheldon & Associates for costs and disbursements for Mr Ho’s work;
- $506.66, being two day’s pay for the application and subsequent hearing of the guardianship application that was necessary in order to challenge the invalid POA drawn by Mr Ho.
- [21]As to the $550 in (a) above, it is clear that the solicitors ought not to retain any fees paid for the improper work in question. A bill for $550 was rendered to Merrilyn and her mother, and it seems clear that if any such fees were paid they ought to be refunded. That however is a matter between Wheldon and Associates and the clients. Quite simply no claim has been made by or on behalf of those clients, and that particular loss was not Ms McDonald’s loss.
- [22]As to the $506.66 in (b) above, this is a modest claim for compensation for the loss of two days, quantified by reference to daily wages. The bringing of the relevant proceedings to set aside the original Power of Attorney was well justified and has been vindicated by the orders made in the guardianship and administration proceedings in QCAT. Ms McDonald’s reaction in bringing those proceedings and seeing them through was a reasonable response to the situation created by the improper actions of Mr Ho. Prima facie it would be reasonable to compensate Ms McDonald for any loss suffered by her, by reason of the misconduct.
- [23]There is however, the problem noted by the original disciplinary Tribunal as to whether there should be some discount for the possibility that a guardianship application might have proved necessary at some stage irrespective of the actions of Mr Ho.
- [24]That is a distinct possibility, but it involves considerable speculation. The reality of the situation is that an immediate situation of some urgency was precipitated by the solicitor’s misconduct, and Ms McDonald's reaction was both foreseeable and reasonable. Further, some other such application in due course might well not have been as urgent, contentious or lengthy as the one that resulted.
- [25]In all of the circumstances, I think that the claim should be allowed, with a slight discount for the contingency that has been mentioned.
- [26]The respondent Wheldon & Associates is the “law practice” against which the compensation order should be made.[7] It cannot be made against the employed solicitor Mr Ho. Wheldon and Associates were served with the compensation claim and did not respond to it. He was their employee, they charged for his services, and the LPA in any event nominates the law practice as the responsible party in such a situation.
- [27]Under s 464(d), I assess the amount of pecuniary loss suffered by this claimant by reason of the unsatisfactory professional conduct of Mr Ho at $450.
- [28]A compensation order will be made that the law practice of Wheldon & Associates pay $450 to the claimant, Christine Laurel McDonald, on or before 31 December 2017.