Legal Services Commissioner v Jackson
[2017] QCAT 449
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- Unreported Judgment
- Legal Services Commissioner v Jackson[2017] QCAT 449
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Legal Services Commissioner v Jackson[2017] QCAT 449
Legal Services Commissioner v Jackson[2017] QCAT 449
CITATION: | Legal Services Commissioner v Jackson [2017] QCAT 449 |
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: | Hon J B Thomas, Judicial Member Assisted by: Dr Steinberg Ms Collins |
DELIVERED ON: | 12 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – SOLICITOR’S COSTS – DISCIPLINARY PROCEEDINGS – QUEENSLAND – where a former QCAT Tribunal made a finding of unsatisfactory professional conduct against the respondent – whether the Tribunal’s determination can be set aside by a reconstituted Tribunal - where the applicant was unsuccessful on three other charges brought – where s 462 of the Legal Profession Act 2007 (Qld) entitles the applicant to a costs order where a finding of prescribed conduct is made – whether exceptional circumstances exist justifying a departure from the rule in s 462 as to costs – whether the respondent’s sanction ought to include a reprimand Legal Services Commissioner v Ho [2017] QCAT 95 Attorney-General v Bax (1999) 2 Qd R Baker v Legal Services Commissioner [2006] QCA 145 Briginshaw v Briginshaw (1938) 60 CLR 336 Scroope v Legal Services Commissioner [2013] NSWCA 178 Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, Explanatory Memorandum Queensland Civil and Administrative Tribunal Act 2009, s 47, 48, 126, 135, 136 Legal Profession Act 2007, s 452, 249, 456, 598, 599 Legal Profession Regulation 2007, s 58 |
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
Background and Jurisdiction
- [1]This Tribunal has been constituted in order to deal with matters that remain undetermined in a disciplinary proceeding against the respondent solicitor brought by the Legal Services Commissioner (“the Commissioner”) under s 452(1)(a) of the Legal Profession Act 2007 (“the LPA”).
- [2]A former QCAT Tribunal made a finding of unsatisfactory professional conduct against the respondent practitioner but did not address the questions of sanction or costs. That Tribunal cannot now do so because its Judicial Member resigned soon after delivering a judgment that contained that finding.
- [3]The case is concerned with the respondent’s behaviour in 2008 following termination of her retainer by a client. Another firm of solicitors (“the complainant firm”) asked her to hand over her files, and the case concerns her subsequent conduct.
- [4]The complaints of the complainant firm were made in April and May 2008.
- [5]Much later, the Commissioner brought the present proceedings containing four (4) charges, namely one of overcharging, one of transferring money in payment of some of those costs to herself in breach of a Regulation (later amended to the Act), one charge of delay in handing over the file to the client's new solicitors by claiming a lien without any valid basis, and one of failing to provide the Legal Services Commissioner with information required under the Act.
- [6]The present proceedings were not commenced until May 2013. The main explanation offered by the Commissioner for the delay is that there were proceedings in the District Court between the former client and the respondent over the fees that had been charged, and that a judgment was not given until April 2012.
- [7]In the event, a further year passed after that judgment before the present proceedings were commenced by the Commissioner.[1]
- [8]A further period in excess of four years then passed before the above-mentioned preliminary finding was made by QCAT. The initial two and a half years of that period went by while the parties exchanged extensive submissions during what can only be described as a very protracted and ineffective preparation for hearing.
- [9]For reasons that will become apparent, including the fact that costs are now undoubtedly the main point of contention between the parties, it is necessary to present as clear a picture as possible of the conduct of the litigation in QCAT over the period of 2013 to 2017.
- [10]No less than fourteen directions orders were made by the President between 15 August 2013 and 30 April 2017, most of which granted rights to the parties to file submissions and counter submissions, or extended times when thought necessary.
- [11]The evidence comprised two affidavits, one filed by each party exhibiting fairly extensive documentation. The Commissioner's case consisted largely of documents obtained from the respondent and the complainant solicitors relating to the respondent's dealings with her clients and the complainant solicitors, and to the litigation in the District Court in which the clients were substantially successful.
- [12]The respondent's material revealed that her original long-standing client was murdered in 2007 and that her advice to his executors displeased some beneficiaries who consulted other solicitors who, in due course, took over the administration of the estate and made complaints about her to the Commissioner. She also produced documents contemporaneous with the relevant events.
- [13]To date, at least twelve sets of submissions and counter-submissions have been exchanged between the parties, six each.
- [14]One might have expected the issues to have been narrowed by the submissions and counter submissions, but that was not the case. To say the least, for whatever reasons, the case management was unsuccessful.
- [15]The respondent suffered significant depression associated with these proceedings. Evidence on the file includes her entreaty for a date of hearing. It also shows that except for periods during 2014, when her mental state seriously affected her ability to function, she was generally responsive to the demands of the Commissioner for documents and explanations, and to the directions of QCAT.
- [16]Eventually, in October 2015, the parties were notified that a hearing on the papers would take place on 4 November 2015, and that "the parties are entitled but not required to attend the hearing".[2]
- [17]
- [18]A hearing proceeded on that date at the QEII Courts, attended by counsel for the Commissioner, and the respondent in person.
- [19]At the outset, the President informed Commissioner's counsel of his concern that the Commissioner's submissions to date had not addressed most of the extensive submissions of the respondent, especially in relation to the "final few charges", and commented that counsel needed to address the arguments that had been put by the respondent.[5]
- [20]Counsel responded that he had come prepared to address the issues.[6]
- [21]At an early stage, argument proceeded on whether amendment should be permitted to substitute the correct legal label for charge 2, that is to say, to replace the reference to s 58 of the Legal Profession Regulation 2007 with a reference to s 249(1)(b) of the Legal Profession Act. It was eventually allowed. That in my view is not contentious, as it had nothing to do with changing the evidence or substance of the case.
- [22]Argument proceeded on aspects of the merits of the case, presumably on the assumption that the affidavits had been read. The President mentioned his difficulty in characterising the respondent's conduct in relation to the overcharging allegation (charge 1) on the evidence as it stood, particularly on the effect to be given to the fact that the alleged overcharge bills had been prepared by a named costs assessor. Further, as the evidence then stood, there was a letter dated 12 February 2008, which on its face, suggested agreement on the part of the client to the use of a costs assessor.[7]
- [23]One might have expected a formal presentation of the parties' cases with cross-examination, if requested, followed by a determination with due regard to the onus of proof and Briginshaw's case.[8]
- [24]Instead, at some point in a proceeding of approximately two and a half hours the Tribunal seems to have resolved to convert it into a further directions hearing, although neither party sought leave to extend the proceedings or to call further evidence. Shortly before giving further directions the President made the following statement to the respondent:-
“THE PRESIDENT: …You’ll deal with adequacy of the evidence in your submissions. But with respect to the actual terms of your arrangement with the clients, what I'd be proposing to do is to order that you file another affidavit which deals with that; and
So, first of all, it will be that the respondent files a further affidavit which deals with... the terms of the involvement of the cost assessors.”
- [25]A full reading of the transcript suggests that the Tribunal intended to give the respondent an opportunity to amplify the evidence concerning the role played by the costs assessor, as to which the Tribunal seems to have been in some doubt at that point. However, no evidence can be found of any actual ruling or decision on the part of the Tribunal granting leave to the Commissioner to produce further evidence after the hearing had commenced, or of any adversion to the appropriateness of such a course.
- [26]In the event, the respondent did not file any further evidence. Further evidence was however later filed by the Commissioner,[9] namely a further affidavit of Mr DJ Edwards, along with further submissions. It exhibited 277 pages of documents of which 155 pages were fresh material. That material was clearly used by the Tribunal in reaching its decision on the only charge that was sustained.
- [27]Mr Edwards' affidavit supplemented apparent gaps and uncertainties in the evidence relied on by the Commissioner to that stage, some of them having been exposed by the extensive submissions of the respondent.
- [28]That material is a relevant link in the substantiation of that charge.
- [29]A further "hearing for non-compliance" occurred on 26 April 2016, in which the respondent was granted further time to make further submissions, and "any further evidence upon which she intends to rely".[10] The respondent made further submissions but, as already indicated, did not file any further evidence.
- [30]A discretion exists under s 455 of the LPA that permits the Tribunal to “vary a discipline application”. That section permits amendment of the discipline application itself or of the charges within it when it seems reasonable in the circumstances to do so. No application of that kind was made or considered. This was the essentially the granting of an adjournment to supplement unsatisfactory evidence in relation to the original charges. Given the history of the matter, one would expect good reason would need to be shown to permit departure at that point by a prosecuting authority from the original case, or to cure deficient material that had been relied upon for so long.
- [31]In any event, no ruling under that section was sought, and none can be found.
- [32]In the absence of any ruling in favour of the Commissioner, the affidavit was simply filed by the Commissioner on 16 February 2016 and acted upon by the Tribunal. It exhibited the cost assessor's files. They contained no evidence that any of the relevant assessments had been sent by the assessors to the clients. In due course, the Tribunal inferred that they had not been sent to the clients, and indicated that it was not prepared to act on the respondent's letter of 12 February 2008 as evidence of the client's assent to the use of a costs assessor.[11]
- [33]The respondent claims that her files were given to the Commissioner in 2008, that in 2012 the Commissioner gave them to the complainant solicitor, a party hostile to her, and that now a part of them has been retrieved and belatedly used against her. This has generated her suspicion that the 2016 evidence is tainted or at least an unsafe source for the drawing of inferences based on an absence of documents.
- [34]The reception of further evidence in all the above circumstances raises some concern in professional discipline proceedings which are essentially adversarial, where grave consequences are inherent, and where, as here, a respondent, though qualified, was unrepresented.
- [35]Another "hearing on the papers" was notified to the parties for 7 September 2016. The Tribunal (including the panel) met on that date.
- [36]Following that final "hearing on the papers" a further 9 months elapsed before a judgment was published 9:00am on 26 June 2017 finding charge 1 established and the respondent guilty of unsatisfactory professional conduct. Charges 2, 3 and 4 were dismissed.
- [37]The President then resigned before issues such as sanction or costs had been dealt with.
- [38]Consequently, it has been necessary to constitute a fresh Tribunal to deal with issues that remain to be dealt with under s 456(1) of the LPA.
- [39]Those remaining issues are what sanction should be imposed, and the question of costs.
- [40]This present Tribunal consists of a Judicial Officer,[12] assisted by a panel.[13] In the event, the same panel members have been appointed as those from the original Tribunal. It is long-standing practice that when the office of a Judicial Officer or Tribunal Member is vacated or terminated 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 deal with the unfinished business.[14]
Request to set aside finding of unsatisfactory professional conduct in relation to charge 1
- [41]The respondent’s solicitor has submitted that the finding in relation to charge 1 should be set aside by this Tribunal. The respondent claims that the investigation was so flawed that the evidence received in 2016 should not be used to support the finding that was made.[15]
- [42]No assistance has been provided on this point by either party to the present Tribunal, but on my examination of the processes available under the QCAT Act, it is not open to this reconstituted Tribunal to ignore or set aside the determination that was made.
- [43]No procedure under s 47 or s 48 of the QCAT Act seems available or appropriate. Neither does any reopening or corrective procedure of the kind contemplated by ss 126, 135 and 136 of the QCAT Act.
- [44]The jurisdiction of QCAT to determine a disciplinary application under the LPA involves several steps. The first task of any disciplinary Tribunal is to find whether the charges have been made out, and whether or not this amounts to unsatisfactory professional conduct or professional misconduct. Satisfaction by the Tribunal that the practitioner has engaged in one of these kinds of conduct is a distinct function entrusted to the Tribunal.[16] In contested cases, a finding to that effect is normally necessary before submissions on sanction can be meaningfully and fairly made.
- [45]A finding of unsatisfactory professional conduct or professional misconduct enlivens jurisdiction to make a further determination, namely the imposition of an order that it thinks fit, including those orders described in subsections (2) to (7) of that section. This latter step is usually referred to as the imposition of a sanction. This two-step process is typical of all occupational disciplinary proceedings of which I am aware, and the steps are generally identified as “substantiation” and “sanction”.
- [46]The finding by the original Tribunal of unsatisfactory professional conduct is itself a determination binding on the parties in the course of adversarial litigation.
- [47]The respondent solicitor may of course have a right to appeal against the original decision, and indeed against this present decision if the original decision ought not to have been made. However, there is no appeal from the original decision to this present Tribunal. Neither does the present Tribunal have any powers of judicial review.
- [48]I conclude that it is simply not open to this reconstituted Tribunal to ignore or set aside the determination that was made by a duly constituted Tribunal.
- [49]This Tribunal must therefore proceed to determine an appropriate sanction based on findings and inferences drawn from the findings of the original Tribunal. We are bound to that extent by the determination that has been made. Whether or not this Tribunal agrees with the procedures that the original Tribunal permitted to be taken is not to the point. I am bound to give effect to the determination that has been made, and, irrespective of any different course I may have taken, must act on the footing that it is correct. I must not act inconsistently with the findings that have been made or the inferences that naturally follow from them.
Sanction - Discussion
- [50]The Commissioner’s submissions on this point are terse. They are limited to five paragraphs of a perfunctory nature at the end of a submissions devoted almost entirely to the question of costs.
- [51]The multiple submissions that preceded the hearing were made before the findings of fact were made. No subsequent attempt has been made to collate the limited findings of fact that have now been made with any of the cases, save for a limited reference to Scroope.[17]
- [52]The original Tribunal's 54-page judgment was directed to the question of whether the respondent's conduct amounted to unsatisfactory professional conduct or to professional misconduct. No doubt, the Tribunal postponed consideration of matters relevant to sanction to enable further submissions be made on that topic in the light of its findings.
- [53]It is therefore necessary to examine the original Tribunal’s findings in its reasons for judgment.
- [54]Looking objectively at the discussion and findings of the original Tribunal, the main basis of the finding of “charging excessive legal costs” is that the respondent’s charges were inconsistent with the retainer agreement that bound her and her client. In particular, she charged for “care and consideration” when the agreement excluded it, and she engaged and charged for an expert costs assessor when no trigger had occurred under the agreement to justify her taking such a course.
- [55]I will act upon the original Tribunal’s observations that:-
“111 …at a minimum, the practitioner’s conduct must be considered by reference to compliance with the terms of the retainer agreement.
162 An overall figure of 51% was taxed from the three accounts. As to the two accounts to which the retainer agreements were relevant, the figure was 46%.
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.
167 With an overall reduction of an excess of 50% and reduction on the two accounts which were the subject of the retainer agreements at a figure just under 50%, the Tribunal concludes that the respondent charged excessive fees.
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 unchargeable items, such as those identified.”
- [56]In total, the respondent charged her clients $67,413.75. That total was reduced on assessment to $32,734.62, a reduction of 51%.
- [57]In the context of overcharging of fees, this is not an example of conduct that is sometimes described as fee gouging. It was an isolated occurrence in the course of an overreaction to a situation involving another solicitor. It stemmed from a degree of ineptitude and poor practice in the aftermath of course of the loss of a client, and perhaps some resentment over the manner in which she had been advised of this.
- [58]The original Tribunal found that the respondent charged excessive legal costs and that the overcharge was sufficiently large to justify a finding of unsatisfactory professional conduct. Objectively the overcharge was too high to be accounted for by an innocent explanation such as “hustle and bustle” of busy practice. This seems to be the implied rationale of the Tribunal’s finding that the charging of excessing fees amounted to unsatisfactory professional conduct as defined in s 418 of the LPA.
- [59]The findings of the Tribunal included the following matters that help to place the respondent's conduct at the lower end of seriousness in cases of this kind:-
“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.
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.
180 Whilst it is not 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.”
- [60]The finding of substantiation of charge 1 is consistent with the view that the respondent’s non-adherence to the retainer agreement was the result of incompetence rather than rapacity. There are other findings that suggest that at one point she may have tried to influence the costs expert to increase the fees, but this does not take the matter much further.
- [61]The original Tribunal rejected any suggestion of dishonesty or deliberate intention, and made no finding of deliberate flouting or cynical disregard of the fee provisions in the retainer agreement.
- [62]Having examined both the reasons for judgment of the original Tribunal and the evidence and extensive submissions of the parties, I take the view that her actions were the result of ineptitude rather than rapacity.
- [63]The delay is not satisfactorily explained by the Commissioner, who brought the respondent to the Tribunal, and had a duty to prosecute the matter with reasonable diligence. The delay had a substantial adverse impact on the respondent. The panel members noted a high level of distress at the time of the 2015-2016 hearing. The respondent’s professional career has been under a cloud now for a substantial period. For a time she lost much of her ability to cope.
- [64]Without casting blame, it seems to me that the entire conduct of the case, including its unnecessary length, has resulted in collateral oppression of the respondent, and that this is a circumstance that should not be overlooked in the determination of an appropriate sanction.
- [65]This long and sorry story is also in my view relevant to the question whether exceptional circumstances exist in relation to the Commissioner's claim that the respondent solicitor be ordered to pay the entire costs of the proceedings. This will be discussed in due course.
- [66]The nature of the respondent’s misconduct found against the respondent should be characterised as an isolated but unjustifiable lapse of professional practice.
- [67]The Commissioner's submissions on sanction seek a fine, and suggest it might be of the order of $2,000, along with a public reprimand, and a costs order covering the whole of the proceedings including the dismissed charges.
- [68]The respondent also submits that a fine of $2,000 would be appropriate, but opposes the inclusion of a reprimand. She further contends that there should be no order for costs.
- [69]It is noted that she has not sought any order against the Commissioner in respect of the three charges that were dismissed.
- [70]It is desirable that determination of the sanction be made after consideration of whether the respondent should be further burdened by a costs order that would exponentially exceed the fine.
Costs
- [71]The size of the file, the multiple submissions and cross submissions, and the drawn out conduct of the proceedings suggest that an order for costs would involve an astronomical sum, far beyond the level of sanction appropriate for the respondent’s misconduct. That however is not relevant in the present exercise, because s 462 gives the Commissioner an entitlement to a costs order whenever a finding of “prescribed conduct” is made against a practitioner, unless exceptional circumstance exist.[18]
- [72]Section 462 includes the following provisions:-
- (1)A disciplinary body must make an order requiring a person whom it has found to have engaged in prescribed conduct to pay costs, including costs of the commissioner and the complainant, unless the disciplinary body is satisfied exceptional circumstances exist.
…
- (5)An order for costs –
- (a)may be for a stated amount; or
- (b)may be for an unstated amount but must state the basis on which the amount must be decided.
- (6)An order for costs may state the terms on which costs must be paid.
- [73]On the Commissioner’s behalf it has been submitted that there are no exceptional circumstances in this case justifying an order departing from s 462(1). Consequently he seeks an order that the respondent pay all of the applicant’s costs, including those of the charges that have been dismissed, and those which were built up in the preparation of multiple submissions which the Tribunal considered did not adequately address the respondent's submissions.
- [74]The Commissioner further submits that the primary purpose of disciplinary proceedings is to maintain public confidence in the integrity and competence of the legal profession are protecting the public, citing Baker,[19] Bax[20] and the explanatory memorandum to the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009.[21] Those premises may be accepted, but the primary point is whether exceptional circumstances exist that justify departure from the usual entitlement to a costs order conferred on the Commissioner by s 462 when a finding of “prescribed conduct” is made against a practitioner.
- [75]The terms “special circumstances” and “exceptional circumstances” are commonly used in statutes as the basis upon which, or without which, a given discretion may be exercised by a Court or Tribunal. No paraphrase or definition exists or can be given that limits the operation of such terms, and while guidance may be obtained from the way in which individual cases are determined, such determinations can only be evaluated on a case to case basis, having regard to the total combination of circumstances in the particular case.
- [76]With respect to charges 2, 3 and 4, the respondent alleges that “the (Commissioner) held all the material to exonerate [the respondent] in 2008, but instead brought charges in 2012 and did not plead the exonerating evidence”.[22]
- [77]It is correct to say that no adequate case in relation to charges 2, 3 and 4 was ever built during an overall period of at least 7 years, including the investigation period and the years when the matter was pending in QCAT right up to the time when the matter was brought to a hearing. I respectfully note the President's comment at the commencement of the hearing that even up to that point the Commissioner had not addressed most of the submissions of the respondent, and especially with respect to the final few charges.[23]
- [78]The "circumstances" to which regard may be had are not limited to circumstances implying fault on the part of the Commissioner. In my view, they may include the overall conduct of the case in the Tribunal. A total view of the litigation is necessary for the determination of whether the circumstances are exceptional.
- [79]It is true that the mere fact that some other charges have been dismissed will not be itself establish exceptional circumstances in a case of the present kind. In Baker,[24] under similar legislation, the Court of Appeal confirmed a costs order in favour of the Commissioner in which each party had had “a measure of success”.[25] Having referred to the need for “exceptional circumstance” to displace the general mandatory rule, McPherson JA stated:-
“Even though he succeeded in some of the charges against him, the practitioner was found guilty of some seven charges that resulted in the ultimate sanction being imposed upon him of removal from the roll. No exceptional circumstances existed to defeat the mandatory requirement imposed by s 286(1) that he pay the costs including those of the Commissioner. That being so, the Tribunal was required to make the order that was made in this matter. In any event, if his Honour had discretion, it was or would have been appropriately exercised by making the order he did.”
- [80]In the present case, the Commissioner substantiated only one of the four charges brought. Unlike Baker where the Commissioner obtained an order striking the practitioner from the roll, the Commissioner’s measure of success in the present matter is arguably less than the respondent’s, and certainly less on the majority of issues litigated. Standing alone, this would be an insufficient circumstance to justify depriving the Commissioner of costs. It remains a fact which, in conjunction with others, may be looked at in considering whether exceptional circumstances exist.
- [81]There are many other factors that make the circumstances of this case exceptional. They include:-
- The extraordinarily lax manner in which the litigation was conducted, which led to considerable oppression of the respondent.[26] This delay in my view has not been satisfactorily explained by the Commissioner, who, as indicated above, had a duty to prosecute the proceedings with reasonable diligence;
- The circumstance that the original Tribunal was of the view that the Commissioner's submissions, two and a half years after the commencement of the proceedings, still did not respond to the points raised in the respondent's submissions;
- The Commissioner’s change of position after the hearing had commenced, to fill gaps in the evidence which gaps had been exposed by the extensive submissions of the respondent’s practitioner, and the fact that the Commissioner was permitted to do so without being subjected to any terms;
- The fact that this late supplementation of evidence was a factor in the only success that was ultimately achieved by the Commissioner;
- The fact that for a period charges 2, 3 and 4 were maintained when inadequate evidence had been provided to support them, and the respondent's submissions had drawn attention to their inadequacy;
- The fact that only a very small part of the Commissioner's costs were incurred after his complete case was finally presented;
- The fact that the respondent succeeded in the majority of issues raised; and
- The further fact that the respondent practitioner also (for reasons hereunder) succeeds on the only issue raised on the question of sanction in the present matter.
- [82]Overall, I am of the view that the combination of events that occurred in this case constitute exceptional circumstances.
- [83]The respondent practitioner has not sought any order for costs on the charges in which she was successful.
- [84]I propose to order that there be no order for costs.
Determination of sanction
- [85]I return to the resolution of issues concerning sanction.
- [86]The Commissioner submitted that the case of Scroope [27] was comparable. That was a case where a client was overcharged by an amount of 73%, resulting in an overcharge of $215,000. The primary Tribunal found him guilty of professional misconduct, fined him $5,000, ordered that he be reprimanded and that he pay the costs of the Commissioner. The New South Wales Court of Appeal set aside the finding of professional misconduct and substituted a finding of unsatisfactory professional conduct, set aside the fine and substituted a fine of $2,000. No appeal had been brought concerning the reprimand.
- [87]In Scroope, the finding was of gross overcharge. There are some points of similarity including the fact that Scroope’s conduct was seen as falling short of the standard of competence and diligence that should be expected of a reasonably competent practitioner, but overall it reveals a greater level of misconduct than that of the present respondent, and Scroope did not undergo the collateral oppression that the present respondent has suffered.
- [88]In Scroope, the overall result was that the reprimand was not appealed, and the fine was reduced from $5,000 to $2,000. It seems that the costs order remained, and a further order was made by the Court of Appeal ordering the Commissioner to pay Scroope’s costs of the appeal. It is not possible to fine tune orders in the variety of cases that come before Courts and Tribunals of this kind, but, broadly speaking, an order somewhat less severe than that in Scroope seems appropriate.
- [89]The present case is not one which calls for the inclusion of a reprimand along with a monetory penalty. Opinions vary as to the occasions when it is desirable to add a reprimand to other orders in proceedings of this kind. In the present matter, I think that the finding and public recording of unsatisfactory professional conduct by the respondent along with the imposition of a fine will import a sufficient level of disgrace, and that the inclusion of a reprimand would result in an imbalance with the result in Scroope.
- [90]The delay and oppression suffered by the respondent through the conduct of these proceedings is also a factor that calls for moderation in the response of the Tribunal.
- [91]The orders of the Tribunal will be as follows:
- In relation to charge 1, the respondent is ordered to pay a penalty of $2,000 on or before 1 February 2018;
- There will be no order as to costs.
Footnotes
[1]Application filed in QCAT 3 May 2013.
[2]Notice dated 28 October 2015.
[3]Email QCAT to respondent 6 November 2015.
[4]QCAT Notice of Hearing 11 November 2015.
[5]Transcript of Proceedings p1-2 ll 20-26.
[6]Ibid p1-3 ll9-12.
[7]Affidavit of respondent, annexure AJ6, 2nd letter. Its content shows it to be a response to meetings with the executors on 1 and 7 February 2008. There is no evidence of any later dissent or denial by the client of the statement "it was agreed that costs will be independently determined by a costs assessment." See also letter from respondent to Crouch and Co dated 12 February 2008 in affidavit of DJ Edwards Annexure DJE 1.
[8]Briginshaw v Briginshaw (1938) 60 CLR 336.
[9]Filed in QCAT 16 February 2016.
[10]QCAT Notice 11 July 2016.
[11]Reasons for Judgment [152]; cf evidence referred to in note [7] above.
[12]As required by s 598, LPA.
[13]As required by s 599, LPA.
[14]Compare Legal Services Commissioner v Ho [2017] QCAT 95.
[15]Submission 22 of Submissions of the Respondent received by QCAT, dated 14 August 2017.
[16]LPA, s 456(1).
[17]Scroope v Legal Services Commissioner [2013] NSWCA 178.
[18]LPA, s 462(1).
[19]Baker v Legal Services Commissioner [2006] QCA 145 at [46].
[20]Attorney-General v Bax (1999) 2 Qd R at [23].
[21]Explanatory Memorandum to the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, [59].
[22]Submissions of the respondent, received by QCAT on 14 August 2017, paragraph 26. The word “respondent” has been inserted in place of an obviously erroneous reference to “the applicant”.
[23]Transcript of Proceedings 3 December 2015, p 1-2, ll 20-26.
[24]Legal Services Commissioner v Baker (No 2) [2006] QCA 145 at [56] – [57] per McPherson JA.
[25]Ibid at [55].
[26]See above at paragraphs [4] to [38] and [63] to [65].
[27]Scroope v Legal Services Commissioner [2013] NSWCA 178.