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- Unreported Judgment
Legal Services Commissioner v McHenry (No 3) QCAT 120
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Legal Services Commissioner v McHenry & Anor (No 3)  QCAT 120
Legal Services Commissioner
David Allan McHenry
Chris Trevor & Associates
Occupational regulation matters
11 May 2020
On the papers
Hon Peter Lyons QC, Judicial Member
Dr Susan Dann, Lay Panel Member
Mr Peter Sheehy, Legal Panel Member
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the Tribunal found the first respondent engaged in professional misconduct and unsatisfactory professional conduct – where the complainants filed a Notice of Intention to Seek Compensation Order – where the parties were ordered to file further submissions – where compensation can be awarded for pecuniary loss due to conduct that has been found to be professional misconduct or unsatisfactory professional conduct pursuant to s 424 of the Legal Profession Act 2007 (Qld) – whether pecuniary loss resulting from found misconduct is established – whether the making of such orders is in the interests of justice – whether any additional factor to be established
Legal Profession Act 2007 (Qld) s 464, s 465
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
Legal Services Commissioner v McHenry  QCAT 417
Legal Services Commissioner v McHenry & Anor (No 2)  QCAT 50
Seventh Complainant – J Harris:
Eighth Complainant – B Pearce:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- Ms Harris signed a Notice of Intention to Seek Compensation Order, nominating herself and her brother as complainants seeking compensation. They both provided affidavits which were relied upon by the applicant in support of the discipline application. Both attended a hearing on 10 February 2020 (Mr Pearce by telephone), intended to deal with compensation matters. Since neither of them was ready to do so, directions were made to enable them to provide further material. Ms Harris has done so, but Mr Pearce has not. Given the opportunity they have had to advance their claims for compensation, the Tribunal considers that the proceeding, so far as it relates to compensation to these complainants, may now be conducted entirely on the basis of documents, without any person appearing at a hearing.
- Ms Harris and her brother Mr Pearce engaged the first respondent to pursue a claim in relation to the estate of their late father David John Baldwin, who died in New South Wales on 22 September 2012. Mr Baldwin’s will left an interest in his house property at Quaker’s Hill in New South Wales to Ms Harris and Mr Pearce. However, on Mr Baldwin’s death, the property passed to Mr Baldwin’s then wife, with whom he held the property as a joint tenant.
- The first respondent’s conduct in relation to this retainer resulted in nine of the thirty charges in the discipline application brought against him. One was of failing, between 17 March 2013 and 1 March 2017, to maintain reasonable standards of competence and diligence in his conduct of the matter. One was of making some false representations to his clients in relation to the progress of the matter. The remaining charges were of forging documents; in fact, to support his misrepresentations. The Tribunal found the charges to be made out, and that the first respondent’s conduct in respect of the charges amounted to professional misconduct. The conduct occurred in the period when the first respondent was a sole practitioner.
Ms Harris’ claim for compensation
- Neither Ms Harris’s Notice of Intention to Claim Compensation, nor her affidavit relied upon in support of the discipline application, provides any details of the compensation she seeks. On 11 March 2020, Ms Harris provided by email some further material in relation to her claim for compensation. It is apparent from the email that a copy was sent (appropriately) to the first respondent’s solicitor, although the first respondent has indicated that he does not wish to participate in the proceedings so far as they relate to compensation claims.
- The recent material from Ms Harris lists occasions on which she and her husband are said to have travelled to Brisbane and Sydney as a result of communications from the first respondent, and specifies amounts claimed for these occasions. It also makes claims for time lost due to email and telephone communications with the first respondent over a period of approximately four years; and for time lost in attempting to locate documents and establishing whether proceedings had been commenced. There is also a claim for consulting another firm of solicitors, VAJ Byrne & Co (‘Byrne’), to consider the first respondent’s actions, which resulted in a complaint to the Queensland Law Society (‘Law Society’). The only document in support is a copy of the letter from Byrne to the Law Society.
Ms Harris’ claim considered
- In December 2016, the first respondent falsely represented to Ms Harris and Mr Pearce that a payment in respect of their claim was imminent. On 22 December 2016, he asked Ms Harris and her husband to fly to Brisbane to meet him, to ensure that the payment was processed. They did so, and met with him at The Coffee Club on George Street in the Brisbane CBD. For this occasion, Ms Harris has claimed a loss of wages for herself and her husband of $1,050, and $150 for meals.
- Elsewhere in her recent material, Ms Harris states that she is self-employed. In her affidavit she describes herself as the administration officer for ‘Riverside Plumbing’. In his affidavit, Mr Harris describes himself as a plumber and business owner of ‘Riverside Plumbing’. The email from Ms Harris of 21 March 2020 identifies Ms Harris as the Office Manager of Riverside Plumbing (QLD) Pty Ltd.
- The evidence in support of this claim is less than satisfactory. Nevertheless, I am prepared to find that Ms Harris and her husband both have an interest in the company Riverside Plumbing (QLD) Pty Ltd, which conducts a plumbing business, in which they both work. I am also prepared to find that the absence of both of them from work for a day would have an adverse effect on the profitability of the business, and the income they receive from it. In the absence of any other information, I am prepared to accept that $1,050 is a reasonable estimate of that loss of income; and similarly that $525 would represent Ms Harris’ share of the loss. I am therefore prepared to include that sum in any order for compensation, along with $75 for her meals, making a total of $600, for this claim.
- When s 464 of the Legal Profession Act 2007 (Qld) is read with s 465(1), it is apparent that a compensation order may be made for financial loss suffered by a complainant. There is no statutory provision which authorises a compensation order for loss suffered by someone else, as a result of a legal practitioner’s misconduct. There is no material to suggest that Mr Harris is a complainant, nor has he given notice of an intention to claim compensation. Accordingly, I am not prepared to include his losses associated with this trip to Brisbane in any order for compensation.
- The Tribunal has found that the first respondent made the following false representations to Ms Harris, her brother Mr Pearce, and/or her husband:
- (a)10 January 2017: that Judge McGill (of the District Court of Queensland) would need to determine the matter;
- (b)17 January 2017: that the matter would be heard on Tuesday 24 January 2017;
- (c)20 January 2017: that he had ‘just received confirmation the matter is now listed at 11 am on Tuesday 21 January 2017…’; and
- (d)23 January 2017: that ‘the application returnable at 11.00am tomorrow has been formally withdrawn…resulting in monies able to be drawn upon on Friday 27 January 2017 at 10.00am’.
- Ms Harris’ further material includes a claim for 22 January 2017, when she says she drove to Brisbane for fake court hearings that were cancelled twice. She claims accommodation of $1,050, meals in the same amount, loss of wages for herself and her husband of $5,250, the cost of a flight home ‘for family reasons’ of $120, and fuel in an amount of $100.
- Included in the material exhibited to the affidavit of Mr Harris is an email from the first respondent dated 10 January 2017, referring to an upcoming application for a stay before Judge McGill, stating that, once the date was known, ‘we will then all travel to Brisbane for that mention’. However, the Notice of Intention to Claim Compensation (signed by Ms Harris) records that on 22 January 2017, flights were booked for 24 January 2017 to attend the hearing; and on 23 January 2017 an email had been received (obviously from the first respondent) stating that the application for the following day had been formally withdrawn.
- The evidence does not support a finding that Ms Harris and her husband drove to Brisbane on about 22 January 2017, as a result of the first respondent’s misconduct. It is not intended to make any allowance for this element of her claim.
- The further material includes a claim for a flight to Sydney on 7 March 2017, to sight a grant of probate and to get confirmation that proceedings had been commenced there. The amount claimed is $2,200 for loss of wages, accommodation, and meals. The claim itself may be regarded as an assertion that a flight was made on about that date (though it is not clear who is said to have made the flight). However, no other support for it can be found; and it is not mentioned in the Notice of Intention to Claim Compensation. In view of the difficulties associated with the claim for 22 January 2017, the Tribunal is not prepared to act on the claim alone.
- The further material includes a claim for engaging Byrne to assist. Byrne’s letter to the Law Society sets out a history of the dealings between the first respondent and Ms Harris, her husband and her brother. It raised some anomalies, and asked the Law Society to audit the first respondent’s file. It also suggested that there may be a matter of public interest involved, and questioned the mental health of the first respondent. Nevertheless, it was a consequence of the first respondent’s misconduct, and an attempt to identify what had in truth happened during the period when he had claimed to have taken action on behalf of Ms Harris and her brother. It is appropriate to regard the cost of Byrne’s services as pecuniary loss suffered as a result of the first respondent’s misconduct, and to include a sum of $1,500 in an order for compensation.
- The balance of the claims made in the further material are for Ms Harris’ time, apparently in working hours, dealing with email correspondence or in telephone conversations with the first respondent; some attempts to locate files (it would appear to be transcripts) falsely said by the first respondent to have been sent to Officeworks; and other investigations intended to ascertain what had in fact happened when the first respondent claimed to have taken steps on behalf of the complainants. Mostly, the claims are identified as ‘Time loss of wages (self employed)’, followed by a description of the class of activity. As a matter of calculation, it would appear that Ms Harris has claimed at a rate of $100 per hour for her time.
- Some of these claims relate to actions taken by Ms Harris over a period of the order of four years; though some were undoubtedly taken over a shorter period. They represent activities conducted by Ms Harris, each for a relatively short time, relating to the first respondent’s misconduct. While it was possible to conclude, where Ms Harris and her husband were absent from the business for a day, that that had an impact on the income of the business and caused pecuniary loss to Ms Harris, it is not possible to reach the same conclusion in respect of these claims. Although the activities may be regarded as resulting from the first respondent’s misconduct, the material is not sufficient to demonstrate that Ms Harris has suffered pecuniary loss in respect of them. They will not be included in an order for compensation.
- Under s 465(1)(b), an order for compensation may only be made if the Tribunal is satisfied that ‘it is in the interests of justice that an order of that type be made’. This provision does not appear to be intended to identify a necessity for some additional element to warrant the order; rather, it gives the Tribunal a discretion, when a complainant is shown to have suffered pecuniary loss as a result of a legal practitioner’s misconduct, to refrain from making the order if there is good reason to do so. Here, there is no such reason. The first respondent’s misconduct, and the fact that it has caused loss to Ms Harris, have the consequence that it is in the interests of justice to make such an order.
Mr Pearce’s claim for compensation
- Mr Pearce was named in the Notice of Intention to Seek Compensation Order signed by Ms Harris as a complainant intending to seek a compensation order. He also provided an affidavit relied upon by the applicant in the discipline application. As mentioned above, he attended the hearing held on 10 February 2020 by telephone. Directions were then made to enable him to submit material in support of a claim for compensation. He has not done so. Accordingly, there will not be an order for compensation in his favour.
- The following orders are made:
- The proceeding, so far as it relates to compensation to the complainants Jodie Harris and Bradley Pearce, may now be conducted entirely on the basis of documents, without any person appearing at a hearing;
- The first respondent is ordered to pay $2,100 by way of compensation to the complainant Jodie Harris; and
- No compensation order is made in favour of the complainant Bradley Pearce.
- Published Case Name:
Legal Services Commissioner v David Allan McHenry and Chris Trevor & Associates (No 3)
- Shortened Case Name:
Legal Services Commissioner v McHenry (No 3)
 QCAT 120
11 May 2020