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Legal Services Commissioner v Bradley[2022] QCAT 209

Legal Services Commissioner v Bradley[2022] QCAT 209

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Bradley [2022] QCAT 209

PARTIES:

legal services commissioner

(applicant)

v

kevin bradley

(respondent)

APPLICATION NO/S:

OCR277-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 July 2022

HEARING DATE:

19 July 2022

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC

Assisted by:

Annette Bradfield

Dr Julian Lamont

ORDERS:

  1. The respondent is publicly reprimanded.
  2. The respondent is to pay a penalty in the sum of $5,000.
  3. The respondent is prohibited from applying for or obtaining a principal level practising certificate for three years from 19 July 2022.
  4. The respondent must pay the applicant’s standard costs of and incidental to the discipline application, such costs to be assessed as if this were a proceeding before the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where solicitor engaged in dishonest acts over a period of time – where solicitor falsely represented agreement of settlement to complainants – where solicitor intentionally emailed a copy of the wrong settlement offer for complainants to sign – where solicitor substituted signature page of old deed for unsigned signature page of new deed – where solicitor admits wrongdoing – whether private or public reprimand appropriate – whether complainants entitled to compensation claim – where the amount of compensation claimed is not specified by the complainants

Legal Profession Act 2007 (Qld) s 456 (2)(e), s 456(4)(B), s 462(1), s 464, s 464(d), s 465

APPEARANCES &

REPRESENTATION:

Applicant:

B T Clements instructed by the Legal Services Commissioner

Respondent:

K Bradley (self-represented)

Complainant:

J I Meikle (self-represented)

REASONS FOR DECISION

  1. [1]
    This discipline application arises out of the engagement by Ms Meikle and her husband to whom I shall refer, not entirely accurately, as the complainants. 

Background

  1. [2]
    The complainants had purchased an air-conditioning system for their home.  There was a fault in the air-conditioner which apparently caused damage to the home.  They received a quotation for the sum of $18,211.37 for the repair of that damage. 
  2. [3]
    The manufacturer of the air-conditioning unit offered to pay that sum to the complainants, either to the builder, or to the complainants after the rectification works had been completed.  The complainants wished to have the money paid to their nominated bank account directly and did not accept the settlement then proposed by the manufacturer.  They engaged the respondent in relation to this matter in late April 2020.  He then wrote to the manufacturer demanding payment of the amount of $18,211.37.  The payment was not made.
  3. [4]
    The respondent commenced proceedings in the Magistrates Court, claiming the amount which had been the subject of the quotation together with costs.  The manufacturer then offered to settle the matter in line with the earlier demand – that is to say, by paying the sum of $18,211.37 to the complainants’ nominated bank account with the complainants bearing their own legal costs.  This offer was made on 10 June 2022 and may be referred to as the ‘June settlement offer’.
  4. [5]
    The manufacturer provided a deed of release and settlement setting out terms associated with this offer.  The offer, however, was rejected by the complainants.  The manufacturer filed a notice of intention to defend and a defence in response to the claim made on behalf of the complainants in the Magistrates Court.  The respondent then instituted an application for summary judgment.  That was listed for hearing on 13 August 2020. 
  5. [6]
    Submissions were provided by the manufacturer’s legal representatives which were sent by the respondent to the complainants.  At this time, the respondent appears to have come to the view that the summary judgment application would not be successful or at least would not provide better results for the complainants than the offer which had been made in June.  Accordingly, he contacted the complainants, and it was decided that the respondents should attempt to have the June settlement offer renewed.
  6. [7]
    The manufacturer was prepared to renew the June settlement offer subject to the deduction of an amount of $2,400 incurred for counsel’s fees to defend the summary judgment application.  The manufacturer provided a revised deed recording that change to the June settlement offer.  It was at this point that the misconduct of the respondent started to occur, which has led to this discipline application. 

Misconduct by the applicant

  1. [8]
    On 12 August, the respondent sent an email to the complainants falsely representing that the manufacturer had agreed to settle the matter on the same terms as those the subject of the June settlement offer.  That was untrue, because the amount that the manufacturer was prepared to pay had been reduced by $2,400. 
  2. [9]
    On 11 September 2020, the respondent emailed the complainants a copy of the original deed provided by the manufacturer in relation to the June settlement offer.  He suggested that they sign it without having their signatures witnessed, and that the signed document be returned to him.
  3. [10]
    The complainants did that and when the document came back, he purported to witness their signature, although he had not been present when the complainants signed the deed.  The respondent then substituted the executed signature page from the deed, which the complainants had signed, for the signature page on the revised deed, which the complainants had not seen or executed.  The respondent then sent the document which he had thus created, to the manufacturer’s solicitors.  That resulted, effectively, in a settlement of the client against the manufacturer so far as the manufacturer was concerned.  It will be apparent that the respondent did not have instructions to settle the matter in this fashion.
  4. [11]
    Then the respondent told the complainants that the manufacturer had requested that settlement moneys be paid into the respondent’s trust account, and he provided them with a document which was a direction for payment to his trust account, which he requested them to sign.  That, of course, did not reflect the true situation.  The manufacturer had not requested the settlement moneys be paid to the respondent’s trust account.  Rather, that was something that the respondent had decided should be done so that he could attempt to retrieve the situation which was unfolding. 
  5. [12]
    The respondent then sent a letter to the complainants on 17 September 2020.   The letter stated that they would receive $16,664.52 of which $15,811.37 would be paid on behalf of the manufacturer and $853.15 would be paid by the respondent, which he described as his punishment for not making an earlier effort to persuade the complainants to accept the June settlement offer. 
  6. [13]
    The amount of $16,664.52 was derived by deducting an amount for his own legal fees and outlays from the original offer of $18,211.37.  By this time, the complainants were becoming concerned about the conduct of the respondent and they sent a signed copy of the original deed directly to the manufacturer’s solicitor.  The true position eventually emerged and led to the complaint made to the present applicant.

Characterisation of conduct

  1. [14]
    It can be seen from this recital of events that in a number of respects, the respondent had engaged in dishonest conduct.  This was described by the applicant in her submissions as a series of dishonest acts carried out over a period of time.  They included the email of 12 August 2020 stating, contrary to the truth, that the manufacturer was prepared to settle in accordance with the original settlement offer; the email enclosing a copy of the original deed rather than the deed revised to reflect the manufacturer’s then current position about settlement sent to the complainants on 11 September 2020; and the substitution of the signature page signed by the complainants for the unsigned signature page on the revised deed to the manufacturer’s solicitors. There is no reason to think that this conduct, which is quite serious, should not be characterised as professional misconduct.  That characterisation is adopted by the Tribunal.

Other matters

  1. [15]
    Questions then arise about the orders to be made including, in particular, a compensation order.  Before turning to those matters, however, it is convenient to record some factors relevant to the orders which should be made.  The first is that the respondent has ultimately not contested any of the allegations made by the applicant in these proceedings.  Initially, there was some reluctance to accept that the conduct was dishonest.  It would seem the respondent persuaded himself that, at least in some respects, the course of conduct he engaged in would put the complainants in a position similar to the position they would have been in if the facts he presented to them were true.  But ultimately, the respondent has shown the good sense of consulting counsel and has accepted counsel’s advice that he should recognise his conduct was dishonest.  He has followed that course.  In the end, therefore, there has been virtually complete cooperation by the respondent with the applicant in relation to these proceedings. 
  2. [16]
    The second thing to be noted is that the applicant has submitted that the respondent’s conduct demonstrates a loss of or diminished capacity on the part of the respondent to make sound judgments.  It is to the respondent’s credit that he has accepted that.  He has stated – and the Tribunal has no reason to doubt that – that that is a factor which has led him to decide to retire from legal practice. 
  3. [17]
    The third matter to be noted is that the applicant has been a legal practitioner now for some 49 years, of which 45 years were spent as a sole practitioner.  There has been no suggestion of previous misconduct on his part. Possibly, with the exception of a question of his own costs, there is no reason to think that his conduct was engaged in for personal gain.  It seems to have been mistakenly motivated by a desire to retrieve a mistake he made earlier.

Orders regarding the disciplinary application

  1. [18]
    Turning then to the orders sought by the applicant, the first is an order that the respondent be publicly reprimanded.  There is no doubt that a reprimand is appropriate.  Under section 456 subsection (2) paragraph (e), the Tribunal, if satisfied that a practitioner has engaged in professional misconduct, may make an order as it thinks fit including an order that the practitioner be publicly reprimanded unless the Tribunal considers there are special circumstances warranting only a private reprimand. 
  2. [19]
    Although the respondent advanced some matters in his written submissions in support of the proposition that a private reprimand was sufficient, he did not seek to identify circumstances which were truly special and which would warrant that course.  It is proposed to make an order that the respondent be publicly reprimanded.
  3. [20]
    The second order proposed by the applicant is that the respondent pay a fine in the sum of $5,000.  The Tribunal is concerned about the seriousness of the respondent’s misconduct.  The respondent in his written submissions contended for a fine of $2,000 but that is plainly insufficient.  While the imposition of what is referred to in the legislation as a penalty are important for a number of reasons, including their effect as a general deterrent to misconduct on the part of other practitioners, the order must, in the end, reflect the particular circumstances of the case.  The misconduct is quite serious but there are a number of mitigating factors which have been identified earlier in these reasons. In the circumstances, the Tribunal intends to make an order that the respondent pay a penalty in the sum of $5,000. 
  4. [21]
    The applicant seeks an order that the respondent be prohibited from applying for or obtaining a principal level practising certificate for three years from the date of the order.  The respondent has referred to the fact that he has now retired from legal practice.  However, in the course of today’s hearing, he did not appear to contest the appropriateness of this particular order, recognising that although his intention is not to resume practice, circumstances could possibly change.  The Tribunal considers that in the public interest, it is appropriate to make the order proposed by the applicant.
  5. [22]
    The applicant also proposed an order that, before applying for a principal level practising certificate after the three year period, the respondent must take certain steps.  There have not been submissions specifically about this order.  The prospect of the respondent applying for a principal level practising certificate does not seem sufficiently likely to eventuate as to warrant the making of the order, and it will not be made.  Questions of costs will be dealt with later. 

Orders regarding the compensation claim

  1. [23]
    Ms Meikle has attended at the hearing and participated in it in relation to matters relevant to the claim for a compensation order.  The Tribunal’s powers in relation to such an order are quite limited.  It seems that she seeks an order in relation to two matters.  The first is the sum of $2,400 which was the amount by which the settlement offer from the manufacturer was reduced because of the costs incurred in relation to the application for summary judgment which did not proceed. The second relates to the costs ultimately of carrying out repairs to the home of the complainants.  The amount of that claim is not specified. 
  2. [24]
    The Tribunal’s powers are found in s 456(4)(b), which is to be read with s 464 and s 465, of the Legal Profession Act 2007 (Qld). Section 464(d) identifies one form of compensation order as an order that a law practice pay to a complainant an amount for compensation for pecuniary loss because of conduct that is found to be professional misconduct of an Australian legal practitioner involved in the legal practice against which the order is to be made.
  3. [25]
    In this case, the respondent is a sole practitioner and there is no relevant distinction between the practice and the practitioner.  It will be noted, however, that the order is one limited to pecuniary loss.  Section 465 provides that a compensation order for pecuniary loss must not be made unless the Tribunal is satisfied that the complainant has suffered pecuniary loss because of the conduct concerned.  That is of some relevance in the present case. 
  4. [26]
    The loss of $2,400, which resulted from the fact that the initial offer of the manufacturer was not accepted, is a loss which in the Tribunal’s view resulted from conduct preceding the conduct that is the subject of this application.  In other words, it is a loss resulting from the rejection of the initial offer made on behalf of the manufacturer.  There has been no allegation that that the rejection of that offer was the result of misconduct by the practitioner.  The misconduct has been identified earlier in these reasons and really relates to events which occurred somewhat later in time.  The evidence does not indicate that, after the summary judgment, there was any real prospect that the manufacturer would settle the matter for an amount greater than the revised offer.  The Tribunal is not satisfied that that loss is the result of the conduct the subject of the discipline application. 
  5. [27]
    The other aspect of the order sought by the complainants is for an unspecified amount for the increased costs of repair to their home.  The Tribunal recognises that it is indeed quite likely that the costs of repair have increased.  It may well be that that loss is attributable to the respondent’s misconduct, but there is no material which enables the Tribunal to assess the amount of the claim.  The Tribunal is, therefore, not in a position to make an order for compensation in respect of that loss and does not propose to do so.

Orders regarding costs

  1. [28]
    There remains the question of costs.  Under s 462(1), the Tribunal must make an order requiring a person whom it has found to have engaged in conduct, described as prescribed conduct, to pay costs unless the Tribunal is satisfied exceptional circumstances exist.  No exceptional circumstances have been identified which would warrant the refusal of a costs order. 
  2. [29]
    The applicant seeks an order that the respondent pay her standard costs of and incidental to this application to be assessed as if this were a proceeding before the Supreme Court of Queensland.  Nothing has been said to suggest that this is not the appropriate order to make. In respect of the applicant’s costs, the Tribunal will make an order to that effect. 
  3. [30]
    The complainants have not made any submissions in relation to a costs order in their favour, and no order will be made. 

Orders

  1. [31]
    Accordingly, it is proposed to make orders in the terms indicated in these reasons. Namely:
  1. The respondent is publicly reprimanded.
  2. The respondent is to pay a penalty in the sum of $5,000.
  3. The respondent is prohibited from applying for or obtaining a principal level practising certificate for three years from 19 July 2022.
  4. The respondent must pay the applicant’s standard costs of and incidental to the discipline application, such costs to be assessed as if this were a proceeding before the Supreme Court of Queensland.
Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Bradley

  • Shortened Case Name:

    Legal Services Commissioner v Bradley

  • MNC:

    [2022] QCAT 209

  • Court:

    QCAT

  • Judge(s):

    Peter Lyons QC

  • Date:

    19 Jul 2022

Appeal Status

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

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