Legal Services Commissioner v Pennisi
[2023] QCAT 118
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Legal Services Commissioner v Pennisi[2023] QCAT 118
- Add to List
Legal Services Commissioner v Pennisi[2023] QCAT 118
Legal Services Commissioner v Pennisi[2023] QCAT 118
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Legal Services Commissioner v Pennisi [2023] QCAT 118 |
PARTIES: | LEGAL SERVICES COMMISSIONER (applicant) v VINCENT PENNISI (respondent) |
APPLICATION NO/S: | OCR004-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 17 April 2023 |
HEARING DATES: | 18 August 2022; 4 October 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Hon Peter Lyons KC, Judicial Member Assisted by: Mr Ross Perrett, Practitioner Panel Member Ms Patrice Lorraine McKay, Lay Panel Member |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – NEGLECT AND DELAY – where the applicant alleged that the respondent failed to maintain reasonable standards of competence and diligence in preparing a will and an enduring power of attorney, in particular, by failing to take steps with respect to his client’s capacity to execute these documents – whether the circumstances disclosed serious concerns about his client’s capacity – whether the applicant took sufficient steps to establish his client’s capacity – where the applicant further alleged that the respondent engaged in unsatisfactory professional conduct by failing, when acting for the executors of an estate, to advise them of available distributions from an investment fund and to seek instructions in respect of same, resulting in undue delay in the finalisation of the estate – where the respondent had previously been found not to have conducted his practice with proper care – where there were mitigating factors – whether the pecuniary penalty sought by the applicant and a reprimand is an appropriate sanction PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the respondent was found to have engaged in unsatisfactory professional conduct – where the complainant sought compensation for apparently engaging another lawyer to pursue the investment fund matter – whether it is possible to relate the work conducted by the other lawyer to the conduct of the respondent which has been found to be unsatisfactory professional conduct – whether compensation could be awarded PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where there was no dispute as to an order for costs in favour of the applicant insofar as Charge 2 was concerned, the only charge made out – where the respondent submitted that there were exceptional circumstances which warranted an order that the respondent only pay a proportion of the applicant’s costs as Charge 1 was the only contested charge – whether exceptional circumstances existed in accordance with s 462 of the Legal Profession Act 2007 (Qld) to justify such an order Legal Profession Act 2007 (Qld), s 462, s 464 Powers of Attorney Act 1998 (Qld), s 41 Baker v Legal Services Commissioner [2006] 2 Qd R 249; [2006] QCA 145, followed Fradgley v Pocklington (No 2) [2011] QSC 355, approved Friesen v Friesen Estate (1985) 33 Man. R. (2d) 98, considered Hill v Fellowes Solicitors LLP [2011] EWHC 61 (QB), considered Murphy v Lamphier [1914] 31 OLR 287, considered Public Trustee v Till [2001] 2 NZLR 508, considered Toohey v Golder & Ors (No 2) [2022] QSC 93, distinguished |
APPEARANCES & REPRESENTATION: | |
Applicant: | M Nicolson, counsel instructed by the Legal Services Commissioner |
Respondent: | A G Psaltis, counsel instructed by Bartley Cohen |
Complainants: | M B Rodgers, solicitor of RBG Lawyers for R Mazucco R Hunter (self-represented) |
REASONS FOR DECISION
- [1]The respondent prepared a will and an enduring power of attorney for Mrs Mafalda Mazucco, both of which she executed on 12 February 2018. The applicant alleged that the respondent failed to maintain reasonable standards of competence and diligence in preparing these documents, the allegation being related to the fact that Mrs Mazucco did not then have the capacity to execute these documents. This is the subject of Charge 1 in the discipline application.
- [2]The respondent was engaged to act in the administration of the estate of the late Mrs Mary Lilian Hunter by the executors of her will. The applicant alleged that the respondent failed to maintain reasonable standards of competence and diligence in carrying out this role. This is the subject of Charge 2 in the discipline application.
Background to Mazucco charge
- [3]Mrs Mazucco was born in Italy. She migrated to Australia in 1954. She was apparently a close friend of the respondent’s sister, and thus came to know the respondent; but she and the respondent had not been in contact for about 9 years before 2018.
- [4]On 24 February 1994, Mrs Mazucco executed a will and an enduring power of attorney (“EPOA”), both prepared by the respondent.
- [5]On 9 January 2014, Mrs Mazucco executed an EPOA appointing her son, Dr Roy Mazucco, as her attorney for financial, personal and health matters. The circumstances in which this document was executed are not apparent, but there is no suggestion that it was prepared by the respondent.
- [6]Mrs Mazucco’s husband, Mr Aurelio Mazucco, died on 9 January 2018. Dr Mazucco contacted the respondent asking whether the respondent held Mr Mazucco’s will, and making some enquiries about the finalisation of the estate. He arranged to meet the respondent. Shortly after, Dr Mazucco decided to retain other solicitors to deal with the matter. The respondent issued a tax invoice for work done to that stage.
- [7]On 9 February 2018, Mrs Mazucco spoke by telephone with the respondent. She stated that she did not fully trust her son. They also discussed the topic of the respondent acting in relation to the estate of Mr Mazucco. On 10 February 2018 (a Saturday), the respondent attended at the home of Mrs Mazucco. The respondent gave an unchallenged account of what then occurred. According to the respondent, Mrs Mazucco told the respondent that she wanted him to deal with her husband’s estate, and to make changes to her will and existing EPOA. They discussed the purpose of a will, and considerations associated with making a will, including the need to decide who would benefit from her estate, and who would act as her executor. He explained the requisite qualities for an executor. Mrs Mazucco was able to explain concepts they discussed. She described the estate as monies in the bank and the home. He explained some matters in Italian. He asked questions directed to establishing Mrs Mazucco’s understanding of the concepts they discussed. Mrs Mazucco was attentive throughout the meeting. She gave instructions to include a specific legacy in her will in favour of her granddaughter. She said that she no longer completely trusted her son. She suggested that the respondent might replace her son as executor of the will and as her attorney. The respondent agreed to act as executor, but was not prepared to act as sole attorney. He suggested that her concern could be managed if he acted as her attorney together with her son. He identified reasons for the immediate appointment of an attorney. He also explained that the appointment would remain in effect until it was revoked. He then asked Mrs Mazucco to explain her understanding of the nature and purpose of a will and an EPOA, and the difference between them. She said that she understood that the will was to distribute her assets after her death, and the EPOA was to give someone the responsibility to make decisions during her lifetime, if necessary, in relation to her finances and her health care.
- [8]The respondent said that he did not have concerns about Mrs Mazucco’s capacity, but because it had been some years since he had seen her, and in view of her age, he conducted a “more formal capacity test”. He asked her some general questions, and some questions specific to her; and a number of “analytical questions”. He was satisfied of Mrs Mazucco’s capacity to give instructions and to execute the proposed documents. He also considered that the proposed changes were minor and seemed appropriate.
- [9]During the meeting on 10 February, Mrs Mazucco asked the respondent if he would accompany her to the bank to examine the state of her late husband’s accounts. On Monday 12 February, they went to a branch of the bank in the city. They were unable to to examine the accounts “for privacy reasons”, but arranged to have the accounts frozen. They then went to the respondent’s office. There was some further discussion about the nature of a will and an EPOA; and about the quantum of the legacy for the granddaughter. They also discussed the respondent acting as sole executor, and he said he would charge for the time spent in this role. The documents were then prepared, discussed further, and executed. Again the respondent did not see anything to raise any issue about Mrs Mazucco’s understanding of the documents or their effect; nor about her capacity. Mrs Mazucco executed the documents, as well as a costs agreement and associated documents.
- [10]The respondent made handwritten notes relating to some of the events that occurred at these meetings.
- [11]On 13 February 2018, Dr Megan Morris saw Mrs Mazucco. She noted that Mrs Mazucco had “difficulty with timing of when things happen and short term memory”, and referred her for formal neuro psychiatric assessment. On 23 February, Dr Mazucco engaged Mr Chris Schumann, a clinical neuropsychologist, to evaluate Mrs Mazucco’s capacity to appoint an attorney. He obtained some history, and carried out a number of formal tests. He identified several cognitive defects. Her history of cognitive decline and the test results suggested to him an early degenerative process, most likely Alzheimer’s dementia. He concluded that Mrs Mazucco would have significant difficulties comprehending and making decisions related to complex legal and financial matters. She did not have the cognitive capacity to make complex decisions regarding legal and financial matters.
- [12]In the meantime, on 15 February 2018, Mrs Mazucco executed another EPOA. This was prepared by solicitors engaged by Dr Mazucco in relation to his father’s estate.
- [13]On 21 October 2020, this Tribunal (differently constituted) found that Mrs Mazucco did not have the capacity on 12 February 2018 to revoke her earlier EPOA, and did not have the capacity to make a new EPOA; nor did she have capacity to make an EPOA on 15 February 2018.
Issues and contentions: the Mazucco charge
- [14]The discipline application alleged that between 9 and 12 February 2018, the respondent failed to maintain reasonable standards of competence and diligence in the preparation of a new will and EPOA for Mrs Mazucco. In particular, he failed to take client instructions that were clear and coherent; he failed to take any steps to satisfy himself that she fully understood the new will and the legal effect of the EPOA, and that she was capable of executing the documents; he failed to make any written record of the steps taken to assess her capacity on 12 February; he failed to record the questions asked and Mrs Mazucco’s answers relating to capacity; he failed to ask detailed, open-ended questions of her in accordance with the requirements of the Queensland Law Society Guidance Statement for Witnessing Enduring Powers of Attorney (“the Guidance Statement”), and to make a clear file note of such questions and the answers; and he failed to ensure that Mrs Mazucco was able to satisfy the requirements of s 41(1) and (2) of the Powers of Attorney Act 1998 (Qld) (“POA Act”). Ultimately it was alleged that the conduct constituted unsatisfactory professional conduct.
- [15]The applicant contended that the material does not show how or why the respondent maintained that Mrs Mazucco gave him clear and coherent instructions. There is no evidence that the respondent took any additional steps to satisfy himself of Mrs Mazucco’s testamentary capacity. Since he had sufficient concern about this issue to carry out an informal assessment on 10 February, he should have been on alert and especially careful. He failed to make any written record of the steps taken to assess capacity on 12 February. There was no evidence on the respondent’s file that he had taken steps to satisfy himself that Mrs Mazucco fully understood the legal effect of the EPOA, and that she was capable of executing that document. The respondent failed to record the questions asked and the answers provided, relating to capacity. There is no evidence that the respondent was aware of the Guidance Statement; nor whether Mrs Mazucco was capable of satisfying the requirements of s 41 of the POA Act. If the respondent could produce evidence through file notes or otherwise that he had asked open ended questions which confirmed her understanding of what a will was, that she could clearly articulate the nature and extent of her assets and liabilities, and she could clearly identify without prompting family members and the reasons she wanted to change her will, then that would demonstrate a reasonable standard of conduct in taking instructions for the will. There was no evidence that the respondent was aware of or had consulted the Guidance Statement; nor whether Mrs Mazucco satisfied s 41 of the POA Act.
- [16]The respondent admitted that he did not make a written record of the steps taken to assess the capacity of Mrs Mazucco on 12 February. He also admitted that he did not make a clear file note of open ended questions put to Mrs Mazucco and the answers she provided. The other allegations against him were in issue. The onus was on the applicant to establish the matters she alleged to the Briginshaw[1] standard. The respondent’s conduct demonstrated that he did not fall short of the standards which could be expected of a legal practitioner. The circumstances demonstrating this were that he had known Mrs Mazucco for 30 years; he had prepared a previous will for her, and her husband’s will; she approached him directly; he met with her for 90 minutes on 10 February, discussing a significant number of topics, and asking general and specific and analytical questions, and did not have a concern about her capacity; he took some notes of his interactions with Mrs Mazucco; the changes to the will were minor; and the changes made to the EPOA were insignificant. The circumstances did not disclose serious concerns about Mrs Mazucco’s capacity. The notes which the respondent made on 10 February disclosed the nature of the questions which the respondent asked of Mrs Mazucco and her responses. The notes taken on 12 February do not disclose further steps to assess her capacity, but steps were recorded on 10 February. The notes of 12 February record the critical instructions for the will. There is no basis for finding that the respondent did not otherwise follow the guidelines, in that he conducted a capacity assessment, asked open ended questions, obtained clear instructions, and conducted his interviews with Mrs Mazucco one-on-one. Any deficiency in his conduct was not sufficient to be said to fall short of the standards expected of solicitors.
Clear instructions
- [17]The applicant did not elaborate on the allegation made in paragraph 1.18(a) of the application that the respondent failed to obtain clear and coherent instructions from Mrs Mazucco. The respondent’s evidence is to the contrary. It was not challenged.
- [18]The applicant’s case on this point seemed to evolve into a submission that the respondent failed to record the instructions he received.[2] That is not what this paragraph of the charge alleges. Moreover, there are brief notes made by the respondent of what appear to be the key changes to be made to Mrs Mazucco’s will. The applicant was unable to say why the will and the EPOA themselves were not an adequate record of the instructions which Mrs Mazucco gave to the respondent as to her wishes in relation to these documents.
- [19]The allegation that the respondent failed to obtain clear and coherent instructions from Mrs Mazucco is not made out.
Failure to take any steps to establish understanding and capacity relating to the new documents: capacity
- [20]The capacity to understand the new documents and actual understanding of them are related questions, though they are conceptually distinct. Without capacity, a person cannot have the understanding necessary to enter such documents. Conversely, if a person demonstrates an understanding of the effect of a document, that shows the capacity to understand it. In the present case, the focus has been on Mrs Mazucco’s capacity, and whether the respondent took sufficient steps to establish it, although reliance is also placed on the question of understanding.
- [21]The starting point for considering a lawyer’s responsibility in relation to the client’s capacity is said to be that the lawyer must be reasonably satisfied that the client has the mental capacity to give instructions and, if not so satisfied, must not act for or represent the client as a direct legal representative.[3] If the solicitor is satisfied that the client has the capacity to give instructions, even if there is doubt about the client’s testamentary capacity, the solicitor must act on the client’s instructions. The matter was put in this way by Mullins J in Fradgley v Pocklington (No 2)[4] where her Honour said:
There was a dilemma facing the [plaintiff solicitor] when he received instructions directly from Miss Drake that she wished to change her will. It is the dilemma that is faced by any solicitor whose elderly client who resides in a nursing home seeks to make a new will. It is not practical or appropriate for the solicitor to undertake all the inquiries that are made for the purpose of proof of a will in solemn form. The solicitor may be excused from acting on the client’s instructions, if it is patently clear that the client does not have testamentary capacity. If the solicitor is satisfied that the client is capable of giving instructions, even if the circumstances are such that there may be a doubt as to testamentary capacity, the solicitor must act on the client’s instructions to make the will. Although there are authorities that suggest that it would be prudent for a solicitor to obtain supporting medical opinion before making a new will for an elderly client where there is a doubt about testamentary capacity, the solicitor is constrained by the client’s instructions: Public Trustee v Till [2001] 2 NZLR 508 at [19], [25]-[28].
- [22]If the lawyer has made conventional enquiries about the client’s understanding of the nature of a will, the extent of the assets and liabilities, and details of family members or other beneficiaries, a lawyer is ordinarily entitled to presume testamentary capacity unless there is reason to suppose otherwise.[5] The presence of warning signs – advanced age, ill health, irrational behaviour, disorientation, clear signs of lack of understanding, or plainly defective recollection of assets or family members – should lead a lawyer to ask questions designed to probe the testator’s understanding of basic matters relating to capacity.[6] These propositions appear in passages from a leading text relied upon in the applicant’s material. It is of assistance to consider further some of the authorities on which they are based.
- [23]Murphy v Lamphier[7] dealt with a will made by an elderly woman suffering under a double process of deterioration from the impairments of senility and the inroads of a progressive disease affecting her brain. Her memory was so impaired that she often forgot the existence of her husband. The solicitor who prepared the will gave evidence of capacity, based upon a joking conversation he had had with her. Murphy J said:[8]
A solicitor is usually called in to prepare a will because he is a skilled professional man. He has duties to perform which vary with the situation and condition of the testator. In the case of a person greatly enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, the solicitor does not discharge his duty by simply taking down and giving legal expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property. The solicitor is brought in for the very purpose of ascertaining the mind and will of the testator touching his worldly substance and his comprehension of its extent and character and of those who may be considered proper and natural objects of his bounty.
- [24]In Friesen v Friesen Estate[9] a solicitor had been summoned to a hospital in the early hours of the morning to prepare a will for a client who was approaching death’s door. His feeble physical condition was obvious. The solicitor knew that the client had executed a carefully considered will less than a month previously; and that the changes to be made were significant, at least as regards one beneficiary. The client was agitated and had difficulty explaining the relationship of the various specific legatees. Kroft J drew a number of “basic rules” from a review of some authorities (including Murphy), so far as they applied to that case, which included the following:[10]
- 5.Neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity.
- 6.The duty upon a solicitor taking instructions for a Will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing Will, the responsibility will be particularly onerous.
- 7.A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers and then simply recording in legal form the words expressed by the client. He must first satisfy himself by personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the Will is understood.
- [25]
In my view, the most which could be contemplated as a legal duty upon a solicitor is an obligation to consider and advise upon the issue of testamentary capacity where the circumstances are such as to raise doubt in the mind of the reasonably competent practitioner. However, any such duty would necessarily be confined by the scope of the retainer and would also be limited by the solicitor’s fundamental duty to comply with the client’s instructions. In particular, a solicitor would not ordinarily be authorised to make inquiries of others such as family members or medical advisers without the client’s instructions. …
A solicitor is generally bound to follow the client’s instructions and could not decline to proceed with a will except in the exceptional circumstances already discussed such as illegality, breach of ethical obligations, or where a client is so obviously lacking in mental capacity the instructions are not truly instructions at all. A solicitor must also be conscious of the duty to proceed with due expedition, especially where the client’s circumstances are such as to suggest urgency is required.
It must be borne in mind that a solicitor has no special expertise or training in the assessment aspect of testamentary capacity. The most that could be expected of the reasonably competent practitioner is the ability to recognise possible warning signs such as advanced age, ill health, irrational behaviour, disorientation, clear signs of lack of understanding, or plainly defective recollection of assets or family members. Even then, a reliable assessment of testamentary capacity could not be made without expert medical advice undertaken with the client’s authority.
In the absence of the kind of clear indicators already discussed, the solicitor is not under any general obligation to inquire into the issue of testamentary capacity. Ordinarily, where a solicitor has made the conventional inquiries about the client’s understanding of the nature of a will, the extent of the assets and liabilities and details of family members or other beneficiaries, a solicitor will be entitled to presume testamentary capacity unless there is reason to suppose otherwise.
- [26]The final case to which reference will be made is Hill v Fellowes Solicitors LLP.[13] An elderly lady instructed solicitors to act for her in the sale of a property; and to transfer the proceeds to an account of her daughter. The property was resold shortly after for a substantially greater sum. The client was in fact suffering from dementia. Through her son, as her litigation friend, she sued the solicitors, alleging that they failed to appreciate her vulnerability, and properly to protect her. The action failed. It was observed that there was no evidence that the solicitors actually knew of the client’s dementia; or that they ought to have appreciated that this was the position. The joint single expert for the case expressed the view that the evidence suggested that the client had cognitive difficulties along a range of domains, mainly memory for short term events, but also problem solving and executive functions; and that it was plausible that the fact that a client was suffering from mild to moderate dementia would not be apparent to a person dealing with her for the first time. As to the duties of a solicitor when dealing with a client, the following statements appear in the judgment (authorities omitted):
A solicitor is generally only required to make inquiries as to a person’s capacity to contract if there are circumstances such as to raise doubt as to this in the mind of a reasonably competent practitioner[14]…
The relevant test where professional negligence is alleged however is not whether someone should have been more careful. The standard of care is not that of a particularly meticulous and conscientious solicitor. The test is what a reasonably competent practitioner would do having regard to the standards normally adopted in the profession…
…there is plainly no duty upon solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lack capacity. Such a requirement would be insulting and unnecessary…
- [27]The proposition in Friesen that the solicitor must satisfy himself that true testamentary capacity exists is at odds with the views expressed in Fradgley, Till, and Hill. With respect, the view taken in Fradgley seems to be preferable view. Whether that be correct, it is appropriate to adopt it for the assessment of the conduct of a solicitor in this State.
- [28]Propositions which may be drawn from these authorities, relevant for present purposes, are as follows:
- (a)A client may have the capacity to give instructions, but lack testamentary capacity;[15]
- (b)A solicitor must be reasonably satisfied of the mental capacity of the client to give instructions in order to act on the instructions;
- (c)If so satisfied, the solicitor must act on the instructions of a client to prepare a new will, even if the solicitor has some doubt about the client’s testamentary capacity, unless it is (or becomes) patently clear that a client does not have testamentary capacity;
- (d)The duties of the solicitor will vary with the circumstances and situation of the testator;
- (e)Where the client’s condition is such as to raise a real question about testamentary capacity, the solicitor must make some further enquiries, at least of the client, directed to the client’s testamentary capacity; but unless incapacity is established, the solicitor is required to act on the client’s instructions and prepare the will;
- (f)Circumstances which may give rise to the duty to enquire include advanced age, ill health, irrational behaviour, disorientation, clear signs of lack of understanding, or plainly defective recollection of assets or family members;
- (g)Age itself is not sufficient to give rise to the duty to enquire, unless its effects suggest some lack of testamentary capacity.
- (a)
- [29]A number of matters are relevant in considering whether the applicant’s allegations that the respondent failed to take sufficient steps to assess Mrs Mazucco’s capacity are made out. The respondent had known Mrs Mazucco for many years, and had previously prepared a will and a power of attorney for her, though he had not had contact with her for a number of years. In his dealings with her in February 2018, at times he spoke to her in Italian (Mr Schumann noted that her difficulties with language comprehension, word finding and fluency were affected by the fact that English was her second language). He spoke with her on the telephone on 9 February for about 15 minutes; attended at her home to take instructions on 10 February for about 90 minutes; and spent a lengthy period of time with her on 12 February (the file note records an attendance of four and a half hours), collecting her from her home, driving her to the city, visiting a bank, driving her back to his office, and spending time with her there. The concern she expressed on 9 February was in relation to her son and money transactions. That concern was again discussed the following day. The respondent noted that the concern was unsubstantiated. The concern may have lacked a basis, and may indeed have been irrational, but there is nothing to suggest that the respondent should have known either. Indeed, he did not know it to be untrue. An attempt to examine bank accounts was unsuccessful. The respondent asked Mrs Mazucco a number of questions relevant to her mental capacity, and her understanding of the will and EPOA, which she answered reasonably satisfactorily. He made a recommendation in relation to the EPOA, which seemed a rational response to her concern, and which she accepted. The only change to the dispositions in the will was to make a relatively modest gift to her granddaughter, for which she gave an appropriate explanation; and herself decided on the amount after some discussion with the respondent. Her decision to appoint the respondent as executor did not (and does not) indicate anything to raise concerns about her capacity in the circumstances. Overall, the respondent stated that he “had no reason to think that there was any issue with her capacity throughout”.
- [30]The report from Mr Schumann does not go so far as to say that anything was likely to be apparent which should have raised concerns in a person who is not a health practitioner about Mrs Mazucco’s capacity to execute the documents. His conclusions were reached after relatively extensive professional testing.
- [31]Mrs Mazucco’s age itself is not sufficient to raise concern about capacity. There is no suggestion that (apart from dementia) she was unwell. She lived independently. She approached the respondent independently; and identified herself what changes she wanted to the documents. There is no suggestion that she was “enfeebled by old age”, and nothing has been identified which should have made apparent to the respondent that there was a concern about her capacity by reason of her age.
- [32]The respondent also placed some reliance on the preparation by another solicitor of another EPOA and its execution on 15 February 2018. It was submitted that the presumption of regularity should be relied upon, and it should be assumed that on this occasion, proper enquiries were made to establish Mrs Mazucco’s capacity to execute the document, and her knowledge and understanding of its effect. It would follow that she was not obviously lacking in capacity. There appears to be force in this submission. It provides some additional support for the conclusion that the incapacity of Mrs Mazucco may well not have been apparent to the respondent.
- [33]In light of the evidence, the applicant’s case appeared to come to a failure to ask open ended questions to establish the capacity of Mrs Mazucco (and her understanding of the advice the respondent gave her).[16]
- [34]The respondent’s evidence is that he asked Mrs Mazucco to explain her understanding of a will and a power of attorney, and to explain the difference between them. As to the will, she said that it was to distribute her assets after her death; and the EPOA was to give someone else responsibility to make decisions during her lifetime, if necessary, in relation to her finances and health care. The question in fact rolls three questions into one; and is therefore more complex than a separate question on each point would be. However, for each element, the question is open ended. It was a question directed to establishing Mrs Mazucco’s understanding of each document. The answer was responsive and clear. Mrs Mazucco was thus able to give, apparently unprompted, an explanation of the nature of a will and an EPOA, and the matters which the respondent had explained to her. That would demonstrate an understanding of these matters, and by implication, the capacity to understand the nature of the documents, and to absorb and understand what was explained. The evidence does not demonstrate that further open-ended questions needed to be asked to demonstrate Mrs Mazucco’s capacity to make the will and the EPOA.
- [35]Some reliance was also placed on the Guidance Statement relating to the witnessing of an EPOA. It was not suggested that this was irrelevant on the ground that the respondent was not himself a witness for the execution of this document. Rather the respondent’s. case was that, while it was good practice to follow the Guidance Statement, not every departure from it amounted to unsatisfactory professional conduct; and the departures in the present case did not warrant such a finding.
- [36]This submission finds some support in the Guidance Statement itself. When identifying the issue it addresses, it refers to challenges which arise when there are doubts or questions about a person’s capacity; and suggests steps which should prudently be taken to avoid disciplinary or other consequences. It notes a decision by this Tribunal in which it was observed that the steps which should be taken in a particular case will vary with the circumstances of the case.[17] The Guidance Statement then suggested that solicitors would place themselves at considerable risk of disciplinary sanction if they did not follow the guidelines “where there is any apparently real question about the principal’s capacity”. The difficulty with the applicant’s reliance on the Guidance Statement in the present case is that the applicant has not demonstrated that, from what was known to the respondent, such a question arose.
- [37]The applicant relied upon the fact that the respondent asked some questions of Mrs Mazucco relevant to her capacity to make the documents, as indicating that the respondent had concerns about that matter.[18] However the respondent gave evidence that he did not have any particular concerns about Mrs Mazucco’s capacity. He considered it appropriate to conduct some form of capacity assessment because of her advancing age, and it had been a period of years since he had seen her, and because of the nature of the instructions. These matters are not sufficient to demonstrate that there was a real question about the capacity of Mrs Mazucco to execute the documents.[19] They simply reflect a recognition by the respondent that, with the passage of time, he should not assume that he could rely on his past knowledge of her mental capacity.
- [38]Reference was made to s 41 of the POA Act. Notwithstanding its heading, the section as it stood in February 2018 referred to matters relating to the principal’s knowledge and understanding of the EPOA, rather than to underlying capacity.
- [39]So far as the applicant alleges that the respondent failed to take sufficient steps to establish the capacity of Mrs Mazucco to execute the documents, that allegation is not made out.
- [40]Failure to take any steps to establish understanding and capacity relating to the new documents: knowledge and understanding
- [41]Particular 1.18(b) of the discipline application alleges that the respondent failed to take any steps to satisfy himself that Mrs Mazucco fully understood the new will and the legal effect of the EPOA; and that she was capable of executing those documents. However the applicant’s written submissions in support of this particular deal only with the issue of capacity. In support of particular 1.18(c) the applicant submitted that the respondent’s file did not record that he took any steps to satisfy himself that Mrs Mazucco fully understood the legal effect of the EPOA. Whether or not the submission is correct, it goes only to whether a record was kept. The respondent’s evidence, referred to earlier, shows that he took some steps to satisfy himself about this. Complaints about the recording of matters by the respondent will be dealt with separately.
- [42]Specifically in relation to the will, Mrs Mazucco told the respondent that she wanted to change her will. That demonstrates some understanding of the nature of a will. She also appeared to understand the significance of the appointment of an executor.
- [43]The documents which Mrs Mazucco executed in February 2018 were “new” only in the sense that the will was changed to include a legacy to her granddaughter; the respondent was appointed executor; and he was given a power to charge for his services; and he was appointed as attorney jointly with Dr Mazucco. Because Mrs Mazucco requested that there be a legacy to the granddaughter, it would seem pointless to ask a question to establish that she understood that the will would have that effect. The same may be said of the change of the executor. The respondent had informed Mrs Mazucco that he would charge for his services, and she responded that she was happy with that. It is difficult to attribute significance to the failure to ask further questions about this aspect of the will.
- [44]Particular 1.18(f) alleges that the respondent failed to ensure that Mrs Mazucco was able to satisfy the requirements of s 41(1) and (2) of the POA Act. The written submission contended that there was no evidence on the file that the respondent had consulted or was aware of the Guidance Statement; nor “whether the respondent was capable of satisfying the requirements” of s 41. This was apparently intended to refer to Mrs Mazucco. On one reading, the submission appears to be directed to the adequacy of the recording of matters on the respondent’s file. That position was confirmed in oral submissions.[20] The complaint therefore, was ultimately that the respondent failed adequately to record what questions were asked, and the answers given. That issue will be dealt with later in these reasons.
- [45]Reference has already been made to the question which the respondent asked Mrs Mazucco about her understanding of a will and a power of attorney, and to explain the difference between them, and her answer so far as it went to her capacity to execute the documents. The answer did much to show knowledge and understanding of the nature of the documents.
- [46]The respondent also gave evidence that he and Mrs Mazucco discussed various considerations relevant to the making of a will, and periodically he asked her whether she understood particular matters. She confirmed that she did, and was able to explain the concepts they discussed when asked to do so. She was attentive throughout the discussion. While a question which asks a person whether the person understands something is not an open ended question, nevertheless the evidence indicates that the responses given went beyond a simple affirmative answer, and demonstrated without prompting Mrs Mazucco’s understanding of the matter under discussion.
- [47]In summary, the material does not establish that the respondent failed to take adequate steps to establish that Mrs Mazucco had knowledge and understanding of the new documents; rather the contrary.
Adequacy of respondent’s file records
- [48]The respondent made notes of his discussions with Mrs Mazucco. They are incomplete; and they are abbreviated and difficult to decipher. Nevertheless, they provide some indication of much that was discussed between Mrs Mazucco and the respondent; and generally support his evidence.
- [49]With regard to the EPOA, the applicant relied upon the provisions of the Guidance Statement for the contention that the inadequacy of the notes demonstrates that the conduct of the respondent fell short of the standard to be expected of a solicitor. As discussed, it has not been shown that the Guidance Note is directed to a case like the present case. The fact that the respondent’s notes do not accord with the statement does not provide a basis for finding that, in the circumstances of this case, the respondent engaged in unsatisfactory professional conduct.
- [50]A Guidance Note published by the Queensland Law Society Ethics Centre became exhibit 4. It recommends that, where a will is disputed, the solicitor who prepared the will provide a statement to all interested parties, and identifies topics that the statement should deal with. It was relied upon as establishing (apparently by implication) a standard to be complied with when taking instructions for making a will.[21]
- [51]The difficulty with the applicant’s submission is that the Guidance Note says nothing about taking notes at the time when instructions are taken. It identifies what a solicitor should do if a will the solicitor has prepared is seriously contested in probate proceedings. It is directed primarily to the extent to which the solicitor is bound by the confidentiality obligation; and identifies in what circumstance the solicitor should provide information to others and the nature of that information. It does not purport to identify a standard of conduct for solicitors when taking instructions to make a will, and in particular, what records the solicitor should make at that time. The applicant did not rely on case law as identifying a standard by reference to which the respondent’s conduct should be assessed. It will be recalled that Mullins J pointed out the difference between the task facing a solicitor preparing a will for a client, and the inquiries undertaken for the purpose of proving a will in solemn form.[22] It is not possible to treat the Guidance Note as a standard for the conduct of a solicitor taking instructions to prepare a will.
- [52]The applicant has not established that the applicant’s notes of his dealings with Mrs Mazucco are such that his conduct has fallen below the standard to be expected of a solicitor.
Conclusion on Charge 1
- [53]The applicant has failed to establish that the conduct of the respondent fell short of the standard to be expected of a solicitor. The charge is not made out.
The Hunter estate charge
- [54]The respondent was retained to act in the administration of Mrs Hunter’s estate. The allegations in the discipline application were admitted by the respondent. The following matters were thus admitted. The engagement had commenced by July 2011. Final distributions of the estate (or what in truth were wrongly thought to be final distributions) were made on 27 November 2012. The assets of the estate included units in what came to be known as the Charter Hall Direct PFA Fund. The respondent’s client file contained Unitholder Investment Statements for these units dated 31 December 2014, 30 June 2015, 30 June 2016, 31 December 2016, and 28 July 2017. It also contained a quarterly report dated December 2015, which included a notice that investors might participate in a semi-annual withdrawal offer closing on 26 February 2016. The file also included a letter from Charter Hall dated 27 March 2017 stating that monthly distributions could not be paid because valid bank account details had not been provided; and enclosing a form to be completed and returned, setting out that information. The obvious inference is that the respondent’s legal practice received these documents shortly after the dates they bear.
- [55]On 24 April 2018, one of the executors, Mr Hunter, received an email from the respondent’s firm, advising that units in the fund, not previously available for redemption, could be redeemed up to 27 April 2018. This was the first communication from the respondent’s firm to the executors since 2012.
- [56]The respondent admitted that he failed to advise the executors about the correspondence received by his office referred to earlier; he failed to advise them of the distributions and to seek instructions about the investment in the Fund; and he failed to give advice and seek instructions about redeeming or withdrawing the investments. This resulted in undue delay in the finalisation of the estate.
- [57]The applicant contended, and the respondent accepted, that the conduct of the respondent the subject of Charge 2 should be characterised as unsatisfactory professional conduct. Mr Hunter, who appeared at the hearing as a complainant seeking compensation, did not suggest otherwise. The respondent’s failure to attend properly to this matter extended over a number of years, with fresh correspondence obviously arriving on a number of occasions. That is quite concerning. However the hearing has been conducted on the basis that this conduct should be regarded as unsatisfactory professional conduct. In those circumstances, and not without reservation, the conduct will be so characterised.
- [58]The applicant contended that, in relation to Charge 2, the respondent should be publicly reprimanded; he should be ordered to pay a penalty of between $3,000 and $5,000; and that he should be ordered to complete the Queensland Law Society’s ethics course within 12 months of the order.
- [59]The applicant relied on previous disciplinary proceedings involving the respondent.[23] In 2002 in the Solicitors Complaints Tribunal, the respondent admitted to six charges, and his conduct was found to amount to professional misconduct. Five of the charges related to trust account matters; and the sixth related to a failure to maintain reasonable standards of competence and diligence. The respondent was ordered to pay a penalty of $10,000, and to complete the next available trust accounts module; and he was subjected to a six monthly reporting requirement for a period of three years and three months.
- [60]In 2007, the respondent was the subject of three charges. One was for the depositing of funds in his general account, when they should have been deposited in his trust account. Two related to the transfer of monies from the trust account to the general account, when that should not have occurred. The fault was that of staff, without the respondent’s direct involvement. There was no question of dishonest conduct, or financial loss. The conduct was characterised as unsatisfactory professional conduct. The respondent was publicly reprimanded, and ordered to pay a sum of $1,500. The Tribunal noted that the respondent should have supervised his staff more astutely, and should have had systems in place to ensure the irregularities did not occur.
- [61]In 2017 the respondent faced charges before this Tribunal of acting contrary to instructions; that his conduct in the management of a matter fell short of the standard of competence and diligence to be expected of a solicitor; and of failing to provide a document on request. The respondent had been engaged to act on behalf of an executor. He was instructed to arrange for the transfer of the title to some shares, but he in fact caused the shares to be sold. That was the subject of the first charge. His failure to explain what he was doing, and the documents which were to be signed, as well as the tax implications of the transaction, was the subject of the second charge. His retainer was terminated. His delay (for about six months) in providing documents requested by the new solicitors for the executor was the subject of the third charge. The conduct was characterised as unsatisfactory professional conduct; and the respondent was ordered to pay a fine of $1,000 and was publicly reprimanded.
- [62]The respondent submitted that appropriate orders in the present case were that he be publicly reprimanded; and that he be ordered to pay a pecuniary penalty of $1,000.
- [63]The respondent gave evidence of his remorse for his conduct. He said he did not appreciate the significance of the Charter Hall correspondence, and that it related to an asset of the estate, until April 2018. He referred to difficulties in his marriage, a separation, and the fact that he provided support to his ex-wife who was experiencing difficulties with mental health, until they divorced in December 2018. In December 2017 his own health deteriorated, and he was diagnosed with multiple myeloma. These things impacted on his attention to work. He also instructed his solicitors to refund the fees he charged in 2018, which appear to relate to the finalisation of the estate at about that time.
- [64]The respondent’s partner in his current law practice provided a favourable reference.
- [65]The respondent’s submissions also relied upon his co-operation with the applicant in relation to Charge 2. It was said that the Charter Hall investment earnt income and was realised at a profit.
- [66]The respondent’s submissions relied upon the decision in Legal Services Commissioner v Boundy.[24] In that case, the practitioner was engaged to assist in the finalisation of an estate, which was not without its complexities. While the matter progressed, it did so slowly, often with delays of some months for which there was no satisfactory explanation. It was in that context that the Tribunal said:[25]
It is not in issue that whilst the respondent took some steps to progress the matter he nevertheless failed to meet reasonable standards of competence and diligence because there was, amongst other things, undue delay in the administration of the estate. Indeed, as at March 2015, some nine and a- half years after he was first retained by his client, the estate had still not been finalised.
- [67]Like the present case, there was evidence of remorse, co-operation with the applicant, and health issues. Other work pressures seem to be more fully identified in that case. There was also a failure to provide an itemised bill on request. There was no reference to earlier disciplinary issues.
- [68]The respondent also referred to Legal Services Commissioner v Cruise.[26] The conduct of the practitioner in that case involved delays in the conduct of litigation, which, while of shorter periods, were in some cases significant. This practitioner also had health issues. There had been no previous adverse findings by a disciplinary body. The practitioner was publicly reprimanded, but no pecuniary penalty order was made. The steps the practitioner took to avoid any repetition of the conduct were significant in the decision not to impose a pecuniary penalty.[27]
- [69]It was also submitted that previous disciplinary matters involving the respondent were relevant only if they related to similar conduct.
- [70]There are some features of the conduct which is the subject of Charge 2 which should be noted. The documents were received over a substantial period of time. It seems likely that documents relating to the Charter Hall investment were received on about seven occasions, before the respondent recognised that the estate had not been finalised. The finalisation of the estate was delayed for about six years.
- [71]Moreover, this conduct occurred against a background of other failures on the part of the respondent which were the subject of earlier disciplinary proceedings. To varying degrees, the earlier failures are different in character to the present conduct; but a number relate to the failure of the respondent to conduct his practice with proper care, and in that sense are of some relevance.
- [72]The mitigating factors should be acknowledged. They include the respondent’s remorse and co-operation. Health and other personal matters referred to by the respondent are no doubt relevant, but cannot be considered as an adequate explanation for failures which occurred on several occasions, over a substantial period of time. While his refund of fees is to his credit, there is some prospect that the work could have been done more efficiently and with less cost, had the respondent attended to this investment at an earlier time.
- [73]Orders are made against a practitioner for the purpose of protecting the public, and not as a punishment. However deterrence of misconduct by others, and by the respondent himself, are aspects of that protection. The conduct the subject of Charge 2 has occurred, notwithstanding earlier orders made against the respondent. Practitioners need to realise that repeated failures to achieve the standards of competence and diligence expected of the profession will result in more severe orders. Given that the applicant has not sought more, the respondent will be ordered to pay a penalty of $5,000.
- [74]The case is an appropriate one for a public reprimand, particularly in light of the period over which the conduct occurred. This conclusion is also supported by previous lapses on the part of the respondent.
- [75]Mr Perrett, the solicitor practitioner panel member for this matter, has provided some information about courses offered by the Queensland Law Society. The Practice Management Course is primarily intended for new practitioners transitioning to a principal’s certificate. One unit of the course is a time management component, of potential relevance to the respondent’s position. That, and a reflective essay from the respondent at the end of the course, might be of benefit to the respondent. Alternatively, a mentor could be engaged, at the respondent’s expense.
- [76]While these suggestions have merit, in the end, the failure was a simple failure to pay attention to communications received by the respondent’s office. It is not clear that the suggested options are appropriate to address such a failure. It is to be hoped that the findings made and the sanctions imposed in this application are sufficient to cause the respondent to avoid such failures in the future.
Mr Hunter’s request for compensation
- [77]Mr Hunter has requested compensation of $7,500, being the maximum amount which may be the subject of such an order. The basis for this claim is not well articulated. It appears to relate to fees charged by the respondent, and fees which Mr Hunter incurred when he engaged another lawyer apparently to “pursue the matter” when he was no longer able to receive satisfactory service from the respondent.
- [78]For the respondent, it was submitted that, for a compensation order to be made, there must be a causal connection between the conduct of the respondent which is the subject of the charge, and the loss for which compensation is sought. Much of the conduct addressed by Mr Hunter is not within the charge. The investment was realised and the proceeds distributed in 2018. Mr Hunter has claimed for the fees he incurred when he engaged lawyers at a later time. The material does not demonstrate a relationship between the incurring of these fees and the charged conduct. The respondent has refunded half of the fees he charged for his work in 2018 to the other executor, Ms Hargreaves, and he has attempted to refund the other half to Mr Turner. The investment appreciated in value.
- [79]The material demonstrates that the respondent acted promptly to redeem the investment, once he realised that this had not happened. He became aware of the position from an email of 11 April 2018. By 24 April 2018, he obtained instructions and submitted a request for the redemption of the investment. The investment was not redeemed until 28 June 2018, but that seems to have been the product of the conduct of the fund manager. The respondent received the funds on about 6 July. The respondent issued a bill to Mr Turner and Ms Hargreaves, but there was some dispute with Mr Turner about the respondent’s fees. On 24 July, $15,000 was paid to Ms Hargreaves.
- [80]As the respondent submitted, the material also demonstrates that the investment was profitable. It grew in value from $22,010 in 2014 to $30,770.60 in June 2018. An additional amount of $13,298.13 was also received, apparently as income from the investment.
- [81]The invoices on which Mr Hunter relied for his claim for fees paid to another solicitor cover three consecutive periods, commencing on 16 February 2018 and concluding on 8 October 2019. Part of the period is before Mr Hunter became aware of the failure to finalise the estate. The work to which the invoices relate is described as “General Affairs”. The invoices do not further describe the nature of the work for which fees were charged. Although some of the items make some reference to the respondent, they do not identify the work that was done, and any connection to the charged conduct. It is clear that there was some dispute between the respondent and Mr Hunter about fees, but that is not the subject of the charge in the discipline application. It is not possible to relate any of the work identified in the invoices to the conduct specified in the discipline application.
- [82]As was submitted for the respondent, the Tribunal’s power to make a compensation order is specified in s 464 of the LP Act. It has the power to make an order that a law practice pay a complainant an amount by way of compensation for pecuniary loss suffered because of conduct that has been found to be, relevantly, unsatisfactory professional conduct of an Australian legal practitioner involved in the relevant practice. The material does not demonstrate that the fees for which Mr Turner seeks compensation were incurred because of the conduct of the respondent which has been found to be unsatisfactory professional conduct.
- [83]Accordingly no compensation order will be made in favour of Mr Hunter.
Costs
- [84]There is no dispute as to an order for costs in favour of the applicant, insofar as Charge 2 is concerned. The respondent submitted that, if the respondent successfully contested Charge 1, then there were exceptional circumstances which would warrant an order that the respondent only pay a proportion of the applicant’s costs. The facts said to give rise to exceptional circumstances were that Charge 1 was the only contested charge; it occupied the bulk of the first day of the hearing; and the respondent’s co-operation in relation to Charge 2 meant that the costs relating to that charge were likely to be minimal.
- [85]In support of this submission, reference was made to the judgment of Bond JA in Toohey v Golder & Ors (No 2).[28] There his Honour cited passages from his earlier judgment in Speets Invetment Pty Ltd v Bencol Pty Ltd (No 2)[29] for a statement of relevant principles. It is clear that the legal context was quite different to the present context. His Honour commenced with reference to the general rule that “costs of a proceeding are in the discretion of the Court but follow the event unless the court orders otherwise”. His Honour then went on to identify, by citing a passage from the judgment of McHugh J in Oshlack v Richmond River Council,[30] the reasons of fairness and policy which underpin the rule. Fairness would require the unsuccessful party to bear the costs of unsuccessful litigation, including the costs of the successful party. As a matter of policy, a benefit of the rule is that it should make parties contemplate the financial expense involved before commencing litigation, thus controlling the burden imposed on the justice system. His Honour noted that success in this context meant success on issues, or “units of litigation”. A lack of success on some issues might not be sufficient to deprive a successful party of its costs, but where a particular part of a proceeding is definable and severable, and has occupied a significant part of the proceedings, that might be regarded as special or exceptional circumstances, warranting depriving a successful party of its costs, and a different costs order for that part.
- [86]The present context is quite different. Section 462 includes the following:
462 Costs
- (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.
- (2)A disciplinary body may make an order requiring a person whom it has found not to have engaged in prescribed conduct to pay costs, including costs of the commissioner and the complainant, if the disciplinary body is satisfied that—
- (a)the sole or principal reason why the proceeding was started in the disciplinary body was the person’s failure to cooperate with the commissioner or a relevant regulatory authority; or
- (b)there is some other reason warranting the making of an order in the particular circumstances.
- (3)Without limiting subsection (2), a disciplinary body that makes an order under section 460 may make a further order requiring an Australian legal practitioner, in relation to whom the order under section 460 relates, to pay costs in relation to the order.
- (4)A disciplinary body may make an order requiring the commissioner to pay costs, but may do so only if it is satisfied that—
- (a)the Australian legal practitioner or law practice employee has not engaged in prescribed conduct; and
- (b)the body considers that special circumstances warrant the making of the order.
- (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.
- (7)The only other circumstances in which the tribunal exercising its jurisdiction in relation to a disciplinary application may award costs are the circumstances stated in the QCAT Act, section 103 or 104.
Note—
See the QCAT Act, sections 106 to 109 for provisions about the tribunal awarding costs.
- (8)In this section—
engaged in prescribed conduct means engaged in unsatisfactory professional conduct or professional misconduct, or engaged in misconduct in relation to a relevant practice, as mentioned in section 456(1) or 458(1).
- [87]There is plainly a very significant difference in the policy approach which underlies s 462, and that which underlies the general rule. The starting point is s 462, and not the general discretion which is usually available to courts. Where the practitioner is found guilty of prescribed conduct, there is a statutory direction to award costs to the Commissioner (with a limited exception). Even if the practitioner is not found to have engaged in prescribed conduct, there may be an order for costs against the practitioner; and an order in favour of the practitioner in such a case is not the usual order – it is only made in special circumstances. The power to make a costs order is thus constrained by the language of the section, and is generally protective of the Commissioner. It is not possible to reason by analogy from the approach taken in courts applying the general rule as to costs, to the making of orders for costs in a discipline application.
- [88]Whatever view might have been taken of a situation such as the present one, where the charges in the discipline application are completely unrelated and prescribed conduct is found on one charge but not the other, there is significant authority which it is difficult to depart from. In Baker v Legal Services Commissioner[31] the Court was dealing with s 286 of the Legal Profession Act 2004, the terms of which are virtually identical with s 462 of the current Act. The practitioner contended that there ought to have been an apportionment of the costs of the proceedings having regard to the Commissioner’s failure on some of the charges decided by the Tribunal, and his withdrawal or failure to pursue others. McPherson JA said:
- [55]It was submitted on behalf of the practitioner that the Tribunal was wrong in construing s. 286(1) as conferring no discretion but to order costs against a practitioner found guilty within the meaning of s. 286(7), except where satisfied that “exceptional circumstances" exist. By reference to s. 286(5), it was submitted that there is discretion to apportion the quantum of costs where, as here, each party has had a measure of success. Any other interpretation could, it was said, lead to absurd results; for example, a practitioner might be successful in defeating all but a single charge against him, which was relatively minor in the overall context of the time and effort expended on it in comparison to all the other charges in which the practitioner was successful. Yet he would nevertheless be bound to pay all the costs of the whole proceedings even though only one or a few charges might have been proved.
- [56]In my view, however, the criterion adopted in s. 286(1) is whether the practitioner has been found guilty of one or more of the forms of misconduct specified in s. 286(7). If he has, then an order requiring him to pay costs must be made against him unless the Tribunal is satisfied that “exceptional circumstances" exist. It is true that s. 286(1) refers simply to “costs" and not to all the costs of the proceedings; but the latter is I consider its primary meaning in this context. Section 286(1) is not designed to confer or preserve the broad discretion over costs commonly found in statutory provisions conferring power to award costs. If it had been intended to do so, it could and would have been expressed to that effect. On the contrary, the mandatory rule imposed by s. 286(1) is designed to follow unless the Tribunal is satisfied that exceptional circumstances exist that call for some other order to be made, either generally or in terms of an amount under s. 286(5)(a) or (b) or against the Commissioner under s. 286(4).
- [57]The present was not such a case. 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.
- [89]The Commissioner’s absence of success on some charges was expressly held not to constitute exceptional circumstances warranting a departure from the command in s 462(1) to order costs in his favour. Although there was some similarity between a number of the charges dealt with in Baker (they generally related to dishonest charging), that circumstance was not relied upon for the conclusion reached in that case.
- [90]In the circumstances, there is no reason to refuse the applicant costs of the proceedings.
- [91]So far as a complainant’s costs are concerned, there is some difficulty with the legislative provisions in a case where a complainant’s complaint does not result in a finding of prescribed conduct, but there is such a finding in respect of another complainant’s complaint. The answer may lie in the limited right of a complainant to participate in the hearing of a discipline application.[32] It is unnecessary to pursue that question in the present case. Mr Rodgers who appeared on behalf of Dr Mazucco sought his costs in the event that there was a finding of unsatisfactory professional conduct or professional misconduct based on his client’s complaint; but that otherwise there should be no order for costs in favour of his client.[33] Accordingly, there will be no order for costs in favour of Dr Mazucco.
- [92]There is no question of costs in relation to Mr Hunter’s complaint.
Orders
- [93]The following orders are made:
- (a)Charge 1 is dismissed;
- (b)It is declared that the respondent’s conduct the subject of Charge 2 amounts to unsatisfactory professional conduct;
- (c)The respondent is publicly reprimanded in respect of the conduct the subject of Charge 2;
- (d)The respondent is ordered to pay a pecuniary penalty of $5,000; and
- (e)The respondent is to pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.
- (a)
Footnotes
[1]Briginshaw v Briginshaw (1938) 60 CLR 336.
[2]See T 1-39 to 1-40.
[3]Dal Pont, Law of Succession 3rd ed para [24.5].
[4][2011] QSC 355 at [28].
[5]Dal Pont, Law of Succession 3rd ed para [24.5].
[6]Dal Pont, Law of Succession 3rd ed para [24.6].
[7][1914] 31 OLR 287.
[8]At pp 318–319.
[9](1985) 33 Man. R. (2d) 98.
[10]At [77].
[11][2001] 2 NZLR 508.
[12]At [25]–[28].
[13][2011] EWHC 61 (QB); referred to in dal Pont at [24.5] when discussing mental capacity for the making of a will.
[14]It should be noted that, although this proposition relates to a client’s capacity to contract, the position appears to be similar in relation to wills: see Jackson and Powell on Professional Liability (9th ed) Thomson Reuters Westlaw Books online, consulted on 12 December 2022, where the following appears at para 11-233: “A solicitor is generally only required to consider and advise upon the issue of testamentary capacity when the circumstances are such as to raise doubts in the mind of a reasonably competent practitioner”.
[15]Implicit in the judgment of Mullins J in Fradgley; see also Public Trustee v Till.
[16]See the applicant’s submissions of 4 August 2022 para 14; the second affidavit of Mr Whitla at paras 5 and 6.
[17]Legal Services Commissioner v Penny [2015] QCAT 108, per Thomas J.
[18]See the applicant’s submissions of 31 March 2022 at 30(b) and para 5.4 of Mr Whitla’s report of 11 September 2019.
[19]See the respondent’s affidavit filed 25 November 2021, paras 34 and 35.
[20]See T1 1-52/15-35.
[21]See T1-52 to T1-54
[22]Fradgley at [28].
[23]See Legal Services Commissioner v Pennisi [2007] LPT 1; Legal Services Commissioner v Pennisi (No 2) [2017] QCAT 160.
[24][2018] QCAT 55.
[25]At [8].
[26][2019] QCAT 182.
[27]See at [112]–[114].
[28][2022] QSC 93.
[29][2021] QCA 39, at [11]–[17] per Bond J, Sofronoff P and Callaghan J agreeing.
[30](1998) 193 CLR 72 at 97; [67]–[68].
[31][2006] 2 Qd R 249; [2006] QCA 145.
[32]See s 656B of the LP Act.
[33]See transcript 4 October 2022, p 82.