Legal Services Commissioner v Mouritz
[2023] QCAT 325
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- Legal Services Commissioner v Mouritz[2023] QCAT 325
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Legal Services Commissioner v Mouritz[2023] QCAT 325
Legal Services Commissioner v Mouritz[2023] QCAT 325
[2023] QCAT 325
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
JUSTICE BROWN
Assisted by:
MS BRADFIELD
DR DANN
No OCR 164 of 2021
LEGAL SERVICES COMMISSIONER Applicant
v
MOURITZ, Sarah Jane Respondent
BRISBANE
30 JUNE 2023
JUDGMENT
- [1]BROWN J: The respondent, Sarah Jane Mouritz, has been charged by the applicant, the Legal Services Commissioner (LSC), with two disciplinary charges which are contained in the disciplinary application filed on 11 June 2021 as amended with leave on 26 April 2022. The first charge is that the respondent, without reasonable excuse, failed to comply with a written notice issued by the applicant pursuant section 443(3) of the Legal Profession Act 2007 (Qld) (LPA) arising out of a complaint made in relation to the respondent by Mr Terrence Nolan.
- [2]The second charge is that the respondent has failed to maintain reasonable standards of competence and diligence. In relation to that charge, it is alleged that between 28 September 2018 and 21 September 2020, the respondent failed to maintain reasonable standards of competence and diligence that a member of the public can expect from a competent legal practitioner when acting for her client, Mr Nolan, in relation to an employment matter. In particular, the respondent delayed initiating proceedings on behalf of Mr Nolan for those two years. The respondent also failed to respond to Mr Nolan’s repeated emails and telephone calls over a significant period.
- [3]The role and powers of the Tribunal in disciplinary proceedings such as this were conveniently summarised by the Tribunal in Legal Services Commissioner v Lawrence [2018] QCAT 206 (Lawrence) at paragraphs [5] to [13].
- [4]The respondent did not appear at the hearing. The applicant has filed affidavits of service demonstrating that the respondent was served with the relevant evidence and applications for today’s hearing, which have been relied upon by the applicant. The Tribunal is satisfied that the respondent has been served with all the relevant material and notice of today’s hearing. In those circumstances, the Tribunal acceded to the applicant’s request to proceed with the hearing ex parte.
- [5]The respondent was, at the relevant time, an Australian legal practitioner as defined in section 6(1) of the LPA. The Tribunal was advised today that she has not renewed her practising certificate for the current year. The respondent had Potts Lawyers acting for her for a brief period. They filed a notice for address for service on 18 February 2021. An order was subsequently made by this Tribunal allowing Potts Lawyers to withdraw on 22 February 2022. During the period in which Potts Lawyers were acting for the respondent, they agreed a statement of facts on her behalf in relation to charge 1 and provided a notice admitting the charge which was filed and, for convenience, has been made Exhibit 1 in this hearing. That was prior to the application being amended to add charge 2. The statement of agreed facts establishes the relevant facts relied upon in relation to charge 1. Those facts are supported by the affidavits of Ms Kellie Grainger and Mr Nolan, who was formerly the respondent’s client for whom she acted and in relation to which a complaint was made to the Legal Services Commission (Commission).
- [6]The Tribunal is satisfied that the respondent was given notice under section 437 of the LPA on 13 October 2020 requesting a full explanation of her conduct, the subject of Mr Nolan’s complaint, by 6 November 2020. A number of extensions were given to the respondent to respond to that notice following requests made by her, but no communication was received by her up until 27 November 2020, as a result of which, on 2 December 2020, a notice pursuant to section 443(1)(a)(i) of the LPA was sent to the respondent by email, which required her explanation by 16 December 2020. No response was received.
- [7]A further notice was sent on 7 January 2021 pursuant to section 443(3) of the LPA, which required her response by 21 January 2021. Other than receiving an automatic reply indicating that the office where the respondent was working at the time, Aquila Law, was closed until 11 January 2021, no response was received. Follow up emails were sent by the Commission to the respondent in order to afford her the opportunity to respond to the complaint, as well as to provide an explanation as to her failure to respond to the section 443 notices. The respondent again requested extensions of time in order to respond. The Commission provided those extensions. On 15 February 2021, the applicant emailed the respondent in reply to a request for an extension, advising it would defer referral of the matter to the applicant for a further week and that her response was expected by 22 February 2021.
- [8]The Commission received no response from the respondent by 22 February 2021. On 5 March 2021, the Commission determined to initiate an investigation in relation to the respondent’s conduct. Those matters are the subject of admission in the statement of agreed facts agreed by the respondent through her lawyers. The Tribunal is satisfied that the respondent failed to give the Commission an explanation for her conduct, and that there was no reasonable excuse for the non-compliance with the notice issued pursuant to section 443 of the LPA within the 14-day period specified in the notice.
- [9]As to charge 2, the evidence in support of the particulars of charge 2 is established to the requisite standard by the affidavit that has been provided by Mr Nolan and relied upon by the applicant in this hearing. What that affidavit shows is that on or about 2 August 2018, Mr Nolan engaged the respondent to act for him and send a letter of demand to his former employer. The initial work was promptly completed to his satisfaction. On 28 September 2018, the respondent met with Mr Nolan and his wife to discuss his options for pursuing a claim for unpaid wages. The respondent provided Mr Nolan with an updated scope of work and costs agreement for this further work on 10 October 2018. The cost agreement noted that the respondent would have day-to-day conduct of the matter and was the primary contact for all queries.
- [10]On 18 October 2018, the respondent advised Mr Nolan that she expected to file his claim in the Magistrates Court by Friday, 26 October 2018. That was not done. The affidavit of Mr Nolan then shows that Mr Nolan followed up with the respondent in December 2018. The claim had not been filed. On 13 December 2018, the respondent provided Mr Nolan with the draft statement of claim and told Mr Nolan she would effectively prioritise the finalisation of the affidavit and send it to him the following day. That did not occur. Mr Nolan again followed up on 18 December 2018 and the respondent replied the same day and advised that his affidavit was with someone else for checking, that she would put a rush on it and get it to him the same day. She did not send the affidavit to Mr Nolan on that day. Mr Nolan continued to follow up with the respondent in the way that has been set out in paragraph’s [18] to [35] of the applicant’s outline of submissions.
- [11]Ultimately, after Mr Nolan had followed up the respondent on multiple occasions and gone into the office on a number of occasions, he notified the respondent that he would complain to the Commission if the information he requested as to confirmation of filing of the claim was not forthcoming. Mr Nolan then complained to the Commission on 28 September 2020 regarding the respondent’s failure to progress the matter. Mr Nolan, as a result, terminated his retainer with the respondent and her firm by 7 January 2021 and filed the material himself. He subsequently engaged new legal representation on 17 March 2021, and by 8 September 2021, the respondent’s claim had been resolved by way of settlement.
- [12]The facts show that it took some nine months for Mr Nolan’s matter to be finalised after he filed the relevant material with the Federal Circuit Court of Australia and then engaged solicitors, compared to the two-year period in which Mr Nolan waited for the respondent to progress the matter without the proceedings being initiated. In those circumstances, the evidence demonstrates that the respondent failed to maintain reasonable standards of competence and diligence as particularised in charge 2. As is apparent from the affidavit of Ms Grainger in relation to charge 1, the respondent did not provide any explanation for the delay in progressing Mr Nolan’s matter or her failure to respond to Mr Nolan’s communications.
- [13]The Tribunal is therefore satisfied that the particulars of charge 2 have been established to the requisite standard and that the respondent failed to maintain reasonable standards of competence and diligence when acting for Mr Nolan in that she failed to:
- firstly, initiate proceedings after receiving instructions in October 2018 before the retainer was terminated by Mr Nolan in 2020, despite Mr Nolan’s persistence in trying to have the claim advanced; and
- secondly, respond to emails and telephone calls from Mr Nolan about the matter over a substantial period of time. The evidence shows Mr Nolan made sustained and diligent attempts to progress the matter. The respondent had given Mr Nolan various excuses and provided assurances that his affidavit and statement of claim and other documents would be finalised by specific dates. Those deadlines were not met. In other cases, the evidence shows that the respondent simply did not respond to Mr Nolan’s inquiries.
- [14]The Tribunal, having been satisfied that the conduct that has been particularised in relation to charges 1 and 2 has been established by the evidence, must consider what the proper characterisation is of the conduct. By section 456(1) of the LPA, the Tribunal’s power to make a disciplinary order is dependent on it being satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct. Sections 418 and 419 of the LPA set out the statutory definitions of unsatisfactory professional conduct and professional conduct respectively:
418 Meaning of unsatisfactory professional conduct
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
419 Meaning of professional misconduct
(1) Professional misconduct includes—
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
- [15]The conduct is to be assessed by reference to those provisions and the common law test. In Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, Justice Thomas articulated the test for professional misconduct as follows: “the test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency”.
- [16]In Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66, the Court of Appeal confirmed that the imposition of disciplinary orders under the LPA involves a two-stage test and that each stage involves a different inquiry. First, a finding of professional misconduct needs to be made. That finding is made by assessing the seriousness of the conduct, judged without reference to subsequent events and in particular the practitioner’s subsequent rehabilitation or reaffirmation of character. Secondly, the Tribunal determines the appropriate disciplinary order. Subsequent events are relevant in deciding upon the appropriate disciplinary order once a finding of professional misconduct is made.
- [17]In relation to charge 1, section 443(3) of the LPA states:
443 Powers for investigation
…
- If the practitioner fails to comply with requirement [to give a full explanation of the matter being investigated], the entity may give the practitioner written notice that, if the failure continues for a further 14 days after the notice is given, the practitioner may be dealt with for professional misconduct.
- [18]In the case of Legal Services Commissioner v Beatty [2019] QCAT 45 (Beatty), the respondent failed to respond to four notices issued pursuant to section 443 of the LPA. This was held to constitute professional misconduct. The Tribunal held that a fundamental incident of the privilege of legal practice is an obligation to obey the law. That includes the statutory requirements of the legislation by virtue of which a practitioner has the rights and privileges of practice, in this case, the LPA. By her repeated conduct in failing to respond to the applicant’s notices under section 443 of the LPA, the respondent displayed what can only be described as a profound indifference to her legal obligations under the LPA.
- [19]The tribunal in Beatty also referred to the respondent’s complete lack of engagement with the proceedings and said the only sensible inference available was that the respondent was indifferent to her status as a member of the legal profession. That is also the case here to a certain extent. While the respondent did engage for a period of time when she had lawyers in relation to charge 1, she otherwise failed to engage throughout the period of time where the applicant attempted to have her provide an explanation and comply with the section 443 notice in any way. She has also failed to engage with this Tribunal. Of course, in characterising the conduct concerned, the conduct with which this Tribunal is dealing is the failure to comply with section 443(3) of the LPA. The importance of compliance with provisions of the LPA and engagement with the regulator has been recognised by this Tribunal on a number of occasions.[1]
- [20]In the present case, other than requests for extensions, the respondent failed to engage or give any explanation for her conduct. The respondent’s conduct is a serious dereliction of her obligations as a legal professional, as was discussed by the Tribunal in Beatty. While in the case of Lawrence there were two charges of failing to respond to a section 443 notice, the respondent in the present case has failed to engage with her legal obligations similar to that in Lawrence and in Beatty. In these circumstances, her conduct is properly characterised as professional misconduct, consistent with section 443(3) of the LPA.
- [21]As to the respondent’s conduct in relation to charge 2, the respondent failed over a two-year period to execute the retainer on behalf of Mr Nolan in relation to his employment matter, despite his repeated attempts to have her progress the matter. The reason why there was a failure to advance this matter is without explanation, but the facts speak for themselves and clearly establish the charge. While the respondent did appear to engage in work on Mr Nolan’s behalf in drafting a statement of claim and an affidavit, she did not act with diligence and competence in ensuring that the claim was finalised and filed in an expeditious manner in order to progress the claim. Despite Mr Nolan showing the patience of a saint and giving her repeated opportunities to do so, she failed to progress his matter to such an extent that he had to end the retainer and get alternative solicitors who were able to resolve the matter within a period of months.
- [22]The Tribunal has had regard to the case of Legal Services Commissioner v Bussa [2005] LPT 5 referred to in the applicant’s submissions, where professional misconduct was found and which involved a delay of some 10 years. In the present case, given Mr Nolan was able to resolve the matter through the steps which he took after termination of the retainer, and there is evidence that the respondent did not engage in a complete lack of work nor completely failed to engage with Mr Nolan, the respondent’s conduct is, in the Tribunal’s view, properly characterised as unsatisfactory professional conduct. The respondent’s conduct did not prevent Mr Nolan from starting proceedings. While the conduct is analogous in some respects to the case of Lawrence where professional misconduct was found, the overall conduct is not regarded as being as serious.
- [23]As to the appropriate sanction orders, the orders of the Tribunal are shaped in the interest of the protection of the community from unsuitable practitioners. While the discretion conferred by section 456 of the LPA is a broad one, it is accepted that the primary role of these proceedings is protective in nature. As the Court of Appeal noted in Legal Services Commissioner v Madden (No 2) [2008] QCA 301 at [122]:
“Disciplinary penalties are not imposed as punishment but rather in the interests of the protection of the community from unsuitable practitioners. In determining what order the Court should now make, regard should primarily be had to the protection of the public and the maintenance of proper professional standards.”
- [24]Considerations of personal and general deterrence are relevant as part of the protection of the public.
- [25]In New South Wales Bar Association v Cummins [2001] NSWCA 284, the Court recognised four interrelated interests: clients of a practitioner must have confidence in their lawyers, fellow practitioners must be able to depend on the word and integrity of the practitioner, the judiciary must have confidence in persons who appear before them, and the public must have confidence in the legal profession. These factors reflect the requirement of the highest standards of integrity being required of the legal profession.
- [26]In the present case, the Tribunal has had regard to the authorities referred to by the applicant and in particular the decisions in Beatty and Lawrence. Other than the brief engagement with the Tribunal which has been outlined above, the respondent has failed to give any explanation of her conduct in relation to charge 1 or engage with the Tribunal at all. No evidence has been presented to the Tribunal in relation to any rehabilitation or explanation which might mitigate the conduct that was involved.
- [27]In the circumstances, the Tribunal is satisfied that the protection of the public demands that the respondent’s name be removed from the roll of practitioners as a result of her professional misconduct.
- [28]As to the charge of unsatisfactory conduct, the failure to engage with Mr Nolan is so interlinked with the conduct the subject of charge 1 that the Tribunal does not consider that any specific separate disciplinary order from that which is imposed in relation to charge 1 is warranted, and that the conduct in relation to charge 2, while unsatisfactory professional conduct, supports the appropriate sanction which has been imposed in respect of charge 1, namely that the tribunal recommends that the respondent’s name be removed from the local roll under section 456(2)(a) of the LPA.
- [29]There is no evidence that exceptional circumstances exist in this matter to justify any order other than that the respondent pay the applicant’s costs.
Compensation Claim
- [30]There is a further matter which was to be considered by the Tribunal today. That is the compensation claim made by Mr Nolan. In relation to that claim, Mr Nolan has appeared before the Tribunal today. The basis of the claim, as he has outlined it to this Tribunal and which is contained in his statement, is that he has not received the amount of $3,300 paid into the McKays trust account by him shortly after it was requested of him on 2 August 2018. He did, however, receive payment of the amount of $8,470, which was paid into the trust account by him subsequent to that date on 28 May 2020. That is relevantly the subject of a trust account statement. Neither McKays nor their successor, Aquila Lawyers, are a party to the present proceeding. As such, given that Mr Nolan seeks a return of monies from that firm, that is not within the scope of the present powers of the Tribunal under section 465 of the LPA.
- [31]The appropriate course to adopt is to adjourn that application for compensation to a date to be fixed to enable Mr Nolan to consider his position and to make inquires with the firm and Queensland Law Society in relation to that $3,300.
- [32]I therefore order that the application for compensation dated 11 November 2022 be adjourned to a date to be fixed.
- [33]In the circumstances, I will make the following orders:
- The respondent’s conduct the subject of charge 1 is declared to constitute professional misconduct.
- The respondent’s conduct the subject of charge 2 is declared to constitute unsatisfactory professional conduct.
- It is recommended that the respondent’s name be removed from the local roll under s 465(2)(a) of the Legal Profession Act 2007 (Qld).
- The respondent is to pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.
Footnotes
[1] In particular, see, eg, Legal Services Commissioner v Bui [2018] QCAT 424.