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Lavercombe v Legal Services Commissioner[2023] QCAT 356

Lavercombe v Legal Services Commissioner[2023] QCAT 356

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Lavercombe v Legal Services Commissioner [2023] QCAT 356

PARTIES:

JAMES MATTHEW LAVERCOMBE

(applicant)

v

LEGAL SERVICES COMMISSIONER

(respondent)

APPLICATION NO/S:

OCR081-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 September 2023

HEARING DATE:

4 September 2023

HEARD AT:

Brisbane

DECISION OF:

Williams J

ORDERS:

  1. The Respondent, Legal Services Commissioner, is granted leave to vary the discipline application in the form of the attachment to the Variation Application filed 23 March 2023 as replicated in Annexure A to the reasons for decision.
  2. The Tribunal will hear further from the parties as to the costs of the Variation Application and the costs of the hearings before Boddice J.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the applicant filed an application for review of the decision of the Legal Practice Committee (LPC) which found that he dealt directly with the client of another practitioner – where the respondent Legal Services Commissioner (LSC) seeks leave to vary the discipline application filed with the LPC – where the LSC submits that the Tribunal has power to grant leave for the discipline application to be amended – where the applicant submits that the Tribunal, exercising its discretion, could not be satisfied that a grant of leave would be fair and reasonable in all the circumstances – whether the Tribunal has power to grant leave to vary the discipline application in the course of a review proceeding after a decision by the LPC – whether, if the Tribunal does have power, it is reasonable in all the circumstances to grant leave to vary the discipline application

Legal Profession Act 2007 (Qld) s 452, s 453, s 455, s 468, s 469, s 470, s 599

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 21, s 24, s 64

Brakatselos v ABL Nominees Pty Ltd (2012) 36 VR 490

Lavercombe v Legal Services Commission [2023] QCAT 58

Lavercombe v Legal Services Commission [2023] QCAT (Unreported decision on the papers, Boddice J, 16 March 2023)

Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149

Legal Services Commissioner v Sewell [2023] QCAT 94

APPEARANCES & REPRESENTATION:

Applicant:

D de Jersey KC instructed by Legal Services Commissioner

Respondent:

A Morris KC instructed by Bartley Cohen

REASONS FOR DECISION

  1. [1]
    The Legal Services Commissioner (LSC) applies for leave to vary the Discipline Application[1] pursuant to s 455 of the Legal Profession Act 2007 (Qld) (LP Act) (Variation Application) in the form of the draft attached to the Variation Application.[2]
  2. [2]
    The Variation Application is made in proceedings commenced by the Applicant seeking review of the decision of the Legal Practice Committee of Queensland (the Committee) on 21 March 2022 (Review Proceeding).
  3. [3]
    Two issues arise for consideration:
    1. Does the Tribunal have power to grant leave to vary the Discipline Application in the course of the Review Proceeding?
    2. If the Tribunal does have power, is it reasonable in all of the circumstances to grant leave?

Power of the Tribunal to grant leave to vary the Discipline Application

  1. [4]
    The LSC contends that the Tribunal has power to grant leave to amend or vary the Discipline Application pursuant to ss 19(c), 20 and s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and s 455(1) of the LP Act.
  2. [5]
    Section 19(c) of the QCAT Act states:

“19 Exercising review jurisdiction generally

In exercising its review jurisdiction, the tribunal—

…

  1. has all the functions of the decision-maker for the reviewable decision being reviewed.”
  1. [6]
    Section 20 of the QCAT Act states:

“20 Review involves fresh hearing

  1. The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
  2. The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.”
  1. [7]
    Further, s 455(1) of the LP Act provides:

“455 Variation of discipline application

  1.   The disciplinary body may vary a discipline application by omitting allegations or including additional allegations, if the body is satisfied that it is reasonable to do so having regard to all the circumstances.”
  1. [8]
    Reliance is also placed on s 64(1) of the QCAT Act which states:

“64 Amending particular documents

  1. The tribunal may, at any time in a proceeding, make an order requiring that a relevant document be amended.”
  1. [9]
    Schedule 3 of the QCAT Act contends various definitions, including “proceeding” which is defined as follows:

“proceeding—

  1. generally—means a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal; or
  2. for chapter 7—see section 244.”
  1. [10]
    The LSC submits that:
    1. The Tribunal has power to grant leave to amend or vary which is exercisable at any stage during the hearing, whether at first instance or on appeal.
    2. The QCAT Act does not identify that the power is exercised differently or there are different considerations depending on whether the power is exercised before or after a discipline application has been heard and determined at first instance.
  1. [11]
    The LSC also relies on the decision of Hon Peter Lyons KC, Judicial Member, in Legal Services Commissioner v Sewell [2023] QCAT 94 in respect of the exercise of the power in s 455 of the LP Act. In that case, the issue arose in the course of the hearing after evidence was introduced that gave rise to a basis for the charges to be varied to allege dishonesty.
  2. [12]
    Relevantly, in granting leave the Tribunal stated:

“[7] Section 455 of the LP Act permits the Tribunal to vary a discipline application by, inter alia, including allegations, if the Tribunal is satisfied that it is reasonable to do so having regard to all the circumstances. It is necessary to have regard to whether varying the discipline application will affect the fairness of the proceeding.

  1. [8]
    The applicant submitted that the basis for the allegations of dishonesty to be made against the respondent is found in emails sent by the respondent; the respondent would have the opportunity to engage with the new allegations; and it is difficult to see how the respondent could provide a rational explanation for making the statements honestly, or to see any basis for making them.
  2. [9]
    The proposed amendments to the discipline application reflect matters apparent in the material already before the Tribunal. Generally, that material originates with the respondent. The factual basis for the new allegations is found in matters well known to the respondent, and she should be able to deal with them without the need for further investigation. Generally, where it becomes apparent that alleged misconduct of a practitioner involves dishonesty, that is something which the Tribunal should not ignore, at least when a practitioner will be given a fair opportunity to deal with the issue. In the present case, in view of the serious allegations which the respondent has made against a judicial officer and other members of the profession, there is additional reason to consider the issue of the practitioner’s honesty in making them. While it is true that the allegations raised by the variations to the application are raised at a late stage of the proceedings, that does not warrant a refusal of the application. There is no reason to think that the fairness of the proceeding will be affected. There is the additional consideration that the application is not opposed.”
  1. [13]
    Whilst in that case the application to vary was not opposed, the LSC relies upon the decision as an example where the power can be exercised at a late stage of the proceeding.
  2. [14]
    The LSC submits:
    1. The words of s 455 LP Act and s 64 of the QCAT Act expressly identify the considerations material to the exercise of the power.
    2. The power to amend exists regardless of the stage of the proceeding at which the application is made.
    3. The stage of the proceeding may, however, be a material consideration in the exercise of the discretion as to whether to grant leave.
  1. [15]
    The Applicant in the written submissions on leave to amend dated 31 March 2023 states:

“[6] It is also not disputed that the statutory power to amend a charge is conferred by section 455 of the [LP Act] and section 64 of the [QCAT Act]. Despite that, an obvious jurisdictional question arises, namely: How does the jurisdiction to amend at “any time in a proceeding”[3] operate in respect of a discipline application which:

  1. has been heard and finally determined at first instance; and
  2. is subject to a rehearing (in a different proceeding – the review proceeding) subject to section 20 of the QCAT Act?”
  1. [16]
    When pressed at the hearing, Counsel for the Applicant ultimately conceded that the Tribunal did have power to grant leave to amend a discipline application in a review proceeding.[4] However, the Applicant maintained the submission that the Tribunal should refuse the amendment as, in the exercise of the discretion, the Tribunal could not be satisfied that it was “fair” and “reasonable in all of the circumstances”.
  2. [17]
    The following factors support the conclusion that the Tribunal does have power:
    1. Section 19(a) of the QCAT Act provides that the review must be decided in accordance with both the QCAT Act and the enabling Act, being the LP Act.
    2. Section 19(c) provides that the Tribunal has all the functions of the decision- maker at first instance, including functions under the enabling Act, being the LP Act.
    3. Section 20(1) of the QCAT Act states the express purpose of a review is “to produce the correct and preferable decision” and s 20(2) provides for a fresh hearing on the merits.
    4. Section 64 of the QCAT Act expressly contemplates the Tribunal making an order in respect of an amendment to an application and there is no limitation on the timing of the amendment. The definition of “proceeding” supports the conclusion that this can be at first instance or in an appeal proceeding, which would include a review proceeding.[5]
    5. The language in s 455 of the LP Act is generic in that it refers to the “disciplinary body” so it applies to the Committee or the Tribunal depending on which body the discipline application is made to pursuant to s 452 of the LP Act. Section 455 expressly includes variations by omitting allegations and including additional allegations. Subsection (1), as supplemented by subsection (2) identifies what the Committee or Tribunal is to consider in deciding whether to vary a discipline application.
  1. Section 455(3) also supports a construction that s 455 gives a wide power to the Committee or Tribunal as it expressly identifies matters that do not preclude the inclusion of additional allegations. If the power was narrow and limited by more than being satisfied “that it is reasonable in all of the circumstances” these types of matters would not be permitted. Additional allegations, including allegations not the subject of complaint or investigation, broaden the scope of what could be incorporated into a discipline application and tends to support a wide construction of the power.
  1. [18]
    Accordingly, ss 19(c), 20 and 64 of the QCAT Act and s 455(1) of the LP Act provide the Tribunal with power to hear and determine an application for leave to amend or vary a discipline application, including in the course of a review proceeding commenced after a decision by the Committee.

Is it reasonable to grant leave in all of the circumstances?

  1. [19]
    Having found that the Tribunal has power, it is now necessary to consider whether the Tribunal should grant leave in all of the circumstances.
  2. [20]
    The following background circumstances are relevant:
  1. The LSC commenced proceedings against the Applicant and the Discipline Application was heard by the Committee.
  2. On 21 March 2022, the Committee found the Applicant had dealt directly with the client of another practitioner, in breach of r 33 of the Australian Solicitors’ Conduct Rules. The Committee found that the conduct amounted to unsatisfactory professional conduct and found the Applicant guilty of unsatisfactory professional conduct.
  3. On 14 April 2022, the Applicant filed the Review Proceeding.
  4. The parties agreed to the separate, and prior, determination of the issue of who was the client for the purpose of the charge in the Discipline Application.
  5. By reasons delivered on 2 March 2023, Justice Boddice, Judicial Member, determined that the preliminary question was answered as follows:
  1. Ms Conaghan was not a client of the other practitioner at the relevant time.
  2. The client of the practitioner, at all material times, was the Body Corporate.[6]
  1. Boddice J[7] heard further from the parties as to the appropriate form of orders and costs.
  2. On 16 March 2023, Boddice J gave further reasons for decision and made orders providing a timetable for the respondent to file and serve any application for leave to amend charge one and for the listing of the hearing of any application for leave.[8]
  1. [21]
    The Discipline Application states as follows:

“The Commissioner alleges that the following charges constitute unsatisfactory professional conduct:

Charge 1 – Dealing directly with another solicitor’s client

  1. On 6 April 2020, the respondent dealt directly with the client of another solicitor, in breach of rule 33 of the ASCR.

Particulars

…

  1. 1.3.
    At all material times, Ms Barb Conaghan was:
  1. a lot owner of Arila Lodge CTS 14237, located in Toowong;
  1. Secretary and Treasurer on the Committee of the Body Corporate for Arila Lodge CTS 14237 (Body Corporate) located in Toowong; and
  1. a client of the law practice Grace Lawyers in her capacity as Secretary of the Body Corporate, and of Mr Jason Carlson who had carriage of the Body Corporate’s matters in connection ongoing (sic) litigation with another lot owner, Ms Emma Thompson since 2016.
  1. 1.4.
    On 6 April 2020, the respondent dealt directly with Ms Conaghan in that he:
  1. left a ‘missed call’ on Ms Conaghan’s telephone at 10:20 am, which Ms Conaghan called back at 10:40 am; and
  2. engaged in a 27-minute conversation with Ms Conaghan, in which he sought to discuss matters directly relating to the District Court proceedings concerning his client and the Body Corporate (direct dealing).
  1. 1.5.
    The direct dealing with Ms Conaghan occurred while she was the client of Grace Lawyers and Mr Carlson.

…” [emphasis in original]

  1. [22]
    The Applicant’s position before the Committee was that the Body Corporate was the relevant client and Ms Conaghan was not a client of Grace Lawyers or Mr Carlson.
  2. [23]
    The Committee in reasons dated 21 March 2022[9] concluded in respect of this issue at pages 5 to 6 as follows:

“Whilst the Committee acknowledges that the particulars in this respect are somewhat vague, the Committee considers that at no point in time was the Respondent unaware of the case that he was required to answer. The Respondent has suffered no prejudice as a result of the Commission’s failure to succinctly plead that as Secretary and Treasurer on the committee of the Body Corporate, and as a person authorised to act on behalf of the committee in the litigation with Ms Thompson, Ms Conaghan was representative of the ‘client body corporate’ and was therefore a client, for the purposes of Rule 33, of the law practice and of Mr Carlson who had carriage of the Body Corporate’s matters in the ongoing litigation with Ms Emma Thompson since 2016.

The Committee does not consider that the charge should fail on the basis of the wording of the charge and particulars alone.”

  1. [24]
    Justice Boddice helpfully summarised the nature and circumstances of the contact as follows:[10]

“[9] The nature and circumstances of the contact the subject of the disciplinary application are not in dispute.

  1. [10]
    Those circumstances may be briefly summarised:
    1. There was litigation between the committee of a body corporate and one of that body corporate’s lot owners;
    2. Grace Lawyers represented the body corporate in that litigation, receiving instructions from that body corporate’s committee;
    3. Ms Conaghan was a lot owner, a member of the committee and the secretary of the body corporate;
    4. The applicant was an Australian legal practitioner acting on behalf of the lot owner in dispute with the body corporate;
    5. On 6 April 2020, the applicant telephoned Ms Conaghan, as well as sent her a text message, seeking to speak with her in relation to an extraordinary general meeting of the body corporate; and
    6. When Ms Conaghan returned the applicant’s call, they discussed issues in the proceeding between the body corporate and the lot owner.”
  1. [25]
    The Variation Application proposes variations which:
  1. Amend charge one to allege:
  1. That the client was the Body Corporate for Arila Lodge CTS 14237; and
  2. That Ms Conaghan was an agent for the Body Corporate when the Applicant dealt with Ms Conaghan on 6 April 2020.
  1. Add a new alternative charge two, alleging that Ms Conaghan was a representative of the Body Corporate when the Applicant dealt with Ms Conaghan on 6 April 2020.
  1. [26]
    The proposed variations also include some changes to the particulars, some of which are consequential on the proposed variations to the charges.
  2. [27]
    The proposed variations are set out in full at Annexure A to these reasons for decision.
  1. [28]
    The LSC contends that leave should be granted to vary the charges in accordance with the proposed draft as it is reasonable in all of the circumstances.
  2. [29]
    The LSC submits that the following factors are in favour of the grant of leave:
    1. It is not contested that Ms Conaghan was the secretary of the Body Corporate Committee when the applicant dealt with Ms Conaghan on 6 April 2020.
    2. What is contested, is the extent of Ms Conaghan’s authority, at that time, to instruct the Body Corporate’s solicitors.
    3. The proposed variations squarely raise the issue of Ms Conaghan’s authority so that the respondent has an opportunity to have the issue determined.
    4. The relevant evidence on this issue is identified on page five of the Committee’s reasons in the third and fourth paragraphs. The LSC relies on this evidence as to Ms Conaghan being the Body Corporate’s agent or representative to instruct the Body Corporate’s solicitors.
    5. The LSC does not propose to call further evidence in respect of this issue.
    6. If leave is granted, the applicant will have an opportunity to engage with the varied charges as the application for review is yet to be dealt with by the Tribunal.
  3. [30]
    The Applicant opposes the grant of leave for a number of reasons, including:
    1. The LSC was given the opportunity to articulate a different case in respect of this very issue before the Committee and expressly disavowed an intention to amend the charge.
    2. The LSC has not engaged with the criticisms nor provided evidence to support that the grant of leave is reasonable.
    3. Pursuant to s 455(1) of the LP Act the Tribunal must have regard to whether the application will “affect the fairness of the proceeding”.
    4. The proceeding before the Committee would in effect be a “dry run” allowing the hearing on an application for review to proceed on amended or additional charges with further evidence. It is submitted that this would be a dangerous precedent and contrary to the fairness required by s 455(2) of the LP Act.
  4. [31]
    The Applicant points to two additional matters relevant to the exercise of the discretion:
    1. Whether there is power to remit the matter to the Committee to hear the application for leave to amend or vary and to hear and determine the Discipline Application according to law.
    2. Whether the Tribunal can receive further evidence on a review proceeding pursuant to s 469 of the LP Act (which would arguably become necessary if the charge is varied).
  5. [32]
    The issue of remitter arises as the Applicant contends that if the Tribunal proceeds to consider a fresh hearing on the merits on a varied discipline application, then the Tribunal will be exceeding its review jurisdiction as it will not be reviewing the reviewable decision. That is, the Tribunal will no longer be answering the same question as was before the Committee.
  1. [33]
    The Applicant acknowledges that it may, in an appropriate case be open to remit a matter to the Committee to be heard and determined according to law. However, it is contended that there is no apparent power to order such a remittal, particularly in circumstances where it is contended that there is no arguable case to be remitted.
  2. [34]
    At the hearing, Counsel for the Applicant did concede that the Tribunal did have power to remit the Discipline Application to the Committee.[11] The Applicant submitted that if the Tribunal was minded to remit the Discipline Application to the Committee then the Tribunal should expressly order that the Committee be differently constituted.
  3. [35]
    The Applicant recognises that further evidence may be admitted where a review or appeal is to be conducted by way of rehearing such as here. However, it is contended that there is no express provision in the QCAT Act or the LP Act which permits further evidence on review except for the powers in ss 21(3) and 21(4) of the QCAT Act.
  4. [36]
    The Applicant contends that there are strong grounds to militate against a conclusion that further evidence can be adduced on consideration of s 469 of the LP Act. It is submitted that there is no express power contained in s 469. This is in contrast to ss 468 and 470 which confer an express power to introduce further evidence with leave on an appeal.
  5. [37]
    The Applicant also raises the concerns as identified in the decision of Brakatselos v ABL Nominees Pty Ltd (2012) 36 VR 490 where the Victorian Court of Appeal considered the broad powers to permit further evidence on a review. The comments were made in a context of the risk of a hearing before a Master being a “dry run” and depending on the result, an appeal including filing additional affidavits to bolster its case in light of the arguments presented to the Master and the Master’s reasons for decision.
  6. [38]
    In all these circumstances, the applicant contends that there is no basis to support a conclusion that the granting of leave to amend or vary at this stage would be a “reasonable” or “fair” outcome.
  7. [39]
    Accordingly, the Applicant contends that it is neither reasonable nor fair to grant leave to amend or vary. This is particularly so in circumstances where the LSC was provided with an opportunity to make amendments of the very kind now sought and chose to proceed with the case as originally formulated.
  8. [40]
    The Applicant submits that the LSC has not provided a frank explanation of the decision to proceed with her case without amendment before the Committee. In the absence of an explanation, the Applicant contends that the Variation Application should be refused.
  9. [41]
    In response the LSC addresses the further evidence and remitter points.
  1. [42]
    In respect of the issue of further evidence, the LSC submits that:
    1. The decision in Legal Services Commissioner v Sewell is an example where the basis for the variations to the charge was found in evidence already before the Tribunal, without the need for further evidence to support the varied charges.
    2. The current case is similar, in that the proposed variations find support in the evidence that was before the Committee.
    3. The relevant evidence is on page 5 of the Committee reasons at the third and fourth paragraphs.
    4. This evidence is consistent with the contention that Ms Conaghan was the Body Corporate’s agent or representative to instruct the Body Corporate’s solicitors.
  2. [43]
    Further, the LSC contends that the Applicant does not identify what further evidence would be required (beyond what is identified above as already before the Tribunal).[12]
  3. [44]
    In respect of the power to remit, the LSC identifies s 24(1)(c) of the QCAT Act. Section 24(1) relevantly states:

“In a proceeding for a review of a reviewable decision, the tribunal may—

  1. confirm or amend the decision; or
  2. set aside the decision and substitute its own decision; or
  3. set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.”
  1. [45]
    Accordingly, the LSC submits that the Tribunal has power to remit the matter to the Committee with directions providing the Applicant has leave to adduce the further evidence that he contends that he requires.
  2. [46]
    In response to the contention that “there is no arguable case to be remitted”, the LSC points to and relies on the evidence identified by the Committee reasons at page five at the third and fourth paragraphs.
  3. [47]
    In respect of the Applicant’s contention that the Tribunal would be acting beyond jurisdiction by answering a different question to what was before the Committee at first instance:
    1. The LSC relies upon s 19(c) of the QCAT Act which gives the Tribunal exercising its review jurisdiction all the functions of the original decision- maker. Here, that includes the Committee’s power to vary a discipline application pursuant to s 455(1) of the LP Act, including by incorporating additional allegations, “if it is reasonable to do so having regard to all of the circumstances”.
    2. Alternatively, says that the proceeding could be remitted to the Committee pursuant to s 24(1)(c) of the QCAT Act to hear the application to amend or vary the Discipline Application and to conduct any further hearing of any varied charges on the evidence, including any further evidence that the applicant requires.
  1. [48]
    In exercising the discretion whether to allow the variations or not, it is necessary to consider whether it is reasonable in all of the circumstances, including whether varying the application will affect the fairness of the proceeding.
  2. [49]
    Considering the various factors in turn:
    1. The proposed variations are founded on the evidence which was before the Committee and identified in the Committee’s reasons. The LSC does not seek to adduce further evidence and any grant of leave can be on the basis that the LSC not be permitted to rely on any further evidence (other than potentially in response to any new evidence raised by the Applicant).
    2. The Tribunal is exercising the functions of the original decision-maker pursuant to s 20(2) of the QCAT Act. The express purpose of the review is stated in s 20(1) as being “to produce the correct and preferable decision”. This purpose and the language of “fresh hearing on the merits” supports a construction that would permit receiving new evidence as a result of variations to the discipline application.[13]
    3. The charge in the Discipline Application did not specifically identify the client. The particulars in the Discipline Application raised some imprecision between [1.3(c)] which refers to Ms Conaghan as a client in her capacity as secretary of the Body Corporate and [1.5] which refers to Ms Conaghan as the client.
    4. The Committee recognised the difficulty with the particulars but concluded that at no point in time was the Respondent unaware of the case he was required to answer and suffered no prejudice as a result of:

“… the [LSC’s] failure to succinctly plead that as Secretary and Treasurer on the committee of the Body Corporate, and as a person authorised to act on behalf of the committee in the litigation with Ms Thompson, Ms Conaghan was representative of the ‘client body corporate’ and was therefore a client, for the purposes of Rule 33, of the law practice and of Mr Carlson who had carriage of the Body Corporate’s matters in the ongoing litigation with Ms Emma Thompson since 2016”.

  1. Justice Boddice’s decision provides clarification of the issue of who is the client when dealing with a body corporate through one of its officers.
  2. The proposed variations (as attached to the Variation Application and set out in Annexure A to these reasons for decision) are consistent with the evidence that is already before the Tribunal, similar to the position in Legal Services Commissioner v Sewell.
  3. The proposed variations clearly raise the issue of Ms Conaghan’s authority as secretary of the Body Corporate to instruct the lawyers acting on behalf of the Body Corporate. This is the issue which the LSC seeks to have determined at the fresh hearing on the merits by the Tribunal.
  1. If leave is granted, directions may be made for the future conduct of the Review Proceeding to ensure that the Applicant has the opportunity to respond to this issue, including the Applicant relying on new or further evidence in response to this issue.
  2. In respect of remitter:
  1. Section 24(1)(c) of the QCAT Act appears to be “deciding a disciplinary application” in that the review decision is set aside and the matter remitted to the decision-maker to decide in accordance with any directions. Pursuant to s 599 of the LP Act, this may need to be dealt with by the Tribunal constituted as a panel with two panel members assisting, rather than a judicial member sitting alone.
  2. There may be little utility in remitting the matter in any event where the Applicant seeks an order that a differently constituted Committee hear the Discipline Application, or any varied discipline application, on any remitter.
  3. The Tribunal is equally placed as a newly constituted Committee to deal with any varied discipline application, should leave to vary be granted.
  1. Pursuant to s 453 of the LP Act, the Tribunal must hear and decide each allegation stated in the discipline application. This would include additional allegations included pursuant to s 455(1) of the LP Act. This equally applies in respect of the Review Proceeding.
  2. The disciplinary process is not criminal in nature.[14] The discipline application must include the allegations which will inform the decision as to whether the practitioner is guilty of unsatisfactory professional conduct or unprofessional conduct and the penalty that should be imposed.[15]
  3. While there has been some time since the alleged conduct in 2020, a timetable could be put in place to have any remaining steps completed as expeditiously as possible (but ensuring that the Applicant has adequate time to consider and respond), with a hearing before the Tribunal scheduled with as little further delay as possible.
  1. [50]
    Balancing the various considerations, the Tribunal is satisfied that it is reasonable in all of the circumstances to grant leave to the LSC to vary the Discipline Application in the form attached to the Variation Application and set out at Annexure A to these reasons for decision. The fairness of the proceeding can be maintained by:
    1. No further evidence being adduced by the LSC to support the variations;[16]
    2. An opportunity being given to the Applicant to address the issue in submissions and further evidence, if required; and
  1. The hearing of the varied discipline application being dealt with as expeditiously as possible.
  1. [51]
    Accordingly:
  1. The Respondent, LSC, is granted leave to vary the discipline application in the form of the attachment to the Variation Application filed 23 March 2023 as replicated in Annexure A to the reasons for decision.
  2. The Tribunal will hear further from the parties as to the costs of the Variation Application and the costs of the hearings before Boddice J.

Annexure A – Proposed Further Varied Discipline Application

“B. PARTICULARS OF CHARGE

The Commissioner alleged that the following charges constitute unsatisfactory professional conduct:

Charge 1- Dealing directly with another solicitor’s client through its agent

  1. Lavercombe v Legal Services Commissioner [2023] QCAT 356On 6 April 2020, the respondent dealt directly with the client of another solicitor, the Body Corporate for Arila Lodge CTS 14237 (the Body Corporate), in breach of rule 33 of the ASCR, by contacting the Body Corporate through its agent, Ms Barbara Conaghan.

Particulars

  1. 1.1
    The respondent was admitted to the local roll in Queensland on 29 March 2010.
  2. 1.2
    At all material times, the respondent:
  1. was an Australian legal practitioner pursuant to section 6(1) of the Legal Profession Act 2007 (Act); and
  1. held an unrestricted Principal Practising Certificate; and
  1. was the Legal Practice Director (main) of the ILP JML Rose located at Spring Hill in the State of Queensland.
  1. 1.3
    At all material times, Ms Barbara Conaghan was:
  1. a lot owner of the Body Corporate Arila Lodge CTS 14237, located in Toowong;
  1. Secretary and Treasurer on the committee of the Body Corporate for Arila Lodge CTS 14237 (Body Corporate) located in Toowong; and
  2. a client of the law practice Grace Lawyers in her capacity as Secretary of the Body Corporate, authorised to instruct Grace Lawyers and of Mr Jason Carlson who had carriage of the Body Corporate’s matters in connection ongoing litigation with another lot owner, Ms Emma Thompson since 2016 (the District Court proceedings).
  1. 1.4
    On 6 April 2020, the respondent dealt directly Ms Conaghan regarding the District Court proceedings in that he:
  1. left a ‘missed call’ on Ms Conaghan’s telephone at 10:20am, which Ms Conaghan called back at 10:40am; and
  2. engaged in a 27-minute conversation with Ms Conaghan, in which he sought to discuss matters directly relating to the District Court proceedings concerning his client and the Body Corporate (direct dealing).
  1. 1.5
    The direct dealing with Ms Conaghan occurred while she was authorised to instruct the client of Grace Lawyers and Mr Carlson on behalf of the Body Corporate in the District Court Proceedings.
  1. 1.6
    The direct dealing occurred in circumstances where:
  1. neither Grace Lawyers nor Mr Carlson had previously consented to the direct dealing;
  1. the circumstances were not so urgent as to require the respondent to deal directly with Ms Conaghan;
  2. the substance of the dealing was not solely to enquire whether the Body Corporate and Ms Conaghan were was legally represented and, if so, by whom; and
  3. there was no notice given of the respondent’s intention to communicate with Ms Conaghan, and neither Grace Lawyers nor Mr Carlson had failed, after a reasonable time, to reply.

Charge 2- Dealing directly with the representative of another solicitor’s client

  1. 2.
    In the alternate to Charge 1, on 6 April 2020, the respondent dealt directly with the client of another solicitor, the Body Corporate, in breach of rule 33 of the ASCR, by communicating with Ms Barbara Conaghan, when Ms Conaghan was a representative of the client of another solicitor.

Particulars

The applicant relies on the particulars to charge 1 above.”

Footnotes

[1]Being the Varied Discipline Application filed 5 October 2021. For ease of reference in these reasons the Varied Discipline Application is referred to as the Discipline Application.

[2] The submissions predominately refer to “amend” and “amendments” but the application seeks leave to “vary”. These reasons use “vary” and “variation” as opposed to “amend” or “amendment” for consistency only. There is no practical distinction between the two. However, this is consistent with the initial variation to the discipline application and also the language of s 455 of the LP Act.

[3] QCAT Act s 64(1).

[4]A submission had initially been made at the hearing that the Tribunal was “functus” as a result of the decision of the Tribunal in the reasons delivered by Boddice J on 2 and 16 March 2023: Lavercombe v Legal Services Commission [2023] QCAT 58 and Lavercombe v Legal Services Commission [2023] (Unreported decision on the papers, Boddice J, 16 March 2023) at page 89 of the Hearing Bundle. That submission was not maintained.

[5]Consistent with the Court of Appeal decision in Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149, this could not be done at the instigation of the Tribunal but on an application to amend by the LSC.

[6][2023] QCAT 58 [22].

[7]As his Honour then was.

[8]Unreported decision on the papers (16 March 2023).

[9]Pages 278 to 285 of the Hearing Bundle.

[10] [2023] QCAT 58.

[11]This concession was subject to the submission that the Tribunal should not remit an unarguable case based on the possibility that the Committee may permit an amendment.

[12]While the LSC may not seek to adduce further evidence and be content to rely on the evidence before the Tribunal, the Applicant may want the opportunity to put on further evidence in response. The ability to adduce further evidence may, therefore, still be relevant to the consideration of the fairness of the proceeding.

[13]In contrast, ss 468 and 470 of the LP Act states that the appeal to the Court of Appeal is “by way of a rehearing on the evidence given in the matter” before either the Tribunal or the Committee, respectively. Both provisions include an express power that this does not prevent the Court of Appeal having a discretion to grant leave to introduce further evidence, whether fresh, additional or substituted if “the court considers the further evidence may be material to the appeal”.

[14]Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 at [80].

[15]Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 at [93].

[16]As accepted by the LSC in submissions and at the hearing of the Variation Application.

Close

Editorial Notes

  • Published Case Name:

    Lavercombe v Legal Services Commissioner

  • Shortened Case Name:

    Lavercombe v Legal Services Commissioner

  • MNC:

    [2023] QCAT 356

  • Court:

    QCAT

  • Judge(s):

    Williams J

  • Date:

    19 Sep 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brakatselos v ABL Nominees Pty Ltd (2012) 36 VR 490
2 citations
Jump To
Cite 1 - (2012) 36 VR 490
Cite 2 - (2012) 36 VR 490
Lavercombe v Legal Services Commission [2023] QCAT 58
4 citations
Jump To
Cite 1 - [2023] QCAT 58
Cite 2 - [2023] QCAT 58
Cite 3 - [2023] QCAT 58
Cite 4 - [2023] QCAT 58
Legal Services Commissioner v Madden (No 2)[2009] 1 Qd R 149; [2008] QCA 301
4 citations
Jump To
Cite 1 - [2009] 1 Qd R 149
Cite 2 - [2009] 1 Qd R 149
Cite 3 - [2009] 1 Qd R 149
Cite 4 - [2009] 1 Qd R 149
Legal Services Commissioner v Sewell [2023] QCAT 94
2 citations
Jump To
Cite 1 - [2023] QCAT 94
Cite 2 - [2023] QCAT 94

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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