Lavercombe v Legal Services Commission
[2023] QCAT 58
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- Unreported Judgment
- Lavercombe v Legal Services Commission[2023] QCAT 58
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Lavercombe v Legal Services Commission[2023] QCAT 58
Lavercombe v Legal Services Commission[2023] QCAT 58
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Lavercombe v Legal Services Commission [2023] QCAT 58 |
PARTIES: | JAMES MATTHEW LAVERCOMBE (applicant) v LEGAL SERVICES COMMISSION (respondent) |
APPLICATION NO/S: | OCR081-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 2 March 2023 |
HEARING DATE: | 22 February 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Boddice J |
ORDERS: | I shall hear the parties as to the form of orders and costs. |
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the applicant was charged with dealing directly with the client of another practitioner – where the person contacted was a lot owner, member of the committee and secretary of the body corporate – where the particulars of the charge in the discipline application asserted the respective person was the client of the law firm – where the applicant contended the body corporate was the client – whether those particulars were factually correct and supported by evidence |
APPEARANCES & REPRESENTATION: | |
Applicant: | A Morris KC instructed by Bartley Cohen Law |
Respondent: | M Nicholson instructed by Legal Services Commission |
REASONS FOR DECISION
- [1]On 21 March 2022, the Legal Practice Committee of Queensland found the applicant had dealt directly with the client of another practitioner, in breach of rule 33 of the Australian Solicitors’ Conduct Rules. The committee found that conduct amounted to unsatisfactory professional conduct, and found the applicant guilty of unsatisfactory professional conduct.
- [2]On 14 April 2022, the applicant filed an application to review that decision. The applicant contends, among other things, that the committee erred in finding the charge proven, as the relevant contact was not with a client of another practitioner.
- [3]The applicant and the respondent agree that who was the client is appropriately to be the subject of a separate determination, prior to the hearing of the application for review, on its merits.
- [4]The disciplinary proceeding was commenced by discipline application filed 7 June 2021. It alleged “that on the particulars of charge set out below, [the applicant] is guilty of unsatisfactory professional conduct”.
- [5]Relevantly, the particulars of the charge read as follows:
“The Commissioner alleges that the following charges constitute unsatisfactory professional conduct:
Charge 1 – Dealing directly with another solicitor’s client
- On 6 April 2020, the respondent dealt directly with the client of another solicitor, in breach of rule 33 of the Australian Solicitor Conduct Rules 2012.
Particulars
…
1.3.At all material times, Ms Barb Conaghan was:
- (a)a lot owner of Arila Lodge CTS 14237, located in Toowong;
- (b)Secretary on the committee of the body corporate for Arila Lodge CTS 14237 (Body Corporate) located in Toowong; and
- (c)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 litigation with another lot owner, Ms Emma Thompson since 2016.
1.4.On 6 April 2020, the respondent dealt directly with Ms Conaghan in that he:
- (a)left a “missed call” on Ms Conaghan’s telephone at 10:20am, in which Ms Conaghan called back at 10:40am; and
- (b)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).
1.5.The direct dealing with Ms Conaghan occurred while she was the client of Grace Lawyers and Mr Carlson.
… ”.[1]
- [6]In his response to the discipline application, the applicant expressly put in issue that Ms Conaghan was a client of Grace Lawyers or Mr Carlson. The applicant contended the Body Corporate was the client.
- [7]At the hearing of the disciplinary proceeding, the applicant maintained that contention. Further, it was submitted that as Ms Conaghan was not the client, the discipline application ought to be dismissed.
- [8]The Legal Practice Committee found:
“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.”
- [9]The nature and circumstances of the contact the subject of the disciplinary application are not in dispute.
- [10]Those circumstances may be briefly summarised:
- (a)There was litigation between the committee of a body corporate and one of that body corporate’s lot owners;
- (b)Grace Lawyers represented the body corporate in that litigation, receiving instructions from that body corporate’s committee;
- (c)Ms Conaghan was a lot owner, a member of the committee and the secretary of the body corporate;
- (d)The applicant was an Australian legal practitioner acting on behalf of the lot owner in dispute with the body corporate;
- (e)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
- (f)When Ms Conaghan returned the applicant’s call, they discussed issues in the proceeding between the body corporate and the lot owner.
- (a)
- [11]Disciplinary proceedings are commenced by a discipline application, setting out the particulars of the matters said to form the unsatisfactory professional conduct or professional misconduct.
- [12]As the discipline application recognises, the matters said to form the unsatisfactory professional conduct are in the nature of a charge. As such, the terms of the charge must be clear.
- [13]Particulars serve the purpose of informing a practitioner of the case to be met at trial. Particulars cannot extend the nature of that charge.
- [14]
“The function of particulars is not to expand the issues … but “to fill in the picture … with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial”.”
- [15]In the present case, the particulars did serve that purpose. They informed the applicant of the case that was to be met at trial. That being so, there is no basis to find there was any denial of procedural fairness.
- [16]There is, however, a more fundamental difficulty with the discipline application.
- [17]The unsatisfactory professional conduct was that the practitioner contacted the client of another practitioner in breach of rule 33. The Commissioner’s case was that the other practitioner was acting for the Body Corporate.
- [18]Whilst Ms Conaghan was contacted as the secretary of the Body Corporate, paragraph 1.5 of the particulars expressly asserted that the direct dealing with Ms Conaghan occurred while Ms Conaghan was “the client” of the other practitioner.
- [19]Such an assertion was factually incorrect and unsupported by the evidence.
- [20]Further, resort to the particulars cannot allow “client” to be interpreted differently to the charge. Whilst paragraph 1.3 of the particulars states that Ms Conaghan was at all material times a client of the other practitioner “in her capacity as secretary of the Body Corporate”, the client was not the secretary of the Body Corporate. The client was the Body Corporate.
- [21]The discipline application is in the nature of a charge. It is required to be proved to the requisite standard. Proof can only occur if there is evidence to establish the necessary elements. No such proof was established in the present case as the charge was contrary to the evidence.
- [22]The preliminary question is answered as follows:
- (a)Conaghan was not a client of the other practitioner at the relevant time;
- (b)The client of the practitioner, at all material times, was the Body Corporate.
- (a)
- [23]In circumstances where the practitioner raised the defect in the charge at the outset, and the Commissioner expressly disavowed an intention to amend the charge to assert that the client of the other practitioner was the Body Corporate, there would appear to be no injustice in ordering that the charge be dismissed.
- [24]However, I shall hear the parties as to the form of orders and costs.