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Legal Services Commissioner v Hallam[2024] QCAT 386

Legal Services Commissioner v Hallam[2024] QCAT 386

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Hallam [2024] QCAT 386

PARTIES:

LEGAL SERVICES COMMISSIONER

(Applicant)

v

DANIEL JOEL HALLAM

(Respondent)

APPLICATION NO/S:

OCR 266-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 September 2024

HEARING DATE:

17 July 2024

HEARD AT:

Brisbane

DECISION OF:

Justice Williams

Assisted by:

Ms Petrina Macpherson, Practitioner Panel Member

Mr Keith Revell, Lay Panel Member

ORDERS:

  1. The Respondent’s conduct identified in respect of Charge 1 in the Amended Discipline Application is found to constitute unsatisfactory professional conduct.
  2. The Respondent’s conduct identified in respect of Charge 2 in the Amended Discipline Application is found to constitute unsatisfactory professional conduct.
  3. The Respondent is publicly reprimanded.
  4. The Respondent pay the Applicant’s costs of and incidental to the Amended Discipline Application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the discipline application raises two charges against the respondent of acting otherwise than in the best interests of a client and failure to disclose – where the respondent, legal practitioner director, was engaged for the purposes of a property settlement in a family law matter – where the respondent did not advise about a mortgage which benefited the respondent, by giving his firm security for its legal fees – where the respondent admits he did not make a file note of an initial client meeting – where the second charge relates to the practitioner’s failure to ensure his client made full and frank disclosure to the court of financial matters, in relation to the existence of a mortgage – whether the respondent ought to have disclosed the mortgage – whether the relevant conduct amounts to unsatisfactory professional conduct or professional misconduct

Family Law Act 1975 (Cth), s 79

Family Law Rules 2004 (Cth), r 13.04

Land Title Act 1994 (Qld), s 162

Legal Profession Act 2007 (Qld), s 418, s 419, s 420, s 452, s 456, s 462, s 656, s 656C

Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498

Legal Services Commissioner v Bradshaw [2009] QCA 126

Legal Services Commissioner v Challen [2019] QCAT 273

Legal Services Commissioner v Hackett [2006] LPT 015

Legal Services Commissioner v Laylee [2016] QCAT 237

Legal Services Commissioner v Richards [2018] QCAT 128

Legal Services Commissioner v Thomson [2011] QCAT 127

Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295

New South Wales Bar Association v Lott [2018] NSWCATOD 99

APPEARANCES &

REPRESENTATION:

Applicant:

Mr T Ritchie of Counsel instructed by the Legal Services Commission

Respondent:

Mr B Cohen of Bartley Cohen Lawyers

REASONS FOR DECISION

  1. [1]
    This is a discipline application by the Legal Services Commissioner (LSC) under s 452 of the Legal Profession Act 2007 (Qld) (LP Act) for disciplinary orders pursuant to s 456 of the LP Act. The discipline application raises two charges against the respondent, Mr Daniel Joel Hallam (Respondent) of acting otherwise than in the best interests of a client and failure to disclose.
  2. [2]
    The discipline application was originally contested by the Respondent.  However, just prior to the hearing the LSC and the Respondent agreed a basis for the discipline application to proceed.[1] 
  3. [3]
    At the hearing:
    1. The LSC filed an amended discipline application deleting part of Charge 1 and some of the particulars in respect of Charges 1 and 2 (Amended Discipline Application).
    2. The LSC and the Respondent submitted that in the circumstances the Tribunal should be satisfied that the Respondent had engaged in unsatisfactory professional conduct in respect of each of Charge 1 and Charge 2.
    3. The LSC and the Respondent submitted that in the circumstances of this case, the appropriate sanction was that the Respondent be publicly reprimanded, together with the usual order as to costs.
  4. [4]
    Accordingly, the issues to be determined by the Tribunal are as follows:
    1. In respect of Charge 1, is the Respondent’s conduct proved and properly characterised as unsatisfactory professional conduct?
    2. In respect of Charge 2, is the Respondent’s conduct proved and properly characterised as unsatisfactory professional conduct?
    3. What are the appropriate orders pursuant to s 456 of the LP Act?
    4. What is the appropriate costs order?
  5. [5]
    Before dealing with each of these issues in turn, it is appropriate to consider the relevant statutory provisions.

Statutory provisions relevant to characterisation of unsatisfactory professional conduct or professional misconduct

  1. [6]
    It is necessary to consider Charge 1, Charge 2 and the relevant factual circumstances in the context of the statutory provisions.
  2. [7]
    In determining the Amended Discipline Application:
    1. Pursuant to s 656C(1) of the LP Act, the Tribunal must be satisfied of the allegations against the Respondent on the balance of probabilities.
    2. Pursuant to s 656C(2) of the LP Act, satisfaction as to whether proof has been established depends upon the gravity of the allegations in question and the consequences for the Respondent.
  3. [8]
    Sections 418, 419 and 420 of the LP Act state as follows:

“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—
  1.  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
  1.  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.
  1.  For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

420 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

  1. The following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—
  1. conduct consisting of a contravention of a relevant law, whether the conduct happened before or after the commencement of this section;

Note—

Under the Acts Interpretation Act 1954, section 7, and the Statutory Instruments Act 1992, section 7, a contravention in relation to this Act would include a contravention of a regulation or legal profession rules and a contravention in relation to a previous Act would include a contravention of a legal profession rule under the Legal Profession Act 2004.

  1. charging of excessive legal costs in connection with the practice of law;
  2. conduct for which there is a conviction for—
  1. a serious offence; or
  1. a tax offence; or
  1. an offence involving dishonesty;
  1. conduct of an Australian legal practitioner as or in becoming an insolvent under administration;
  2. conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;
  3. conduct of an Australian legal practitioner in failing to comply with an order of a disciplinary body made under this Act or an order of a corresponding disciplinary body made under a corresponding law, including a failure to pay wholly or partly a fine imposed under this Act or a corresponding law;
  4. conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.
  1. Also, conduct that happened before the commencement of this subsection that, at the time it happened, consisted of a contravention of a relevant law or a corresponding law is capable of constituting unsatisfactory professional conduct or professional misconduct.
  2. This section does not limit section 418 or 419.”
  1. [9]
    In determining whether the relevant conduct amounts to unsatisfactory professional conduct or professional misconduct, the following authorities considering these general principles are of some assistance.
  2. [10]
    In Legal Services Commissioner v Laylee [2016] QCAT 237, the Tribunal states the test required to establish unsatisfactory professional conduct as follows:

“The test required to determine whether conduct is unsatisfactory professional conduct is such that the relevant ‘falling short’ does not embrace all cases of error but must be sufficiently substantial.  There must be an appreciable departure from the standard for the conduct to be unsatisfactory professional conduct.  An isolated instance, not involving unethical conduct, and more in the nature of conduct which might give rise to an assertion of negligence, is less likely to amount to unsatisfactory professional conduct.  Serious, or repeated instances, are more likely to amount to unsatisfactory professional conduct or professional misconduct.”[2]

  1. [11]
    In Legal Services Commissioner v Bradshaw [2009] QCA 126, McMurdo P at [54] considered what must be demonstrated by the applicant to establish whether conduct falls within the statutory definition of unsatisfactory professional conduct and stated as follows:

“In establishing whether conduct is unsatisfactory professional conduct, the Commissioner is not required to prove what a member of the public expects of a reasonably competent Australian legal practitioner.  This is not something easily capable of direct proof.  But in any case, s 418 refers to what ‘a member of the public is entitled to expect of a reasonably competent Australian legal practitioner’.  This is a standard to be determined by the tribunal after considering all the relevant circumstances pertaining in each case.”

  1. [12]
    The LSC also refers to the test for professional misconduct described by Thomas J in Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 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.”

  1. [13]
    Acting otherwise than in the best interests of a client or a failure to disclose may amount to professional misconduct in certain circumstances.  However, in the factual circumstances of this case, it is submitted that the conduct does not involve a substantial or consistent failure, nor does the conduct violate or fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency, such as to be characterised as professional misconduct. 
  2. [14]
    It is now appropriate to consider the relevant factual circumstances for each charge.

Relevant factual circumstances

  1. [15]
    The factual circumstances set out in the particulars to the disciplinary application were largely admitted by the Respondent in the Respondent’s Response dated 13 February 2024 (Response).  Additionally, both the LSC and the Respondent rely on affidavits filed and read at the hearing.
  2. [16]
    Initially in the Response some aspects were contentious between the parties, including:
    1. whether the Respondent offered the client the opportunity to seek independent legal advice in relation to the mortgage but the client declined to do so; and
    2. whether the Respondent failed to act honestly in respect of the failure to disclose.
  3. [17]
    By the effect of the Amended Disciplinary Application[3] those contentious matters have been deleted from the LSC’s case and no longer require consideration by the Tribunal.
  4. [18]
    In respect of Charge 1, the relevant facts include the following:
    1. The Respondent is a local legal practitioner within the meaning of s 6(2) of the LP Act, having been admitted to the local roll in Queensland on 24 October 2011.
    2. The Respondent has held an unrestricted principal practising certificate since 16 November 2015.
    3. The Respondent has been a legal practitioner director of the incorporated legal practice BWL Corporation Pty Ltd ACN 617 461 793 trading as Bluewater Lawyers (Bluewater Lawyers) since 5 May 2017.
    4. The Respondent is the sole legal practitioner director of Bluewater Lawyers.
    5. The Respondent at the relevant time had a financial interest in Bluewater Lawyers and continues to do so.
    6. On or about 17 September 2018, Bluewater Lawyers was engaged to act for a client (the Client) in relation to her property settlement with her ex-husband following the dissolution of their marriage.[4]
    7. From 21 December 2016 to 28 February 2022 the Client, together with her ex-husband, owned a property in Queensland (the Property).
    8. On or about 9 October 2018, the Respondent met with the Client to discuss his engagement and payment of Bluewater Lawyers’ legal fees.
    9. At that meeting:
      1. The Respondent advised the Client that he would not act in the matter unless payment of his legal fees was secured.
      2. The Respondent presented to the Client documents to sign, including a 35-page mortgage document in which:
        1. The mortgagor was the Client;
        2. The mortgagee was Bluewater Lawyers;
        3. The land affected was the whole of the Property, which was later changed (after it was initially lodged but before registration) to secure the mortgage interest over the Client’s half interest in the Property;
        4. Security was being provided for an unspecified and therefore unlimited liability, primarily being the legal fees for services being provided to the Client,

(the Mortgage).

  1. The Client’s signing of the Mortgage was witnessed by the Respondent, whilst the Respondent was a director of the mortgagee.
  1. The Client signed the Mortgage without having received any advice as to the nature and effect of the Mortgage.
  2. The Respondent did not keep any file note or record of the meeting.
  3. On 1 November 2018, the Mortgage was registered over the Client’s half share of the Property.
  1. [19]
    In respect of Charge 2, the relevant facts include the following:
    1. On 1 November 2018, a transfer form effecting the severance of the joint tenancy between the Client and her ex-husband was registered and the Client and her ex-husband then each held one half interest in the Property as tenants in common.
    2. On 17 January 2019, the Client affirmed a financial statement (Financial Statement) which had been prepared by the Respondent.
    3. On 18 January 2019, the Financial Statement was filed in the Family Court of Australia proceedings (Court).
    4. The existence of the Mortgage was not disclosed in the Financial Statement.
    5. On 3 April 2019, the solicitors representing the Client’s ex-husband emailed the Respondent and relevantly stated:

“Daniel, could you please ask your client to bring with her to the mediation all outstanding household and business bills so that we can gain an understanding of what is owing? Can your client please also be prepared, Daniel, to update us as to the current position regarding the bank and repayment of the mortgage?”

  1. On 5 April 2019, the Respondent emailed his Client’s position statement for an upcoming mediation to the mediator and the Client’s ex-husband’s solicitors (Mediation Outline).
  2. The Mortgage was not disclosed in the Mediation Outline, which included a schedule of current assets, liabilities and superannuation and identified the first registered mortgage over the Property held by Westpac Banking Corporation.
  3. On 8 April 2019, the Respondent represented the Client at mediation for the matter (Mediation).
  4. Following the Mediation and on or about 10 May 2019, orders were made by consent in the Court proceedings (Order).
  5. The Mortgage was not disclosed to the Client’s ex-husband prior to either of the Mediation or the parties applying to the Court for the Order.
  6. The Respondent did not disclose the Mortgage to the Client’s ex-husband’s solicitors:
    1. in the Financial Statement;
    2. in the Mediation Outline;
    3. prior to or at Mediation; or
    4. at all.
  7. The Respondent did not disclose the Mortgage to the Court in the Proceeding when preparing and filing the Financial Statement and when applying for the Order.
  1. [20]
    Turning to consider the nature and characterisation of Charge 1 and Charge 2.

In respect of Charge 1, is the Respondent’s conduct proved and properly characterised as unsatisfactory professional conduct?

  1. [21]
    Charge 1 is that on 9 October 2018 the Respondent acted otherwise than in the best interests of a client.
  2. [22]
    The relevant facts include those set out at [18] above.
  3. [23]
    On the basis of the Respondent’s admissions in the Response and the affidavits relied upon at the hearing, the Tribunal is satisfied that the relevant facts constituting Charge 1 have been established on the balance of probabilities, taking into account the gravity of the allegations in question and the consequences for the Respondent.
  4. [24]
    It is then necessary to consider the proper characterisation of the conduct of the Respondent.
  5. [25]
    The LSC submits that the characterisation of the conduct constituting Charge 1 needs to be considered in the following context:
    1. The transaction benefited the Respondent’s law firm, Bluewater Lawyers.
    2. The Respondent admits he did not make a file note of the meeting with the Client.
    3. It would generally be expected that a competent and diligent solicitor would keep a file note of important instructions and advice, particularly concerning an important document where the solicitor had an interest.
  6. [26]
    In submissions the LSC relied on Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295 where Barlow KC DCJ considered the absence of a file note by a solicitor and commented as follows:

“A solicitor in commercial practice is generally expected to record in file notes at least important matters arising in conversations with the client and other persons. Where the solicitor has not recorded, either in a file note or elsewhere, the fact or the substance of a conversation in which, for example, the solicitor says that the client gave the solicitor certain instructions, a court in later proceedings in which that conversation is of crucial importance may well have cause to doubt the accuracy of the solicitor’s evidence and to prefer that of the client, including where the client denies that the conversation occurred at all. This is not because a court considers, or there is a principle of law, that, in the absence of a written record by the solicitor, it is always the case that ‘the word of the client is to be preferred to the word of the solicitor, or, at any rate, more weight is to be given to it,’[5] but because it is generally expected that a competent and diligent solicitor will, in the course his or her usual practice, keep a written record of instructions and other relevant matters relayed to the solicitor by the client. This is not only good practice to protect the client’s interests, but it also protects the solicitor’s interests in case of future litigation (such as this) as, without such a record, the solicitor’s evidence may well be disbelieved.”[6]

  1. [27]
    The Respondent concedes that in the specific circumstances of this case the failure to take a file note of and by itself constitutes unprofessional conduct. 
  2. [28]
    At the hearing it was correctly acknowledged that the obligation on a solicitor to take a file note does not extend to every interaction with a client.  That would be far too onerous.  However, it was accepted that the particular nature of an interaction with a client may be such as to warrant the legal practitioner making a contemporaneous record of that interaction.
  3. [29]
    Here, the particular nature of the interaction between the Respondent and the Client had the following relevant features:
    1. The Respondent was a director and employee and had a financial interest in the mortgagee law firm Bluewater Lawyers.
    2. This potentially put the Respondent in a position of conflict between acting in the best interests of the Client and in the Respondent’s own interests.[7]
    3. The Client signed the Mortgage without having received any advice as to the nature and effect of the Mortgage.
    4. The Respondent witnessed the Client signing the Mortgage whilst he was a director and employee of the mortgagee.
  4. [30]
    It is these features of the Respondent’s interaction with the Client which elevate this failure of the Respondent to keep a file note or record of the meeting where the Mortgage was signed to conduct which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent solicitor.
  5. [31]
    The affidavit of the Respondent[8] identifies the following further matters:
    1. The Mortgage arose in the context of a legal funding arrangement entered into with QuickFee. 
    2. Under that funding arrangement Bluewater Lawyers was liable to QuickFee for the amounts drawn down to meet legal fees and disbursements.[9] 
    3. The Client was liable to pay legal fees and disbursements at the end of the matter and the Mortgage was required as security.[10]
    4. The Client said that she did not need legal advice, she understood that Bluewater Lawyers needed to be paid and she wanted to sign what need to be signed so “[they] could get on with it”.[11]
    5. The Respondent did not insist that she obtain independent legal advice.[12]
  6. [32]
    These matters are also relevant to the particular nature of the solicitor/client interaction being elevated to warrant a contemporaneous record being kept of the interaction, including particularly the advice and specific instructions.
  7. [33]
    The Respondent at [24] of his affidavit acknowledges his conduct as follows:

“I did not make a file note of the 9 October 2018 meeting with the Client, either at the time of the meeting or subsequently.  I accept that I ought to have made a note, either contemporaneously or when I returned to the office, recording at least the explanation I gave in relation to the Mortgage, my recommendation that she obtain independent legal advice and her response.  I very much regret not doing so.”

  1. [34]
    In characterising the Respondent’s conduct as particularised in paragraphs [1.1] to [1.5] and [1.8] to [1.10] of the Amended Discipline Application the Tribunal is satisfied that the conduct of the Respondent fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent solicitor in accordance with the definition in s 418 of the LP Act. 
  2. [35]
    Where a document is being executed to provide security for legal fees and the solicitor has an interest in that security, the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent solicitor includes the solicitor making an accurate and contemporaneous record or file note of the interactions with the client concerning:
    1. advice given by the solicitor on the nature and effect of the security; or
    2. if the client declines advice from the solicitor or the recommendation to obtain independent legal advice, what was said to the client and the client’s response.
  3. [36]
    A further issue arose at the hearing, which is not directly raised in the Amended Discipline Application.  Section 162 of the Land Title Act 1994 (Qld) (Land Title Act) sets out certain obligations of a witness of an instrument executed by an individual under the Land Title Act.  Section 162(1) states:

“A person who witnesses an instrument executed by an individual must –

  1.  first take reasonable steps to verify the identity of the individual and ensure the individual is the person entitled to sign the instrument; and
  1.  have the individual execute the instrument in the presence of the person; and
  1.  not be a party to the instrument.”
  1. [37]
    The question arose at the hearing as to whether s 162(1) of the Land Title Act prohibited an employee solicitor and/or a director of an incorporated legal practice from witnessing a mortgage where the mortgagee was the incorporated legal practice. 
  2. [38]
    Both the LSC and the Respondent submitted that in the current matter the Respondent was not a party to the Mortgage[13] and the Respondent was able to witness the Client signing the Mortgage without contravening s 162(1)(c) of the Land Title Act.  Reliance was placed on an agreed extract from the Land Title Practice Manual (Qld)[14] which was provided to the Tribunal in support of this submission.
  3. [39]
    The extract from the Land Title Practice Manual (Qld) states as follows:

“Not be a party to the instrument

Any person with a vested interest in the transaction cannot also be a witness to the execution of the instrument or document. For example, if A and B own the land together and A is a justice of the peace, A cannot witness B’s signature if they are both signing a Titles Registry instrument or document.

Care should also be taken when someone is signing under a power of attorney. For example, where A and B own the land together and C is both an attorney for B and an Australian lawyer. If A signs in their own right and C signs on behalf of B, C cannot then witness either signature as he or she is involved in the transaction.

The requirement that a witness must not be a party to the instrument or document is not infringed by an employee of a bank or other entity, who is a qualified witness by virtue of Schedule 1 of the Land Title Act 1994 or s 73 of the Land Regulation 2020 witnessing the execution of an instrument or document that their employer is a party to. For example, a bank officer who is a justice of the peace is not a party to a mortgage to the bank.”

  1. [40]
    This commentary tends to support the submission made by the LSC and the Respondent.  As this issue is not raised in the Amended Discipline Application, it is not necessary for the Tribunal to reach a settled view on this issue.
  2. [41]
    However, given the statutory provision it does raise that a reasonably competent solicitor should at least consider whether there are any particular circumstances that warrant an independent person witnessing a document.   This is particularly so given the obligations on a solicitor in respect of conflicts of interest which arise independently of the statutory provision.
  3. [42]
    Depending on the particular circumstances, this could include whether an employee solicitor and/or a director of an incorporated legal practice should witness a mortgage where the mortgagee is the incorporated legal practice, particularly if the client has declined independent advice concerning the nature and effect of a mortgage.[15]
  4. [43]
    Accordingly, the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent solicitor may include a consideration of this issue and, if appropriate in the circumstances, having an independent person witness the document. Ultimately, on the Amended Discipline Application this aspect is not raised in respect of the Respondent’s conduct or the proper characterisation of that conduct.
  5. [44]
    For the reasons outlined above, in respect of Charge 1:
    1. The relevant facts constituting Charge 1 have been established on the balance of probabilities, taking into account the gravity of the allegations in question and the consequences for the Respondent.
    2. The Respondent’s conduct is found to constitute unsatisfactory professional conduct.

In respect of Charge 2, is the Respondent’s conduct proved and properly characterised as unsatisfactory professional conduct?

  1. [45]
    Charge 2 is that between 9 October 2018 and 10 May 2019, while acting for the Client, the Respondent failed to disclose the existence of the Mortgage and in failing to do so has:
    1. acted carelessly in the course of legal practice;
    2. failed to make full and frank disclosure to the Court; and
    3. failed to ensure his Client was making full and frank disclosure in court proceedings as she was obliged to do under Chapter 13 of the Family Law Rules 2004 (the Rules).
  2. [46]
    The relevant facts include those set out at [19] above.
  3. [47]
    The relevant facts establish that:
    1. Between 9 October 2018 and 10 May 2019, while acting for the Client, the Respondent failed to disclose the existence of the Mortgage.
    2. The Respondent failed to disclose the Mortgage to the Client’s ex-husband’s solicitors:
      1. in the Financial Statement;
      2. in the Mediation Outline;
      3. prior to or at Mediation; or
      4. at all.
    3. The Respondent failed to disclose the Mortgage to the Court in the Proceeding when preparing and filing the Financial Statement and when applying for Orders by consent.[16]
  4. [48]
    The LSC accepts, as reflected in the Amended Discipline Application, that there is no element of the charge that the Respondent acted dishonestly. That is, the Respondent’s conduct was a careless, but honest, mistake.
  5. [49]
    The submissions made on behalf of the Respondent emphasise that the Respondent’s failure to disclose the Mortgage needs to be considered in light of the following:
    1. The failure to disclose the Mortgage was not done recklessly or deliberately to mislead people.
    2. The Respondent reasonably believed that r 13.04(1)(h) of the Rules and the disclosure obligations of the parties to the Court proceedings required disclosure of liabilities, but not registered securities for such liabilities.[17] 
    3. Further:
      1. Consistent with this belief the Financial Statement disclosed the liability under the QuickFee arrangement.[18]
      2. The initiating application did not seek any relief on behalf of the Client with respect to any liability for legal fees and the orders sought that any liabilities not specified were to remain with the Client and her ex-husband respectively.[19]
      3. The email dated 3 April 2019 was sent in the context that by that time the parties had separated and the ex-husband had ceased making any contributions to the repayments of the Westpac mortgage.  The Client was making the repayments with the assistance of her father.[20]
      4. The Respondent read and understood the request in the email dated 3 April 2019 as a request regarding the Westpac loan secured by first mortgage over the Property.[21]
      5. The Order provided for the ex-husband’s right title and interest in the Property be transferred to the Client, with all liabilities being released or refinanced into the Client’s name, plus any liabilities not specified remained with the Client and her ex-husband respectively.[22] 
      6. The existence of the Mortgage was not confidential to the Client and was a matter of public record from the date on which it was registered.[23]
    4. For these reasons, the Respondent did not consider that he or the Client was obliged to, and did not, disclose the existence of the Mortgage prior to or at the mediation or for the purposes of the Orders subsequently obtained by consent.[24]
  6. [50]
    The Respondent in submissions does concede, with the benefit of hindsight, that he accepts that the existence of the Mortgage ought to have been disclosed at the times identified by the LSC in the particulars to Charge 2.
  7. [51]
    Given the ultimate position taken by the Respondent it may not be necessary or appropriate to make a definitive finding as to the legal obligation to disclose under the Rules as that may more appropriately be left for consideration by the Family Court.  However, it is necessary to consider to some extent whether an obligation to disclose did arise at the various points in time identified in the Amended Discipline Application.
  8. [52]
    Dealing with the relevant points in time briefly and in turn.
  9. [53]
    In respect of the Financial Statement:
    1. The power of the Court under s 79 of the Family Law Act 1975 (Cth) (Family Law Act) is to alter the interests of the parties in property.
    2. Rule 13.04 sets out an inclusive list of matters to be disclosed and required “full and frank disclosure” of a party’s financial circumstances, including “(h) liabilities and contingent liabilities”.
    3. Further the Rules provided that if the Financial Statement would not “fully discharge the duty to make full and frank disclosure” then an affidavit must be filed giving further particulars.
    4. Non-disclosure of the Mortgage did not give “full” disclosure of the Client’s financial affairs, which was likely to be relevant to the Court making an order under s 79 of the Family Law Act.
    5. In these circumstances, the Mortgage should have been disclosed in the Financial Statement or in an affidavit providing further particulars as provided for in the Rules.
  10. [54]
    In respect of the Mediation Outline:
    1. Non-disclosure of the Mortgage did not give “full” disclosure of the Client’s financial affairs, which was likely to be relevant to the issues to be dealt with at the Mediation, including possible terms of settlement and consent orders resolving the Court proceedings.
    2. The ex-husband’s position paper was consistent with him not being aware of the Mortgage.
    3. In these circumstances, the Mortgage should have been disclosed in the Mediation Outline.
  11. [55]
    In respect of prior to and at the Mediation:
    1. Non-disclosure of the Mortgage did not give “full” disclosure of the Client’s financial affairs, which was likely to be relevant to the issues to be dealt with at the Mediation, including possible terms of settlement and consent orders resolving the Court proceedings.
    2. The position taken by the ex-husband at the Mediation was consistent with:
      1. The ex-husband not being aware of the Mortgage.
      2. The ex-husband believing that there was sufficient equity in the Property to provide for some distribution after paying the costs of sale and the mortgagee.[25]
    3. It can be inferred that at the Mediation settlement options were considered, which ultimately became the proposed Order to be made by consent.
    4. In these circumstances, the Mortgage should have been disclosed prior and at the Mediation.
  12. [56]
    In respect of the application for the Order by consent:
    1. Non-disclosure of the Mortgage did not give “full” disclosure of the Client’s financial affairs, which was likely to be relevant to the Court in making an order under s 79 of the Family Law Act.
    2. The ex-husband’s consent was not informed by a “full” disclosure of the Client’s financial affairs.[26]
    3. While the Mortgage may have been on the public record that is not a complete answer when it was reasonable in the circumstances to reply on the financial disclosure made under the Rules which was required to be “full and frank”.
    4. The non-disclosure of the Mortgage in the joint letter to the Registrar meant that the list of assets and liabilities was misleading in respect of the “net non-superannuation pool”.
    5. Even if the Client’s legal fees could be considered a non-shared post-separation liability of the Client,[27] they had the practical effect of:
      1. Diminishing the “pool” available to both parties; and
      2. Affecting the amount the ex-husband would receive by operation of paragraph 2 of the Order which was jointly proposed to be made by consent.
    6. In these circumstances, the Mortgage should have been disclosed in the letter to the Registrar applying for the Order to be made by consent.
  13. [57]
    Overall, the key features of the non-disclosure of the Mortgage include as follows:
    1. The Mortgage was a relevant feature of the Client’s financial circumstances.
    2. The existence of the Mortgage could be relevant to the considerations of both the ex-husband and the Court in considering how the Client’s and the ex-husband’s property interests could and should be altered under s 79 of the Family Law Act.
    3. The ex-husband was unaware of the Mortgage and was also unaware that his interests could or would be affected by the Mortgage depending on how any alteration of the property interests was structured.
    4. The Mortgage could or would affect the ex-husband’s consent to any proposed resolution of the proceedings, including the form of the Order to be made by consent.
  14. [58]
    The subsequent events highlight the importance of the existence of the Mortgage, including that the sale of the Property did not proceed as a consequence of the sale price being insufficient to pay Westpac and Bluewater Lawyers in full following payment of costs of the sale.[28]
  15. [59]
    It is also relevant that the Respondent agreed to release the Mortgage and did so on 17 September 2021 without any payment to Bluewater Lawyers.  Further, Bluewater Lawyers paid out the QuickFee loan in the amount of $49,455.15, together with interest and expenses in the amount of $21,529.41, being a total of $70, 984.56.[29] This is considered further in respect of the appropriate sanction.
  16. [60]
    On the basis of the Respondent’s admissions in the Response and the affidavits relied upon at the hearing, the Tribunal is satisfied that relevant facts constituting Charge 2 have been established on the balance of probabilities, taking into account the gravity of the allegations in question and the consequences for the Respondent.
  17. [61]
    It is then necessary to consider the proper characterisation of the conduct of the Respondent.
  18. [62]
    A failure to disclose is a serious matter and particularly in the context of a failure to make full and frank disclosure to a court.[30]  Consequently, a failure to disclose may constitute unsatisfactory professional conduct or professional misconduct depending on the particular factual circumstances.
  19. [63]
    In circumstances where there is evidence that the failure to disclose resulted from dishonesty, recklessness or a deliberate act to mislead, then a finding of professional misconduct is more likely to be the proper characterisation of the conduct.
  20. [64]
    However, in circumstances such as here where there is no such evidence and the failure to disclose arises from a careless, but honest, mistake then a characterisation of that conduct as professional misconduct may not be as readily arrived at.
  21. [65]
    The LSC ultimately submitted that in all of the current circumstances, the conduct is properly characterised as unsatisfactory professional conduct.  Originally in the LSC’s written submissions, the LSC relied on several features as being a basis to find professional misconduct, including that the repeated non-disclosure persisted over time.[31]
  22. [66]
    However, at the hearing, following the Amended Discipline Application in respect of Charge 2, the LSC submitted that the conduct in Charge 2 was properly characterised as unsatisfactory professional conduct.
  23. [67]
    It is also relevant that there was no challenge by the LSC to the Respondent’s explanation of his reasoning for not disclosing the Mortgage.  That is an important consideration in characterising the Respondent’s conduct.
  24. [68]
    With the benefit of hindsight, and knowing how the subsequent events transpired, it seems quite clear that the existence of the Mortgage should have been disclosed at the various points identified in the Amended Discipline Application.[32]  However, on the uncontested evidence it is established that the Respondent did not disclose the mortgage due to an honest, but careless mistake, which is relevant to the characterisation of the conduct.
  25. [69]
    The LSC’s written submissions also address the following matters:
    1. Charge 2 really concerns a solicitor engaging in conduct which was misleading by omission.
    2. Failures to disclose as a result of carelessness[33] have been considered previously including as follows:
      1. Legal Services Commissioner v Richards[34] concerned a solicitor who swore an affidavit which contained an error about a date of a conversation.  The error was corrected promptly and openly in a subsequent affidavit.  The Tribunal concluded that it did not involve deliberate deceit but “loose practice” and was characterised as unsatisfactory professional conduct.[35]
      2. Legal Services Commissioner v Thomson[36] concerned where the respondent solicitor told the court, in answer to a question, that he had spoken to his client when he had not done so.  The Tribunal found that the solicitor had acted carelessly and it was a momentary lapse as a result of the solicitor not focusing on the question.  The conduct was found to be characterised as unsatisfactory professional conduct.
      3. Legal Services Commissioner v Hackett[37] concerned an affidavit sworn by a respondent/barrister that was misleading.  The affidavit was relied on in proceedings in which the respondent was involved.  While the respondent denied any intention to mislead the court and said that the affidavit was prepared in haste, the Tribunal found gross carelessness or sloppiness.  In that context, despite there being no dishonesty the Tribunal characterised the conduct as “plainly” professional misconduct.
  26. [70]
    The Respondent’s written submissions were prepared at a time when dishonesty was no longer pressed by the LSC in submissions[38] and contend that Charge 2 is not made out.[39]  The oral submissions at the hearing on behalf of the Respondent accepted the characterisation of unsatisfactory professional conduct on the basis of:
    1. the Respondent’s reasonable belief that the existence of the Mortgage was not required to be disclosed; and
    2. the evidence of the Respondent in relation to this was not challenged.
  27. [71]
    Considering whether the conduct in respect of Charge 2 in the Amended Discipline Application constitutes professional misconduct or unsatisfactory professional conduct, a relevant consideration includes that whilst there was repeated non-disclosure over a period of time, this largely arose out of the same single, honest but mistaken belief that the Mortgage did not need to be disclosed. There is no evidence that there was any change in the Respondent’s thinking from the time of the first non-disclosure to the last in time. 
  28. [72]
    The LSC accepted in submissions that in undertaking the “lawyer’s job” of considering and advising on the obligation to disclose at the various times, the Respondent’s reasoning resulted in the non-disclosures.  The Respondent’s evidence of that reasoning process was not challenged, as it applied at the various times.[40]
  29. [73]
    In all of these circumstances, the Respondent’s conduct is not properly characterised as a “substantial or consistent” failure to reach or maintain a reasonable standard of competence and diligence for the purposes of s 419(1)(a) of the LP Act so as to be characterised as professional misconduct.
  30. [74]
    However, any failure to make full and frank disclosure to a court is very serious and requires careful consideration by the Tribunal.  The conduct of the Respondent is at the higher end of the range of conduct within the characterisation of unsatisfactory professional conduct.  Accordingly, it may not take a significant factual difference to characterise a failure to make full and frank disclosure to a court as professional misconduct.
  31. [75]
    In characterising the Respondent’s conduct as particularised in paragraphs [2.1] and [2.3] to [2.14] of the Amended Discipline Application, the Tribunal is satisfied that the conduct of the Respondent fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent solicitor in accordance with the definition in s 418 of the LP Act. 
  32. [76]
    In the particular circumstances of this case and giving due weight to the uncontested evidence of the Respondent, the Tribunal is satisfied that the appropriate characterisation of the conduct in respect of Charge 2 is unsatisfactory professional conduct.
  33. [77]
    For the reasons outlined above, in respect of Charge 2:
    1. The relevant facts constituting Charge 2 have been established on the balance of probabilities, taking into account the gravity of the allegations in question and the consequences for the Respondent.
    2. The Respondent’s conduct is found to constitute unsatisfactory professional conduct.

What are the appropriate orders pursuant to s 456 of the LP Act?

  1. [78]
    Having made the findings as to unsatisfactory professional conduct, the discretion in s 456 of the LP Act arises.
  2. [79]
    Section 456 of the LP Act states:

“456 Decisions of tribunal about an Australian legal practitioner

  1. If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.
  2. The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—
  1. an order recommending that the name of the Australian legal practitioner be removed from the local roll;
  2. an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
  3. an order that a local practising certificate not be granted to the practitioner before the end of a stated period;
  4. an order that—
  1.  imposes stated conditions on the practitioner’s practising certificate granted or to be issued under this Act; and
  1.  imposes the conditions for a stated period; and
  1.  specifies the time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed;
  1. an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner;
  2. an order that no law practice in this jurisdiction may, for a period stated in the order of not more than 5 years—
  1.  employ or continue to employ the practitioner in a law practice in this jurisdiction; or
  1.  employ or continue to employ the practitioner in this jurisdiction unless the conditions of employment are subject to conditions stated in the order.
  1. The tribunal may, under this subsection, make 1 or more of the following—
  1. an order recommending that the name of the Australian legal practitioner be removed under a corresponding law from an interstate roll;
  2. an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled under a corresponding law;
  3. an order recommending that an interstate practising certificate not be, under a corresponding law, granted to the practitioner until the end of a stated period;
  4. an order recommending—
  1.  that stated conditions be imposed on the practitioner’s interstate practising certificate; and
  1.  that the conditions be imposed for a stated period; and
  1.  a stated time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed.
  1. The tribunal may, under this subsection, make 1 or more of the following—
  1. an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100,000;
  2. a compensation order;
  3. an order that the practitioner undertake and complete a stated course of further legal education;
  4. an order that, for a stated period, the practitioner engage in legal practice under supervision as stated in the order;
  5. an order that the practitioner do or refrain from doing something in connection with the practitioner engaging in legal practice;
  6. an order that the practitioner stop accepting instructions as a public notary in relation to notarial services;
  7. an order that engaging in legal practice by the practitioner is to be managed for a stated period in a stated way or subject to stated conditions;
  8. an order that engaging in legal practice by the practitioner is to be subject to periodic inspection by a person nominated by the relevant regulatory authority for a stated period;
  9. an order that the practitioner seek advice from a stated person in relation to the practitioner’s management of engaging in legal practice;
  10. an order that the practitioner must not apply for a local practising certificate for a stated period.
  1. To remove any doubt, it is declared that the tribunal may make any number of orders mentioned in any or all of subsections (2), (3) and (4).
  2. Also, the tribunal may make ancillary orders, including an order for payment by the Australian legal practitioner of expenses associated with orders under subsection (4), as assessed in or under the order or as agreed.
  3. The tribunal may find a person has engaged in unsatisfactory professional conduct even though the discipline application alleged professional misconduct.”
  1. [80]
    The discretion to make any order the Tribunal thinks fit is a wide discretion and is exercised primarily in the protection of the public.[41] Principles of personal and general deterrence are also relevant.[42]
  2. [81]
    The LSC concedes that the following matters are relevant to the appropriate sanction:
    1. The Respondent was admitted to practice on 24 October 2011 and has held an unrestricted practicing certificate since 16 November 2015.[43]
    2. The Respondent has not previously been the subject of professional disciplinary action.
    3. The Respondent has cooperated with the LSC’s investigation.
    4. Following the investigation, the Respondent:
      1. Caused Bluewater Lawyers to voluntarily remove the Mortgage from the title to the Property;
      2. Did not seek to recover fees and costs from the Client; and
      3. Has paid a heavy financial price as a result of this matter.
  3. [82]
    An order publicly reprimanding the practitioner may be imposed pursuant to s 456(2)(e) of the LP Act. The Respondent concedes that a public reprimand is an appropriate order.
  4. [83]
    The impact of a public reprimand has been recognised previously by the Tribunal. In Legal Services Commissioner v Cruise [2019] QCAT 182, the Tribunal[44] at [116] referred to the observations made in Council of the New South Wales Bar Association v Lott[45] as follows:

“A reprimand is a serious matter.  It marks the disgrace of a member of an honourable profession inherent in the misconduct.”

  1. [84]
    Further, the Tribunal in Legal Services Commissioner v Challen [2019] QCAT 273, recognised the seriousness of a public reprimand as follows:

“[39] First, there will be an order that the respondent be publicly reprimanded. The respondent conceded that this was an appropriate order in this case. The impact of such an order being made cannot be understated, particularly when it is made against a practitioner of significant seniority and an otherwise unblemished professional record. As this Tribunal has previously said:[46]

The making of a public reprimand is a serious step by the Tribunal and not one which should be taken or regarded lightly. The public reprimand is and will continue to be a permanent public blemish on the respondent’s professional record. It is and will continue to stand as a permanent reminder to the respondent, to the profession and to the public at large that there are adverse personal consequences when one engages in professional misconduct of this kind.”

  1. [85]
    In the current case, an order that the Respondent be publicly reprimanded is appropriate. 
  2. [86]
    Section 456(4)(a) of the LP Act provides that the Tribunal may make “an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100,000.”  The payment of a pecuniary penalty is directed at general deterrence rather than as a punishment. 
  3. [87]
    The Respondent also submits that it is not appropriate for the Respondent to be ordered to pay a penalty in these circumstances.
  4. [88]
    The following particular facts are relevant to whether a pecuniary penalty ought to be imposed:
    1. The Respondent withdrew the Mortgage voluntarily.
    2. The Respondent did not get paid for the legal work done on behalf of the Client[47] and did not seek to recover the fees against the Client.
    3. The Respondent personally paid the interest amount to QuickFees (the funder) in the amount of $14,684.43,[48] which was an actual out of pocket expense for the Respondent.
  5. [89]
    While a pecuniary penalty may usually be considered in conjunction with a public reprimand for a failure to disclose,[49] consideration needs to be given to the financial impact already incurred by the Respondent and the protective nature of the sanction.
  6. [90]
    As the Respondent has borne the financial burden of not being paid for the legal work undertaken by him on behalf of the Client, as well as the payment to a third party of $14,684.43, the Tribunal is satisfied that this is not a case where a further pecuniary penalty is warranted.
  7. [91]
    The LSC also does not seek the imposition of an order requiring the Respondent to undertake an ethics course or other training program.  In the circumstances of this case, it is submitted that such an order would not be apt to protect the public.
  8. [92]
    The conduct in the current case arises in very specific circumstances and the public reprimand operates, together with the financial burden outlined above, to provide sufficient personal and general deterrence.  The Tribunal is satisfied that an order that the Respondent undertake a specific ethics or training course is not warranted to meet the purpose of protection of the public.

Costs

  1. [93]
    Section 462(1) of the LP Act states:

“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.”
  1. [94]
    No exceptional circumstances are identified that would justify any departure from an order in accordance with s 462(1) of the LP Act. 
  2. [95]
    Accordingly, the Tribunal is satisfied that it is appropriate to order that the Respondent pay the LSC’s costs of and incidental to the disciplinary application, to be assessed. 
  3. [96]
    For the purpose of s 462(5)(b) of the LP Act, it is appropriate that costs be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

Orders

  1. [97]
    For the reasons stated above, the Tribunal orders that:
  1. The Respondent’s conduct identified in respect of Charge 1 in the Amended Discipline Application is found to constitute unsatisfactory professional conduct.
  2. The Respondent’s conduct identified in respect of Charge 2 in the Amended Discipline Application is found to constitute unsatisfactory professional conduct.
  3. The Respondent is publicly reprimanded.
  4. The Respondent pay the LSC’s costs of and incidental to the discipline application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

Footnotes

[1]  There was no agreed statement of facts or joint submission on sanction given the late agreement on the way the two charges were to proceed.   The LSC did not read, nor rely on the Client’s affidavit and amendments were made to the discipline application to reflect the agreed basis.

[2]  Thomas J at [43].

[3]  And not reading and relying on the Client’s affidavit.

[4]  By order of Mellifont P there is a prohibition on publishing matters that may lead to the identification of the Client or her ex-husband.  It is sufficient for the purposes of these reasons that they are referred to as the Client and ex-husband.  This approach was agreed to by the parties and is consistent with the order made pursuant to s 656D(1) of the LP Act.

[5] Griffiths v Evans [1953] 1 WLR 1424, 1428 (Denning LJ, in dissent). His Lordship went on to say that “If the solicitor does not take the precaution of getting a written retainer, he has only himself to thank for being at variance with his client over it and must take the consequences.” Other cases have applied that policy to the absence of notes of instructions, not just the creation and terms of a retainer. It has also been said that, where there is a conflict between the evidence of solicitor and client, “it is not surprising that there should be some leaning towards the interests of the supposedly more ignorant party”: Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54, 66.

[6]  As occurred, for example, in Legal Services Commissioner v Rowell [2013] QCAT 397, [18].

[7]  Or the interests of the incorporated legal practice.

[8]  Tab 7 Exhibit 1 Hearing Book, affidavit affirmed 17 May 2024.

[9]  See [17].

[10]  See [17] to [19].

[11]  See [20].

[12]  See [21].

[13]  Given the incorporated legal practice was the mortgagee/party, which is a different legal entity to the Respondent/individual, being an employee solicitor/director of the incorporated legal practice.

[14]  See [61-2350], marked for identification MFI B.

[15]  Or other security document.

[16]  The definition of “court” in the Australian Solicitors Conduct Rules 2012 Glossary of Terms includes “(h) an arbitration or mediation or any other form of dispute resolution”.  Accordingly, the failure to disclose the Mortgage in the Mediation Outline and prior to or at the Mediation may also amount to a failure to disclose the Mortgage to a court, or possibly even the Court.  This was raised at the hearing but was not particularised in the Amended Discipline Application.  Given all the circumstances of this matter, this issue does not require further consideration and does not impact the relevant findings of the Tribunal as to the characterisation of the conduct or the appropriate sanction.

[17]  Tab 7 of Exhibit 1 Hearing Book, affidavit of the Respondent affirmed 17 May 2024 at [31].

[18]  Tab 7 of Exhibit 1 Hearing Book, affidavit of the Respondent affirmed 17 May 2024 at [32].  See also items 29 and 50 of the Financial Statement at Tab 5 of Exhibit 1 Hearing Book on pp. 206 & 209.

[19]  Tab 7 of Exhibit 1 Hearing Book, affidavit of the Respondent affirmed 17 May 2024 at [33].

[20]  Tab 7 of Exhibit 1 Hearing Book, affidavit of the Respondent affirmed 17 May 2024 at [34].

[21]  Tab 7 of Exhibit 1 Hearing Book, affidavit of the Respondent affirmed 17 May 2024 at [35].

[22]  Tab 7 of Exhibit 1 Hearing Book, affidavit of the Respondent affirmed 17 May 2024 at [37].

[23]  See [2(h)(i)(B)] of the Response at Tab 4 of Exhibit 1 Hearing Book.

[24]  Tab 7 of Exhibit 1 Hearing Book, affidavit of the Respondent affirmed 17 May 2024 at [36].

[25]  Being Westpac, the first mortgagee.  This was ultimately reflected in the proposed consent orders that resulted from the Mediation.

[26]  Correspondence from the ex-husband’s solicitor dated 8 December 2020 makes it clear that if the ex-husband had known of the Mortgage he would not have consented to the Order.  See pp. 249-251 of Exhibit 1 Hearing Book.

[27]  Secured by the Mortgage.

[28]  The contract price was $645,000. The amount due to Westpac was a bit more than $585,000, the amount of just over $67,000 was owing in respect of legal fees, interest and other charges under the QuickFee agreement, together with agent’s commission, adjustments and legal fees for the conveyancing lawyers. See Tab 7 of Exhibit 1 Hearing Book, affidavit of the Respondent affirmed 17 May 2024 at [39].

[29]  Tab 7 of Exhibit 1 Hearing Book, affidavit of the Respondent affirmed 17 May 2024 at [42].

[30]  See for example Rule 19 of the Australian Solicitors Conduct Rules 2012.

[31]  This appears to be even if the Tribunal was satisfied of carelessness, sloppiness or a misunderstanding of the Respondent’s obligations.  See [96] of the LSC’s written submissions at Tab 1 Exhibit 1 Hearing Book.

[32]  That is in the Financial Statement, in the Mediation Outline, prior to and at the Mediation and when applying for the Order.

[33]  But short of recklessness.

[34]  [2018] QCAT 128.

[35]  At [34].

[36]  [2011] QCAT 127.

[37]  [2006] LPT 015.

[38]  Dishonesty was alleged but was conceded in the LSC’s written submissions: see [4] of the LSC’s written submissions at Tab 1 Exhibit 1 Hearing Book.

[39]  This appears to be even if there was no dishonesty and there was an obligation to disclose the Mortgage.  It was contended that the conduct was an error of judgment as described in Legal Services Commissioner v Laylee [2016] QCAT 237 and not a form of prescribed conduct.  See [41] of Respondent’s Submissions, Tab 2 Exhibit 1 Hearing Book.

[40]  The reasoning did not change, except perhaps for the scope of the request in the email dated 3 April 2019, but even that was likely to be informed, at least in part, by the Respondent’s reasoning.

[41] Legal Services Commissioner v Madden (No. 2) [2009] 1 Qd R 149 at [122].

[42] Attorney-General v Bax [1999] 2 Qd R 9, 22.

[43]  Amended Discipline Application at [1.1] and admitted in Response at Tabs 4 and 5 of Exhibit 1 Hearing Book; [98](a) of the LSC’s written submissions at Tab 1 Exhibit 1 Hearing Book.

[44]  Constituted by Daubney J (President), Mr Michael Meadows and Dr Margaret Steinberg AM.

[45]  [2018] NSWCATOD 99 at [35].

[46] Legal Services Commissioner v Brown [2018] QCAT 263 at [42].

[47]  Affidavit of the Respondent at [42] at Tab 7 of Exhibit 1 Hearing Book refers to the total amount of $70,984.15, being the QuickFee Loan amount of $49,455.15 and interest and expenses of $21,529.41.

[48]  See Invoice at p 242 of Exhibit 1 Hearing Book, being part of Exhibit “DJE-1” to the Affidavit of David Edwards affirmed 23 February 2024 at Tab 5 of Exhibit 1 Hearing Book.

[49]  See for example Legal Services Commissioner v Hackett [2006] LPT 015, Legal Services Commissioner v Richards [2018] QCAT 128 and Legal Services Commissioner v Thomson [2011] QCAT 127 in respect of misleading conduct not involving an element of dishonesty.  Modest penalties of $5,000 and $3,000 together with a public reprimand were imposed in Hackett and Richards; with no penalty in Thomson.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Hallam

  • Shortened Case Name:

    Legal Services Commissioner v Hallam

  • MNC:

    [2024] QCAT 386

  • Court:

    QCAT

  • Judge(s):

    WIlliams J

  • Date:

    18 Sep 2024

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
Adamson v Queensland Law Society Incorporated[1990] 1 Qd R 498; [1989] QSCFC 145
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 498
Cite 2 - [1990] 1 Qd R 498
Attorney-General v Bax [1999] 2 Qd R 9
1 citation
Jump To
Cite 1 - [1999] 2 Qd R 9
Council of the New South Wales Bar Association v Lott [2018] NSWCATOD 99
2 citations
Jump To
Cite 1 - [2018] NSWCATOD 99
Cite 2 - [2018] NSWCATOD 99
Griffiths v Evans (1953) 1 WLR 1424
1 citation
Jump To
Cite 1 - (1953) 1 WLR 1424
Legal Services Commission v Rowell [2013] QCAT 397
1 citation
Jump To
Cite 1 - [2013] QCAT 397
Legal Services Commissioner v Bradshaw [2009] QCA 126
2 citations
Jump To
Cite 1 - [2009] QCA 126
Cite 2 - [2009] QCA 126
Legal Services Commissioner v Brown [2018] QCAT 263
1 citation
Jump To
Cite 1 - [2018] QCAT 263
Legal Services Commissioner v Cruise [2019] QCAT 182
1 citation
Jump To
Cite 1 - [2019] QCAT 182
Legal Services Commissioner v Hackett [2006] LPT 15
3 citations
Jump To
Cite 1 - [2006] LPT 15
Cite 2 - [2006] LPT 15
Cite 3 - [2006] LPT 15
Legal Services Commissioner v Laylee [2016] QCAT 237
3 citations
Jump To
Cite 1 - [2016] QCAT 237
Cite 2 - [2016] QCAT 237
Cite 3 - [2016] QCAT 237
Legal Services Commissioner v Madden (No 2)[2009] 1 Qd R 149; [2008] QCA 301
1 citation
Jump To
Cite 1 - [2009] 1 Qd R 149
Legal Services Commissioner v Peter Leslie Challen [2019] QCAT 273
2 citations
Jump To
Cite 1 - [2019] QCAT 273
Cite 2 - [2019] QCAT 273
Legal Services Commissioner v Richards [2018] QCAT 128
3 citations
Jump To
Cite 1 - [2018] QCAT 128
Cite 2 - [2018] QCAT 128
Cite 3 - [2018] QCAT 128
Legal Services Commissioner v Thomson [2011] QCAT 127
3 citations
Jump To
Cite 1 - [2011] QCAT 127
Cite 2 - [2011] QCAT 127
Cite 3 - [2011] QCAT 127
Meerkin & Apel v Rossett [1998] 4 VR 54
1 citation
Jump To
Cite 1 - [1998] 4 VR 54
Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295
2 citations
Jump To
Cite 1 - [2021] QDC 295
Cite 2 - [2021] QDC 295

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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