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Legal Services Commission v Bulyk[2024] QCAT 55

Legal Services Commission v Bulyk[2024] QCAT 55

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commission v Bulyk [2024] QCAT 55

PARTIES:

LEGAL SERVICES COMMISSION

(applicant)

v

LILI BULYK

(respondent)

APPLICATION NO/S:

OCR 101-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

14 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 2023

JUDGE:

Davis J

Assisted by:

Mr Keith Revell

Mr Geoffrey Sinclair

ORDER:

Application dismissed

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – NEGLECT AND DELAY – where the respondent was retained by a client to act in a de facto property settlement claim – where a time limit applied for the making of an application – where the time limit was two years from separation of the de facto partners – where the respondent was retained to do initial work concerning a joint bank account and a jointly held property – where the client then had no contact with the respondent for about two years – where the client alleged that she had not been advised of the time limit – where the respondent thought she would have told the client of the time limit – where the respondent conceded she was not in a position to deny the client’s assertions as she had no specific memory – where the respondent made arrangements for her insurer to compensate the client – whether the respondent was charged with unsatisfactory professional conduct or alternatively professional misconduct for failing to advise the client of the time limit – whether the respondent was negligent – whether the respondent was guilty of professional misconduct – whether the respondent was guilty of unsatisfactory professional conduct.

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – SOLICITORS COSTS – where the respondent was retained by the client in a de facto property dispute – where the respondent disclosed the hourly rate of fees to be charged – where the respondent was required to also give an estimate of fees if the fees were to exceed $1,500 – where the fees were approximately $2,250 – where the bills were rendered and paid – where there was no suggestion the bills were excessive – where there was no suggestion that the bills were in amounts that were not expected – where no complaint was made about costs disclosure for two years – where the client then wrongly asserted that the work that was done was worthless – where the respondent repaid the fees in any event – whether the failure to make full costs disclosure constituted professional misconduct – whether the failure to make full costs disclosure constituted unsatisfactory professional conduct

Family Law Act 1975 (Cth), s 44, s 90SM

Legal Profession Act 2007, s 5, s 308, s 310, s 311, s 418, s 419, s 420

Legal Profession (Solicitors) Rule 2007, r 10

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 cited

Legal Services Commissioner v Bone [2013] QCAT 550 followed

Legal Services Commissioner v Bradshaw [2009] QCA 126 followed

APPEARANCES & REPRESENTATION:

Applicant:

A. Angeli, Legal Services Commission.

Respondent:

The respondent appeared in person.

  1. [1]
    The respondent, Lili Bulyk, faces two disciplinary charges.  They are:
  1. Between 6 November 2018 and 11 June 2021, Lili Bulyk (the respondent) failed to deliver legal services competently and diligently to her client (the complainant) by not advising the complainant as to the statutory time limit to file an application for a de facto property settlement claim pursuant to section 44(5) of the Family Law Act 1975.[1]
  2. Between 6 November 2018 and 15 June 2021, the respondent failed to make cost disclosures to the complainant as required by sections 308(1) and 310(1) of the Act.[2]

The facts of charge one

  1. [2]
    Ms Bulyk was admitted to practice as a solicitor in New South Wales in 1985 and in Queensland in 2004.  She practices on her own account in Runaway Bay and at least part of her practice is in Family Law.
  2. [3]
    The complainant was in a de facto relationship but that ended on 2 September 2018.  The complainant and her former partner owned assets together and their financial affairs were otherwise entangled.
  3. [4]
    On 6 November 2018, the complainant engaged Ms Bulyk to act in what became a property dispute with her former de facto partner.  
  4. [5]
    Part V of the Family Law Act 1975 (Cth) concerns property disputes.  Section 44(5), 44(5A) and 44(6) provide:

“44 Institution of proceedings

…

Proceedings in relation to de facto relationships

  1. Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
  1. the application is made within the period (the standard application period) of:
  1. 2 years after the end of the de facto relationship; or
  1. 12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
  1. both parties to the de facto relationship consent to the application.
  1. (5A)
    However, if proceedings are instituted by an application made with the consent of both of the parties to the de facto relationship, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice.
  1. The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
  1. hardship would be caused to the party or a child if leave were not granted; or
  1. in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.”
  1. [6]
    Section 90SM of the Family Law Act empowers the Federal Circuit and Family Court of Australia to make orders altering property interests of persons who have been in a de facto relationship.  That is the section under which the complainant would apply.
  2. [7]
    By s 44(5)(a)(i), any application for property orders could only be made by the complainant as of right before 2 September 2020.  Any application filed thereafter could only be made by leave.
  3. [8]
    In her affidavit the complainant stated:

“8. During the initial consultation,[3] I recall discussing with the respondent[4]:

  1. my intention and hope that the Property Settlement Dispute with Mr Jones[5] could be finalised as quickly as possible; and
  1. that the next steps would involve me gathering various financial documents and information, and providing them to the respondent, so that she could calculate the value of my property settlement entitlements.”
  1. [9]
    Between 6 November 2018 and 16 July 2019, instructions were given by the complainant to Ms Bulyk. 
  2. [10]
    Over that period, the complainant was concerned principally with two issues:
    1. Her former de facto partner had frozen a joint bank account; and
    2. A property in Wynnum West was jointly owned and needed to be sold. 
  3. [11]
    In her affidavit, the complainant swore:

“22. On 16 July 2019 at approximately 3.30pm, I called the respondent in relation to the Property Settlement Dispute.  I recall discussing the frozen NAB account and that Mr Jones had advised me that he would proceed to unfreeze the account.

  1. From on or about 17 July 2019 to 7 May 2021, Mr Jones and I continued to liaise and discuss numerous matters relating to the Property Settlement Dispute, including how various joint assets would be dealt with and split between us.”
  1. [12]
    There was no contact between the complainant and Ms Bulyk from 16 July 2019 until 10 or 11 May 2021.  On that day, Ms Bulyk contacted the complainant.  The reason Ms Bulyk made contact with the complainant is explained in the complainant’s affidavit:

“24. As part of the Property Settlement Dispute, Mr Jones and I agreed to sell our investment property located at 46/232 Preston Road, Wynnum West, Queensland (Wynnum West Property).

  1. On or around 8 May 2021, Mr Jones and I signed a contract for the sale [of] the Wynnum West Property.[6]
  1. When completing the contract of sale for the Wynnum West Property, Mr Jones and I listed the respondent as our solicitor for the conveyance.
  1. On or around 11 May 2021, I received a telephone call from the respondent in relation to the contract of sale for the Wynnum West Property.  During this call, the respondent advised me that she could not act in the sale of the property for Mr Jones and I, as the Property Settlement Dispute was still ongoing and this would be a conflict of interest.”    
  1. [13]
    The contract for the sale of the Wynnum West Property did not proceed to settlement.  The complainant and her former de facto partner then fell into dispute.  That then caused her to contact Ms Bulyk in June 2021. 
  2. [14]
    The complainant explains in her affidavit:

“30. On or around 10 June 2021, I called the respondent to seek her advice on how I could proceed to sell the Wynnum West Property, in circumstances where Mr Jones would not agree to accept the most recent offer to purchase the property.

  1. During the conversation I had with the respondent on or around 10 June 2021, I recall that:

a. the respondent advised me that I should commence de facto property settlement proceedings against Mr Jones in order [to] resolve the Property Settlement Dispute as quickly as possible;

b. the respondent also advised me that I was “out of time” to commence property settlement proceedings and that I would need to seek leave from the courts before I would be allowed to commence property settlement proceedings: and

c. I did not know what “seeking leave” meant, but I understood that I essentially needed to obtain the court’s permission to commence proceedings against Mr Jones because I did not do so within two years of the date that we separated (being on 2 September 2018).

  1. At the end of our telephone conversation on or around 10 June 2021. I felt that I had no choice but to file an application seeking leave to bring property settlement proceedings [out] of time, so I made another appointment to see the respondent on 22 June 2021.”
  1. [15]
    The complainant did not instruct Ms Bulyk to act for her in the application for an extension of time.  Instead, she retained other solicitors who were successful in that application. 
  2. [16]
    The complainant swore that she was not, prior to June 2021, told by Ms Bulyk that there was a time limit of two years from the date of separation, for the making of an application for a property settlement in a de facto partnership.  The complainant asserted this in an email to Ms Bulyk on 8 July 2021.  In that email the complainant asserted that she had suffered loss in that she had to incur the cost of instructing other solicitors to make an application for an extension of time.
  3. [17]
    Ms Bulyk notified her insurers, Lexon, of the complainant’s email of 8 July 2021.  She completed a claim form.  Correspondence then passed between Ms Bulyk and Lexon.  A letter of offer to settle the dispute was prepared by Lexon for Ms Bulyk’s consideration.  That draft offered payment in the sum of $12,252.75 to the complainant being:
  1. a refund of all fees paid to Ms Bulyk - $2,252.75;[7]
  2. an estimate of the reasonable costs of bringing the application for an extension of time - $10,000.00.
  1. [18]
    On 20 August 2021, Ms Bulyk instructed Lexon to make an offer in terms of the draft.  It is clear that Ms Bulyk was pressing Lexon to settle the complainant’s claim.
  2. [19]
    Unfortunately, the offer was not made by Lexon until 12 July 2022.  The offer was accepted by the complainant on 21 July 2022 and in due course, a deed of release discharge and indemnity was executed by both the complainant and Ms Bulyk.
  3. [20]
    In the meantime, the complainant made the complaint to the applicant. 
  4. [21]
    As already observed, the complainant asserted that she had not been advised by Ms Bulyk that there was a time limit of two years from the date of separation within which a property application had to be made.  Ms Bulyk did not positively assert that she gave such advice but she thought that she would have done so.  In her affidavit Ms Bulyk said this:

“8. It is my usual practice in an initial conference to advise parties of any time limits relevant to their matter.  I am confident I would have done this in my meeting with [the complainant] on 6 November 2018.  I did not confirm the time limit in writing.”

  1. [22]
    In her written submissions, Ms Bulyk’s position was expressed as:

“10. In this case I did not provide the Complainant, [complainant’s name redacted], with advice in writing of the two-year statutory limitation period to commence proceedings in her de facto property matter.  I cannot satisfactorily prove I gave her verbal advice in this regard.”

  1. [23]
    The applicant took this as a denial of the complainant’s assertions.  It is not.  Ms Bulyk cannot be expected to make an express concession that she did not advise the complainant of the time limitation.  Doing the best she can, she thinks she would have told the complainant of the limitation period because that was her practice.  With no express memory of telling the complainant of the time limitation, and no written advice to that effect, Ms Bulyk, in her written submission, effectively concedes that the complainant’s evidence should be accepted.  That approach is the professional, honest and correct one.

Consideration of charge one

  1. [24]
    Ms Bulyk is an Australian lawyer as defined by s 5(1) of the Legal Profession Act 2007 and is therefore amenable to discipline.
  2. [25]
    Jurisdiction to impose a sanction is dependent upon a finding of either “unsatisfactory professional conduct” or “professional misconduct”. 
  3. [26]
    Section 418 defines “unsatisfactory professional conduct” as:

“418Meaning 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.”

  1. [27]
    Section 419 defines “professional misconduct” as:

“419Meaning 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.”
  1. [28]
    Section 420 provides relevantly here:

“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. [29]
    Professional misconduct requires a “substantial or consistent failure” to meet and maintain reasonable standards.[8]  The conduct here is clearly not professional misconduct.
  2. [30]
    The applicant points to various cases where unsatisfactory professional conduct or professional misconduct was found as a result of a failure to advise of a time limit.  Comparing the facts of one case with the facts of another is usually a pointless exercise.  Of more assistance is the statement of principle by McMurdo P in Legal Services Commissioner v Bradshaw,[9] where it was said:

“[54] The definition of ‘unsatisfactory professional conduct’ in s 418 Legal Profession Act includes conduct ‘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’. That inclusive definition does not purport to be comprehensive. 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’ (my emphasis). This is a standard to be determined by the tribunal after considering all the relevant circumstances pertaining in each case. In setting that standard, the tribunal will consider relevant common law decisions relating to legal professional standards. In time, the tribunal will also draw on the relevant jurisprudence that has developed under the Act and its counterparts in other jurisdictions. The tribunal correctly approached this question.[10] This proposed ground of appeal is without any prospects of success.”

  1. [31]
    The failure to advise of a limitation date is capable of constituting unsatisfactory professional conduct or, in an extreme case, professional misconduct.[11]
  2. [32]
    However, not every such failing of a solicitor will equate to a professional breach. 
  3. [33]
    In Legal Services Commissioner v Bone,[12] the practitioner breached r 10 of the (now repealed) Legal Profession (Solicitors) Rule 2007 which required a solicitor drawing a will, which appointed the solicitor as the executor, to advise the client in writing before the will is signed of any entitlement of the solicitor to commission.
  4. [34]
    Notwithstanding that breach, unsatisfactory professional conduct was not found.  Alan Wilson J looked at all the circumstances of the case including the rush in which the will was prepared.  His Honour categorised the breach as an oversight and found that unsatisfactory professional conduct had not been proven. 
  5. [35]
    In so concluding, his Honour followed the observations of McMurdo P in Legal Services Commissioner v Bradshaw[13] which I have set out above[14], and then observed:

“[56] The definition of unsatisfactory professional conduct in s 418 sets the standard of competence and diligence to be attained by a practitioner by reference to the reasonable expectations of members of the public of a reasonably competent Australian legal practitioner. The section appears in Chapter 4 which, in its ‘main purposes’ in s 416 speaks of a need to promote and enforce the professional standards, competence and honesty of the legal profession.

  1. [57]
    While, as McMurdo P observed in the passage in Bradshaw mentioned earlier, the Commissioner is not required to prove what a member of the public expects of a reasonably competent Australian legal practitioner, the test is set by reference to a reasonable expectation – i.e., what a member of the public is entitled to expect.
  1. [58]
    That entitlement, here, should appropriately be considered in light of the mischief to which r 10.1 is directed. Plainly that mischief is the inclusion, without proper and reasonable notice to the will-maker, of a charging clause in a will (or the claiming of commission by a solicitor/executor). Mr Markert did that, at least with Mrs Q. On any view he took every necessary step to address the mischief, save for actually giving a notice in writing.”
  1. [36]
    By way of statement of principle, his Honour observed:

“[65] Both ss 418 and 420 of the LPA contain flexible tests, such that not every error which a practitioner may make will constitute unsatisfactory professional conduct. Decided cases suggest, rather, that a finding of that kind will usually involve repeated errors or a significant departure from accepted standards of competence.[15] That is not the case here.”

  1. [37]
    The approach adopted by Alan Wilson J is, in my respectful view, clearly correct, although an isolated error may, in all the circumstances of a particular case, constitute unsatisfactory professional conduct.  His Honour did not, in my view, say the contrary.
  2. [38]
    In my view, there is real doubt that Ms Bulyk could even be said to be negligent let alone liable to disciplinary action.
  3. [39]
    Ms Bulyk took instructions from the complainant only two months after the complainant’s separation from her de facto partner.  She was instructed that the complainant wished to finalise the settlement “as quickly as possible”.[16]  There was nothing to suggest that the complainant would delay in making the application and therefore nothing to suggest that the time limit would be a relevant concern.
  4. [40]
    Although Ms Bulyk would have had a reasonable expectation that the complainant would press the property settlement, the complainant did not keep in contact.  She dealt with her former de facto partner herself for almost two years between 17 July 2019 and 7 May 2021.  There must be doubt whether over that period Ms Bulyk even had a current retainer.
  5. [41]
    In those circumstances there must also be real doubt that Ms Bulyk acted negligently because:
    1. Up to July 2019 there was nothing to suggest the time limit was an issue; and
    2. After July 2019 Ms Bulyk did not have active instructions.
  6. [42]
    Having made these observations, it is clear that good practice would have been to advise the complainant of the time limit as a matter of course.  Ms Bulyk could also have set a reminder near the time of expiry of the limit and written to the complainant then advising her of the time limit.
  7. [43]
    However, when the complainant resurfaced in mid-2021, Ms Bulyk gave the appropriate advice, namely:
    1. The time limit had expired; and
    2. An application for an extension of time should be made.
  8. [44]
    When the complainant made allegations against her, Ms Bulyk acted completely professionally and appropriately.  She notified her insurer.  Although Ms Bulyk thought she would have advised the complainant of the time limit when she met with her in November 2018, she sensibly accepted that in the circumstances, the complainant’s assertions should not be contested.  She took all necessary steps to have Lexon finalise the complainant’s claim.
  9. [45]
    In all the circumstances, unsatisfactory professional conduct is not established.
  10. [46]
    I dismiss charge one.

The facts of charge two

  1. [47]
    Charge two arises from the same retainer as is relevant to charge one.
  2. [48]
    On 6 November 2018, Ms Bulyk sent the complainant an invoice in a total amount of $440 which included GST of $40.  The description of the services rendered was:

“06/11/2018

Meeting with you to obtain initial instructions in relation to property settlement and you to provide further financial material to enable determination of asset pool”

  1. [49]
    On 14 November 2018, some eight days after being retained by the complainant, Ms Bulyk sent the complainant an email.  In that email, she advised: “We confirm our professional fees are $440 per hour for all time spent on the matter plus disbursements.  Time is billed in 6 minute units.”
  2. [50]
    Between 12 November 2018 and 10 December 2018, Ms Bulyk rendered services pursuant to the retainer.  Those services were described in a bill which was delivered on 11 December 2018 in the sum of $1,812.75. 

Professional Fees

Date

Description

Amount

GST

12/11/2018

Telephone from you to advise you have some further information, cannot find other party’s super balance, we to apply to fund

$40.00

$4.00

13/11/2018

Attending to completing Superannuation Information Kit

$80.00

$8.00

14/11/2018

Attending you on signing Superannuation Information Kit and receiving further information and requesting we write to other party

$40.00

$4.00

14/11/2018

Letter to Cbus enclosing Superannuation Information Kit

$40.00

$4.00

14/11/2018

Letter to other party outlining process and duty of disclosure

$240.00

$24.00

14/11/2018

Email to you attaching letter to other party for approval

$40.00

$4.00

20/11/2018

Telephone you to advise other party has solicitor and we able to provide financial docs to him

$40.00

$4.00

20/11/2018

Attending to perusing disclosure documents, scanning and identifying same and preparing table of assets and liabilities

$400.00

$40.00

06/12/2018

Meeting with you to obtain instructions in relation to response to letter from other party’s lawyer and withdrawal of funds from joint account

$400.00

$40.00

10/12/2018

Letter to Gall Stanfield Smith objecting to caveat and confirming sale of home

$200.00

$20.00

 

 

$1,520.00

$152.00

Disbursements

Date

Description

Amount

GST

14/11/2018

Sundries- Cbus fee for provision of information

$100.00

$10.00

14/11/2018

Express post

$7.95

$0.80

11/12/2018

Sundries

$20.00

$2.00

$127.95

$12.80

Invoice Amount

$1,647.95

Tax

$164.80

Total Amount:

$1,812.75

Amount Received:

$1,812.75

Balance Due:

  1. [51]
    For present purposes, the bill of 11 December 2018 sufficiently describes the work undertaken by Ms Bulyk over that period.  She was involved in taking initial instructions, and dealing with specific issues concerning a bank account and a jointly owned house.[17]
  2. [52]
    The Legal Profession Act provides for costs disclosure.  Section 308(1) provides relevantly here:

“308  Disclosure of costs to clients

  1. A law practice must disclose to a client under this division—
  1. the basis on which legal costs will be calculated, including whether a scale of costs applies to any of the legal costs; and
  1. the client’s right to—
  1. negotiate a costs agreement with the law practice; and
  1. receive a bill from the law practice; and
  1. request an itemised bill after receipt of a lump sum bill; and
  1. be notified under section 315 of any substantial change to the matters disclosed under this section; and
  1. an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs; and …” (emphasis added)
  1. [53]
    Section 310(1) prescribes how and when the disclosure must be made.  It relevantly provides:

“(1)  Disclosure under section 308 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.”

  1. [54]
    The information prescribed by s 308(1)(a) was provided by the email from Ms Bulyk to the complainant on 14 November 2018.[18]  The information prescribed by s 308(1)(b) was endorsed on the first invoice[19] and also on the second[20] but has not been reproduced in these reasons.
  2. [55]
    The complaint is that no estimate of total fees was sent pursuant to s 308(1)(c).
  3. [56]
    Section 311(1) provides:

“311Exceptions to requirement for disclosure

  1. Disclosure under section 308 or 309(1) is not required to be made in any of the following circumstances—
  1. if the total legal costs in the matter, excluding disbursements, are not likely to exceed $750 exclusive of GST or, if a higher amount is prescribed under a regulation, the prescribed amount …”
  1. [57]
    The prescribed amount for the purposes of s 311(1)(a) was $1,500.  Ms Bulyk accepts disclosure ought to have been given by her of an estimate pursuant to s 308(1)(c).
  2. [58]
    The failure to comply with the statutory requirements of s 308(1)(c) is capable of constituting unsatisfactory professional conduct or professional misconduct.[21]  As earlier explained,[22] whether unsatisfactory professional conduct or professional misconduct is established necessitates a consideration of all relevant circumstances.
  3. [59]
    On 15 June 2021, after the complainant had terminated Ms Bulyk’s instructions, she requested from Ms Bulyk copies of various documents including the invoices.  These were all provided promptly, indeed on the same day as the request.
  4. [60]
    On 8 July 2021, the complainant wrote a letter of complaint to Ms Bulyk.  There was no complaint that she had not been charged in accordance with the email of 14 November 2018.  There was no complaint that either of the two bills were of an amount more than expected.
  5. [61]
    The complaint was summarised in the letter of 8 July 2021 as follows:

“Based on the fact that you have failed in your duty to resolve my property matter quickly and expeditiously with minimal legal costs, and you have been negligent in not giving me accurate and timely legal advice regarding time limitations,[23] I seek the following occur:

  1. That you reimburse me all the legal costs I have paid to you to date regarding de-facto property advice – as I believe the advice was inaccurate and useless; and
  2. That you make a payment to me for the additional legal costs to be put in engaging with another lawyer to make an urgent application to the court seeking orders and leave to commence proceedings out of time.”
  1. [62]
    Further correspondence exchanged between Ms Bulyk and the complainant whilst, as explained earlier, Ms Bulyk was dealing with Lexon.  In due course, the complainant lodged a complaint form with the applicant.  That complaint form is dated 15 September 2021.  In the form she complained of not being advised of the time limit for the making of a de facto property settlement claim and she also said “I did not receive a client or cost agreement to my knowledge”.  In a later letter to the applicant, the complainant, amongst other things, said that “Ms Bulyk did not give me any disclosure about legal costs”.
  2. [63]
    The complaint was accepted, at least for investigation, and the applicant wrote to Ms Bulyk on 10 January 2022.  Included in the letter was:

“The alleged conduct being investigated by the Commission is whether you:

  1. failed to advise [the complainant] about the time limit that applied to her de-facto property settlement;
  1. refused to deal with Mr Jones, who was self-represented, on [the complainant]’s behalf; and
  1. failed to provide costs disclosure to [the complainant].”
  1. [64]
    On 21 January 2022, Ms Bulyk responded to the applicant and said relevantly:
  1. “1.
    I did not advise [the complainant] in writing that she had a time limit in which to commence proceedings for her de facto property settlement matter;
  1. I deny that I refused to deal with Mr Jones, who was self-represented;
  1. [The complainant] was advised of my hourly rate and was billed accordingly.  A comprehensive costs disclosure was not provided as the matter did not proceed further.”
  1. [65]
    And later in the same letter:

“In relation to number 3 above [the complainant] paid the two accounts provided without complaint.”

  1. [66]
    As already observed in relation to charge one, the total of the legal fees paid was refunded.[24]

Consideration of charge two

  1. [67]
    Particulars were provided of charge two.  They were:

“Particulars

  1. 2.1
    The Applicant repeats and relies on particulars 1.1 and 1.2.[25]
  2. 2.2
    The Respondent, by email to the Complainant dated 14 November 2018, advised that:

“We confirm our professional fees are $400.00 per hour for all time spent on the matter plus disbursements.  Time is billed in 6 minute units.”

  1. 2.3
    The Respondent invoiced the Complainant for legal costs and disbursements in excess of the prescribed amount in relation to the Complainant’s Family Law Dispute.  Details of the Respondent’s invoices are as follows:

a. Invoice no. 7921 dated 9 November 2018 in the total sum of $440.00 inclusive of GST; and

b. Invoice no 7986 dated 11 December 2018 in the total sum of $1,812.75 (including disbursements in the sum of $292.75).

  1. 2.4
    On 26 May 2022, the Respondent sent a letter to the Applicant in relation to the purported conduct of the Respondent, stating, among other things, that:

“I did not provide comprehensive costs disclosure in writing.”

  1. 2.5
    The Respondent failed to make adequate costs disclosure to the Complainant as required by sections 308(1) and 310(1) of the Act, as soon as practicable or at all, when she became aware that total legal costs exceeded or were likely to exceed the prescribed amount.”
  1. [68]
    The particulars show that the complaint is not a failure to give an estimate of fees for the proposed application for a property settlement.  The complaint is that the two bills together exceed $1,500 and a costs estimate should have been provided for that work.
  2. [69]
    In context then, the charge has been brought because the amount charged exceeded the statutorily prescribed amount by about $750.00.
  3. [70]
    Contrary to the complainant’s assertions to the applicant, there was costs disclosure at least in part.  She was clearly told by email[26] that Ms Bulyk was charging $440 per hour, inclusive of GST. The only failure was not to give an estimate.   The complainant did not complain that either invoice was excessive or was of an amount that was unexpected.  The complainant’s complaint about costs disclosure seems very much to be an afterthought.
  4. [71]
    Further, the complainant’s demands for repayment of the fees she had paid was not justified.  It may be that the failure of Ms Bulyk to advise of the time limit for the filing of a property settlement application caused the complainant loss in that she was then forced to fund an application for an extension of time.  However, that did not render the work done by Ms Bulyk in November and December 2018 worthless.
  5. [72]
    Ms Bulyk rendered legal services in relation to two immediate problems that were facing the complainant.  The first was the sale of the jointly owned property and the second was the freezing of the bank account.  There is nothing to suggest that the work was done other than properly.  The complainant made no complaint about Ms Bulyk’s services (or her bills) until she realised she was out of time to file her property settlement application.
  6. [73]
    Ms Bulyk failed to provide a costs estimate.  However, she did so in circumstances where she was attending to immediate issues.  The value of this work exceeded the statutory limit by only about $750.  There is nothing to suggest that the complainant was disadvantaged in any way by the failure to provide a costs estimate.  Further, when confronted with the complaints, Ms Bulyk referred the matter to her insurer and made arrangements to repay the fees notwithstanding that, in my view, she had no legal obligation to do so.
  7. [74]
    It is important that proper costs disclosure is made. However, not every failure will constitute professional misconduct or unsatisfactory professional conduct. Notwithstanding the breach of s 308(1)(c), Ms Bulyk is, in my view, not guilty of unsatisfactory professional conduct or professional misconduct.
  8. [75]
    I dismiss charge two.

Conclusion

  1. [76]
    Ms Bulyk did not make full disclosure in relation to fees as required by the Legal Profession Act.  On any sensible view, it was a minor infraction which caused the complainant no disadvantage.  Ms Bulyk probably failed to advise the complainant of a time limit but I am not convinced, for the reasons I have given, that even constituted negligence in all the circumstances.
  2. [77]
    When confronted with the complaints, Ms Bulyk immediately took steps to remedy the situation and, in my view, went further than she was required to do.
  3. [78]
    Perfection in legal practice is not possible.  A failure to reach perfection does not automatically constitute unsatisfactory professional conduct or professional misconduct. For the reasons given, Ms Bulyk has committed neither.
  4. [79]
    Neither charge is made out and the application is dismissed.

Footnotes

[1]Particulars were provided for both charges.  The particulars of charge two are reproduced at paragraph [67] of these reasons.

[2]A reference to the Legal Profession Act 2007.

[3]6 November 2018.

[4]Ms Bulyk.

[5]A pseudonym for the complainant’s former de facto partner.

[6] Grammatical error corrected.

[7]See paragraphs [48] – [50] of these reasons.

[8]Consistently with common law notions of professional misconduct; see Adamson v Queensland Law Society Incorproated [1990] 1 Qd R 498 at 507-508.

[9][2009] QCA 126.

[10]Legal Services Commissioner v Bradshaw [2008] LPT 9 at [37].

[11]Legal Profession Act 2007, s 418, s 419, s 420(1)(a).

[12][2013] QCAT 550.

[13][2009] QCA 126.

[14]At [30] of these Reasons.

[15]Legal Services Commissioner v McLelland [2006] LPT 13; Legal Services Commissioner v Bradshaw [2008] LPT 9; Legal Services Commissioner v Bradshaw [2009] QCA 126; Legal Services Commissioner v Anderson [2009] LPT 001; Legal Services Commissioner v Krebs [2009] LPT 11; Legal Services Commissioner v Rouyanian [2013] QCAT 57; Scroope v Legal Services Commissioner [2013] NSWCA 178; and NSW Bar Association v Bland [2010] NSWADT 34.

[16]See paragraph [8] of these reasons.

[17]See paragraph [10] – [11] of these reasons.

[18]See paragraph [49] of these reasons.

[19]See paragraph [48] of these reasons.

[20]See paragraph [50] of these reasons.

[21]Legal Profession Act 2007, s 420.

[22]See paragraphs [32] to [41] of these reasons.

[23]The subject of charge one.

[24]See paragraphs [17] – [19] of these reasons.

[25]Particulars of charge one asserting that Ms Bulyk is an Australian lawyer practising on her own account and was retained by the complainant.

[26]See paragraph [49] of these reasons.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commission v Bulyk

  • Shortened Case Name:

    Legal Services Commission v Bulyk

  • MNC:

    [2024] QCAT 55

  • Court:

    QCAT

  • Judge(s):

    Davis J

  • Date:

    14 Feb 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
Legal Services Commissioner v Anderson [2009] LPT 1
1 citation
Jump To
Cite 1 - [2009] LPT 1
Legal Services Commissioner v Bone [2013] QCAT 550
2 citations
Jump To
Cite 1 - [2013] QCAT 550
Cite 2 - [2013] QCAT 550
Legal Services Commissioner v Bradshaw [2009] QCA 126
4 citations
Jump To
Cite 1 - [2009] QCA 126
Cite 2 - [2009] QCA 126
Cite 3 - [2009] QCA 126
Cite 4 - [2009] QCA 126
Legal Services Commissioner v Bradshaw [2008] LPT 9
2 citations
Jump To
Cite 1 - [2008] LPT 9
Cite 2 - [2008] LPT 9
Legal Services Commissioner v Krebs [2009] LPT 11
1 citation
Jump To
Cite 1 - [2009] LPT 11
Legal Services Commissioner v McClelland [2006] LPT 13
1 citation
Jump To
Cite 1 - [2006] LPT 13
Legal Services Commissioner v Rouyanian [2013] QCAT 57
1 citation
Jump To
Cite 1 - [2013] QCAT 57
New South Wales Bar Association v Bland [2010] NSWADT 34
1 citation
Jump To
Cite 1 - [2010] NSWADT 34
Scroope v Legal Services Commissioner [2013] NSWCA 178
1 citation
Jump To
Cite 1 - [2013] NSWCA 178

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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