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[2017] QCAT 96
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2017-04-10
Margaret Steinberg AM
Original judgment source is linked above.
Legal Services Commissioner v Leneham [2017] QCAT 96
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - INTERLOCUTORY APPLICATION - STRIKE OUT - where respondent submitted the evidence relied upon by the applicant gave no prospects of successfully maintaining the disciplinary proceedings - where applicant submitted proceedings had not yet reached a stage where more evidence would be called - whether proceedings were so lacking in substance and misconceived so as to warrant striking out
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - OTHER MATTERS - where, in the alternative, the respondent sought disclosure of documents relevant to the conduct alleged - where applicant indicated that it did not have those documents in its possession - where applicant offered to attempt to obtain those documents sought by respondent - whether such an order can be made under s 62 QCAT Act
General Steel Industries Inc v Commissioner for Railways NSW and Ors [1964] HCA 69; (1964) 112 CLR 125
Peter James Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
RJ Leneham of Quinn & Scattini Lawyers on his own behalf
[1] The Legal Services Commissioner brought a Disciplinary Application against Mr Leneham on 12 May 2016.
[2] The assertion made by the Commissioner was that Mr Leneham dealt directly with another solicitor's client, Ms de la Motte, in that he attended personally at Ms de la Motte's home, engaged Ms de la Motte in conversation and handed her a letter relating to a claim.
[3] After the filing of the Response and/or Counterclaim, Mr Leneham sought an order that the proceedings be dismissed summarily.
[4] In the alternative, Mr Leneham seeks orders relating to disclosure and particulars.
[5] The application is made pursuant to section 47 Queensland Civil and Administrative Tribunal Act 2009 ('QCAT Act').
[6] Section 47 applies if the tribunal considers a proceeding or a part of a proceeding is -
[7] The Tribunal is empowered to order the proceedings or part be dismissed or struck out.[1]
[8] Mr Leneham submitted that the evidence which was relied upon by the Commissioner was such that the Commissioner had no prospects of successfully maintaining the disciplinary proceedings against Mr Leneham.
[9] Mr Leneham referred to the following:
A passage in the investigation report dated 4 January 2016 where the Commissioner set out what had been taken into account in preparing the report. The material referred to included the complaint, Mr Leneham's responses dated 19 and 20 October 2015, Ms Hutchinson's submissions dated 5 November 2015 and Mr Leneham's submissions dated 26 November 2015. The Commissioner indicated, "I do not believe any further investigation is warranted".[2]
Mr Leneham submitted that the Commissioner:
- had not obtained a statement from Ms de la Motte;
- did not obtain evidence of the retainer arrangements with Turner Freeman;
- had not obtained statements relating to relevant telephone conversations; and
- made incorrect assumptions from correspondence.
Mr Leneham also referred to submissions made by the Legal Services Commissioner, filed in relation to the application to strike out, where the Legal Services Commissioner submits "the respondent has been provided, to the knowledge of the applicant, with all material that the applicant proposes to rely on in respect of this application." He submitted this statement indicated that the Legal Services Commissioner did not intend to obtain any additional evidence.
[10] Mr Leneham submitted that the facts were as outlined in communications which he forwarded,[3] in which Mr Leneham recorded the details of his interaction with Ms de la Motte as being:
After identifying her as the intended recipient of the letter, I handed her the letter saying, "I've got a solicitor's letter for you";
I then immediately attempted to leave; we were standing near my car in front of her house when I served her with the letter;
She then attempted to engage me in conversation;
It was only (and appropriately) at that point that I attempted to clarify whether she had solicitors acting for her in relation to the family provision application;
When I sought clarification, Ms de la Motte did not give a straight answer, saying "may be someone will get in touch with you".
[11] Mr Leneham submitted that in the circumstances of this contact, and of the interactions which took place between his office and Ms Hutchinson from Turner Freeman leading up to 21 August 2015, there was no prospect that the disciplinary application would be successful. Mr Leneham alleged that, in the circumstances, the proceedings were lacking in substance and misconceived so that pursuant to section 47 QCAT the proceedings should be dismissed.
[12] Mr Nicolson on behalf of the Legal Services Commissioner submitted that, especially given the stage the proceedings had reached, the Commissioner had not given any indication as to the evidence which would be called. He submitted that the comment by the Commissioner saying that the Commissioner did not believe any further investigation was warranted related to the investigations taken at that time and was made in the context of an investigation report leading to the decision to institute the proceedings. He also submitted that the passage contained in the outline of submissions (which had been prepared by him) clearly related to the question of material available and the disclosure obligations and did not concern evidence or whether the Commissioner believed that all evidence had been provided.
[13] Mr Nicolson submitted that the Legal Services Commissioner would be asserting that, on the facts as outlined in Mr Leneham's communications, the conduct of Mr Leneham amounted to either unsatisfactory professional conduct or professional misconduct as those terms are used in section 418 and 419 Legal Profession Act 2007.
[14] It is well settled that the applicant should not be denied access to a hearing unless the lack of a cause of action is clearly demonstrated. As was described by Barwick CJ in General Steel Industries Inc v Commissioner for Railways NSW:[4]
"The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
[15] French CJ and Gummow J observed that the exercise of powers to summarily terminate proceedings must always be attended with caution, and that the same approach applies whether the application suggests that the pleadings failed to disclosure a reasonable cause of action or that such a disposition is sought in a summary judgement application supported by evidence.[5]
[16] The Commissioner asserts that, on the basis of the facts as asserted by Mr Leneham, Mr Leneham's conduct should be regarded as either unsatisfactory professional conduct or professional misconduct as those terms are used in section 418 and 419 _Legal Profession Ac_t 2007.
[17] Mr Leneham disagrees.
[18] Mr Leneham has indicated that there may be the need to test whatever evidence is led regarding the question of the retainer of Turner Freeman and discussions which took place between Ms Hutchinson from Turner Freeman and his office.
[19] In these reasons, the Tribunal does not intend to express considered conclusions about prospects. It is sufficient the Tribunal conclude that it cannot be said that the application does not disclose a charge, which might be maintained, and it is certainly not so obviously untenable that it cannot possibly succeed.
[20] The Commissioner raises arguments which must be determined at a hearing of the matter rather than determined summarily in the way which is urged by Mr Leneham.
[21] In those circumstances, the application for dismissal and/or strike out is dismissed.
[22] In the alternative, Mr Leneham sought orders as to particulars of paragraph 1.3(b) of the particulars of charge.
[23] At the hearing of the application, Mr Leneham abandoned the request for particulars.
[24] Mr Leneham sought disclosure of:
All retainer documents in relation to the family provision proceedings;
Any contemporaneous file note made by Turner Freeman or Ms Hutchinson in relation to a conversation which took place between Carmen Kochamek from Mr Leneham's office and Ms Hutchinson; and
All instructions from Ms de la Motte to Ms Hutchinson from and including 17 July 2015 up to and including 20 August 2015.
[25] Mr Nicolson indicated that the Legal Services Commissioner does not have in his possession any of the documents sought by Mr Leneham.
- [26] Mr Leneham submitted that, pursuant to section 62 of the QCAT Act, the Tribunal should make an order against the Legal Services Commissioner directing that the Legal Services Commissioner obtain those documents from Turner Freeman (themselves not a party to the proceedings) and then provide the documents, so obtained, to Mr Leneham.
- [27] Mr Leneham submitted that it was not necessary for him to make an application against Turner Freeman pursuant to section 63, as it was the obligation of the Legal Services Commissioner to undertake further investigation, obtain the documents and provide them to Mr Leneham.
- [28] Mr Nicolson submitted that as the matter progresses, and the Legal Services Commissioner prepares for the hearing, it is possible that the Legal Services Commissioner may obtain some of the documents, in which case, they will be provided to Mr Leneham.
- [29] On behalf of the Legal Services Commissioner, with a view to advancing the proceedings in the expeditious way, Mr Nicolson made the offer that the Commissioner will endeavour to obtain copies of the documents requested by Mr Leneham. The Legal Services Commissioner is prepared also to indicate to Mr Leneham whether the documents can be obtained, and to the extent that the documents can be obtained, will provide copies to Mr Leneham.
- [30] In relation to the application by Mr Leneham, the Tribunal concludes that Section 62(1) QCAT Act does not allow the Tribunal to make orders requiring the Legal Services Commissioner to undertake the further investigation specified by Mr Leneham, and then provide to Mr Leneham documents which are obtained by the Legal Services Commissioner as a result of those additional investigations.
- [31] The application for disclosure by Mr Leneham is dismissed.
- [32] However, the Tribunal notes the offer which has been made by the Legal Services Commissioner and Mr Leneham's agreement with that offer. To allow the matter to proceed as expeditiously as possible and to record the agreement, the Tribunal directs, by consent that:
- The Legal Services Commissioner will make enquiries and will use his best endeavours to obtain:
- (a) All retainer documents in relation to the family provision proceedings as mentioned in paragraph 1 of annexure A to the respondent's response; and
- (b) Any contemporaneous file note made by Turner Freeman or Ms Hutchinson as mentioned in paragraph 1 of annexure A to the respondent's response; and
- (c) All instructions from Ms de la Motte to Ms Hutchinson (from and including 17 July 2015 up to and including 20 August 2015).
- If the Legal Services Commissioner obtains any such documents, the Legal Services Commissioner will provide copies of those documents to Mr Leneham forthwith upon receipt of the documents by the Legal Services Commissioner.
- The Legal Services Commissioner will inform Mr Leneham whether the information which becomes available to the Legal Services Commissioner reveals that any such documents do not exist.
- The Legal Services Commissioner will use his best endeavours to comply with these directions by 5 May 2017.
- The matter will be listed for a directions hearing on 9 May 2017.
[2] Respondent's submissions, dated 13 July 2016, paragraphs 2 and 3.
[3] Letter from Russell Leneham to Legal Services Commissioner dated 20 October 2015 and letter from Russell Leneham to Legal Services Commissioner dated 26 October 2015.
[4] General Steel Industries Inc v Commissioner for Railways NSW and Ors [1964] HCA 69; (1964) 112 CLR 125 at 129.
[5] Peter James Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, paragraph 24.
Legal Services Commissioner
Leneham [2017] QCAT 96
(2010) 241 CLR 118
(1964) 112 CLR 125