CITATION:	Legal Services Commissioner v Delaney [2015] QCAT 270	

PARTIES:	Legal Services Commissioner
(Applicant/Appellant)	
	v	
	Timothy Norton Delaney
(Respondent)	

APPLICATION NUMBER:	OCR281-13	

MATTER TYPE:	Occupational regulation matters	

HEARING DATE:	10 February 2015	

HEARD AT:	Brisbane	

DECISION OF:	Justice Thomas, President	

DELIVERED ON:	8 July 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The application to vary the disciplinary application is refused.

2.	Any application to amend the discipline application must be filed in the Tribunal and served on the respondent within 28 days of the date of this order.	

CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where applicant made application to vary the particulars of charge in the discipline application – where respondent alleges charge is not properly made out – where discipline application is not clearly drafted and much is left to implication – where practitioner must be properly appraised of the case to answer in disciplinary proceedings – whether application to vary particulars should be allowed 

Legal Profession Act 2007 (Qld) ss 249, 455(1), 455(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 4(c), 28(3)(b), 28(3)(c), 28(3)(d), 64, 64(1)

Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149	

APPEARANCES and REPRESENTATION (if any):

APPLICANT: 	Kelly, M. for the Applicant	

RESPONDENT: 	Cohen, B. of Bartley Cohen Litigation Lawyers for the Respondent	

REASONS FOR DECISION 
[1]	The Legal Services Commissioner has made an application to vary the particulars of charge.
[2]	Mr Delaney opposes this application.
Discussion
[3]	Section 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that the Tribunal may, at any time in a proceeding, make an order requiring that a relevant document be amended.
[4]	Section 455 of the Legal Profession Act 2007 (Qld) (‘Legal Profession Act’) provides that a disciplinary body may vary a discipline application by omitting allegations or including additional allegations if the body is satisfied that it is reasonable to do so in all the circumstances. In that context, the disciplinary body must have regard to whether varying the application will affect the fairness of the proceeding.
[5]	The Legal Services Commissioner makes the submission that the charge contained in the discipline application remains unaltered and that the changes relate only to “certain particulars that the respondent has indicated require further and better particulars”, and so an order should be made varying the particulars.
[6]	Mr Delaney submits that the application to vary the discipline application should be refused because the facts proposed to be alleged, even if made out, could not sustain a finding that Mr Delaney breached his obligations pursuant to s 249 of the Legal Profession Act or acted contrary to his instructions and obligations as a stakeholder.
[7]	Mr Delaney has referred to comments by Debelle J as follows:
Nevertheless, it must not be overlooked that the gravity of the unprofessional conduct will turn upon the extent to which each of the matters particularised is proved.  In addition, the practitioner must be properly appraised of the case he has to answer. It is important, therefore, that care is taken to ensure that the particulars of the unprofessional conduct alleged against the legal practitioner are carefully drawn so that they contain no ambiguity and clearly state the nature of the alleged misconduct.
[8]	A legal practitioner is entitled to know, from the charges made and the particulars provided, what questions and issues arise – essentially, the case that the person must meet.  
[9]	The application is brief and the amendments not substantial.
[10]	The proposed amended application asserts the following:
a)	Mr Delaney acted on behalf of the vendor in relation to sale of a residential property. 
b)	The deposit was to be released to the vendor on the establishment of the Community Titles Scheme.
c)	Mr Delaney acted as deposit holder under contracts of sale for lots 10 and 24.
d)	Mr Delaney placed the deposit in his trust account, on trust for both vendor and purchaser in accordance with instructions.
e)	The contract was originally with respect to lot 10 only and for a purchase price of $730,000. A purchase price of $750,000 was later discussed but no further contract executed.
f)	In late April the parties decided that the purchaser would acquire lot 24 in lieu of lot 10 and the deposit was to be held with respect to lot 24 rather than lot 10. A contract was signed on 20 August 2010.
g)	On 22 March 2010 the Community Title Scheme was established.
h)	On 20 May 2010 and 1 June 2010 Mr Delaney released the deposit to his client contrary to his obligation pursuant to s 249 of the Legal Profession Act to hold trust money in the practices trust account exclusively for the vendor and purchaser on whose behalf it was received, and to disperse that money only under a direction given by the vendor and the purchaser. Alternatively, the Legal Services Commissioner asserts that Mr Delaney released the deposit monies from his trust account contrary to instructions and his obligations as a stakeholder to hold the money on trust for the vendor and purchaser.
[11]	On behalf of Mr Delaney, submissions were made concerning the efficacy of various aspects of the application.  For example, the application asserts that the first agreement was unenforceable. This conclusion is challenged. 
[12]	Mr Delaney also challenged whether the assertions relating to the change of lot were sufficiently pleaded, so as to have effectively made out the element that he was made aware of the changed basis upon which he was to hold the money (assuming the basis had been changed).
[13]	It is correct to say that the discipline application is not clearly drafted and much is left to implication. 
[14]	The legal representatives for Mr Delaney have foreshadowed that, in the event the application is refused, another application will soon follow seeking to strike out the disciplinary proceedings on the basis that the proceedings reveal no proper claim against Mr Delaney.
[15]	The question is, therefore, whether the discipline application fails to make out a charge.
[16]	The objects of the QCAT Act include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. Various provisions deal with the way in which the Tribunal must approach its functions. These include to ensure that proceedings are conducted in an informal way which minimises costs to parties and is as quick as is consistent with achieving justice. The Tribunal is not bound by the rules of evidence or any practices or procedures applying to courts of record, and may inform itself in any way it considers appropriate. The Tribunal must act with as little formality and technicality and with as much speed as the requirements of the Act and a proper consideration of the matters before the Tribunal permit. 
[17]	The effect of these provisions is that the same level of rigour as might be expected in proceedings in a court, are often not required in matters before the Tribunal. For example, pleadings, common in the Court setting, are not required generally in the Tribunal.
[18]	Whilst that is the general approach, in some jurisdictions within the Tribunal more formality is required because of the nature of the proceedings.  One such example is in the area of legal disciplinary matters, where requirements such as those outlined by Debelle J above are appropriate.
[19]	It is clear from the discipline application that the assertion against Mr Delaney will be that he dealt with deposit monies in breach of s 249 of the Legal Profession Act and/or contrary to instructions and his obligations as stakeholder.
[20]	The exact nature of the case which will be asserted against Mr Delaney to lead to that conclusion is not as clear.  It is not clear, for example, what arrangement it is asserted governed Mr Delaney’s obligations at the time the payments were made. It seems to be asserted that the first contract was not enforceable, the price variation on the first contract was never signed, and at the time of the payments the lot 24 contract had not been signed although it was discussed.  
[21]	The particular basis upon which it is asserted that the first lot 10 contract was not enforceable is not set out or properly particularised.
[22]	There is no specific allegation which deals with Mr Delaney’s knowledge or instructions at the time the payments were made. For example, the assertion in paragraph 1.9 does not make it clear (if it is so asserted) that the lot 24 contract was to substitute for the lot 10 contract and that Mr Delaney knew of this position, if it was then the case (although the assertion in paragraph 1.14 seems more consistent with communication of instructions, albeit a day later).
[23]	The amendments which are proposed do not sufficiently assist Mr Delaney to be appraised of the exact case which he has to answer.  
[24]	For this reason, I refuse the application to vary the disciplinary application.  
[25]	In making this order, I am not telegraphing that an application to strike out the discipline application would be successful – indeed, to the contrary, I anticipate that this order will give the Legal Services Commissioner the opportunity to reformulate the discipline application, taking into account the matters raised in these reasons, and which were raised at the oral hearing and in Mr Delaney’s submissions, so as to ensure that particulars of the unprofessional conduct alleged against Mr Delaney are carefully drawn and properly particularised so that ambiguity is removed and the nature of the alleged misconduct is clearly stated.
[26]	I direct that any application to amend the discipline application be filed in the Tribunal and served on the respondent within 28 days of the date of this order.