CITATION:	Legal Services Commissioner v Fyfe [2016] QCAT 2	

PARTIES:	Legal Services Commissioner (Applicant/Appellant)	
	v	
	Fiona Jayne Fyfe (Respondent)	

APPLICATION NUMBER:	OCR277-13	

MATTER TYPE:	Occupational Regulation matters	

HEARING DATE:	On the papers	

HEARD AT:	Brisbane	

DECISION OF:	Justice DG Thomas, President
Assisted by:
Mrs Joanne Collins, Legal panel member
Dr Margaret Steinberg AM, Lay panel member	

DELIVERED ON:	7 January 2016	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The claim for compensation is refused.	

CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – REMEDIES – COMPENSATION ORDER – where practitioner was found guilty of professional misconduct for practicing without a practising certificate – whether practitioner’s conduct contributed to the complainant’s claimed pecuniary loss 

Legal Profession Act 2007 (Qld) ss 464, 465, 466
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Legal Services Commissioner v Fyfe [2015] QCAT 269	

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION 
Compensation order
[1]	Mr Todd Edward Strathearn filed a Notice of Intention to Seek Compensation Order pursuant to s 464 of the Legal Profession Act 2007 (Qld) (the Act).
[2]	The compensation claim relates to costs incurred while Ms Fyfe acted for Mr Strathearn in a Family Court action against Mr Strathearn’s ex-wife.
The statutory framework
[3]	Section 464 of the Act deals with the meaning of “compensation order”. 
[4]	A compensation order includes an order that a law practice must repay the whole or a stated part of the amount that the law practice charged a complainant for stated legal services.
[5]	A compensation order is also an order that a law practice pay to a complainant an amount by way of compensation for pecuniary loss suffered because of conduct that has been found to be unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner.
[6]	As to the compensation order which deals with payment of pecuniary loss (as contemplated by s 464(d)), the order cannot be made unless the Tribunal is satisfied:
a)	that the complainant has suffered pecuniary loss because of the conduct concerned, and
b)	that it is in the best interests of justice that an order of this type be made.
[7]	Further, in relation to the compensation order for pecuniary loss of the type mentioned in s 464(d), the compensation order is limited to $7,500 unless the complainant and the law practice both consent to the order. 
[8]	The Act does not prescribe limitations on the circumstances in which a compensation order of the type contemplated by s 464(a) can be made.  
[9]	However, given that the right to a compensation order arises in the context of disciplinary proceedings, it must follow that the Tribunal should have regard to the connection between the conduct found to be unsatisfactory professional conduct or professional misconduct, and the costs which are the subject of the claim for a compensation order.
[10]	It is therefore necessary to:
a)	identify the relevant conduct of the practitioner; and
b)	identify the costs and pecuniary loss which eventuated because of the conduct.
[11]	In this case, in so far as Mr Strathearn was concerned, charge 3 related to engaging in legal practice without a practising certificate. The Legal Services Commissioner asserted that:
a)	Between 1 July 2012 and 8 October 2012 Ms Fyfe engaged in legal practice without being the holder of a Practising Certificate.
b)	Between 1 July 2012 and 8 October 2012 Ms Fyfe did not advise Mr Strathearn that she did not have a current Practising Certificate.
c)	Between 1 July 2012 and 8 October 2012 Ms Fyfe continued to engage in legal practice while she did not have a current Practising Certificate (in relation to this aspect of the charge reference is made to various services provided to Mr Strathearn).
[12]	The Tribunal found the following:
a)	Ms Fyfe’s Practising Certificate expired on 30 June 2012 and Ms Fyfe did not renew the Practising Certificate.
b)	Despite this fact, Ms Fyfe continued to act on behalf of Mr Strathearn.
c)	The conduct falls substantially short of that which would be required of a reasonably competent and diligent legal practitioner and so amounts to professional misconduct.
[13]	The charge which was brought by the Legal Services Commissioner against Ms Fyfe did not raise any allegations concerning the legal services provided by Ms Fyfe in terms of competence, nor was any issued raised with respect to the costs charged by Ms Fyfe.
[14]	The conduct which was the subject of the charge and, as a result, the findings in relation to conduct which were made by the Tribunal, related to Ms Fyfe continuing to act on behalf of Mr Strathearn at a time when her Practising Certificate had expired and was not renewed.
[15]	Mr Strathearn, in the Notice of Intention to Seek Compensation Order, itemises the following:
a)	He paid Moreton Bay Law a total of $6,450 to act on his behalf to obtain a favourable outcome in the Family Court and this included an advance of $2,000 paid on 5 June 2012 to submit all relevant documents to the Court prior to the Court sitting in October 2012.
b)	Ms Fyfe continued to hold herself out as a legal practitioner during the interim period, until she advised Mr Strathearn one day before the Family Court sitting date that she could not be present at Court as she was already attending another Court sitting that day in the Caboolture Court. In those circumstances, Ms Fyfe suggested Mr Strathearn represent himself.
c)	When he did this, the Judge was irate and the matter was adjourned.  Mr Strathearn later approached Ms Fyfe about this unsatisfactory outcome following which she withdrew her services.
d)	Mr Strathearn incurred a further cost of $7,300 in order to finalise the matter in the Family Court.
e)	Significant funds were outlaid by Mr Strathearn with Ms Fyfe with no result being achieved.
f)	The new law firm was able to finalise the matter in 3 months with no requirement for further Court attendance.
g)	A handwritten agreement obtained in a conciliation conference in the Family Court (when Ms Fyfe was acting) was never formalised by Ms Fyfe resulting in Mr Strathearn having to pay his ex-wife a further $10,000. Had Ms Fyfe formalised this agreement appropriately, he would have saved that sum of $10,000.
[16]	Mr Strathearn claims ‘the maximum compensation of $7,500 as his total legal costs exceeded $13,980 and due to Ms Fyfe’s mishandling of the case he incurred a further financial burden of over $10,000’.
[17]	The claim for compensation order made by Mr Strathearn focuses upon his dissatisfaction with the services rendered by Ms Fyfe. He sees those services as having had no value and, in coming to this conclusion, makes a comparison between the fees rendered by the replacement firm of lawyers and the fees which were rendered by Ms Fyfe.
[18]	In claiming the maximum compensation of $7,500, Mr Strathearn refers to:
a)	His total legal costs exceeding $13,980, which seems to comprise:
•	$6,450 paid to Ms Fyfe – which would seem referable to the type of compensation order contemplated by s 464(a).
•	A further sum of $7,300 which was paid to the new firm of lawyers to finalise the Family Court matter – which would seem to referable to a compensation order of the type referred to in s 464(d) of the Act.
b)	A further sum of $10,000 which flows from an assertion that Ms Fyfe negligently failed to document a settlement agreement – which would seem to be a claim for pecuniary loss giving rise to a compensation order in the nature of that which is referred in s 464(d) of the Act.
[19]	As to those heads of claim made by Mr Strathearn, it would seem that:
a)	The claim with respect to the sum of $6,450 arises because of the assertion that Ms Fyfe did not act competently and with expedition.
b)	The claim with respect to the figure of $7,300 paid to the new firm of lawyers arose because Ms Fyfe terminated the retainer with Mr Strathearn.  
c)	The claim with respect to the figure of $10,000 seems to relate to an allegation that Ms Fyfe negligently failed to formalise a settlement agreement.
[20]	None of these costs arose because of the conduct (in continuing to act on behalf of Mr Strathearn after Ms Fyfe no longer held a Practising Certificate) which was found to be professional misconduct.
[21]	In those circumstances, where the loss which is the subject of the claim did not happen because of the conduct which was the subject of the charge and therefore the subject of the findings, it is not possible to make a compensation order in favour of the claimant.
[22]	On that basis, the claim for compensation order is refused.