A Mackay solicitor is to be struck off the roll for failing to maintain a reasonable standard of competence and diligence in handling an appeal application.
Peter Elliott Clark delayed his client’s application over three years between 2016 and 2019, and the Queensland Civil and Administrative Tribunal (QCAT) last week found his behaviour constituted professional misconduct and deemed him permanently unfit to practise.
In a 38-page decision delivered on November 25, Judicial Member Peter Lyons KC described the conduct which led to the Legal Services Commission (LSC) laying three charges against Mr Clark.
The charges related to the delay in the appeal, the handling of trust money and a failure to respond to notices from the LSC.
The regional practitioner was retained by his client in early 2015 to act in relation to a worker’s compensation claim and potentially a claim for common law damages. The client’s claim had been rejected by WorkCover and a subsequent review of the decision by the Workers’ Compensation Regulator had upheld the decision.
Mr Clark was Legal Practitioner Director at Mackay firm Eureka Legal at the time he filed a Notice of Appeal for the client in July 2015. The appeal was set down for hearing in November 2015, then adjourned to April 2016 at Mr Clark’s request, then vacated, with the client ordered to pay over $3000 in costs as a result.
In May 2017, when Eureka Legal closed, Mr Clark moved to Mackay firm Strutynski Law. From there he wrote to his client in September 2017 about progressing the appeal in the Queensland Industrial Relations Commission (QIRC).
However, in August 2017, the QIRC had written to Mr Clark at Eureka Legal requesting he show cause why the appeal should not be struck out due to delay. A month later, the commission had emailed Eureka Legal to advise that the matter had been struck out, given there had been no reply to the letter. Mr Clark received neither the letter nor the email.
In December 2017, the client discovered from WorkCover that the appeal had been struck out. He then signed a notice of claim for damages and an application to reinstate the appeal. Mr Clark failed to respond to communications from various parties, and in March 2020, the reinstatement application was dismissed with costs, and as a consequence, the claim for damages was discontinued.
Charge 1 laid by the LSC alleged that in respect of the client’s appeal, Mr Clark failed to maintain a reasonable standard of competence and diligence in 12 ways, including:
- failing to progress the appeal in a timely fashion;
- allowing and/or causing his client to believe the appeal was progressing when it was not;
- twice seeking adjournments on the basis of not being prepared, where one resulted in the client being ordered to pay costs;
- failing to advise his client of Eureka Legal’s closure, and failing to seek consent to transfer the client’s file to Strutynski Law; and
- failing to respond to a show cause notice from the QIRC.
It also alleged similar failures in the handling of the common law claim for damages.
“While there may be some explanation for inactivity for relatively brief periods, the respondent’s failure to advance the appeal between April 2016 and September 2017 and between February 2018 and May 2019 is a substantial failure to comply with this duty. His conduct should be regarded as a failure to maintain reasonable standards of competence and diligence,” Member Lyons said.
There was no apparent explanation for Mr Clark’s failure to reply to correspondence from the solicitor engaged by WorkSafe, he said.
“The proper conduct of litigation on behalf of a client requires the maintenance of appropriate communications with the legal representative of another party,” he said.
“A persistent and unexplained failure to respond to appropriate communications from an opposing legal representative is a failure to conduct litigation with competence and diligence.”
Member Lyons said communications from a variety of people should have drawn Mr Clark’s attention to the need to act promptly to reinstate the appeal.
“Mention should be made of some of the specific failures to take action which are the subject of Charge 1, specifically those relating to the transition to Strutynksi Law.
“The respondent’s failure to advise (the client) that Eureka Legal was no longer conducting a legal practice, and his failure to monitor mails and emails to that practice until some other arrangements were made, carried the risk of adverse consequences for (the client’s) claim. Together, they are significant failures, particularly in the context of preceding delay.
“In the circumstances previously referred to, it is considered that the respondent’s inactivity and failures constitute a substantial failure on the part of the respondent to keep a reasonable standard of competence and diligence; and a failure which, for lengthy periods, was consistent. Accordingly, the conduct the subject of Charge 1 should be regarded as professional misconduct.”
In relation to charge 2, Mr Clark’s failure to place his client’s money into the firm’s trust account was characterised as unsatisfactory professional conduct.
The tribunal considered factors including that the failure was a single occurrence, that there was a relatively small amount of money involved, that there was no suggestion the money was at risk while it was held in Mr Clark’s office as cash, and that ultimately the money was applied for the purpose for which it was received.
In relation to charge 3, the tribunal found Mr Clark had provided no reasonable excuse for his failure to respond to notices from the LSC, and so, his conduct constituted professional misconduct.
Mr Lyons pointed out that in January 2022, when the LSC notified Mr Clark it was to investigate and invited him to make submissions, the practitioner sought and was granted an extension of time, but did not reply within the time allowed. Nor did he respond to follow-up letters from the LSC in February and March 2022.
In considering the orders sought by the LSC, the tribunal found Mr Clark’s failure to attend to his client’s matters demonstrated an unfitness to practice.
“There is no evidence that steps the respondent took in relation to his practice to avoid further failures on his part have been continued; or even that they were successful,” Member Lyons said.
“These considerations are not sufficient to lead the tribunal to depart from its finding that the respondent has demonstrated unfitness for practice, nor to reach any conclusion other than that the probability is that the respondent remains permanently unfit for practice.”
An additional consideration was that Mr Clark did not engage with the disciplinary proceedings nor provide any explanation for his conduct or ongoing measures to avoid a repeat of the behaviour, he said.
No compensation order was made as requested by the client. Mr Clark was ordered to pay the costs of the LSC and of the client.
A receiver was appointed to Strutynski Law in April this year.
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