Warren Truss (Wide Bay, National Party, Leader of the Nationals) Share this | Hansard source

I want to make my contribution to the debate on the Appropriation Bill (No. 3) 2009-2010 and the Appropriation Bill (No. 4) 2009-2010 by dealing with a number of unrelated issues of relevance to my electorate. I have not spoken too often about legal matters in the parliament, but today I want to address serious concerns about the administration of justice, particularly the treatment of one my constituents, Mr Gavin Wright, who was formerly of Mackay but is now based in my electorate.

Mr Wright has a range of concerns about his treatment by the legal system, particularly regarding the performance of his solicitor, Mr Robert Cochrane. Mr Wright was referred to Robert Cochrane, the then principal of Hope Lawyers, a firm now bankrupt, to deal with family law matters following his family breakdown. Mr Wright alleges that Mr Cochrane did not handle his case in a competent, honest or professional manner, and that, as a result, his case was never properly presented to the courts.

I know many honourable members may have heard from people who are dissatisfied with the outcome of a court case but in this instance Mr Wright’s arguments are very compelling. I perused some of the documents in Mr Wright’s possession, and I have to say that I am also deeply disturbed about the management of his case and the failure of the legal system to address what has happened.

The allegations made by Mr Wright, which are supported by the documents, include that Mr Cochrane failed to appear in court on 6 April 2006 as required, even though it seems he charged Mr Wright for the appearance. The Federal Magistrates Court made an order which required action from Mr Wright before 7 June 2006; however, Mr Wright was only provided with a copy of the order on 9 June 2006—two days later—making it completely impossible for him to respond to the court’s requirements. Mr Cochrane informed the Federal Magistrates Court on 30 May 2006 through a barrister that Mr Wright could not proceed with the case because funds were not available, when in fact Mr Wright had paid all of the required funds. There were adequate funds available to meet all of the costs that were required by the court.

On 22 November 2006, in quite an extraordinary case, the Federal Magistrates Court ordered that Mr Cochrane, the solicitor who was representing Mr Wright, be made a second respondent in the matter and ordered all costs against Mr Cochrane because of his incompetence in managing the case. We have an extraordinary case where even the magistrate came to the view that this guy was so incompetent that he made him a respondent to the case and then ordered all the costs against him. The costs have never been paid and Hope Lawyers went into receivership. It does not end there. Mr Wright complained to the Legal Services Commission about Mr Cochrane. On 28 February 2008, the Legal Services Commission wrote to Mr Wright advising that the commissioner had filed a discipline action with the Legal Practice Tribunal against Mr Cochrane.

In all, some 15 charges were laid against Mr Cochrane, only two of which involve Mr Wright. Eleven of the charges concerned non-compliance with the notices from the Legal Services Commission or the Queensland Law Society. The others involved misleading the Federal Magistrates Court, contempt of the Family Court of Australia, failure to return trust account monies within 14 days of being required to do so and engaging in legal practice without a practising certificate. Whilst all of these charges related to quite grave events, the actions taken by the Legal Services Commission were more in relation to technical matters such as failing to comply with notices issued to Mr Cochrane to respond to requests for information rather than dealing with the substantial allegations of misconduct against Mr Cochrane.

Consequently, most of the serious allegations against him have not even been assessed by the Legal Practice Tribunal. In view of the grave nature of the charges against Mr Cochrane, including the 15 specific charges arising out of his general conduct between 5 August 2005 and 13 December 2007, the penalties which were imposed on Mr Cochrane seem to me to have been manifestly inadequate. The penalties involved a public reprimand; a fine of $7,500, which he had a year to pay; $2,500 worth of costs; being restricted to a practising certificate for three years which required him to practise under supervision; and some mentoring requirements.

In view of the scale of this misconduct, it seems to me that those penalties were manifestly inadequate. If you read the judgment by the tribunal, all the way through it seems to be trying to find excuses for Mr Cochrane and his behaviour, pointing out in one instance in relation to my constituent’s concerns:

… the charge does not impute any neglect or default. It is not alleged, for example, that Mr Cochrane misled the court carelessly or neglectfully, let alone recklessly or, worse still, knowingly. The charge concerns a result: that the court was misled. It ignores the cause.

The reality is that is because the issues involving the clear careless and neglectful behaviour of Mr Cochrane were not even considered by the tribunal; it was merely whether or not he had responded on time to notices from the legal commission. Of course he acted carelessly and neglectfully. He told the court that funds were not available when in practice they were.

In relation to the misuse of the trust fund, the tribunal said that the client had not suffered any loss through the delay in the repayment and:

… it is not charged that Mr Cochrane suspected that he had no lien …

Therefore, the tribunal was trying to excuse the solicitor for his behaviour. The judgment makes comments like this:

Things were not going well, professionally, personally or financially.

…            …            …

He experienced anxiety attacks when things got too much: for example, on receiving a notice from the Legal Services Commissioner. Clients lodged complaints.

These are all supposed to be excuses for Mr Cochrane’s clearly unacceptable behaviour. It further said:

The difficulties festered.

…            …            …

He was forced to house-share. He drove a damaged car he could not afford to repair. Debts were piling up.

In Family Court proceedings, Mr Cochrane defended allegations that he was drug-dependent. And the ‘constant battle to try to see (his daughter) has been very stressful and upsetting’ …

In early 2007, Hope Lawyers was placed into receivership.

The judgment is full of excuses. The tribunal simply failed to address the serious issues of Mr Cochrane’s conduct.

I am also concerned that the Legal Services Commission were reluctant to take the matter any further. When they got some legal advice, they took the view that they would be unlikely to succeed if they appealed against the leniency of the judgment. They were also concerned about the leniency of the penalty. The Legal Services Commission acknowledged that. But their advice was that an appeal would be unlikely to succeed.

Part of the reason that they put up as to why the appeal would not succeed was that Mr Cochrane had lost the file, so the information upon which to further the charges was not available and they would have to rely entirely on Mr Wright’s record. As far as I know, the man is still practising under supervision. He has never paid the costs that have been awarded against him and he has never returned Mr Wright’s file as he clearly ought to have done. But my biggest concern about this issue is that there may have been a miscarriage of justice because Mr Wright’s arguments were not properly presented to the courts as a result of the unprofessional conduct of his solicitor.

It is clear that there does need to be a better way to resolve these sorts of issues. The tribunal itself did not seem to care that the clients had been failed. They were more interested in finding excuses for the solicitor. Injustices may have been perpetrated because the cases were not properly presented to the courts. I do not think it is good enough for people in the legal profession to say, ‘Well, Mr Wright can go out and get a competent lawyer and seek to have his case reopened—it is no good suing the lawyer; he’s already bankrupt.’ But how can he go out and have the cases reheard? It is four years ago now. The man is homeless. He does not have the resources to be able to undertake this sort of action. In addition, the Family Court orders have, of course, all been activated by now. The children’s care arrangements are in place and the property division has all occurred. It cannot be undone. So the activities of this solicitor in the case of my constituent—and, I might add, in the case of a number of his other clients—simply cannot be undone.

I know the legal profession has a bit of reputation for looking after its own, for those of us who are not a part of the legal profession—I know there are lots of people in this place who are. But, if the profession wants the public to respect its competence, it has to find a way to deal with those amongst its number who are not performing satisfactorily. In this particular instance it is the Queensland Attorney-General, who unfortunately is also a lawyer, who must have the courage to investigate the activities of the Legal Services Commission and particularly the way in which the Legal Practice Tribunal deals with the cases of solicitors, such as Mr Cochrane, who have clearly failed their clients. In dealing with this issue, the priority needs to be: how can we make sure that those people who trust and rely on a solicitor get justice and value for their money? Almost everyone goes to a solicitor because they are dealing with issues they do not personally understand or are not competent to deal with themselves. So they have a right to expect a quality of service and competence. The profession itself, as a group, has an obligation to make sure that the expectations of the community in relation to solicitors are, in fact, met.

Now I want to have a complete change of pace and talk about something completely different, and that is the plight of Australia’s koala population. I have to say that I have a particular love of koalas. I live on a one-acre block and koalas are regular visitors to our allotment. In fact, I prize a picture, which reached the final of the Pulitzer Prize last year, of a koala and her baby in our backyard. But I am concerned about the plight of koalas, particularly in New South Wales and Queensland. I accept that, in some places, koalas are in what is referred to as ‘plague proportions’

See this speech in context