Catch 32 On Solicitors' Independence

 by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

Queensland’s Office of Fair Trading has lost, and lost badly, a landmark case mounted in the Commercial and Consumer Tribunal against Gold Coast solicitor Donald Dickie. The implications of this decision, which Fair Trading decided not to appeal, are likely to significantly affect residential property sales and conveyancing practices across Queensland.  Attorney-General Kerry Shine, the Bligh Government’s minister responsible for the Fair Trading portfolio, may need to consider whether the Beattie Government’s much-maligned and oft-amended Property Agents and Motor Dealers Act 2000 (PAMDA) will now require further amendment.

In August this year Mr Dickie, successfully defended charges laid by Fair Trading for the first time against a Queensland solicitor. These serious but belated charges were that, between February 2001 and October 2003, he engaged in misleading conduct contrary to Section 573A of PAMDA and/or made false or misleading representations contrary to Section 573C of PAMDA. Mr Dickie’s defence was conducted by barristers, John Greenwood QC and Keith Howe, who were instructed by solicitors Stacks Gray.

Tribunal member, Mr R.V. Hanson QC, dismissed Fair Trading’s case which was based on its allegation that Mr Dickie failed, contrary to Section 365B of PAMDA, to disclose to conveyancing clients referred to his law firm by Cross Country Realty that he had a business relationship with that estate agency. Cross Country allegedly made 283 referrals of property buyers to Mr Dickie’s firm. 156 of those clients’ contracts proceeded to settlement.

Mr Hanson noted that the expressed purpose of Section 365B is to enhance consumer protection for residential buyers by ensuring their conveyancing solicitors’ independence. Under this section solicitors must certify on a government-prescribed Form 32a whether they are, among other things, independent of the seller’s agent and whether they have any relationship with the agent.

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