Supreme Court of Tasmania Justice Michael Brett found “there was no question” that David Barclay, a former lawyer who is now president of the Tasmanian Industrial Commission, was guilty of professional misconduct.

“The relevant conduct is confined only to this case, but the length of the delay and the persistent failure to take any meaningful action over that period can only result in a finding that the conduct ‘involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’,” said Justice Brett.

“The fact that this was an exceptional case in [Mr Barclay’s] history of practice would suggest that he was capable of attending to this matter in a timely and competent manner if he chose to do so.”

The judge found a reprimand was the appropriate penalty because Barclay had an otherwise “unblemished record” as a lawyer and was co-operative during the proceedings.

The decision comes after a former client of Barclay — who is also a deputy president of the Fair Work Commission — made a complaint to the Legal Profession Board of Tasmania in August 2019.

In her complaint, the client alleged Barclay did “little to progress” her matter during the 24-year period in which he had the case.

The client allegedly suffered injury after complications during her birth in November 1989. Her parents engaged Barclay’s firm in Devonport, Tasmania to work on a claim for damages for their daughter’s injuries.

A personal injury case was filed in 1992 against her doctor and the Health Board responsible for the hospital involved in her birth. Barclay started working on the case in mid-1992 and managed it until he ceased legal practice in December 2016.

Justice Brett found there were “intermittent discussions” about settlement after the case was filed but “nothing at all was done to progress the case” between 1996 and 2001.

Mr Barclay’s client and her mother allegedly “made numerous attempts” to contact the lawyer by email and phone from 2010 to 2016.

“There was an ongoing failure on the part of the respondent to respond to these enquiries, and to provide the complainant with any information concerning the case,” said Justice Brett.

“It seems that [Barclay] did little if anything to progress the claim during those years.”

After Barclay stopped practising law in 2016, an experienced personal injury lawyer from a different firm took over the case and the matter was settled in 2019, Justice Brett said.

Justice Brett said Barclay should have recognised that his failure to respond to his client’s questions would have caused her “distress, anxiety and frustration”.

Barclay accepted his delay was “significant” and said he had no “adequate explanation” for the lack of progress after his client turned 18 in 2007.

He told the court he was “profoundly embarrassed” by the delay but said it was the only strike against him in his 30-year law career.

He notied that he no longer works as a lawyer and would not likely return to professional practice.

Since taking his role at the Industrial Commission, Barclay has not renewed his practising certificate.

He declined to comment on the decision.

The Legal Profession Board of Tasmania is represented by Keith Cuthbertson, instructed by Tremayne, Fay, Rheinberger. Barclay was self-represented.

The case is Legal Profession Board of Tasmania v David James Barclay.

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