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  • Unreported Judgment

Legal Services Commissioner v XBY

 

[2016] QCAT 102

CITATION:

Legal Services Commissioner v XBY[2016] QCAT 102

PARTIES:

Legal Services Commissioner

(Applicant/Appellant)

v

XBY

(Respondent)

APPLICATION NUMBER:

OCR153-13

MATTER TYPE:

Occupational Regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

Assisted by:

Megan Mahon, Practitioner Panel Member

Julie Cork, Lay Panel Member

DELIVERED ON:

14 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The Respondent’s name is to be removed from the local roll
  1. The application for non-publication order is granted
  1. The Respondent is to pay the Applicant’s costs fixed in the amount of $2,500.00 within 60 days of the date of this order

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – where Legal Services Commissioner brought application for disciplinary proceedings against respondent practitioner – where respondent misrepresented progress of claim to client – where respondent misled client – whether respondent  is guilty of professional misconduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – APPLICATION FOR NON-PUBLICATION ORDER – where Legal Services Commissioner brought application for disciplinary proceedings against respondent practitioner – where respondent applied for non-publication of his name – where grounds for non-publication concern respondent’s mental health – whether it is appropriate to grant non-publication order

Legal Profession Act 2007 (Qld) ss 417, 418, 419, 462(1), 472, 477, 656D

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 7(2), 32, 66

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

Attorney General v Bax [1999] 2 Qd R 9

A Solicitor v Council for the Law Society of New South Wales (2004) 216 CLR 253

Legal Services Commissioner v Bosscher [2014] QCAT 232

Legal Services Commissioner v Madden (2008) QCA 301

Legal Services Commissioner v Sing [2007] LPT 005

Queensland Law Society v Mead (1997) QCA 83

Queensland Law Society Incorporated v Whitman (2003) QCA 438

Re Weare (1893) 2 QB 439

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 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

  1. [1]
    The Legal Services Commissioner alleges that in relation to nine conduct issues, the conduct of XBY (‘the practitioner’) should be categorised as professional misconduct as that conduct is defined in s 419 of the Legal Profession Act 2009 (Qld) (‘the Act’).

Background

  1. [2]
    The Legal Services Commissioner refers to the following conduct issues:

Conduct issue 1

The practitioner failed to carry out instructions to progress the interest of his client concerning payment claims made pursuant to the Act.

Conduct issue 2

The practitioner failed to carry out instructions to progress a claim in the District Court of Queensland and misled his client as to the steps taken to progress that claim, when such steps had not been taken.

Conduct issue 3

The practitioner failed to carry out his client’s instructions to make an application to set aside a judgment by default, misled his clients as to steps taken to pursue the client’s instructions, forged a document representing it to be an order of the Magistrates Court of Queensland and uttered it to his clients.

Conduct issue 4

The practitioner failed to carry out his client’s instructions to recover a debt and made false representations to his client as to the steps which he had taken in pursuance of the client’s instructions.

Conduct issue 5

The practitioner failed to carry out his client’s instructions to conduct negotiations with an insurer concerning an accident, and made false representations to his client as to the progress of the client’s instructions.

Conduct issue 6

The practitioner failed to carry out his client’s instructions to seek the return of a sum of money paid by his client to a third party, and made false representations to his client as to the progress of the client’s instructions.

Conduct issue 7

The practitioner failed to carry out his client’s instructions to retain possession of a truck prime mover and trailer and made false representations to his client as to the progress of the client’s instructions.

Conduct issue 8

The practitioner failed to carry out his client’s instructions to claim damages from a third party, and made false representations to his client as to the progress of the client’s instructions.

Conduct issue 9

The practitioner failed to follow instructions to make an application for summary judgment and misled his client that the application had been made, considered and granted. 

  1. [3]
    The practitioner admits the allegations made by the Legal Services Commissioner in relation to each of the conduct issues above.

Application for a non-publication order

  1. [4]
    The practitioner submits that publicity around the decision in the current proceedings will lead to “a significant negative impact on my mental health”.[1]
  2. [5]
    In his submissions filed 7 March 2014, the practitioner submits:
    1. “Simply put, psychologist A is concerned that I will lose all of the gains I had made in the last X years”;[2]
    2. “A publicly reported judgement and order would push me significantly back towards where I was X years ago before I sought treatment”;[3]
    3. “I hope this honourable Tribunal can see that I have made significant improvements in my health and my life since X and am now a fit and proper person to continue doing the work that I am doing. To rebuild again may be a bridge to [sic] far for me from a mental perspective”.[4]
  3. [6]
    The practitioner makes this application pursuant to s 66(3) of the QCAT Act and seeks the following orders:
    1. That the publication of information sufficient to identify him as the respondent to these proceedings be prohibited pursuant to s 66(1)(c) of the  QCAT Act. That any document published by the Queensland Civil and Administrative Tribunal or the applicant in relation to this proceeding or its outcome is not to include any information sufficient to identify him as the respondent to these proceedings. Specifically, such published material will not include his name.
    2. There be no order as to costs.
    3. Any other order that the Tribunal sees fit.
  4. [7]
    The practitioner submits that, after his departure from the law, he has:
    1. found gainful employment – with one single employer for almost four years;
    2. become engaged and married;
    3. undertaken sufficient charity work in particular mentoring high school students; and
    4. sought and continues to seek treatment for depression, anxiety and alcohol abuse issues.[5]
  5. [8]
    The practitioner refers to the impact of the delay in resolution of the case, noting that he was first made aware of the complaints in or about X.  Whilst he concedes his initial response was tardy, he refers to the fact of having “lived under the aegis of the complaints, the investigation and charges” since that time.[6] This time factor contributed to the possible psychiatric damage due to the practitioner’s circumstances.
  6. [9]
    In summary, the practitioner submits that the making of the order pursuant to s 66(3) of the QCAT Act:
  1. Is necessary to avoid endangering his mental health.
  2. Is in the interests of justice.
  1. [10]
    The Legal Services Commissioner has responded to this application referring to:
    1. Section 472 of the Act, which requires the keeping of a discipline register about disciplinary action taken under the Act against an Australian Legal Practitioner; and
    2. Section 477 of the Act which, whilst providing that the provisions of Part 4.11 (Publicising disciplinary action) are subject to any order made by the Tribunal which regulates the disclosure of information, it also provides that the name and other identifying particulars of the person against whom the disciplinary action was taken, the law practice who employs or employed the person, and the kind of disciplinary action taken must be recorded in the disciplinary register and may be otherwise publicised under part 4.11.
  2. [11]
    The Legal Services Commissioner submits it is the intention of the Act that complete identifying particulars of the respondent and the particulars of the disciplinary action must be publicised for public inspection.[7]
  3. [12]
    Section 656D of the Act allows the Tribunal to make an order prohibiting the publication of information, including an order of the Tribunal.
  4. [13]
    Section 66 of the QCAT Act deals with non-publication orders and prescribes limitations on the making of any such order.[8]
  5. [14]
    Section 7(2) of QCAT Act provides that the requirements of an enabling Act prevail over the provisions of the QCAT Act to the extent of any inconsistency.
  6. [15]
    The Legal Services Commissioner submits that any non-publication of the disciplinary action would undermine the intention of the Act as reflected in the relevant provisions relating to the discipline register and further would not fulfil one of the objectives of the Act which is public accountability and transparency for disciplinary process.[9]
  7. [16]
    The Commission also referred to Legal Services Commissioner v Sing (‘Sing’)[10] and comments by de Jersey CJ where his Honour observed that the Tribunal must be very careful not to thwart the objective of transparency, accountability and independence by, for example, a non-publication or suppression order if this was seen to elevate the practitioners private interest over the public interest, which should rightly predominate.[11]
  8. [17]
    In response to those submissions, the practitioner concedes it would not be possible for him to contest publication in the discipline register of the disciplinary action taken against him, and instead confines his application to the finding of the Tribunal and the order made.[12]

Discussion – non-publication order

  1. [18]
    The requirements of s 417 of the Act regarding information that must be published will apply regardless of any provision in the QCAT Act regarding non-publication.
  2. [19]
    The Legal Services Commissioner correctly draws attention to the decision in Sing. Another relevant decision is Legal Services Commissioner v Bosscher (‘Bosscher’).[13]
  3. [20]
    Those matters involved considerations of the commercial interest of the practitioners involved. The current matter involves different considerations.
  4. [21]
    In the current matter, the unchallenged evidence is that publication which identifies the practitioner is likely to significantly negatively impact on the practitioner’s mental health and undo what has been achieved over the past X years to improve his mental health.
  5. [22]
    Section 66 of the QCAT Act prescribes the circumstances under which a non-publication order can be made and one of the relevant factors is whether the order would avoid endangering the physical or mental health or safety of a person.
  6. [23]
    Given the unchallenged evidence that the publication of the practitioner’s name is likely to endanger his mental health, the health related criteria outlined in s 66(2)(b) is enlivened.
  7. [24]
    The Legal Services Commissioner also raises the question of whether the making of such an order is consistent with the objectives of the Act in that such an order may undermine the intention of the Act, as reflected in the provisions relating to the discipline register.
  8. [25]
    As to that submission:
  1. The provisions of the Act contemplate the making of an order regarding non-disclosure and prescribe the information which, despite the making of the order, must be recorded in the discipline register.[14]
  2. The clear intention of the Act, in so far as the discipline register is concerned, is preserved by reference to the requirements contained in s 477(2).
  3. As to public accountability and transparency, the object is not to punish the practitioner, but to protect the public. An aspect of this object is deterrence of other practitioners. This can, in circumstances contemplated by s 66(2), be achieved by publishing the sanction and outlining the findings in relation to the particular conduct which leads to the sanction. In circumstances where one of the requirements of s 66(2) is met as a pre-condition to the non-publication order, the broad objectives can be achieved without including the practitioner’s name. The definition of the unacceptable conduct and the description of the penalties are equally clear with or without the name of the practitioner. This, of course, is only the case where the requirements of s 66(2) are fully met and should not be seen as detracting from the objective of the Act which is to secure a level of transparency, accountability and independence not previously thought to have been present. A non-publication order will only be made in very limited circumstances, as defined by the Act.
  1. [26]
    The Tribunal also takes account of the time which has elapsed since the conduct occurred. More than X years has elapsed and in that time, the practitioner has, as he describes, taken steps to “get my life back on track”.[15]  The time which has elapsed tends to exacerbate the position in which the practitioner finds himself and is a factor which supports the making of the order sought by the practitioner.
  2. [27]
    In the circumstances, I order that information which might enable the practitioner to be identified not be published except to the parties in these proceedings.

The Conduct

  1. [28]
    The practitioner was admitted to practice as a solicitor on X. But no longer holds a practicing certificate.
  2. [29]
    Prior to the events which have led to the current proceedings, the practitioner has not had any allegations of either unsatisfactory professional conduct or professional misconduct made against him.
  3. [30]
    The practitioner admitted the conduct alleged.
  4. [31]
    Conduct which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner is defined as unsatisfactory professional conduct.[16]
  5. [32]
    Conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence is professional misconduct.[17]
  6. [33]
    As to whether the conduct of a practitioner is professional misconduct, Thomas J observed:

“the test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency”.[18]

  1. [34]
    The Legal Services Commissioner submits that the practitioner’s conduct, which involves consistently failing to comply with clients instructions, misleading clients as to the status of matters entrusted to him and forging court documents, is conduct which involves a very substantial failure to reach or maintain a reasonable standard of competence and diligence, and so is professional misconduct pursuant to s 419 of the Act.
  2. [35]
    In his response, the practitioner admits “that he is guilty of professional misconduct and/or unsatisfactory professional conduct”.[19]  The practitioner repeats this admission in submissions.[20]  He says:

“I have not, since being made aware of the complaints made against me … denied the conduct complained of and I do not now”.[21] 

  1. [36]
    He adds:

“The said concessions and admissions, by extension, mean that I am guilty of the charges brought against me. I do not retreat from that position”.[22]

  1. [37]
    The practitioner repeats this admission in an affidavit which he swore on X date.[23]
  2. [38]
    A solicitor must act in the best interests of the client and must deliver legal services competently, diligently, and as promptly as reasonably possible.  Repeated, consistent or substantial failure to discharge these duties can amount to unsatisfactory professional conduct or professional misconduct.
  3. [39]
    A solicitor must also be honest in dealings with clients and a failure to do this will likely amount to professional misconduct. 
  4. [40]
    The solicitor’s overriding duty is to the Court and the administration of justice. 
  5. [41]
    The conduct of the practitioner in the persistent failures to deliver legal services in a competent, diligent and prompt fashion in circumstances where the practitioner misled clients in relation to the matters in which he was acting and, in the process, falsified Court documents falls short, to a very substantial degree, of the standard of professional conduct which members of the public are entitled to expect from the legal profession.  The practitioner’s conduct amounts to professional misconduct.

Sanction

  1. [42]
    The Legal Services Commissioner submits that the practitioner’s conduct demonstrates that he is not a fit and proper person to engage in legal practice and that the only appropriate order which can flow from this finding is a recommendation that his name be removed from the local roll. As to this question, the issue is whether the practitioner should any longer be held out as a person who is fit to practice and whether he is a fit and proper person to be entrusted with the important duties and grave responsibilities of a solicitor.[24]
  2. [43]
    In his response and submissions the practitioner refers to the fact that, during the relevant period, he was suffering from previously undiagnosed depression disorder and anxiety disorder.
  3. [44]
    These disorders were not diagnosed until after the practitioner sought professional help from a psychologist on or about X.
  4. [45]
    He submits that as a result of these undiagnosed disorders, he was significantly impaired in the conduct of his legal practice which led to the various conduct issues alleged by the Legal Services Commissioner. 
  5. [46]
    The practitioner submits that he continues to suffer from these disorders and to receive treatment for them. 
  6. [47]
    The practitioner filed a report by his psychologist, psychologist A, which states:
    1. Psychologist A has been treating the practitioner for a major depressive disorder with anxiety;
    2. Psychologist A is of the opinion that at the time of the relevant conduct, the practitioner was experiencing depression and anxiety;
    3. As a consequence, the practitioner would have experienced a great deal of psychological distress;
    4. The mental health disorders the practitioner was experiencing had the potential to seriously compromise his ability to make rational decisions; and
    5. The practitioner behaved in a manner which was inconsistent with previous behaviour and values.
  7. [48]
    The practitioner does not suggest that the observations made by psychologist A were an excuse for his conduct. Rather, he offers the information by way of explanation for what occurred.[25]
  8. [49]
    The practitioner continues:

“Simply put: I was ill at the time of my conduct the subject of the complaints made against me.  More troubling for me was that I was ill, I did not know I was ill and I did not know how to ask for help…

…I was not a fit and proper person to be undertaking the work I was undertaking at the time of the complaint of conduct as a result of the mental illness I was suffering and the debilitating effects it had on my cognitive abilities”.[26]

  1. [50]
    As to sanction, the practitioner refers to the submissions on behalf of the Legal Services Commissioner that he ought to be struck off the Roll of Solicitors in the State of Queensland because he is not a fit and proper person to practice law, and observes “given the admissions I have made and the gravity with which I myself consider my conduct, I cannot and do not dispute Mr Kelly’s conclusion. I agree that the appropriate penalty is that I be struck off the Solicitors Roll”.[27]
  2. [51]
    However, the practitioner goes on to submit that the admissions he makes are subject to one important caveat. He admits that, whilst at the time of the relevant conduct he was not a fit and proper person to hold a practising certificate, he does not admit that, presently, the condition of his health would lead to the same conclusion.[28]
  3. [52]
    It is well established that the relevant time at which the Tribunal must decide whether a practitioner is a fit and proper person is the time of the hearing and not the time at which the conduct occurs.[29]
  4. [53]
    The evidence filed in these proceedings is that of an affidavit by the practitioner sworn on X date. 
  5. [54]
    In that affidavit the practitioner deposes to having sought assistance for his mental health issues and continuing to meet with his psychologist, although on a less frequent basis as his health has improved.
  6. [55]
    He also refers to having given an undertaking to the Law Society that he would not seek to be re-admitted to practice without meeting certain conditions, and also that he has not sought readmission nor does he intend to seek readmission in the future.[30]
  7. [56]
    The evidence about the practitioner’s current position is very limited.
  8. [57]
    In his affidavit he refers to:
    1. His commencement of treatment for mental illness (with psychologist A);[31]
    2. His rebuilding of his professional life from scratch;[32]
    3. His gaining of control of his personal life – giving up drinking and finding balance between his personal and professional life.[33]
  9. [58]
    He says that if the same factual circumstances which arose during the course of the conduct (the subject of the proceedings) occurred now, he would take a significantly different course including, but not limited, to:
    1. Seeking help from his doctor and psychologist;
    2. Seeking help from colleagues; and
    3. Using the Employee Assistance Program available through his employer.[34]
  10. [59]
    He submits that he does not believe his character is so flawed, now that he has found assistance for his mental health condition, so as to not be trusted nor would he ever fail to adhere to his own standards of integrity and honesty, let alone those which the community expects of someone working in professional services (as he currently is).[35]
  11. [60]
    Having said that, he observed that he would not work in the legal profession[36] and that, were he to be offered his dream job in the law, he would not be interested[37] and, having been completely traumatised by what happened, he simply wishes to move on with his life.[38]
  12. [61]
    It is well established that, in determining sanction, the focus of the Tribunal must be the protection of the public. The object is not to punish the practitioner but to protect the public as necessary from persons who should not be practising in the profession.
  13. [62]
    The focus is on fitness for practice in the profession, not whether the practitioner is a fit and proper person to continue in his current line of work. A finding in relation to whether a person is a fit and proper person in the legal profession does not necessarily have any impact on, or relevance to, other pursuits in which the respondent might be involved.
  14. [63]
    In his response, the practitioner asserts that he continues to suffer from the disorders and to receive treatment,[39] although that response is current as at X when it was filed.
  15. [64]
    Moreover, in the practitioner’s submissions he says that the mere publication of the outcome of these proceedings is likely to endanger his mental health and, as he observes, cause him to “lose all the gains made in the last X years”.[40]
  16. [65]
    These observations are not consistent with the practitioner having recovered to the extent that he is now a fit and proper person.
  17. [66]
    Both parties had sought a hearing on the papers and filed submissions.  However, because of the apparent inconsistency in the submissions and evidence, the parties attended a Directions Hearing when these issues were raised.
  18. [67]
    Specifically, the parties were allowed:
    1. The opportunity for an oral hearing.[41]
    2. To file further submissions dealing with the apparent concession that he should be struck off the Solicitors Roll[42] but subject to the caveat that whilst he was not a fit and proper person to hold a Practising Certificate at the time of the conduct the present position might be different,[43] but in the context that even the mere publication of the outcome of the proceedings would be likely to endanger his mental health and cause him to “lose all the gains made in the last X years”.[44]
  19. [68]
    At the Directions Hearing, no submissions were made by either side however the practitioner informed the Tribunal, “I think the issue of mental health is obviously one that is vexing me. It’s vexing me right at the moment, if I’m being honest. I think what I would say about my mental health is that I continue to get treatment and every day is a different challenge. That’s not really answering your question, your Honour, I know, but I haven’t really formed my mind how I would answer that question.”[45]
  20. [69]
    That information is consistent with the submissions regarding the non-publication order which has formed the factual underpinning for the making of that order. 
  21. [70]
    Each side filed further supplementary submissions in February 2016. 
  22. [71]
    The practitioner submits that, as at the current time, he is a fit and proper person.[46]
  23. [72]
    In his submissions, the practitioner analyses the suitability matters described in s 46(2) of the Act, the only one of relevance being an admission by the practitioner that he breached the provisions of the Act as it relates to matters which are the subject of these proceedings. However, he submits that s 46(3) of the Act makes it clear the Tribunal may determine that, despite such breaches, he is a fit and proper person to hold a Practising Certificate.[47] 
  24. [73]
    The practitioner refers again to the evidence of psychologist A[48] and says, “I have obtained medical and psychological assistance for the depressive and anxiety disorders I was suffering. I have ceased to abuse alcohol.“[49]
  25. [74]
    The practitioner says that, as a result of the treatment he has obtained, he recognises the behaviours that lead to the conduct complained of and has put structures in place to ensure that such behaviours will not arise again or, if they do, to assist him in identifying the relevant behaviours with alacrity and ensure that such behaviours do not lead to conduct of the type the subject of the complaint.[50]
  26. [75]
    The practitioner concludes that the changes he has made and the treatment he has obtained are matters on which the Tribunal should base a finding that, should he seek to obtain a Practising Certificate (which he says he has no intention of doing) he is a fit and proper person to do so.[51]
  27. [76]
    In response, the Commissioner submits that regardless of the impact of the practitioner’s mental illness, the protracted and intentional dishonesty on the practitioner’s part demonstrates that he does not possess the character and integrity required to engage in legal practice and that therefore he is not a fit and proper person to do so.[52]
  28. [77]
    The Commissioner submits that the offending conduct, particularly the forging of a Court document, makes it clear that the practitioner is a man who should not be publicly held out as a person to whom a member of the public may entrust business affairs.[53]
  29. [78]
    The Commissioner submits that there were a number of aspects of the practitioner’s conduct requiring an order that his name be removed from the Local Roll, which include:
  1. His conduct represents serious breaches of his professional obligations.
  2. His conduct in a number of aspects was dishonest.
  3. The conduct was not an isolated act but consists of a number of acts over an extended period of time.
  1. [79]
    The Commissioner points to the decision in Queensland Law Society v Bax[54] where McPherson JA said “basic honesty is not a quality that is ordinarily acquired through experience, or by lengthy practice of trying one’s best to be honest.”
  2. [80]
    The Commissioner also referred to the various cases which prescribe that in cases of professional discipline, the power of the Tribunal to strike off a practitioner is not punishment but rather focuses on the protection of the community from unsuitable practitioners and is exercised for the protection of the public and for the standing of the legal profession.[55]
  3. [81]
    In deciding on a sanction, the Tribunal is under a duty, to the greatest extent possible, to ensure the protection of the public from unsuitable practitioners. This is particularly so when the conduct involves dishonesty.  In this case, the conduct involved not only deception of clients but the deception occurring in circumstances where Court documents were forged. 
  4. [82]
    There has been some evidence that the practitioner was suffering a depressive disorder with anxiety and would have experienced a deal of psychological distress. There was also evidence that his behaviour was not consistent with previous behaviour and values. 
  5. [83]
    The evidence does not go so far as to identify the medical underlying causes of those disorders in order to be satisfied that the causes no longer exist. 
  6. [84]
    Moreover, the evidence does not clearly demonstrate that the risk to the public is removed to a sufficient extent that the practitioner should remain on the Roll of Practitioners. In the context of the application for the non-publication order, psychologist A says that even a publicly reported judgment could push the practitioner significantly back towards where he was before he sought treatment.[56] 
  7. [85]
    The aspects of the conduct which involved deception, dishonesty and forgery of Court documents were such that, to use the words of McPherson JA,[57] they would convey “a very poor image of the honesty and integrity of solicitors and so tend to bring the whole profession and its standards into disrepute”. The conduct is such that the Tribunal would no longer be justified in allowing the practitioner to be held out as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor.[58]
  8. [86]
    In some circumstances, it will be sufficiently possible to identify the causes of the conduct so that, if the Tribunal were satisfied that these causes were removed, the Tribunal could be satisfied that the duty to protect the public does not require the name of the practitioner be removed from the Roll of Practitioners.
  9. [87]
    In this case, the causes are not sufficiently identified, nor is the current medical condition sufficiently stable (assuming the causes are along the lines outlined by psychologist A and accepting the psychologist’s evidence that even a publicly reported judgment could push the practitioner significantly back towards where he was before he sought treatment) that the Tribunal could be satisfied that the requirement for public protection is satisfied by allowing the practitioner’s name to remain on the Roll. 
  10. [88]
    On that basis, the Tribunal orders that the practitioner’s name be removed from the local Roll of Practitioners.

Costs

  1. [89]
    The Legal Services Commissioner seeks an order for costs fixed in the amount of $2,500.00.
  2. [90]
    Pursuant to s 462(1) of the Act, the applicant is entitled to an order for costs unless this Tribunal is satisfied that exceptional circumstances exist.
  3. [91]
    The Tribunal is satisfied that there are no exceptional circumstances.  Moreover, as to the question of costs, the respondent concedes that he should pay the cost of the Legal Services Commissioner with respect to the proceedings.
  4. [92]
    In the circumstances, the Tribunal orders that within the next sixty days the respondent pay the costs of the Legal Services Commissioner fixed at $2,500.00.

Footnotes

[1]Submissions in reply on behalf of the respondent, filed 29 July 2015, paragraph 13.

[2]Submissions on behalf of the respondent, filed 7 March 2014, paragraph 60.

[3]Ibid, paragraph 63.

[4]Ibid, paragraph 66.

[5]Application for miscellaneous matters, filed on behalf of the respondent on X.

[6]Submissions on behalf of the respondent, filed 7 March 2014, paragraph 51.

[7]Submissions on behalf of the applicant in response to application for non-publication order, filed 27 July 2015, paragraph 10.

[8]QCAT Act s 66(2).

[9]Legal Profession Bill 2004 (Qld) explanatory notes: which state one of the desired outcomes identified was greater independence, accountability and transparency in the complaints and disciplinary processes for lawyers.

[10][2007] LPT 005, at page 4.

[11]Sing, at page 4.

[12]Submissions on behalf of the respondent in reply, filed 29 July 2015, paragraph 9.

[13][2014] QCAT 232.

[14]Legal Profession Act 2007 (Qld) s 477(2).

[15]Application for miscellaneous matters, filed on behalf of the respondent on X.

[16]Legal Profession Act 2007 (Qld) s 418.

[17]Ibid s 419.

[18]Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 at 508.

[19]Response to application for referral – disciplinary proceedings Annexure A – filed on X, paragraph 1.

[20]Submissions on behalf of the respondent, filed 7 March 2014, paragraphs 6 to 9.

[21]Ibid, paragraph 8.

[22]Submissions on behalf of the respondent, filed 7 March 2014, paragraph 9.

[23]Affidavit of the practitioner, sworn X date, paragraphs 9 and 10.

[24]Attorney General v Bax [1999] 2 Qd R 9; Queensland Law Society Incorporated v Whitman (2003) QCA 438.

[25]Submissions on behalf of the respondent filed 7 March 2014, paragraph 13.

[26]Ibid, paragraphs 14 and 15.

[27]Ibid, paragraph 22.

[28]Submissions on behalf of the respondent filed 7 March 2014, paragraph 23.

[29]A Solicitor v Council for the Law Society of New South Wales (2004) 216 CLR 253.

[30]Affidavit of the practitioner sworn on X date, paragraph 25.

[31]Submissions on behalf of the respondent filed 7 March 2014 paragraph 25.

[32]Ibid, paragraph 30.

[33]Ibid, paragraph 31.

[34]Ibid, paragraph 32.

[35]Submissions on behalf of the respondent, filed 7 March 2014, paragraph 33.

[36]Ibid, paragraph 34.

[37]Ibid, paragraph 35.

[38]Ibid, paragraph 36.

[39]Response to application for referral – disciplinary proceedings Annexure A –filed on X, paragraph 4.

[40]Submissions on behalf of the respondent, filed 7 March 2014, paragraph 60.

[41]This opportunity was rejected.  Transcript of proceedings on X, page 1-7, lines 34-40.

[42]Submissions on behalf of the respondent, filed 7 March 2014, paragraph 22.

[43]Ibid, paragraph 23.

[44]Ibid, paragraph 60.

[45]Transcript of proceedings on X page 1-4, lines 34-40.

[46]Further supplementary submissions of the respondent, filed 1 February 2016, paragraph 6B.

[47]Submissions on behalf of the respondent, filed 1 February 2016, paragraph 21.

[48]Ibid, paragraph 24.

[49]Ibid, paragraph 25.

[50]Submissions of the respondent filed 7 September 2014, paragraph 26.

[51]Ibid, paragraph 27.

[52]Supplementary submissions on behalf of the applicant filed 29 February 2016, Paragraph 1.

[53]Ibid, Paragraph 2: reference is made to the decision in Queensland Law Society v Mead (1997) QCA 83 at [7].

[54](1998) QCA 089.

[55]Queensland Law Society & anor v Priddle (2002) QCA 297; Legal Services Commissioner v Voll (2008) QCA 293 per Keane JA; Legal Services Commissioner v Madden (2008) QCA 301.

[56]Submissions of the respondent filed 7 March 2014, paragraph 60.

[57]Queensland Law Society v Bax (1998) QCA 089.

[58]Re Weare (1893) 2 QB 439, 448.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v XBY

  • Shortened Case Name:

    Legal Services Commissioner v XBY

  • MNC:

    [2016] QCAT 102

  • Court:

    QCAT

  • Judge(s):

    Thomas P

  • Date:

    14 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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