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  • Unreported Judgment

Tai v Legal Practitioners Admissions Board

 

[2013] QCA 39

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

 

Court of Appeal

PROCEEDING:

Admission

DELIVERED EX TEMPORE:

11 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2013

JUDGES:

Chief Justice and Margaret Wilson and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

That the applicant be admitted to the legal profession.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS – where the applicant had met the academic and practical training requirements for admission to the legal profession in Queensland – where the applicant had applied unsuccessfully in New South Wales – where the applicant now resided in Queensland and intended to practise in Queensland – whether the applicant had to apply again in New South Wales

PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS – where the applicant had met the academic and practical training for admission to the legal profession in Queensland – where the applicant had applied unsuccessfully in New South Wales – where the applicant had been denied in New South Wales due to the serious nature, frequency and recency of convictions disclosed in the application – where there had been some non-disclosure of these matters in the New South Wales applications – where the applicant had the support of many solicitors and barristers in Queensland – where the applicant had taken active steps to address the convictions over 18 months, since his non-admission in New South Wales – whether the applicant was suitable to be admitted

COUNSEL:

S Keim SC for the applicant
K N Wilson SC for the respondent

SOLICITORS:

The applicant acted on his own behalf
Legal Practitioners Admissions Board for the respondent

[1] CHIEF JUSTICE:  I invite Justice Douglas to deliver the first judgment.

[2] DOUGLAS J:  This is an application for admission to the legal profession.  The applicant had previously applied for admission in New South Wales in circumstances where he disclosed convictions for offences to the Legal Profession Admission Board there.  One of the offences in particular related to a charge of assault dealt with in the Southport Magistrates Court on 22 September 2010 relating to events that occurred on 24 July 2009.

[3] The applicant was then part of a group observed by an off duty police officer where he and a friend were engaged in what appeared to be a violent struggle.  The off duty police officer observed that and observed that the two men were surrounded by other men and took action to try to stop the assault by approaching the group and appearing to film it with a video camera which at one point he turned off, accidentally meaning to turn it on, but then later turned it on.

[4] The applicant and one of his friends then chased the police officer in an apparent attempt to take the camera from him and in doing so assaulted him.  The Magistrate was satisfied beyond reasonable doubt that the applicant and his friend assaulted the defendant and found them guilty of that charge while finding them not guilty of other associated, and to some extent more serious, charges.

[5] When he came to disclose what had happened to him initially to the New South Wales Board, he described the Magistrate as having found him guilty of a common assault and not recording a conviction and said “she did not find me guilty for a punch, but for pushing the complainant.”  He also said that he accepted that he pushed the complainant and would have pleaded guilty to a common assault for the push if he was charged for such in the beginning.

[6] At that time, he did not supply the Admission Board in New South Wales with a copy of the Magistrate's reasons or the sentencing remarks.  That Board asked for a copy of them and when they were received they responded to the receipt of those documents by asking him to show cause why the Board in New South Wales should not conclude that paragraph 6 of his disclosure, where he described the circumstances relating to the assault, was not intended to, mislead the Board by understating the nature and seriousness of the offence.

[7] He then provided them with a further affidavit which itself may be criticised and which he now accepts was misleading in respect of paragraphs 13 and 19 where he said that the acts which he deposed to in paragraph 6 of his earlier affidavit were the acts which constituted the assault for which he was found guilty.

[8] He now accepts, as he sets out from paragraph 65 of his affidavit in this matter, that he was not entirely accurate in how he described to the New South Wales Board the circumstances of the offence and the conviction he incurred.  The learned magistrate’s reasons describe him as having chased the police officer with his friend where both of them grappled with the officer in what appeared to be an attempt to grab the video footage.  The learned magistrate could not be certain who threw a punch complained of by the police officer. 

[9] The New South Wales Board was also concerned about further convictions, including a conviction in 2010 for driving under the influence of alcohol while he was on bail in respect of the assault charge and an infringement notice for being a public nuisance for threatening behaviour in 2011.  Those matters were significant, of course, but not as significant as the assault charge.

[10] When he applied in New South Wales for admission, he was refused admission and it seems to me to be significant that, in refusing his admission, the Legal Profession Admission Board did not advert explicitly to the issues of non-disclosure.  One might infer that they had been satisfied by his subsequent explanations in respect of that issue, because, in their letter of 7 October 2011, the New South Wales Board said that it resolved to refuse to issue a compliance certificate and to advise that his application was refused for these reasons, namely the serious nature, frequency and recency of the matters disclosed and then went on to refer more particularly to the assault occasioning bodily harm in company charge and the public nuisance charge, followed closely by the driving under the influence of alcohol charge and the recent charge of being a public nuisance with threatening behaviour, and advised that it was not satisfied that he was a fit and proper person to be admitted.  It then advised him of his rights of appeal, which he pursued in New South Wales for a while but then discontinued the appeal. 

[11] He then made application in Queensland for early consideration of his suitability under s 32 of the Legal Profession Act 2007 (Qld).  That was refused on 17 December 2012 and the Board here advised that since he had filed and served an application for admission in New South Wales that jurisdiction was the correct forum for him to continue with any application for admission.

[12] To my mind, the most concerning aspect of the matter was the lack of candour initially shown to the New South Wales Board and that remained an issue of significance.  There was also an issue as to whether it was appropriate that the matter should remain as one to be dealt with in New South Wales

[13] The applicant swears in paragraph 86 of his affidavit that he, having been working in the legal profession here as a clerk for a firm of solicitors, contacted the New South Wales Admission Board and asked it, after explaining his situation, whether he needed to continue to make application in New South Wales.  He says he was informed on the telephone that he was not bound to make an application in New South Wales or a re-application in New South Wales and that if he was working in Queensland and intended to continue to work here then the prudent option would be to make application for admission in Queensland.

[14] It is also significant that he, having worked in the legal profession in Queensland instructing barristers while acting as a clerk for solicitors, has received considerable support from many solicitors and barristers who have come into contact with the work that he has done and who speak of him highly and speak of his ethical concerns and behaviour also highly.

[15] He has also sought advice about anger management and the abuse of alcohol and completed a certificate in anger management training and remained abstinent from alcohol for a significant period with the recent change that he says he has commenced drinking again, but moderately and in circumstances where he believes he can address that issue appropriately.

[16] Taking into account the fact that it is now almost 18 months since his initial application was refused in New South Wales and that he has taken active steps to address the issues that led to the convictions he had incurred and has obtained significant support from members of the profession here, it seems to me that it is still appropriate for this Court to deal with the issue rather than, in our discretion, refusing to deal with it and recommending that he apply again in New South Wales.  Also, having regard to the steps he has taken, it seems to me that he has addressed effectively the issues both of non-disclosure and of the conduct relevant to the offences with which he has previously been convicted.

[17] I should point out that the police officer whom he assaulted objected to the admission of the applicant on the basis of the conduct he engaged in then.  In his application, he refers to material that is not completely consistent with the findings of the Magistrate and it seems to me that, that issue having been litigated, the findings of the Magistrate should stand in respect of the nature of his conduct.

[18] Accordingly, in my view, I would allow the applicant to be admitted.

[19] CHIEF JUSTICE:  I agree.

[20] MARGARET WILSON J:  I agree.

[21] CHIEF JUSTICE:  Let Mr Tai be admitted.  Madam Registrar, please administer the oath or affirmation.

Close

Editorial Notes

  • Published Case Name:

    In the matter of an application for admission as a legal practitioner by Manuccher Ashkan Tai

  • Shortened Case Name:

    Tai v Legal Practitioners Admissions Board

  • MNC:

    [2013] QCA 39

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, M Wilson J, Douglas J

  • Date:

    11 Mar 2013

Litigation History

Event Citation or File Date Notes
QCA Original Jurisdiction [2013] QCA 39 11 Mar 2013 -

Appeal Status

No Status