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  4. Legat v Queensland Law Society Incorporated - [2022] QCA 184

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Legat v Queensland Law Society Incorporated[2022] QCA 184

Legat v Queensland Law Society Incorporated[2022] QCA 184

SUPREME COURT OF QUEENSLAND

CITATION:

Legat v Queensland Law Society Incorporated [2022] QCA 184

PARTIES:

ROBERT ANDREW CORWIN LEGAT

(applicant)

v

QUEENSLAND LAW SOCIETY INCORPORATED

(respondent)

FILE NO/S:

Appeal No 3710 of 2022
QCAT No 339 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2022] QCAT 57 (Judicial Member Lyons QC)

DELIVERED ON:

23 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2022

JUDGES:

Bowskill CJ, Bond JA and Beech AJA

ORDERS:

  1. Leave to appeal is refused.
  2. The appellant’s application to adduce further evidence on appeal is refused.
  3. The appeal is dismissed, with costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS – Where Tribunal upheld the respondent’s refusal to grant a renewal of the appellant’s practising certificate – Where as solicitor for a group of companies providing microfinance to consumers, appellant designed and implemented ‘diamond model’ – Where Tribunal found that transactions under the ‘diamond model’ were a pretence or sham – Where Tribunal found there was no reasonable basis for any belief, and the appellant did not hold a belief, that transactions the subject of the diamond model genuinely involved the sale and purchase of diamonds or that such transactions were legal – Whether Tribunal’s reasons revealed unlawful discrimination on the basis of the appellant’s disability – Whether Tribunal failed to make sufficient allowance for the appellant’s autism spectrum disorder – Whether the Tribunal erred in making various findings of fact – Whether Tribunal erred in finding that the appellant is not a fit and proper person to hold a practising certificate

Anti‑Discrimination Act 1991 (Qld), s 6, s 7, s 9, s 10, s 11

Legal Profession Act 2007 (Qld), s 9, s 51

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 149, s 154

Australian Securities and Investments Commission v Teleloans Pty Ltd (2015) 234 FCR 261; [2015] FCA 648, cited

Australian Securities and Investments Commission v Fast Access Finance Pty Ltd [2015] FCA 1055, cited

Australian Securities and Investments Commission v Fast Access Finance Pty Ltd (No 2) [2017] FCA 243, cited

Carter v Fast Access Finance (Beaudesert) Pty Ltd [2011] QCAT 525, cited

Commissioner of State Revenue v Harrison [2019] QCA 50, cited

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359; [1992] FCA 184

COUNSEL:

The applicant appeared on his own behalf

D G Clothier QC, with S C Russell, for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Queensland Law Society for the respondent

  1. [1]
    THE COURT:  On 14 May 2019, the appellant, a legal practitioner, applied to the respondent (the Law Society) to renew his practising certificate.  The Law Society refused the application.  The appellant applied to the Queensland Civil and Administrative Tribunal (the Tribunal) to review that decision.  The Tribunal refused the application, finding that the appellant is not a fit and proper person to hold a practising certificate.[1]
  2. [2]
    The appellant now seeks leave to appeal from the Tribunal’s decision.  He advances 15 grounds of appeal.  Two of his grounds assert that the Tribunal’s decision involves, or reveals, discrimination on the basis of his impairment, constituted by his autism spectrum disorder (ASD), contrary to the Anti‑Discrimination Act 1991 (Qld) (AD Act).  The balance of the grounds assert errors in various specific factual findings made by the Tribunal.
  3. [3]
    For the reasons that follow, none of the grounds of appeal has any merit.  Consequently, leave to appeal must be refused and the appeal dismissed.

Background

  1. [4]
    The appellant was admitted to practice in Queensland in 1998.  He worked as a solicitor between 1999 and 2002, joining the Fast Access Finance group (the Group) as in-house counsel in 2001.[2]  The controlling entity in the Group was Fast Access Finance Pty Ltd (FAF).  The appellant, his brother and an acquaintance were the three shareholders of FAF.  The appellant was appointed company secretary in 1997, and director in 2011.[3]  FAF, through a ‘franchise network’, provided small loans for personal use to those in financial difficulty.[4] That network included Fast Access Finance (Burleigh) Pty Ltd, Fast Access Finance (Beenleigh) Pty Ltd, and Fast Access Finance (Beaudesert) Pty Ltd (together, the franchisees).[5]
  2. [5]
    With effect from 31 July 2008, legislative changes limited the maximum annual percentage rate for a credit contract to 48%.[6]  It is not in contention that in response to those restrictions, the appellant devised what is referred to as the ‘diamond model’.  We will detail the diamond model in the course of outlining the Tribunal’s reasons.  Broadly summarised, a person seeking funds, to be repaid in the short term, would sign two contracts: a contract with the franchisee to purchase a quantity of diamonds, and a contract to sell those diamonds to a different company for an amount one‑half of the amount the customer had contracted to pay the franchisee for the diamonds.  The customer’s sale price would be paid to the customer in cash, with the customer being obliged to pay their purchase price to the franchisee over time.
  3. [6]
    The diamond model was the subject of various legal proceedings, culminating in two decisions of the Tribunal in 2011 and 2012, and two decisions by Dowsett J in the Federal Court in 2015 and 2017.  We will detail those proceedings later in these reasons.
  4. [7]
    On 27 September 2017, the Australian Securities and Investments Commission (ASIC) took action against the appellant personally, prohibiting him from engaging in credit activities for a period of three years and finding that he was not a fit and proper person to hold a credit licence (the ASIC decision).
  5. [8]
    On 4 May 2018, the appellant applied to renew his practising certificate for the 2018 ‑ 2019 year.  The appellant did not disclose the ASIC decision.[7]
  6. [9]
    The appellant sought a review of the ASIC decision.  On 9 April 2019, the Administrative Appeals Tribunal (AAT) handed down its decision (the AAT decision).[8]  The AAT decision increased the prohibition from three years to five years and otherwise did not disturb the ASIC decision.
  7. [10]
    On 16 April 2019, The Courier Mail published a story about the AAT decision which was highly critical of the appellant.[9]
  8. [11]
    When the appellant applied to renew his practising certificate on 14 May 2019, he disclosed that he had been the subject of a previously undisclosed suitability matter, advising the Law Society by email as to the AAT decision.  Specifically, the appellant referred to the finding in the AAT decision that he was not a fit and proper person to engage in credit activities and that he was the subject of a banning order for a period of five years.[10]
  9. [12]
    On 13 August 2020, the Law Society resolved that the appellant was not a fit and proper person for the renewal of his practising certificate.  The appellant was notified of this decision on 25 September 2020.[11]
  10. [13]
    The appellant applied to the Tribunal for a review of that decision under s 51(9) of the Legal Profession Act 2007 (Qld) (LP Act).

The Tribunal’s decision

  1. [14]
    The Tribunal, constituted by the Hon Peter Lyons QC, judicial member, refused the appellant’s application to review the Law Society’s decision to refuse to renew the appellant’s practising certificate.  In so deciding, the Tribunal relied principally on: the appellant’s role in, and state of mind regarding, the diamond model; his non‑disclosure in May 2018 of the banning order made by ASIC against him; the appellant’s comments regarding adverse findings made against him; and the appellant’s lack of insight into, and remorse in relation to, his conduct.
  2. [15]
    The Tribunal expressed ‘grave reservations about [the appellant’s] credit’.[12]
  3. [16]
    In outlining the background, the Tribunal made the following findings concerning the diamond model.

The diamond model

  1. [17]
    As already noted, statutory changes in effect from 31 July 2008 limited the maximum annual percentage rate for a credit contract to 48%.[13]  To avoid those restrictions, the appellant devised the diamond model.[14]  The Tribunal found that the appellant was the person primarily responsible for drafting the documentation used in these transactions, and for the instructions to those who used it.[15]
  2. [18]
    The model operated as follows.  A customer, seeking short term finance, would approach a franchisee within the Group.[16]  The first form the customer would sign, as part of a loan application, was a ‘Privacy Act Consent Form’, which recorded that the customer had applied ‘to borrow a certain amount of money’.[17]  The customer would then sign, among various forms, a ‘Sale Agreement’; a contract purportedly for the customer to purchase diamonds.  The purchase price ($250 per diamond) was payable to the franchisee over a period of months.  The customer would sign a direct debit form against their bank account.  If security was taken, it was typically over the customer’s vehicle in the form of a Collateral Security Agreement.[18]  At the same time, the customer would sign a ‘Purchase Agreement’ to sell those same diamonds to another company, Diamond Clearing House Pty Ltd (DCH), for half the purchase price payable to the franchisee.  The customer would be given cash representing the amount of the purchase price payable by DCH.[19]
  3. [19]
    DCH would then sell the diamonds back to the relevant franchisee for a fixed fee of $500 per month.  This was DCH’s only purpose, and it otherwise did not profit from the transactions.  Its sole director was the sister-in-law of the appellant’s brother.[20]
  4. [20]
    While both the Sale Agreement and Purchase Agreements called for the delivery of the diamonds to the relevant purchaser (being the customer and DCH respectively), this almost never occurred.  There were a couple of occasions where a purchase in fact occurred, but these were unrepresentative and could be put to one side.[21]  The diamonds themselves were stored as an undifferentiated whole at the residence of the appellant’s brother.  As a result, title did not pass to the customer.[22]
  5. [21]
    The model actively operated from August 2008 until April 2012.  However, customers continued to make payments in accordance with the model until 2017.[23]

Other proceedings

  1. [22]
    The Tribunal then canvassed consideration of the diamond model in various legal proceedings.
  2. [23]
    In Carter v Fast Access Finance (Beaudesert) Pty Ltd[24] (Carter), a borrower brought proceedings in the Tribunal against a franchisee seeking recovery of monies the borrower had repaid to the franchisee.  An adjudicator of the Tribunal ordered the franchisee to repay all amounts recovered by it, save for the amount initially sought by the applicants by way of loan (which corresponded to the purchase price payable by DCH under the Purchase Agreement).  In the decision presently under appeal, the Tribunal noted that the adjudicator, having examined the documents used in the model in light of the evidence of what occurred, rejected a submission that the transaction was properly characterised as a transaction for the sale and purchase of diamonds, and so was not a credit transaction.  The Tribunal noted the adjudicator’s finding that:[25]

“[T]he characterisation of the transaction in that manner [being a transaction for the sale and purchase of diamonds] is so highly unlikely, improbable and implausible as to be a complete fiction. It is ridiculous that a person would wish to enter a business premises in order to buy a product no matter what it be, to sell it immediately and make a loss.”

  1. [24]
    The Tribunal noted that leave to appeal the adjudicator’s decision was sought but was refused.[26]
  2. [25]
    Next, the Tribunal considered a decision of Dowsett J in proceedings instituted by ASIC against FAF and two of its franchisees, seeking declarations and penalties because they had engaged in consumer credit lending while unlicensed.[27]  The Tribunal quoted Dowsett J’s finding that:[28]

“… the arrangements for the sale of diamonds to Mr Eadie [the relevant customer], and by him to DCH, comprised a pretence or sham, brought into existence as a mere piece of machinery, to conceal the true nature of the transaction, which was the provision of credit.  Neither side intended that the Sales Agreement should create the relationship of vendor and purchaser as between FAF Beenleigh and Mr Eadie.  Neither Mr Eadie nor DCH intended that the Purchase Agreement should create that relationship between them.  I find that FAF Beenleigh intended to conceal the true nature of the transaction from those responsible for enforcing the interest cap.  I doubt whether Mr Eadie had any such intention, but his involvement was no greater and no less than that of the successful tenants in the second appeal in Vaughan.”

  1. [26]
    The Tribunal also noted ASIC’s prohibition against the appellant and its finding that he was not a fit and proper person to hold a consumer credit licence and referred to the AAT decision.[29]

The parties’ submissions

  1. [27]
    The Tribunal carefully summarised the competing submissions of the parties.
  2. [28]
    In the course of doing so, the Tribunal observed, accepting the Law Society’s submission in this regard, that it was significant that the appellant had not gone on oath and been exposed to cross‑examination.  The Tribunal considered it was undesirable, particularly for a legal practitioner whose character was in issue, to rely on unsworn material.  The Tribunal considered that it had been deprived of the assistance it might otherwise have received from the cross‑examination of the appellant.  While that also had the consequence that some matters had not been put to the appellant in cross‑examination, the Tribunal was satisfied the appellant had fair notice of them, given the written submissions of the Law Society.[30]

Statutory framework

  1. [29]
    The Tribunal set out the statutory framework and relevant legal principles in a manner that is not criticised on appeal.

Findings concerning the appellant’s role in the diamond model

  1. [30]
    The Tribunal found that the diamond model was an ‘artificial and contrived scheme, designed and implemented by [the appellant], and intended by him to circumvent an important legislative protection for vulnerable recipients of consumer credit’.[31]
  2. [31]
    In that regard, the Tribunal observed that the appellant had admitted that he knew the model was artificial and contrived and that it was not in issue that the appellant designed it and played a significant role in its implementation.[32]
  3. [32]
    The Tribunal considered there could be no doubt that the appellant understood that those who approached FAF franchisees were seeking consumer credit.  The first of the documents presented to a customer was a Loan Application and a Privacy Act Consent Form recording that the customer had applied to ‘borrow a certain amount of money’.[33]  The Tribunal also considered it clear that the protection of vulnerable people was the evident purpose of the changes made to the credit legislation in 2008 and that the diamond model arose out of a desire to avoid the effect of those changes.[34]
  4. [33]
    The Tribunal rejected the appellant’s statement, in a letter, that he ‘did not set out to deliberately and with premeditation exploit vulnerable people’.  The Tribunal found that the appellant set out to avoid protections which the legislature sought to provide to vulnerable people, with the consequence that they would pay, in addition to the amount made available, a relatively large amount for the use of money for a short period.  The Tribunal adopted Dowsett J’s finding that ‘the most heinous aspect of the case is the deliberate and pre-meditated exploitation of these vulnerable people’, observing that the person whose conduct is most aptly so characterised is the appellant as the person ultimately responsible for the design and implementation of the model.[35]
  5. [34]
    This latter finding is challenged by ground (c).
  6. [35]
    The Tribunal referred to an aspect of the template documents, authored by the appellant, to be used by sales assistants working for the franchisees.  One element of that template was that if a customer asked why the sale of diamonds was a necessary feature of the deal, the sales assistant was instructed to say, ‘Government legislation prevents us from giving you a consumer credit loan’.  The Tribunal adopted Senior Member McCabe’s observation in the AAT decision that this statement was untrue.  The Tribunal considered that the appellant could not have thought that the statement was true.  When cross‑examined about the statement in the AAT, the Tribunal observed that the appellant did not suggest he believed the statement to be true, but, rather, said that the explanation for it was that there was no point giving a technical response to such an inquiry by a customer because ‘consumers don’t understand interest rates’.  The Tribunal considered that this answer, in itself, showed that a deliberate decision was made not to give a truthful answer to the customer’s inquiry.  The Tribunal found that the standard response was designed as an answer to a question from customers with the intention of preventing the customer from finding out the reason for the artificial transactions, namely that the charges exceeded what was permissible if the funds were provided by a FAF entity in the ordinary way by means of a loan.[36]
  7. [36]
    The Tribunal also referred to a letter written by the appellant to Ms Carter, as referred to in Carter.  In the letter, the appellant stated that Fast Access Finance (Beaudesert) Pty Ltd (FAF (Beaudesert)) was in the business of selling diamonds.  The Tribunal considered that statement as one which could not be regarded as correct, as the appellant well knew, because the franchisees were in the business of providing funds to customers at relatively high cost by means of an artificial and contrived scheme.[37]  The Tribunal found that there was nothing to suggest the appellant had any basis for stating that a franchisee was a diamond retailer regularly selling diamonds.  Under the diamond model, neither title nor possession of the diamonds passed to a customer and it was difficult to think that the appellant did not know this.  The Tribunal considered that, overall, the picture presented by the appellant to Ms Carter was deliberately misleading.[38]
  8. [37]
    The findings outlined in [35] and [36] above are challenged by ground (f).
  9. [38]
    The Tribunal referred to the appellant’s argument, before the AAT, that he did not know that customers were approaching the Group to obtain loans.  The Tribunal considered the appellant’s unwillingness to admit this to be disingenuous at best and not a position that the appellant could honestly have taken.  The Tribunal observed that no reason had been advanced to it for not adopting the AAT’s finding that the appellant knew that potential customers of the Group were looking for loans.[39]
  10. [39]
    The Tribunal also referred to a briefing note which the appellant prepared before the diamond model was implemented.  The Tribunal considered that the briefing note made clear, as an articulated assumption, that the diamond model was to be offered to customers who approached a franchisee seeking a consumer credit loan and that diamonds would be ‘figuratively useless’ to the customer.  The Tribunal found that in declining, in evidence in the proceedings before Dowsett J, to accept that he knew that customers were not, in reality, coming to the Group to buy diamonds, the appellant conveyed something that was untrue to his knowledge.[40]
  11. [40]
    The Tribunal’s reliance on the briefing note is challenged by ground (h).

The appellant’s state of mind in relation to the diamond model

  1. [41]
    The Tribunal noted that a ‘fundamental tenet’ of the appellant’s case was that the seriousness of the appellant’s impugned conduct was mitigated by the appellant’s belief that the diamond model was lawful.[41]  The Tribunal did not accept that the appellant held that belief.[42]  The Tribunal stated that its findings were based upon its own review of the material before the Tribunal.[43]
  2. [42]
    The Tribunal adopted the findings of Dowsett J, based on documentary evidence rather than on direct evidence as to the state of mind of any particular person,[44]  that transactions under the diamond model were a pretence or sham, designed to conceal the true nature of the transaction, being the provision of credit, in an effort to evade the statutory interest cap.[45]  Those conclusions were applied to the appellant as the author of the model.[46]
  3. [43]
    The Tribunal noted Dowsett J’s finding that it was ‘possible’ that the appellant honestly thought the transactions were sale and purchase, rather than lending and borrowing, transactions, and that the appellant did not appreciate the artificiality of any explanation given to any customers.[47]  However, the Tribunal noted that: the briefing note was not before Dowsett J;[48] the appellant conceded that there was no rational basis for his belief that the transactions were lawful and genuinely involved the sale and purchase of diamonds;[49] and as the person responsible for the design and implementation of the model, the appellant was the ‘person most likely to know’ that the transactions were a pretence.  Consequently, the appellant’s evidence to the contrary was, the Tribunal found, ‘disingenuous’ and should be rejected.[50]  The Tribunal found that the appellant never held that belief.[51]
  4. [44]
    These findings are challenged by ground (g).
  5. [45]
    The Tribunal accepted the appellant’s diagnosis of ASD, and noted the views of Dr Hatzipetrou to the effect that the appellant ‘was likely to form justifications and beliefs about the model; and [Dr Hatzipetrou’s] view that the [appellant’s] persistence in defending the model was likely to be underpinned by a belief that he was operating within the law’.  The Tribunal went on to find, however, that while the appellant’s condition was ‘relevant’, it ‘carrie[d] little weight’ in comparison to other matters his Honour relied upon.[52]
  6. [46]
    Various grounds of appeal challenge the Tribunal’s approach to the appellant’s ASD.

The non-disclosure of the banning order to the Law Society

  1. [47]
    The Tribunal rejected the appellant’s explanation for his failure to disclose the ASIC decision when applying to renew his practising certificate in 2018.[53]
  2. [48]
    The appellant gave three explanations as to his failure to disclose the ASIC decision.  The first was the pressure of the AAT review of the ASIC decision.  The Tribunal rejected that explanation, noting that the ASIC decision must have been at the forefront of the appellant’s mind when preparing his application to renew.[54]  The second explanation was that the appellant did not then understand that the ASIC decision constituted a finding of guilty in a disciplinary matter relating to another profession or occupation for the purposes of s 9(1)(i)(ii) of the LP Act.[55]  His Honour found that the appellant was aware of his obligation to disclose the ASIC decision and made a conscious decision not to do so.[56]  The third was that the appellant was confused by the delegate in the ASIC decision not making a finding against him under the Corporations Act 2001 (Cth).  The Tribunal rejected this explanation, noting that the explanation is only relevant if the appellant turned his mind to the ASIC decision and made a deliberate decision not to disclose the banning order.[57]
  3. [49]
    The Tribunal found that the appellant was not candid when seeking the renewal, and that was the ‘product of a deliberate decision on his part’.[58]
  4. [50]
    The Tribunal was ‘not prepared to find’ that the appellant’s subsequent disclosure of the ASIC decision when applying to renew his practising certificate in 2019 was a ‘significant remedial step’ due to the paucity of relevant evidence.[59]
  5. [51]
    The Tribunal’s approach to the question of disclosure is challenged by grounds (j) and (k).

The appellant’s reaction to adverse findings made by various tribunals and courts

  1. [52]
    The Tribunal then turned to the submission that the appellant made unprofessional and disrespectful comments about the adverse findings made in various forums.
  2. [53]
    Seven criticisms were identified:[60]
  1. Dowsett J got the facts and the law wrong in a number of respects;
  2. His Honour ‘saw fit to disregard uncontested evidence especially without any apparent basis for doing so’; and it was said that his Honour’s approach ‘appears strange’;
  3. His Honour’s reasoning established ‘a dangerous precedent’;
  4. Some of the factual findings were said to be ‘patently untrue and remarkably short-sighted’;
  5. Some of his Honour’s findings were ‘ill-informed’;
  6. There were a number of discrepancies and curiosities in his Honour’s judgment, and the appellant did not think ‘it’s Justice Dowsett’s finest decision, to be honest’; and
  7. It was ‘curious’ that the decision had taken some time before it was handed down; and when asked if by that comment the appellant was suggesting that his Honour was influenced by others, he responded, ‘Well, who knows. Who knows’.
  1. [54]
    The first statement was said to be of no significance.[61]
  2. [55]
    Before the Tribunal, the appellant explained, regarding the second statement, that there were valuation documents from the diamond supplier in evidence.[62]  The primary judge rejected this explanation, noting that there was no suggestion that Dowsett J’s finding was erroneous and that the statement was true ‘in the sense that there was no evidence of the value of the particular quantity of diamonds’ as at the time the franchisee was approached by the customer.[63]  The Tribunal found that this statement was ‘not a genuine exercise of the right of criticism’ as it attributed to Dowsett J a decision to disregard relevant evidence when there was no proper basis for doing so.[64]
  3. [56]
    The appellant explained, regarding the third statement, that the ‘dangerous precedent’ was Dowsett J’s acceptance that the contract was defined by the customer’s intention, being an exception of the parole evidence rule.[65]  The Tribunal stated that, although ‘wrong-headed’, this criticism neither amounted to contempt nor was ‘of significance’.[66]
  4. [57]
    As to the fourth statement, the Tribunal considered that this statement ‘suggests gross error bordering on wilful blindness on the part of his Honour’ and was an instance of irrational and unprofessional criticism.[67]
  5. [58]
    The appellant explained, regarding the fifth statement, that the Court simply had not been informed of all relevant matters.[68]  The Tribunal stated that this criticism is a ‘personal’ criticism of a judicial officer and involved an element of ‘ill-will’.  It was an instance of irrational and unprofessional criticism.[69]
  6. [59]
    Ultimately, due to a lack of evidence as to the appellant’s intention in making any imputation, the Tribunal did not take the seventh statement into account.[70]  The Tribunal did not specifically address the sixth statement.
  7. [60]
    The Tribunal’s approach to this topic is challenged by ground (i).

The appellant’s insight into his conduct

  1. [61]
    The Tribunal ultimately found that the appellant had not demonstrated any real contrition or insight into his wrongdoing.[71]
  2. [62]
    The appellant had submitted that the following matters demonstrated insight into his conduct and contrition.[72]  First, his acceptance of the findings of the various proceedings concerning the appellant,[73] and his acceptance that his subjective belief about the lawfulness of the diamond model was wrong.  Second, his acceptance that his acting both as director of, and solicitor for, FAF involved placing himself in a ‘precarious’ position.  Third, his disclosure of the banning order, which was said to demonstrate an appropriate understanding of what is required of a solicitor.  Fourth, his conduct over the preceding years.  Fifth, his steps towards rehabilitation.
  3. [63]
    The Tribunal observed:[74]

“The applicant does not accept that he has engaged in wrongful conduct by designing and overseeing the implementation of the diamond model. The most he acknowledges is that the model was unlawful, but even that acceptance is heavily qualified.[75] He asserts that he honestly but mistakenly believed that the model was lawful; and he did not set out to exploit vulnerable people. The applicant’s statements that he believed the model to be lawful and that he did not set out to exploit vulnerable people have not been accepted. At best for the applicant, he set out to do this by using a scheme he knew to be artificial and contrived and he did so for financial gain for himself and others. Even on that basis he has not acknowledged that his conduct was wrongful.”

  1. [64]
    The Tribunal considered that the appellant’s ‘passionate and prolonged defence’ of the diamond model does not sit comfortably with a recognition of the appellant’s wrongful conduct.  The appellant continued to diminish the significance of the findings in the various proceedings, and to deflect criticism away from himself.[76]  The appellant appealed against the AAT decision and continues to be critical of the judgment of Dowsett J.[77]
  2. [65]
    Further, the appellant made only ‘limited acknowledgement[s]’ of his conduct and his role in the operation of the diamond model.[78]
  3. [66]
    The Tribunal’s findings as to insight and remorse are challenged by ground (l).

Other matters

  1. [67]
    The Tribunal placed very little weight on any purported recent good conduct.[79]
  2. [68]
    The professional development courses undertaken by the appellant were not directed towards the ‘character issues’ raised in the proceedings and consequently were ‘of no real significance’.[80]  The Tribunal attributed no weight to the appellant’s diagnosis and prospects of treatment.[81]  The Tribunal found that there were no conditions which could be imposed on his practising certificate which would adequately address the ‘character issues’ raised in the proceedings.[82]

Conclusion

  1. [69]
    The Tribunal found that the appellant was not a fit and proper person, and refused the application to review the Law Society’s initial refusal.[83]

Grounds of appeal

  1. [70]
    The appellant advances 15 grounds of appeal.  Given their number, rather than detailing each ground at this point, we will summarise each ground in the course of dealing with it.
  2. [71]
    The grounds may be summarised, by reference to their major themes, as follows:
  1. Errors constituted by the primary decision maker’s alleged discrimination on the grounds of, and failure to make allowances for, the appellant’s ASD: grounds (a) and (b).
  1. Errors relating to findings of fact concerning the diamond model and the appellant’s state of mind: grounds (c), (d), (e), (f), (g), (h) and (n).
  2. Errors in making adverse findings as to the appellant’s insight and contrition as to his conduct: grounds (l) and (o).
  3. An error in finding that the appellant made improper criticisms of judicial officers: ground (i).
  4. An error in finding the appellant had admitted before the AAT that the barrister who provided advice on the diamond model was ‘relatively junior and had no relevant experience’: ground (m).
  5. Errors in finding the appellant had deliberately failed to comply with his disclosure obligations when applying for the renewal of his practising certificate: grounds (j) and (k).

The appeal: statutory framework

  1. [72]
    Section 149(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that a party to a proceeding in the Tribunal may appeal to the Court of Appeal against the decision of a Tribunal if the Tribunal was constituted by a judicial member.  Section 149(3) provides that an appeal on a question of fact or a question of mixed law and fact may be made only if the party has obtained the Court’s leave to appeal.  The nature of the appellant’s grounds of appeal in the present case means that leave to appeal is required.
  2. [73]
    In Commissioner of State Revenue v Harrison,[84] this Court said that leave to appeal would usually be granted where a substantial injustice has been inflicted upon an applicant, or where some important point of principle arises.
  3. [74]
    Section 154 of the QCAT Act provides that an appeal on a question of fact or mixed law and fact is by way of rehearing and that a court may admit additional evidence.
  1. [75]
    It is convenient to begin with some general observations which explain why the appeal must fail, before dealing with the individual grounds in some more detail.

General observations

  1. [76]
    It is necessary for the appellant to identify appellable error on the part of the Tribunal.
  2. [77]
    In circumstances where no witnesses gave oral evidence, the Tribunal did not enjoy the same advantages over this Court, as an appellate court, as exists in cases where a court or tribunal makes findings of fact informed in part by an assessment of a witness.  In determining the proper inference to be drawn from facts which are undisputed or found, an appellate court is, generally speaking, in as good a position as the trial court or tribunal to decide on the proper inference.[85]  However, even where the appeal concerns the inferences to be drawn from established primary facts, it remains necessary for the appellant to demonstrate error.  As Beaumont and Lee JJ observed in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher,[86] in a passage that has been adopted in other intermediate appellate courts:[87]

“[T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at CLR 552–3; ALR 423–5) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.”

  1. [78]
    For the reasons that follow, the appellant has not demonstrated any error on the part of the Tribunal.
  2. [79]
    The appellant chose not to give evidence on oath before the Tribunal.  Rather, he relied on the unsworn statement that he had provided to the Law Society in support of his application to renew his practising certificate.
  3. [80]
    We agree, with respect, with the Tribunal’s observation that it was both significant and undesirable that the appellant had declined to give evidence on oath, and thereby to be exposed to cross-examination.  That is particularly so given the central subject matter of the proceeding focused on the appellant’s character, namely whether he is a fit and proper person to hold a practising certificate.
  4. [81]
    Pivotal to the appellant’s case before the Tribunal was his asserted state of mind as to the diamond model.  He claimed that at all relevant times he believed that transactions under the model genuinely involved the sale and purchase of diamonds.  Relatedly, he claimed to have had an honest belief as to the lawfulness of the diamond model.[88]
  5. [82]
    The appellant’s application to the Tribunal stated that he ‘now accepts and understands that there was no rational basis for the state of mind he previously held’.[89]  In oral submissions to the Tribunal, senior counsel for the appellant accepted that his asserted beliefs in the legality of the diamond model were without any reasonable basis.[90]
  6. [83]
    However, the appellant’s statement, which was the most current evidence as to his state of mind put before the Tribunal, did not express any such acceptance.
  7. [84]
    Nevertheless, senior counsel for the appellant before the Tribunal was correct to accept that there was no reasonable basis for any belief that transactions the subject of the diamond model genuinely involved the sale and purchase of diamonds or that such transactions were legal.  The reasons for that are fully revealed in the Tribunal’s reasons.  The following is broad summary of some of the matters that demonstrate why that is so:
  1. Before the introduction of the statutory cap, FAF and its franchisees were in the business of microlending.  The vast majority – more than 90% – of the business was lending to customers.[91]
  1. The diamond model was, as the appellant described it, his ‘brainchild and creation’.[92]  He accepted that he knew it was ‘artificial and contrived’.[93]  He designed it in response to the introduction of the statutory cap, which undermined the profitability of the businesses of FAF and its franchisees.[94]  Indeed, it was the appellant’s evidence before Dowsett J and his case before the Tribunal, repeated before this Court, that the statutory cap made the lending business of FAF and its franchisees unviable.
  1. There could have been no basis to suppose that, following the introduction of the statutory cap, customers who came to FAF or the franchises had any purpose materially different from the customers who attended before the introduction of the cap.
  2. In the proceedings in the AAT, while he would not accept that customers were looking for a loan, the appellant described them as ‘looking for cash’.[95]  On appeal, the appellant says that he has always accepted that customers came, and would come, to FAF and its franchisees ‘to seek money’.[96]
  3. The appellant authored the relevant documentation, the effect of which is summarised at [18] above.
  4. The model did not contemplate that any franchisee would hold in its possession any diamonds.  It did not provide for physical delivery of diamonds to customers.[97]  Nor did it make any provision for the allocation of any specific diamonds to individual customers.
  5. DCH’s only purpose and activity was to play its role in the diamond model, for which it received a fixed monthly fee.
  1. [85]
    The objective facts set out in [84] above, none of which is or was in serious dispute, meant there was no plausible basis for any belief that the transactions contemplated by the diamond model genuinely involved the sale and purchase of diamonds, rather than the provision of loans.  In light of these facts, it was well open to the Tribunal to reject the appellant’s unsworn evidence as to his state of mind.
  2. [86]
    Moreover, in his unsworn statement, on which he relied in the Tribunal, the appellant said that he accepted Dowsett J’s finding[98] that the arrangement for sale and purchase of diamonds was ‘brought into existence as a mere piece of machinery, to conceal the true nature of the transaction, because the provision of credit’.[99]  In attachment 2 to his statement, the appellant again said that he accepted and agreed with this passage of Dowsett J’s reasons describing the purpose of the creation of the arrangement for sale and purchase of diamonds.[100]  As the person who designed the diamond model, which he described as his ‘brainchild and creation’, it was the appellant who ‘brought into existence’ the arrangement for sale and purchase of diamonds for the purpose described by Dowsett J.  This view of the purpose of the creation of the sale and purchase of diamonds as elements of the diamond model is not consistent with any belief that the sale and purchase transactions were genuine.  Absent such a belief, there could be no belief that the diamond model was legal.  While other parts of the appellant’s statement asserted an honest belief in the genuineness of the sale and purchase transactions, this admission by the appellant provides further significant support for the Tribunal’s rejection of the appellant’s evidence as to his state of mind.
  3. [87]
    The Tribunal’s other critical findings were that the diamond model was an artificial and contrived scheme designed and implemented by the appellant for personal gain and intended by him to circumvent an important legislative protection for vulnerable recipients of consumer credit.[101]
  4. [88]
    The only element of that finding that the appellant challenges is the finding that he intended to circumvent the legislative protection of vulnerable recipients of consumer credit.  As explained in relation to ground (f) below, that challenge fails.
  5. [89]
    In summary therefore, the Tribunal found that the appellant:
    1. (a)
      designed the diamond model, which was, as he knew, an artificial and contrived scheme;
    2. (b)
      did so for personal gain;
    3. (c)
      thereby intended to circumvent an important legislative protection for vulnerable recipients of consumer credit;
    4. (d)
      in doing so, did not believe that transactions contemplated by the model he designed would be genuine transactions of sale and purchase; and
    5. (e)
      did not believe that the model was lawful.
  6. [90]
    To the extent these findings are challenged, the challenge fails, as explained below.
  7. [91]
    In the context of the evidence as a whole, and giving full weight to everything that could be said in the appellant’s favour, those findings amply sustain, indeed they compel, the Tribunal’s conclusion that the appellant is not a fit and proper person to be admitted.
  8. [92]
    Dr Hatzipetrou’s opinion that the appellant met the criteria for a diagnosis of ASD was relevant to whether these findings should be made, and to the broader question of whether the appellant is a fit and proper person to be admitted.  As explained in detail in the context of grounds (a) and (b), the Tribunal took Dr Hatzipetrou’s opinion into account in coming to its conclusions.  However, contrary to the tenor of many of the appellant’s submissions to this Court, the Tribunal was not bound to accept that Dr Hatzipetrou’s opinion as to the appellant’s ASD overwhelmed other evidence or that it satisfactorily explained the appellant’s conduct.  In that regard, two features of Dr Hatzipetrou’s opinion should be noticed.
  9. [93]
    First, as the Tribunal observed,[102] Dr Hatzipetrou’s opinion depended substantially upon what the appellant had told him, including as to the appellant’s state of mind in engaging in the conduct in question.  Among other things, the appellant told Dr Hatzipetrou that he had no intention to engage in conduct contrary to the law and believed that his model did not contravene the law.[103]  Dr Hatzipetrou evidently (and appropriately) proceeded on that basis.  However, it was for the Tribunal to make its own findings as to the appellant’s state of mind.  As already noted, the appellant did not give sworn evidence as to his state of mind.  The Tribunal was not bound to accept the appellant’s unsworn statement as to his state of mind.
  10. [94]
    Secondly, Dr Hatzipetrou appropriately recognised the limits of his retrospective assessment of the appellant’s conduct many years earlier.  His report recognised that, consequently, it is difficult to ascertain the role of cognitive distortions and other motivations that contributed to the relevant conduct.[104]
  11. [95]
    For these reasons and for the reasons more fully explained in the context of grounds (a) and (b), it was well open to the Tribunal to make the findings summarised in [89] notwithstanding Dr Hatzipetrou’s opinion.  Further, having made those findings, it was well open to the Tribunal to conclude that the appellant was not a fit and proper person to be admitted.  Indeed, in light of those earlier findings, we can see no room for any other conclusion.
  12. [96]
    Finally, by way of general observation, many of the appellant’s submissions to this Court are inconsistent with, or undermine, his asserted acceptance of the findings in relation to the diamond model made in Carter and by Dowsett J in FAF (No 1) and FAF (No 2).  The appellant’s submissions continue to reveal his lack of insight and contrition.
  13. [97]
    We turn to deal with the grounds individually.
  1. [98]
    We begin with grounds (a) and (b), which allege direct or indirect discrimination on the part of the Tribunal.

Grounds (a) and (b): discrimination

  1. [99]
    Ground (a) asserts that the Tribunal erred in discriminating against the appellant by treating him unfavourably in connection with the grant or renewal of his practising certificate by reason of his impairment, namely his ASD.
  2. [100]
    Ground (b) asserts that the Tribunal erred in:

“… failing to make allowances (or failing to make sufficient allowances) for the effects of the Appellant’s [ASD] on his conduct, specifically with respect to:

i. persistent impairments in reciprocal social communication, pragmatic language, and nonverbal communicative behaviours when making inferences about the Appellant’s conduct in hearings;

ii. propensity to make literal interpretations; and

iii. difficulties in appreciating another person’s perspective of a situation,

and particularly in light of the subject conduct occurring prior to the Appellant’s diagnosis with [ASD]; …”

  1. [101]
    It is necessary to begin by putting these grounds into their statutory context.

Relevant statutory provisions

  1. [102]
    A central purpose of the AD Act is to promote equality of opportunity by protecting people from unfair discrimination in specific spheres of activity.  The Act achieves its purpose, in broad summary, by prohibiting discrimination that is on a ground set out in pt 2 of the Act, of types set out in pt 3 and in an area of activity set out in pt 4, subject to qualifications that need not be mentioned.[105]
  2. [103]
    By s 7(h), contained in pt 2, discrimination on the ground of an impairment is prohibited.  ASD falls within the ambit of the definition of impairment.
  3. [104]
    Section 9, contained in pt 3, prohibits direct and indirect discrimination.
  4. [105]
    Direct discrimination on the basis of an attribute happens, relevantly, if a person treats a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.[106]
  5. [106]
    Indirect discrimination on the basis of an attribute happens if a person imposes or proposes to impose a condition, requirement or practice (whether or not written):[107]
    1. (a)
      with which a person with an attribute does not or is not able to comply; and
    2. (b)
      with which a higher proportion of people without the attribute comply or are able to comply; and
    3. (c)
      that is not reasonable.
  6. [107]
    As will be seen, the appellant’s submissions in support of grounds (a) and (b) are not framed by reference to the critical features of these statutory provisions.

Appellant’s submissions

  1. [108]
    The appellant’s written submissions focus on the prohibition on indirect discrimination.[108]  However, the submissions do not identify any condition, requirement or practice said to have been imposed by the Tribunal.  Rather, the appellant submits that the Tribunal treated him unfavourably.[109]  That is more closely referable to the language of direct discrimination, but the appellant did not address the element of the relevant comparison for direct discrimination that requires circumstances that are the same or not materially different.
  2. [109]
    The appellant submits that the Tribunal treated him unfavourably in two respects.  First, it did so in that the appellant’s ASD was only considered as ‘relevant to the probability that the appellant’s statements about his beliefs were true’.[110]  Secondly, the Tribunal is said to have treated the appellant unfavourably in that it applied ‘unmodified standards’ to the appellant’s behaviour in circumstances where the attributes of the sufferers of ASD are relevant to consideration of the appellant’s conduct, behaviour, attitude and character.  According to the appellant, the Tribunal discriminated against the appellant in its findings on the following matters:[111]
  1. the appellant’s intentions regarding conduct which was ‘beyond the appellant’s involvement’, when a person with ASD may not consider the consequences of their involvement;
  2. in expecting the appellant to have knowledge or understanding of the motivations of customers, when a person with ASD has difficulty appreciating another person’s perspective;
  3. the appellant’s excessive criticism of judicial members, such findings being based on the appellant’s tone and choice of language, when a person with ASD might be considered ‘rude’ or ‘arrogant’ and fail to consider the feelings of others;
  4. the appellant’s lack of contrition and insight, where a person with ASD has impaired ability to see another person’s perspective; and
  5. in rejecting the appellant’s explanation for conduct on the basis that it involved a literal interpretation of legislation, when a person with ASD is likely to make literal interpretations and to be confronted by abstract language.
  1. [110]
    Further, the appellant submits that his impugned conduct occurred while he was unaware that he suffered from ASD and so did not have an understanding of the effect of his condition upon his actions.

Disposition

  1. [111]
    Grounds (a) and (b) are entirely without merit.
  2. [112]
    The appellant does not contend, and upon a review of the record of the hearing before the Tribunal it could not plausibly be contended, that the Tribunal discriminated against the appellant in the manner in which the proceedings were conducted.  Rather, the appellant asserts that the Tribunal’s reasons reveal that in determining the application before it, the Tribunal engaged in unlawful discrimination.
  3. [113]
    That assertion is both baseless and misconceived.
  1. [114]
    As already noted, the appellant’s submissions are founded on indirect discrimination.  His written submissions do not identify any condition, requirement or practice which was said to have been imposed by the Tribunal and that is said to have had discriminatory effect.  In his oral submissions, the appellant attempted, unsuccessfully, to explain his complaint by reference to this element of indirect discrimination.  The appellant submits that, in determining whether the statutory criteria of suitability under s 9 of the LP Act were met, the Tribunal applied standards to the appellant’s behaviour that were not modified in light of the appellant’s ASD.[112]  This submission does not establish that the Tribunal imposed any condition, requirement or practice.  Relevantly, the requirements are imposed by the LP Act, not by the Tribunal.
  1. [115]
    The appellant’s complaints of discrimination are flawed for other, broader reasons.  In short, the Tribunal undertook its task of considering the evidence before it, including the evidence of the appellant’s ASD, and making findings as to the matters relevant to its ultimate determination.
  2. [116]
    The appellant’s ASD was the subject of written and oral submissions by senior counsel on his behalf before the Tribunal.[113]  Those submissions were comprehensively and accurately captured in the Tribunal’s outline of the parties’ submissions, which relevantly was as follows:[114]

“The submissions also relied upon the report of Dr Hatzipetrou, a psychologist. Dr Hatzipetrou considered that further assessment and examination was required to determine whether a diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”) could be made of the applicant, but considered that the applicant meets the criteria for a diagnosis of Autism Spectrum Disorder (Level 1) (“ASD”). Features of ASD consist of persistent impairments in reciprocal social communication and social interactions, and restrictive and repetitive patterns of behaviour, interests or activities. The applicant had described a meticulous process of research analysis, reviewing policies and developing knowledge to formulate a model that would support the business and generate profits. This single intense focus is characteristic of ASD. The applicant was likely to be immersed in this model without considering the potential and/or likely consequences. He was likely to form justifications and beliefs about the model.

Dr Hatzipetrou reported that the applicant had denied an intention to engage in unlawful behaviour. His persistence in defending the model was likely to be underpinned by a firm and unwavering belief that he was operating within the law. The applicant believed that he did not deliberately attempt to engage in unlawful acts that contravened the credit legislation. The applicant is likely to be compliant with rules and orders. The condition is a lifelong condition. However, the applicant would benefit from mentoring by an experienced colleague. He would also benefit from engagement with a clinical psychologist, with a focus on improving his coping skills, in particular with anxiety and stress. He would be a suitable candidate for behaviour therapy which focusses on improving his understanding of social interactions, and giving him greater awareness of his behaviours in social situations. His ASD was not a barrier to the pursuit of a career or meaningful employment.

On the basis of Dr Hatzipetrou’s report, it was submitted that the applicant did not have character flaws which were incapable of rectification; and it was not shown that he was incapable of acting as a lawyer.”

  1. [117]
    The Tribunal weighed the views of Dr Hatzipetrou with the Tribunal’s analysis of the evidence as a whole, thereby appropriately discharging the Tribunal’s function.  That can be seen in the following passage of the Tribunal’s reasons, which came immediately after the Tribunal’s findings concerning the appellant’s state of mind about the legality of the diamond model:[115]

“I am conscious, in making these findings, of the views of Dr Hatzipetrou. I accept his diagnosis of ASD. I note his view that the applicant was likely to form justifications and beliefs about the model; and his view that the applicant’s persistence in defending the model was likely to be underpinned by a belief that he was operating within the law. These views must significantly depend upon statements made by the applicant. While the applicant’s condition is relevant to the probability that the applicant’s statements about his beliefs were true, that consideration carries little weight in comparison to the matters I have relied upon.”

  1. [118]
    For these reasons, grounds (a) and (b) are without merit.

Ground (c): appellant as person ultimately responsible

  1. [119]
    By ground (c), the appellant contends that the Tribunal erred in finding that the appellant was the person ultimately responsible for the design and implementation of the diamond model and thereby erred in attributing criticisms of that model made by Dowsett J to the appellant personally.  In support of this ground, the appellant submits that he could not be said to be ultimately responsible for the design and implementation of the model, having regard to:[116]
  1. the fact that he was not a director of FAF or any of its franchisees when the model was designed and implemented and was one of several officers of FAF who had equal or greater authority regarding the design and implementation of the model;
  2. the business of a company is managed by its directors; and
  3. judicial consideration of the model has focused on the application of the model and yet the appellant ‘was accepted not to be involved in the practical application of the diamond model’.
  1. [120]
    The appellant’s submissions are without substance.  The appellant said in his statement that he advised FAF on the formation and implementation of the diamond model.[117]  He described the model as his ‘brainchild and creation’.[118]  The Tribunal described the fact that the appellant designed the model and played a significant role in its implementation as not being in issue.[119]  Consideration of the written and oral submissions before the Tribunal confirms this to be the case.  The written and oral submissions advanced by senior counsel for the appellant to the Tribunal did not deny, but rather sought to explain the significance of, the fact that the appellant designed the model, including the manner in which it was to be implemented.

Ground (d): admission that model had no rational basis

  1. [121]
    Ground (d) contends that the primary judge erred in finding that the appellant had admitted that the diamond model had no rational basis.
  2. [122]
    This ground must be rejected.  Apart from anything else, it is entirely inconsistent with the conduct of the appellant’s case before the Tribunal.  In the application itself, the appellant expressly conceded that this was so, see [81] above.  Further, as already noted, senior counsel for the appellant accepted in oral submissions to the Tribunal that the appellant’s asserted beliefs as to the legality of the diamond model were without any reasonable basis.[120]
  3. [123]
    In his submissions in reply, the appellant says that it is ‘spurious’ to rely on his statement in the application that ‘there was no rational basis for the state of mind he previously held’ as meaning that he agreed he could not rationally have regarded the diamond model as involving the genuine purchase and sale of diamonds.  That is said to be because the application did not specify which previously held state of mind the appellant had accepted there was no rational basis for and, properly understood, it was directed to the non-disclosure issue, not to his state of mind concerning the legality and genuineness of the diamond model.[121]  It is this submission that is spurious, not the Tribunal’s finding.  It is perfectly plain, from both the written submissions of the appellant’s counsel before the Tribunal,[122] and from senior counsel’s oral submissions,[123] that what was said in the application was a reference to the appellant’s state of mind concerning the legality and genuineness of the diamond model.
  4. [124]
    For these reasons, ground (d) is entirely without merit.

Ground (e): wrong version of documents

  1. [125]
    Ground (e) asserts that the Tribunal erred in making adverse findings against the appellant by reference to versions of documents, namely the Loan Application form and the Privacy Act Consent Form, that were not part of the diamond model.
  2. [126]
    The appellant’s submissions in support of ground (e) may be summarised as follows.  The Tribunal found that the appellant did not have a genuine belief that the diamond model was lawful.  That finding was based, in part, upon a ‘suite of documents’ which included the Loan Application and the Privacy Act Consent Form and the contents of a briefing note.  The Loan Application and Privacy Act Consent Form referred to by the Tribunal were not documents which were within the ‘suite of documents’ authored for the diamond model.  Neither of the correct versions of the documents referred to a loan.  The briefing note was prepared before the diamond model was implemented and so is couched in language appropriate for the operations of FAF before that time.[124]
  3. [127]
    In support of this ground, the appellant seeks leave to adduce, as additional evidence on appeal, different and he says correct versions of the Finance Application and Privacy Act Consent Form.  The Tribunal referred to the versions of these documents that had been referred to in Carter.  The appellant now seeks to adduce, as additional evidence on the appeal, the versions of those documents which were referred to in FAF (No 1).
  4. [128]
    These documents do not assist the appellant.  By the Finance Application, the customer is asked to identify the amount of the ‘funding request’ and the ‘purpose of funds’.[125]  The Privacy Act Consent Form, refers to the customer having made an application ‘in respect of a credit facility’ and provides for signing by a ‘co‑borrower’.[126]  These features of the language of these documents cannot sit with the appellant’s attempt to use them to justify his belief that the transactions were genuinely the purchase and sale of diamonds.
  5. [129]
    Admission of the additional evidence would have no material bearing on the findings made by the Tribunal.  It is plain from the documents, as well as being obvious as a matter of common sense and experience, that customers who had approached or would approach franchisees were seeking funds, that is money, in the expectation that they would undertake an obligation to pay the provider of that money an amount exceeding the amount received by the customer.  Customers did not approach FAF or its franchisees with a view to purchasing or selling diamonds.
  6. [130]
    In the Tribunal and in this Court, the appellant contended that customers wanted money, rather than wanting a loan, and that this distinction is of critical significance.  It is not.  What is critical is that customers wanted to obtain money, with an expectation that in return they would undertake to pay a greater sum to the business over time – they did not want to buy or sell diamonds.  As has been observed in earlier proceedings concerning the diamond model,[127] the notion that customers of the Group, who are likely to be in straitened circumstances, had any interest in buying or selling diamonds is fanciful.  The interposition of a purchase and then sale of diamonds by the customer can only be seen in the manner described by Dowsett J, in the passage accepted by the appellant, as ‘a mere piece of machinery, to conceal the true nature of the transaction’.
  7. [131]
    The appellant’s complaint as to the briefing note is primarily founded on the distinction he draws between money and loans.  For the reasons in [130] above, we do not accept the significance of the distinction the appellant draws.  The appellant’s complaint as to the briefing note falls away with the rejection of the distinction on which it is founded.
  8. [132]
    Ground (e) does not disclose any arguable error on the part of the Tribunal.

Ground (f): untrue statements

  1. [133]
    Ground (f) alleges that the Tribunal erred in finding the following of the appellant’s statements to have been untrue:
  1. his denial that he ‘set out to deliberately and with premeditation exploit vulnerable people’;
  1. the statement in template documents to be used by sales assistants that, if the customer asks why the sale of diamonds was part of the deal, the assistant was to say ‘government legislation prevents us from giving you a consumer credit loan’;
  2. a statement in an email written by the appellant to Ms Carter, as referred to in Carter, that FAF Beaudesert was in the business of selling diamonds;
  3. the statement in his evidence before Dowsett J as to whether customers could take physical possession of diamonds under the diamond model; and
  4. his statements as to whether he knew that customers were seeking loans and not seeking to buy diamonds from FAF and its franchisees.
  1. [134]
    As to the first, the appellant submits that the finding must be evaluated ‘in light of whether [the Group] could have sustainably operated under the interest rate cap because exploitation infers there is a fairer possible alternative’.[128]  This central premise of the appellant’s submissions was a recurring theme of his case before the Tribunal and before this Court.  It is fundamentally flawed.  The appellant’s case is and was that, because compliance with the interest legislation would have made the FAF business unviable, he designed the diamond model to avoid the application of the legislation.  If it was not possible for the Group to operate its business within the constraints imposed by the interest cap legislation, which was evidently designed to prevent exploitation of vulnerable customers, then it was incumbent on the Group not to operate the business at all.  To choose to operate the business under the diamond model, as the appellant did, was to choose to exploit customers who dealt with the business thereafter.
  2. [135]
    Consequently, it is not necessary to outline the appellant’s submissions which attempt to make good the contention that the Group could not have operated profitably under the 48% per annum interest rate cap.  The additional evidence the appellant seeks to lead in support of those submissions is similarly of no assistance to him.
  3. [136]
    Further, the appellant submits that the Tribunal did not give adequate consideration to:[129]
    1. (a)
      the appellant’s stated intention to create the diamond model in a legally compliant manner;
    2. (b)
      the fact that there were no anti-avoidance provisions in the legislation; and
    3. (c)
      the effect of the appellant’s ASD.
  4. [137]
    None of these matters was overlooked by the Tribunal.  Nor do they materially undermine the undoubted correctness of the Tribunal’s finding that the appellant set out to deliberately exploit vulnerable people.  As to (b), to state what might be thought to be obvious, the fact that there was no anti-avoidance provision in the legislation is beside the point.  To engage in conduct of the kind summarised in [89] above in the circumstances outlined in [129]-[130] above is a powerful demonstration of unfitness to practise law.
  5. [138]
    As to the second statement – the pro forma proposed response that ‘government legislation prevents us from giving you a consumer credit loan’ – the appellant submits that the Tribunal’s finding that he could not have thought this statement was true suffered from several flaws.  First, it is ‘unsupported by any material before the Tribunal … and is incorrect’.[130]  Secondly, the reference to government legislation was not solely a reference to the interest rate cap as appears to have been assumed by the Tribunal and others.  Thirdly, a response discussing the interplay between an interest rate cap and the prohibition on trading while insolvent would have been a highly technical response to the average customer.  Fourthly, to have imposed an interest rate under the cap would have resulted in Group trading while insolvent.
  6. [139]
    Again, these submissions by the appellant miss the mark and reveal his continuing failure to embrace the substance of what has been decided in the earlier decisions.  The appellant contends that to say to a customer that ‘government legislation prevents us from giving you a consumer credit loan’ was true in that: (i) government legislation prevented the Group from providing a loan at an effective rate of more than 48% per annum; (ii) it would not have been viable for the Group to provide a loan at a rate that did not exceed the prescribed maximum; (iii) consequently for the group to have provided consumer credit loans would have meant its directors had allowed the relevant companies to trade while insolvent; and (iv) legislation prohibits insolvent trading.  That elaborate attempt to justify the proposed statement to customers is fatuous.  The position is considerably simpler.  Government legislation did not prevent the Group from giving customers a consumer credit loan.  The legislation permitted them to do so, but prohibited them from charging what Parliament deemed to be the excessive high rates of interest that the Group proposed to charge.  The Tribunal’s findings were well-founded.
  7. [140]
    The appellant submits that the third statement was a brief explanation of the diamond model rather than a reference to a particular transaction.  That may be accepted.  He submits that customers were free to deal with the diamonds as they saw fit as they were not forced to sell the diamonds to DCH.  This submission further illustrates the appellant’s ongoing inability or refusal to accept the findings, consistently made in various proceedings, about the diamond model.  In the circumstances and for the reasons in [84]-[89] and [129]-[130] above, the Tribunal findings that the appellant’s statement that FAF Beaudesert was in the business of selling diamonds was deliberately misleading, was amply justified.
  8. [141]
    As to the fourth statement, the appellant points to: the finding of Dowsett J that ‘on rare occasions, customers had asked to take the diamonds’; the terms of the sale agreement which provided that customers were not obliged to sell diamonds to DCH; and the lack of evidence suggesting that customers were compelled to do so.[131]
  9. [142]
    As to the fifth statement, the appellant submits that the Tribunal’s finding that the appellant knew that customers approaching its franchisees were seeking credit or a loan are erroneous because:
  1. the appellant did not have direct involvement with customers and so could not be taken know the state of mind of people he had never met;
  2. his evidence was that customers were seeking cash, as opposed to loans;
  3. the briefing note to the barrister, upon which the Tribunal relied, was created in early 2008 at a preliminary stage in the design of the diamond model; and
  4. as contended by ground (e), the Loan Application and Privacy Act Consent Forms on which the Tribunal relied were the incorrect versions of those documents.[132]
  1. [143]
    For reasons already given – see [81]-[86] and [120]-[131] above – no arguable error has been demonstrated in the Tribunal making its findings concerning the fourth and fifth statements.
  2. [144]
    Three other grounds concern the Tribunal’s findings as to the diamond model.  They can conveniently be dealt with together.

Grounds (g), (h) and (n): other diamond model matters

  1. [145]
    Ground (g) alleges that the Tribunal erred in concluding that the appellant was aware that the sale and purchase transactions were not genuine transactions and were a pretence.  Ground (h) alleges that the Tribunal erred in finding that the appellant did not believe that the diamond model involved the sale and purchase of diamonds.
  2. [146]
    For the reasons in [81]-[86] and [120]-[131] above, these grounds do not disclose any arguable error on the part of the Tribunal.
  3. [147]
    Ground (n) alleges that the Tribunal erred by equating the diamond model being an ‘artificial and contrived’ attempt to avoid legislation with it being unlawful or otherwise improper.
  4. [148]
    In support of this ground the appellant submits that while he admits that the diamond model was an ‘artificial and contrived arrangement’ that did not make it unlawful and was not inconsistent with the appellant’s belief in its legality.  The appellant cites Australian Securities and Investments Commission v Teleloans Pty Ltd,[133] where the Court held that the fact that the model adopted by a company might have the same economic outcome as a loan to which a legislative scheme applied did not itself render the chosen model, on that basis, subject to the scheme.
  5. [149]
    Nothing in Teleloans assists the appellant.  In Teleloans, there was no contention that any element of the contractual scheme was a sham.[134]
  6. [150]
    The Tribunal did not err as contended by the appellant.  See [81]-[86] and [126]-[130] above.
  7. [151]
    For these reasons, all of the appellant’s grounds of appeal challenging the Tribunal’s findings concerning the appellant’s conduct and state of mind, including his statements, concerning the diamond model fail.  In our view, the Tribunal’s findings on those topics of themselves amply sustain the finding that the appellant is not a fit and proper person to hold a practising certificate.  Consequently, the appellant’s attacks on the Tribunal’s findings on these topics having failed, even if there were merit in the remaining grounds of appeal, which concern other findings of the Tribunal, we would not be inclined to grant leave to appeal in respect of them.  However, as we turn to explain, in our view there is no merit in the remaining grounds.

Ground (l): insight and contrition

  1. [152]
    Ground (l) alleges that the Tribunal erred in finding that the appellant lacked insight and contrition.
  2. [153]
    Apart from submissions already dealt with, in support of this ground the appellant makes two submissions.  First, he emphasises that he has not, in these proceedings, sought to argue that the diamond model was lawful.  Rather, he argued that he did not set out to act improperly in its design.[135]  Secondly, he asserts that the Tribunal failed to make sufficient allowances for the effect of appellant’s ASD.[136]
  3. [154]
    There is no error in the Tribunal’s finding that the appellant lacked insight and contrition for his conduct.  His ASD does not render that lack of insight and contrition immaterial.  The appellant’s conduct of the proceedings before the Tribunal, like his conduct of the appeal to this Court, reveal that he continues to have no insight as to the essence of what was wrong with the conduct in which he engaged in relation to the diamond model.  Although the appellant pays lip service to the notion that he accepts the decisions in earlier proceedings, many of his submissions attempt to cut across findings in those proceedings.  More generally, it is evident that the appellant sees nothing wrong with the fundamental purpose of the diamond model.  As we have explained, in our view, the appellant’s conduct in relation to the diamond model is antithetical to the ethics and values demanded of a legal practitioner.

Grounds (j) and (k): non-disclosure

  1. [155]
    Ground (j) contends that the Tribunal erred in finding that the appellant deliberately failed to comply with his disclosure obligations by failing to disclose the ASIC decision.  Ground (k) alleges that the Tribunal erred in not finding that the subsequent disclosure of the ASIC decision, when applying in 2019, was a significant remedial step.
  2. [156]
    In support of ground (j), the appellant submits that:
  1. The Tribunal did not identify a ‘guilty finding’ against the appellant in the ASIC banning order.
  2. The grounds of the banning order relate to potential future conduct on the part of the appellant – he is likely to be involved in a ‘contravention of credit legislation provision’ and ‘lacked fitness and propriety to engage in credit activities’ and so did not constitute a finding of guilt.
  3. The Tribunal failed to make sufficient allowance for the appellant’s ASD which predisposed the appellant to literally interpreting language.
  1. [157]
    These submissions are without merit.
  2. [158]
    By his then solicitor’s letter of 5 August 2019 to the Law Society, it was said that at the time of lodging the renewal application on 4 May 2018 he was under considerable pressure and strain due to preparing for the AAT proceeding which was then two weeks away.  He was also said to have been ‘under some level of confusion and misapprehension’ with respect to his disclosure obligations because the delegate was satisfied that he was a fit and proper person under s 920A of the Corporations Act but was satisfied to make a banning order under the National Consumer Credit Protection Act 2009 (Cth).  The letter stated that it became apparent to the appellant after the decision of the AAT on 9 April 2019 that he needed to disclose.  This explanation was rejected by the Tribunal.
  3. [159]
    In his statement, the appellant gave detailed reasons for his non-disclosure.[137]  He did not suggest that the non-disclosure was the result of oversight.  Rather, as the Tribunal found, the statement ‘demonstrates an awareness of the obligation to disclose the fact that he had been the subject of disciplinary action involving a finding of guilt against him, and a conscious decision not to disclose the banning order, when he made the renewal application.’[138]
  4. [160]
    The Tribunal explained its rejection of the appellant’s explanation of his non‑disclosure in the following way:[139]

“The applicant also stated, by way of explanation for the non-disclosure, that he did not then accurately understand that the ASIC finding constituted a finding of guilt in a disciplinary matter relating to another profession or occupation, for the purposes of s 9(i)(ii) of the LP Act. The respondent submitted that this statement contradicts and undermines the statement made in the letter from the applicant’s solicitor to the respondent of 5 August 2019. That does not seem to me to be correct. The letter speaks of the applicant’s understanding at a later time. The respondent also submitted that the applicant took the view that there was no finding of guilt against him; and that this shows that the applicant made a conscious decision not to disclose the ASIC finding. The only relevant statement appears to be the one referred to at the beginning of this paragraph. Nevertheless, I accept that that statement demonstrates an awareness of the obligation to disclose the fact that he had been the subject of disciplinary action involving a finding of guilt against him, and a conscious decision not to disclose the banning order, when he made the renewal application.

The respondent also submitted that the applicant’s explanation that he did not consider that the ASIC decision amounted to a finding of guilt is difficult to accept. I do not consider that this is a satisfactory explanation for the applicant’s failure to make disclosure. ASIC clearly took disciplinary action. The grounds for the banning proceedings under the National Consumer Credit Protection Act 2009 (Cth) were that the applicant was likely to be involved in a contravention of a credit legislation provision, and that the applicant lacked fitness and propriety to engage in credit activities. It is not clear whether both grounds were established, or only one, though both seem to have been in issue in the AAT review. It is difficult to see how a person in the applicant’s position could have thought the banning order might have been made without a finding of guilt on his part.” (footnotes omitted)

  1. [161]
    The appellant has not established any reasonable arguable error in this reasoning and the finding of the Tribunal.
  2. [162]
    In support of ground (k), the appellant contends that the Tribunal wrongly supposed that the appellant’s ultimate disclosure may have been prompted by media coverage.  He alleges that the AAT’s adverse findings about the appellant’s character, which were expressed in more direct and critical terms, provided the impetus for his disclosure as he recognised character as a suitability matter under the LPA.
  3. [163]
    The Tribunal did not make any positive finding as to the appellant’s reason for disclosing the banning order in the course of the 2019 application.  Rather, the Tribunal was not satisfied that it should make the positive finding invited by the appellant, namely that the subsequent disclosure was a significant remedial step.
  4. [164]
    The appellant did not give any evidence, even in his statement, explaining the reason for his disclosure in May 2019.  Nor did the appellant’s statement say that he was unaware that by the time he applied in 2019 the Law Society remained unaware of the banning order.  In those circumstances, it was well open to the Tribunal not to be satisfied to make the positive finding invited by the appellant.

Ground (i): excessive criticism

  1. [165]
    Ground (i) alleges that the Tribunal erred in finding that the appellant improperly criticised judicial officers.
  2. [166]
    The appellant submits that criticism of judicial decisions is permitted.  Further, he submits that the Tribunal failed to take proper account of the appellant’s ASD, referring to Dr Hatzipetrou’s comments that a person with ASD may ‘be observed by others as being rude in their communication style’.[140]
  3. [167]
    The appellant has not demonstrated any arguable error in the Tribunal’s reasoning and conclusion regarding the appellant’s criticisms of judicial officers.  The Tribunal was plainly well aware that criticism of a court is permissible.[141]  Dr Hatzipetrou was not asked to provide, and did not provide, a view on the existence of any link between the appellant’s ASD diagnosis and his criticisms of judicial officers.
  4. [168]
    Further and in any event, even if, contrary to our view, error were established in the Tribunal’s findings concerning the appellant’s criticism of judicial officers, any such error would be immaterial.  The Tribunal carefully considered all of the matters which had been put before it by the parties.  The Tribunal’s other findings as to the appellant’s state of mind concerning statements made about the diamond model, his non‑disclosure and his lack of insight amply sustain the Tribunal’s conclusion that the appellant was not a fit and proper person.  It can confidently be inferred that, if the Tribunal had made no adverse findings against the appellant concerning his criticism of judicial officers, the Tribunal would nevertheless have reached the same ultimate conclusion.

Ground (o): inadequate weight to mitigatory matters

  1. [169]
    The appellant alleges that the Tribunal erred in failing to have regard or to attribute sufficient weight to various mitigating factors in the appellant’s favour.  The appellant submits that the operation of the diamond model came to an end in 2012 and that since then, the appellant has operated in compliance with legislation either as a licensed credit provider or a law firm principal.[142]  The appellant contends that he has otherwise had an unblemished career for a period of 20 years.  The appellant also asserts that the characteristics of ASD ‘provide [an] explanation for the appellant’s attitudes and actions’.[143]
  2. [170]
    None of these submissions demonstrate any arguable error on the part of the Tribunal.
  3. [171]
    The Tribunal had regard to the matters on which the appellant now relies.[144]  The Tribunal referred to the appellant’s reliance on his good conduct in the years subsequent to the operation of the diamond model.  The Tribunal observed that ‘this does little to affect the overall view of the applicant’s character, and whether he is a fit and proper person to continue to hold a practising certificate’.[145]  The Tribunal concluded that, in the light of the appellant’s conduct and statements in relation to the diamond model, his excessive criticism of judicial officers and his non‑disclosure, the matters relied on in his favour were not sufficient to affect the overall conclusion that the appellant is not a fit and proper person to hold a practising certificate.[146]
  4. [172]
    In our respectful opinion, the Tribunal’s conclusion and reasoning in that regard was well founded.
  5. [173]
    For these reasons, there is no merit in ground (o).

Application to adduce additional evidence

  1. [174]
    As already noted, the appellant applies for leave to adduce further evidence on appeal.
  2. [175]
    The appellant seeks leave to adduce, as further evidence, documents in three categories:  first, the Finance Application and Privacy Act Consent Form referred to in [127] above; secondly, a media article and ASIC media release, each dated 6 October 2017, about the ban imposed by ASIC on the appellant; and thirdly, a document directed to demonstrating that compliance with the interest cap in the legislation would have made the Group’s business unviable.
  3. [176]
    The principles governing the reception of further evidence on appeal are well established.  Evidence will be admitted if (i) it could not have been obtained with reasonable diligence for use at the original hearing, (ii) the evidence is such that if given it would probably have an important influence on the result of the case, and (iii) the evidence is apparently credible.[147]
  4. [177]
    The application fails to satisfy both the first and the second criteria.
  5. [178]
    All of the material that the appellant now seeks to adduce was in existence and was available to him at the time of the hearing.  With reasonable diligence on his part, he could have adduced it.  We do not accept the appellant’s submission that the first requirement is satisfied because he could not have anticipated the need for such evidence. There is no, and could not reasonably be, complaint of procedural unfairness on the part of the Tribunal. In those circumstances, and in the circumstances in which the Tribunal was deciding the review by way of a fresh hearing on the merits, it was for the appellant to adduce such evidence as he chose to make the case he wished to advance to the Tribunal.
  6. [179]
    In any event, none of the further evidence is likely to have had any material influence on the result of the case.  The reasons that is so in relation to the first group of documents are explained in [128]‑[130] above.  The appellant seeks to adduce the second group of documents to demonstrate that there was publicity, of which he would have been aware, before he made his application in May 2018 (when he did not disclose).  Given the absence of any evidence from the appellant explaining the reason for his disclosure in May 2019, and for the reasons in [161]‑[164] above, the second group of documents would not be material to the outcome.  The third class of document, seeking to demonstrate the unviability of the business when operated in compliance with the interest cap, is immaterial for the reasons in [134] above.
  7. [180]
    For these reasons, we would refuse the appellant’s application for leave to adduce further evidence in the appeal.

Conclusion

  1. [181]
    For the above reasons, we would make orders to the following effect:
  1. Leave to appeal is refused.
  1. The appellant’s application to adduce further evidence on appeal is refused.
  1. The appeal is dismissed, with costs.

Footnotes

[1] Robert Legat v Queensland Law Society Incorporated [2022] QCAT 57 (primary reasons).

[2]  Primary reasons [3].

[3]  Primary reasons [3].

[4]  Primary reasons [4].

[5]  Primary reasons [4].

[6]  See generally Consumer Credit (Queensland) Special Provisions Regulation 2008 (Qld) cl 3 and cl 4.

[7]  Primary reasons [15].

[8] Legat v Australian Securities and Investments Commission [2019] AATA 685.

[9]  Primary reasons [14].

[10]  Primary reasons [15].

[11]  Primary reasons [16].

[12]  Primary reasons [40], [51].

[13]  See generally Consumer Credit (Queensland) Special Provisions Regulation 2008 (Qld), cl 3 and cl 4.

[14]  Primary reasons [5].

[15]  Primary reasons [5], [6].

[16]  Primary reasons [6], [8].

[17]  Primary reasons [8].

[18]  Primary reasons [9].

[19]  Primary reasons [6], [8].

[20]  Primary reasons [7].

[21]  Primary reasons [8].

[22]  Primary reasons [8], citing Sale of Goods Act 1896 (Qld), s 19.

[23]  Primary reasons [6].

[24] Carter v Fast Access Finance (Beaudesert) Pty Ltd [2011] QCAT 525.

[25] Carter [26]-[27].

[26] Fast Access Finance (Beaudesert) Pty Ltd v Charter [2012] QCATA 51.

[27] Australian Securities and Investments Commission v Fast Access Finance Pty Ltd [2015] FCA 1055 (FAF (No 1)) and Australian Securities and Investments Commission v Fast Access Finance Pty Ltd (No 2) [2017] FCA 243 (FAF (No 2)).

[28] FAF (No 1) [277].

[29]  See above [7]-[9].

[30]  Primary reasons [25]‑[26].

[31]  Primary reasons [37].

[32]  Primary reasons [37].

[33]  Primary reasons [37].

[34]  Primary reasons [37].

[35]  Primary reasons [39].

[36]  Primary reasons [40].

[37]  Primary reasons [42].

[38]  Primary reasons [42].

[39]  Primary reasons [43].

[40]  Primary reasons [45].

[41]  Primary reasons [46].

[42]  Primary reasons [51].

[43]  Primary reasons [53].

[44]  Primary reasons [48].

[45]  Primary reasons [48] citing FAF (No 1) [277].

[46]  Primary reasons [48].

[47]  Primary reasons [48] citing FAF (No 1) [33].

[48]  Primary reasons [48].

[49]  Primary reasons [50]-[51].

[50]  Primary reasons [49].

[51]  Primary reasons [51].

[52]  Primary reasons [52].

[53]  Primary reasons [55].

[54]  Primary reasons [56].

[55]  Primary reasons [57].

[56]  Primary reasons [57]-[58].

[57]  Primary reasons [59].

[58]  Primary reasons [61], [64].

[59]  Primary reasons [63].

[60]  Primary reasons [65].

[61]  Primary reasons [68].

[62]  Primary reasons [66].

[63]  Primary reasons [69].

[64]  Primary reasons [69].

[65]  Primary reasons [66].

[66]  Primary reasons [70].

[67]  Primary reasons [71].

[68]  Primary reasons [66].

[69]  Primary reasons [72].

[70]  Primary reasons [73].

[71]  Primary reasons [83].

[72]  Primary reasons [76].

[73]  Primary reasons [76].

[74]  Primary reasons [80].

[75]  Appellant’s statement [51], [109], [124].

[76]  Primary reasons [81].

[77]  Primary reasons [81]-[82].

[78]  Primary reasons [81].

[79]  Primary reasons [84].

[80]  Primary reasons [84].

[81]  Primary reasons [84].

[82]  Primary reasons [84].

[83]  Primary reasons [85].

[84] Commissioner of State Revenue v Harrison [2019] QCA 50 [15], [66].  See also Crime and Corruption Commission v Andersen [2021] QCA 222 [14].

[85] Warren v Coombes (1979) 142 CLR 531, at 551-552.

[86]  (1992) 35 FCR 359, at 369.

[87]  See, for example, Williams v Minister for Aboriginal Land Rights Act 1983 [2000] NSWCA 255 [60]; Proudlove v Burridge (2017) 79 MVR 257; [2017] WASCA 6 [127].

[88]  ARB 247-248, items 19, 24 and 27.

[89]  ARB 59, annexure A[2](a).

[90]  ARB 594-595.

[91] FAF (No 1) [24], [41].

[92]  ARB 250.

[93]  Appellant’s statement [51], ARB 234.

[94] FAF (No 1) [23]-[24].

[95]  AAT decision [19]-[21]; ARB 251.

[96]  Appeal ts 25.

[97]  The rare and isolated instances where a customer took possession of diamonds do not reflect the terms of the model as a whole.

[98] FAF (No 1) [277].

[99]  Appellant’s statement [51], ARB 234.

[100]  ARB 248, item 31.

[101]  Primary reasons [37]-[38].

[102]  Primary reasons [52].

[103]  ARB 487.

[104]  ARB 487.

[105]  AD Act, s 6.

[106]  AD Act, s 10.

[107]  AD Act, s 11(1), (4).

[108]  Appellant’s submissions [5]-[8].

[109]  Appellant’s submissions [12].

[110]  Appellant’s submissions [12](a); primary reasons [52].

[111]  Appellant’s submissions [12](c).

[112]  Appeal ts 5-6.

[113]  As to the written submissions, see ARB 93-94; as to the oral submissions, see ARB 598-600.

[114]  Primary reasons [19]-[21].

[115]  Primary reasons [52].

[116]  Appellant’s submissions [16].

[117]  Appellant’s statement [16], ARB 229.

[118]  Appellant’s statement, attachment 2, ARB 250.

[119]  Primary reasons [37].

[120]  ARB 594-597.

[121]  Appellant’s reply submissions [11].

[122]  ARB 63-64.

[123]  ARB 595-596.

[124]  Appellant’s submissions [17]-[19].

[125]  Supplementary ARB 649.

[126]  Supplementary ARB 653-654.

[127] Carter [27] – accepted by the appellant, ARB 247 item 19; FAF (No 2) [17].

[128]  Appellant’s submissions [14].

[129]  Appellant’s submissions [15].

[130]  Appellant’s submissions [24](a).

[131]  Appellant’s submissions [27].

[132]  Appellant’s submissions [26].

[133]  (2015) 234 FCR 261; [2015] FCA 648 [40].

[134] Teleloans [41].

[135]  Appellant’s submissions [33].

[136]  Appellant’s submissions [34].

[137]  ARB 238-239, appellant’s statement [88].

[138]  Primary reasons [57].

[139]  Primary reasons [57]-[58].

[140]  Appellant’s submissions [29]-[30].

[141]  See, for example, primary reasons [66]-[67].

[142]  Appellant’s submissions [35].

[143]  Ground (o)(iii).

[144]  Primary reasons [18]‑[22].

[145]  Primary reasons [84].

[146]  Primary reasons [85].

[147] Brisbane City Council v Mainsell Investments Pty Ltd [1989] 2 Qd R 204, 215; Jonathan v Mangera [2016] QCA 86; (2016) 75 MVR 143 [12].

Close

Editorial Notes

  • Published Case Name:

    Legat v Queensland Law Society Incorporated

  • Shortened Case Name:

    Legat v Queensland Law Society Incorporated

  • MNC:

    [2022] QCA 184

  • Court:

    QCA

  • Judge(s):

    Bowskill CJ, Bond JA, Beech AJA

  • Date:

    23 Sep 2022

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QCAT 5717 Feb 2022-
Notice of Appeal FiledFile Number: CA3710/2220 Mar 2022-
Appeal Determined (QCA)[2022] QCA 18423 Sep 2022-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Australian Securities and Investments Commission v Fast Access Finance Pty Ltd [2015] FCA 1055
2 citations
Jump To
Cite 1 - [2015] FCA 1055
Cite 2 - [2015] FCA 1055
Australian Securities and Investments Commission v Fast Access Finance Pty Ltd (No 2) [2017] FCA 243
2 citations
Jump To
Cite 1 - [2017] FCA 243
Cite 2 - [2017] FCA 243
Australian Securities and Investments Commission v Teleloans Pty Ltd (2015) 234 FCR 261
2 citations
Jump To
Cite 1 - (2015) 234 FCR 261
Cite 2 - (2015) 234 FCR 261
Australian Securities and Investments Commission v Teleloans Pty Ltd [2015] FCA 648
2 citations
Jump To
Cite 1 - [2015] FCA 648
Cite 2 - [2015] FCA 648
Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204
1 citation
Jump To
Cite 1 - [1989] 2 Qd R 204
Carter and Anor v Fast Access Finance (Beaudesert) Pty Ltd and Anor [2011] QCAT 525
2 citations
Jump To
Cite 1 - [2011] QCAT 525
Cite 2 - [2011] QCAT 525
Commissioner of State Revenue v Harrison [2019] QCA 50
2 citations
Jump To
Cite 1 - [2019] QCA 50
Cite 2 - [2019] QCA 50
Crime and Corruption Commission v Andersen [2021] QCA 222
1 citation
Jump To
Cite 1 - [2021] QCA 222
Fast Access Finance (Beaudesert) Pty Ltd and Anor v Charter and Anor [2012] QCATA 51
1 citation
Jump To
Cite 1 - [2012] QCATA 51
Jonathan v Mangera [2016] QCA 86
1 citation
Jump To
Cite 1 - [2016] QCA 86
Jonathan v Mangera (2016) 75 MVR 143
1 citation
Jump To
Cite 1 - (2016) 75 MVR 143
Legat v Australian Securities and Investments Commission [2019] AATA 685
1 citation
Jump To
Cite 1 - [2019] AATA 685
Local Government and Ethnic Affairs v Hamsher [1992] FCA 184
1 citation
Jump To
Cite 1 - [1992] FCA 184
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
2 citations
Jump To
Cite 1 - (1992) 35 FCR 359
Cite 2 - (1992) 35 FCR 359
Proudlove v Burridge (2017) 79 MVR 257
1 citation
Jump To
Cite 1 - (2017) 79 MVR 257
Proudlove v Burridge [2017] WASCA 6
1 citation
Jump To
Cite 1 - [2017] WASCA 6
Robert Legat v Queensland Law Society Incorporated [2022] QCAT 57
2 citations
Jump To
Cite 1 - [2022] QCAT 57
Cite 2 - [2022] QCAT 57
Warren v Coombes (1979) 142 CLR 531
1 citation
Jump To
Cite 1 - (1979) 142 CLR 531
Williams v The Minister, Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255
1 citation
Jump To
Cite 1 - [2000] NSWCA 255

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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