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  4. Di Carlo v Bar Association of Queensland - [2025] QCA 143

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Di Carlo v Bar Association of Queensland[2025] QCA 143

Di Carlo v Bar Association of Queensland[2025] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:

Di Carlo v Bar Association of Queensland [2025] QCA 143

PARTIES:

SALVATORE DI CARLO

(applicant)

v

BAR ASSOCIATION OF QUEENSLAND

(respondent)

FILE NO/S:

Appeal No 60 of 2025

QCAT No 228 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2024] QCAT 530 (Bradley J)

DELIVERED ON:

1 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2025

JUDGES:

Boddice JA, Freeburn and Sullivan JJ

ORDERS:

  1. Leave to appeal granted.
  2. The appeal is dismissed.
  3. There be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – PRACTISING CERTIFICATES – REFUSAL TO ISSUE – where the applicant was a barrister of over 30 years’ experience – where the respondent is responsible for the issuing of local practising certificates – where the applicant was bankrupt – where the respondent gave the applicant an information notice advising that the respondent had decided to refuse to renew the applicant’s practising certificate for the 2024/2025 practising year – where the applicant applied to the Queensland Civil and Administrative Tribunal (QCAT) for a review of the decision to refuse to renew his practising certificate – where QCAT ordered that the respondent’s decision to refuse to renew the applicant’s practising certificate be confirmed, that the applicant’s application for review be dismissed and that there be no order as to costs – whether QCAT erred in confirming the respondent’s decision to refuse to renew the applicant’s practising certificate

PROFESSIONS AND TRADES – LAWYERS – PRACTISING CERTIFICATE – GENERALLY – where the applicant had been punished for contempt of the Magistrates Court of Queensland and did not disclose it in his application to renew his practising certificate on 1 June 2018 – where the applicant was a defendant in civil proceedings, the trial of which had been adjourned by reason of the applicant experiencing mental health difficulties – where the applicant did not disclose mental health difficulties in his application to renew his practising certificate on 28 May 2023 – where a client had lodged a complaint against the applicant – where the applicant did not disclose that complaint in his application to renew his practising certificate on 28 May 2023 – where a summons was issued by the District Court on 24 July 2024 – where the summons required the applicant to attend an enforcement hearing in the District Court on 22 August 2024 – where the applicant departed Australia on 17 August 2024 and travelled to the People’s Republic of China, where he intended to stay past the date of the enforcement hearing – where the applicant was bankrupt – where the applicant had not paid any substantial amount of tax for at least two years and had an outstanding debt to the Australian Tax Office of $398,392 – where the respondent opined that the applicant was not a fit and proper person to hold a practising certificate – where the respondent gave the applicant an information notice advising that the respondent had decided to refuse to renew the applicant’s practising certificate for the 2024/2025 practising year – where QCAT confirmed the respondent’s decision – whether the applicant is a fit and proper person to hold a practising certificate

Bankruptcy Act 1966 (Cth), s 58(3)

Legal Profession Act 2007 (Qld), s 9, s 46, s 51(5)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 153, s 154

Reef House Property Pty Ltd v Commissioner of Liquor and Gaming Regulation [2024] QCA 121, applied

Wang v Hur [2024] QCA 126, applied

Wardell v New South Wales Bar Association [2002] NSWSC 548, applied

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, applied

COUNSEL:

L F Kelly KC, with A R Hughes, for the applicant

P J McCafferty KC, with H E P Clift, for the respondent

SOLICITORS:

Potts Lawyers for the applicant

Bartley Cohen Law for the respondent

  1. [1]
    THE COURT:  The applicant seeks leave to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) confirming the decision of the respondent to refuse to renew the applicant’s practising certificate.
  2. [2]
    The applicant submits that leave ought to be granted, having regard to the consequences to the applicant’s ability to practice and what are said to be errors of fact and law, warranting intervention by this Court.

Background

  1. [3]
    The applicant was admitted as a barrister in 1991.  He practised that profession, at the private Bar, continuously from 1991 until 28 August 2024.
  2. [4]
    The respondent is the local regulatory authority under the Legal Profession Act 2007 (Qld) (LPA).  Relevantly, it has responsibility for the issuing of local practising certificates.  A legal practitioner must be the holder of such a certificate in order to practise as a barrister.  A practising certificate must be renewed for each financial year.
  3. [5]
    On 28 August 2024, the respondent gave the applicant an information notice advising that the respondent had decided to suspend the applicant’s practising certificate, after being advised of the applicant’s bankruptcy.
  4. [6]
    On 2 October 2024, the respondent gave the applicant an information notice advising that the respondent had decided to refuse to renew the applicant’s practising certificate for the 2024/2025 practising year.
  5. [7]
    On 14 October 2024, the applicant applied to QCAT for a review of the decision to refuse to renew his practising certificate.  At issue, on that review, was whether the applicant remained a fit and proper person to hold a practising certificate, and whether an order should be made requiring the respondent to issue the applicant with a practising certificate.
  6. [8]
    On 9 December 2024, a Judicial Member of QCAT found that there could be no confidence that the applicant would follow the appropriate course of action in the future, nor that he could properly be entrusted to undertake the tasks that attach to the practice of a barrister in accordance with the demanding requirements under the LPA.
  7. [9]
    QCAT ordered that the respondent’s decision to refuse to renew the applicant’s practising certificate be confirmed, that the applicant’s application for review be dismissed and that there be no order as to costs.

Leave to appeal

  1. [10]
    Section 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides for an appeal to this Court from a decision of a Judicial Member of QCAT, in respect of errors of law.  Leave to appeal is required if the error asserted is an error of fact or an error of mixed fact and law.
  2. [11]
    The applicant seeks leave to appeal on 12 grounds.  Some of those grounds assert errors of law only, others rely on errors of fact and/or errors of mixed fact and law.
  3. [12]
    Having regard to the consequences of the decision to the applicant’s ability to practice as a barrister, in circumstances where he has been a practising barrister for in excess of three decades, the Court grants leave to appeal.

Grounds of appeal

  1. [13]
    The applicant’s grounds of appeal are:

“1. Ground one: the Tribunal erred in law in failing to carry out its statutory duty under section 20(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) which was to conduct a review of the decision of the Respondent by way of a fresh hearing on the merits.  The Tribunal failed to properly carry out a fresh hearing on the merits for three reasons:

  1. the Tribunal’s reasoning is wrong with respect to the relevant period of time during which the Applicant’s impugned conduct is said to have occurred;
  1. the personal situation of the Applicant did not receive any adequate or rigorous analysis in the reasons for the purpose of examining circumstances of mitigation, and, indeed, explanation for errors made by the Applicant;
  1. the Tribunal failed to consider much of the uncontradicted evidence that supported the case of the Applicant.  This overlaps with ground two.
  1. Ground two: the Tribunal erred in law in failing to conduct the proceedings fairly, and thus failed to discharge its duty pursuant to s 28(2) of the QCAT Act.  The lack of fairness arises from the failure of the Tribunal to consider important and relevant unchallenged evidence.  The Tribunal’s reasoning is also wrong in important respects and contrary to uncontradicted evidence.
  1. Ground three: the Tribunal denied the Applicant procedural fairness and thereby failed to discharge its duty under s 28(3)(a) of the QCAT Act.  This relates to the making of adverse and serious findings against the Applicant which he had no opportunity to deal with either in cross-examination, or by his being examined by the Tribunal (which had this power).  This failure is particularly significant in circumstances where the Tribunal made adverse findings about the integrity and sincerity of the Applicant which are matters which assume particular significance in disciplinary proceedings.
  1. Ground four: the Tribunal erred in law by failing to give proper consideration to whether conditions proposed by the Applicant, which were not before the Respondent on its original decision, would have been adequate to overcome alleged problems with granting him a practising certificate.  This was a serious error.  It also underscores the fact that the Tribunal did not conduct a rehearing on the merits.
  1. Ground five: the Tribunal erred in law in its application of the principle from Wardell v the New South Wales Bar Association [2002] NSWSC 548 at [52] in its limited reference to a ‘right thinking’ person.  The Tribunal adopted the notion of a ‘right thinking’ person who would look at fault but would not take a fair look at the circumstances in which faults occurred, contrary to the authorities.  In so doing, the Tribunal failed to take proper account of the Applicant’s exculpating features and his personal circumstances.
  1. Ground six: the Tribunal’s reasoning about the Applicant’s trip to the People’s Republic of China (China) just before he filed for bankruptcy is wrong in fundamental ways.  This episode attracted serious censure from the Tribunal but its reasons about it were wrong, in not just one, but several key respects.  The Tribunal erred in finding:
  1. at [64] of the Tribunal’s reasons that the Applicant never explained the purpose of his travel;
  1. at [72] of the Tribunal’s reasons that the Applicant represented that he had filed an application for bankruptcy before he flew out of Australia on 17 August 2024;
  1. at [80] of the Tribunal’s reasons that even by the end of the hearing before the Tribunal, ‘it seems to have escaped the Applicant’s attention that what he did was wrong’.
  1. Ground seven: the Tribunal erred in its approach to the Applicant’s evidence concerning his previous contempt conviction by:
  1. misrepresenting the Applicant’s written submission at [40] that his failure to disclose his conviction and punishment for contempt was of no significance;
  1. rejecting the Applicant’s evidence that the conviction and punishment for contempt ‘slipped his mind’ at the time of applying to renew his practising certificate, or, in the alternative, finding that the fact that it had ‘slipped his mind’ was evidence of a ‘staggering lack of regard for the significance of the conviction’.
  1. Ground eight: The Tribunal’s rejection of the Applicant’s submission that the hospitalisation did not ‘cross his mind’ when he was applying for his practising certificate was unfair for three reasons:
  1. the evidence gave rise to a number of explanations for why the matter may have in fact did not cross his mind.
  1. The Tribunal gave no regard to the Applicant’s unsworn evidence that it was not intentional and that due to his health issues he found it difficult to concentrate on his own personal affairs and prioritised his client’s interests.
  1. The Tribunal made a finding that there was a ‘continuing lack of candour’ by the Applicant concerning the hospital confinement but the Applicant was not cross-examined about his evidence and he was therefore not afforded an opportunity to respond to this assertion.
  1. Ground nine: the Tribunal erred in its approach to the Applicant’s failure to pay tax in that the Tribunal:
  1. adopted an unfair and overly simplistic approach to this matter which ignored the Applicant’s personal circumstances, the fact that he was not evading tax but had numerous voluntary interactions with the Australian Tax Office (ATO) seeking temporary relief from payment, and that he was spending a lot of money on serious criminal charges that had been brought against him, including a trial of eight days which miscarried and is in the process of being heard again.  The other charges were not proceeded with against him, but it was an expensive exercise for the Applicant to defend himself;
  1. gave insufficient weight to the repeated, genuine, and unchallenged steps taken by the Applicant to engage with the ATO.
  1. Ground ten: The Tribunal erred when it found at [106] that the Applicant ‘was more fortunate than others.  He did not have to deal with adversity alone’.
  1. Ground eleven: the Tribunal erred at law and fact in both misconstruing and giving insufficient weight to the Applicant’s apology.
  1. Ground twelve: the Tribunal erred in failing to give proper analysis to the character references filed in support of the Applicant.”

Tribunal hearing

  1. [14]
    The hearing was conducted on the basis that the facts were set out in extensive affidavit material.  No deponent was required for cross-examination.  The parties agreed that at issue was the applicant’s reasons for having engaged in the conduct set out in the second information notice, which formed the basis for the respondent’s decision to refuse to renew the applicant’s practising certificate.
  2. [15]
    It was agreed that the base facts were not in contest with the applicant’s explanation to be “examined in light of the evidence and it can be determined whether the explanation is consistent with the evidence, is contradicted by the evidence or is not supported by the evidence …”.[1]
  3. [16]
    It was also agreed that QCAT’s role was to review the respondent’s decision and to make the correct and preferable decision.  Central to that decision was whether the applicant remained a fit and proper person to hold a practising certificate.  A practising certificate is not to be renewed unless the holder of that practising certificate is a fit and proper person to continue to hold the practising certificate.

Information notice

  1. [17]
    The information notice given on 2 October 2024 stated that, in the opinion of the respondent, a number of matters, when viewed together, compelled the conclusion that the applicant was not a fit and proper person within the meaning of s 51(5) of the LPA.  Those matters were:
    1. On 29 August 2017, the applicant had been punished for contempt of the Magistrates Court of Queensland, a fact that was a suitability matter within the meaning of s 9 of the LPA, but the applicant did not disclose it in his application to renew his practising certificate on 1 June 2018.
    2. The applicant was a defendant in civil proceedings, the trial of which had been adjourned by reason of the applicant experiencing mental health difficulties which had led to his hospitalisation on 11 May 2023, but the applicant did not disclose mental health difficulties in his application to renew his practising certificate on 28 May 2023.
    3. When the respondent became aware of the applicant’s mental health difficulties, it required the applicant to attend a health assessment by a psychiatrist who reported, among other things, that the applicant had stated that he had not had negative feedback from clients, solicitors or the judiciary, that the applicant was unaware that he had to report an episode of ill health and that his application for renewal was managed by his wife as he had been too unwell in May 2023.  The respondent recorded that the statement that the applicant had not had negative feedback from clients was inaccurate, as he had been the subject of a complaint; that the statement that the applicant was unaware that he had to report an episode of ill health was difficult to accept, given the seriousness of his ill health and the fact that every barrister is asked every year, as part of the renewal process, to state any matters which may affect their fitness; that the statement that his wife had managed his application raised whether the statutory declaration given as part of the renewal process, was in fact given by him; and that if the applicant in fact remained incapacitated at the date of applying for renewal, that itself should have been disclosed.
    4. The applicant had been notified, on 19 January 2023, by the Legal Services Commission, that a client had lodged a complaint against the applicant, but the applicant did not disclose that complaint in his application to renew his practising certificate on 28 May 2023.
    5. The applicant, on 12 September 2023, was informed by the Legal Services Commission of its intention to commence a disciplinary procedure in relation to that complaint, but the applicant did not disclose to the respondent that he had received such notice, in breach of an undertaking the applicant had given by email on 21 July 2023, to inform the respondent of the status of the complaint against him “when requested to do so, and upon any event that would reasonably prompt an update”.
    6. As a result of a judgment given against the applicant in the civil proceeding, a summons was issued on 24 July 2024, requiring the applicant to attend an enforcement hearing in the District Court on 22 August 2024.  Despite the applicant knowing that he was obliged by summons to appear, the applicant departed Australia on 17 August 2024 and travelled to the People’s Republic of China, where he intended to stay past the date of the enforcement hearing.
    7. As a result of becoming bankrupt, the applicant had provided to the respondent a statement as to why he remained fit and proper despite bankruptcy.  That statement brought to the respondent’s attention that the applicant had not paid any substantial amount of tax for at least two years and had an outstanding debt to the Australian Tax Office of $398,392.
  2. [18]
    The information notice recorded the respondent’s conclusions:

“45. On the basis of the above matters, the Association is satisfied that you are not a fit and proper person to hold a practising certificate and that it is therefore bound to refuse to renew your practising certificate.  In particular, the Association notes that, in the period since you last made an application to renew your practising certificate (on 28 May 2023, for the 2023/24 practising year):

  1. you failed to disclose the fact that the LSC had informed you of its intention to commence a disciplinary proceeding against you to the Association, in breach of your undertaking to the Association, and against a backdrop of several previous disclosure failures;
  1. you failed to comply with your obligations regarding the statement of financial position;
  1. you failed to comply with the summons to attend the Enforcement Hearing and produce documents; and
  1. you entered into bankruptcy and you informed the Association of your failure to pay:
  1. all but a nominal contribution to historical tax debts due as at August 2022; and
  1. make any payment of income tax in the 2022 and 2023 financial years despite having been assessed as owing amounts of $37,059.45 and $45,037.45. respectively in those years.
  1. The Association considers that the conduct surrounding the various Disclosure Failures indicates that you have not treated your disclosure obligations under the Act with the seriousness required of a barrister.  When they occur, you express contrition and explain those failures by reference either to forgetfulness or by reference to the various stressors present in your professional and personal life (or some combination of those).  You do not appear to have been able to re-arrange your affairs so as to be able to comply with those various obligations.
  1. Of particular concern with respect to the Disclosure Failures are the most recent ones.  Disclosure Failure 4 occurred in circumstances where you had led evidence in the Civil Proceeding that you were probably cognitively unfit to give instructions to defend that proceeding.  Disclosure Failure 5 occurred less than two months after you had given a written undertaking to keep the Association informed of developments with respect to the Habchi Complaint, the very subject matter of Disclosure Failure 5.
  1. As to the failure to appear at the Enforcement Hearing, submissions made on your behalf are to the effect that you had an honest belief that you did not need to attend because you accepted the advice of Mr Dimond that the debtor’s petition, if lodged online, would be processed within 48 hours, and you believed that once the petition had been accepted, that would bring the enforcement proceedings to an immediate end and relieve you of the obligation to answer the summons.
  1. As to the advice from Mr Dimond, we note that you are a very experienced barrister and it must surely have occurred to you that, regardless of what are the usual times for processing debtors’ petitions online, there must have remained the risk that yours would not be processed in time.
  1. As to the belief that, if the petition was processed in time, you would not be required to appear and the enforcement proceedings would be at an immediate end, it is to be noted that:
  1. you make no direct submission that you in fact received legal advice to that effect;
  1. it is difficult to accept that a competent legal advisor would have informed you that it was sensible to travel overseas rather than take the less risky approach of attending at the Enforcement Hearing;
  1. it is submitted by Potts Lawyers on your behalf that you had no real familiarity with the Bankruptcy Act 1966;
  1. there was therefore no basis for you to be confident that your bankruptcy would have the effect you assumed; and
  1. it cannot be accepted that an experienced, competent barrister would think it appropriate to travel overseas and ignore an extant summons in those circumstances.
  1. Further, it cannot be accepted that a competent legal practitioner would think it appropriate to travel overseas and essentially run the risk of not appearing in answer to the summons (and not producing the documents required to be produced under the summons) if the debtor’s petition was not processed prior to the time you were required to appear, or if it were not accepted.
  1. This failure to appear in answer to the summons has occurred consequently upon your:
  1. failure to provide a completed statement of financial position within 14 days of being served on 25 June 2024, as required by rule 807 of the UCPR; and
  1. provision of only an unsigned statement of financial position on 15 August 2024.
  1. The Association also notes that there is no suggestion that your travel to China was urgent.  Potts Lawyers submits on your behalf that you took the caution of arranging plane tickets that would allow you to cancel and obtain a refund if necessary so that ‘you could appear in Court if [your] bankruptcy was not to proceed for any reason’.  It is difficult to see how this ameliorates the position at all.  You waited until two days after you had departed to lodge the petition, and, on your submission, you were acting on the assumption that the petition would be processed by 21 August 2024.
  1. Your conduct of your taxation affairs is considered to be unacceptable.  Barristers are officers of the Court.  They are expected to comply with the law, including laws in relation to the payment of tax.  Whilst the various stresses you have experienced are severe and unusual, their existence does not relieve a barrister of such basic obligations.  Of particular concern is your decision to eschew an offer from the ATO to enter into what appears, considering the size of your debt, to have been an eminently reasonable payment plan.  The Association notes your explanation in your statement that you did not want to set yourself up for failure, but does not consider that this is a sufficient excuse simply to refuse to enter into such a plan, much less to fail to engage in such circumstances to see if some more lenient plan could be achieved.
  1. Further, the failure by you to pay any tax at all for the 2022 and 2023 financial years, in the Association’s view, reflects an utter disregard on your behalf for the requirement to comply with fundamental tax obligations.
  1. In the Association’s view, your conduct in connection with the Disclosure Failures, the Enforcement Hearing, your taxation affairs, and your bankruptcy demonstrates a poor attitude towards your responsibilities as a citizen and as an officer of the Court.  When taken together, that conduct, and the disrespect to the Court, the profession, and the community that it entails, demonstrates that you are no longer ‘able to command the confidence and respect of the court, of [your] fellow counsel and of your professional and lay clients’.”

Applicant’s evidence

  1. [19]
    The applicant filed three affidavits.  Relevantly, he deposed to the following matters.

Bankruptcy

  1. [20]
    The applicant deposed that certain written representations made on his behalf to the respondent, concerning his bankruptcy, were true and correct.
  2. [21]
    The first written representation was a letter to the respondent, from the applicant’s solicitor, dated 23 August 2024.  In that letter it was stated that the judgment that had been entered against the applicant in the District Court was under appeal.
  3. [22]
    The letter further stated:

“An Enforcement Summons was served on [the applicant] to produce documentation.  Without prejudice negotiations then ensued and these failed and accordingly [the applicant] filed an Application for Bankruptcy.

[The applicant] departed Australia on Saturday 17 August, 2024.  At that time he was suffering a great deal of stress because of all of these economic matters and his pending criminal proceedings of which you are aware and has been visiting his psychiatrist Dr Khoo.

When he departed he was of the honest belief that the Certificate of Appointment of a Trustee would be issued well prior to the Enforcement Proceedings on 22 August, 2024 and that they would be stayed.

We requested an adjournment prior to that date and that was rejected and [the applicant’s solicitor] appeared before the Registrar in the District Court on 22 August to advise the Registrar and at that stage it was understood that [the applicant] would be returning on 29 August and the hearing was adjourned to that date.

On the same day, 22 August 2024 the Certificate of Appointment was issued and we promptly gave notice to the solicitors for the enforcement creditor.  There was no intention by [the applicant] to abuse the process or not respect his obligations but that has to be understood in the context of all of the matters with which he is now dealing.

We cannot see that the proceedings can now continue because of Section 58(3) of the Bankruptcy Act.”[2]

  1. [23]
    The second written representation, from a different firm of solicitors, was a letter dated 16 September 2024, in response to the respondent’s information notice dated 28 August 2024.  This letter stated that the communication would provide the applicant’s “detailed explanation and accompanying evidence with respect to how it came to be that the Registrar of the District Court of Queensland issued an arrest warrant for him failing to attend an enforcement hearing and his compliance with the Bankruptcy Act 1966 (Cth)”.  The letter referred expressly to the earlier communication dated 23 August 2024, repeating its content as set out above.
  2. [24]
    The letter stated that the applicant, via his solicitor, was at all times cooperative and courteous when dealing with the court and the other party; that the applicant and his solicitor genuinely thought that the applicant’s bankruptcy would be made official prior to the enforcement hearing; that the applicant by his solicitor, went to appropriate lengths to notify the other party of the pending bankruptcy; that the applicant’s solicitor attempted to adjourn the hearing by consent; that there were genuine attempts to resolve the debt; and that the applicant’s location and pending bankruptcy were explained truthfully and frankly to the court and the other party.
  3. [25]
    The letter further stated that there was only a period of 2.5 hours between an arrest warrant being issued for failing to appear at the enforcement hearing and the applicant’s bankruptcy being made official, which had the effect of staying the enforcement proceedings pursuant to s 58(3) of the Bankruptcy Act.
  4. [26]
    The letter continued:

“By way of further explanation as to why [the applicant] held a reasonable belief that his bankruptcy would be made official prior to the enforcement hearing, we are instructed that:

a. [The applicant] held a reasonable belief that the acceptance of his bankruptcy petition took between 24 and 48 hours after being told this timeframe by Mr Jake Dimond who worked with the incoming trustee in bankruptcy.

b. The debtor’s petition was lodged electronically on 19 August 2024, and prior to leaving Australia on 17 August 2024 [the applicant] understood from his discussions with the trustee and Mr Dimond from the trustee’s office that the petition could be lodged electronically whilst he was overseas and it would take 24 to 48 hours from lodgment for the bankruptcy to begin.  As discussed below, he had originally intended to lodge the petition on the 13th or 14th of August 2024, whilst still in Australia.

c. [The applicant] honestly believed, based on the fact that the petition had been electronically lodged on 19 August 2024 and he had been told that the processing time would be between 24 and 48 hours by Mr Dimond at the trustee’s office that his bankruptcy would be official prior to the enforcement hearing on the morning of 22 August 2024, clearly removing the need to attend.

D. [The applicant] was originally planning to electronically lodge his debtor's petition on either the 13th or 14th of August 2024 when he completed the necessary AFSA documentation.  He did not lodge his petition then as a mutual friend of his and the Plaintiff in the debt matter had advised him that the Plaintiff was considering his offer to settle for $200,000 and suggested that he may want to give her more time to consider her position before he lodged the petition.  If he had lodged his petition when he originally planned to do so, it is extremely likely that his bankruptcy would have been official prior to the enforcement hearing.

e. [The applicant] had arranged plane tickets that would allow him to cancel and obtain a refund for the tickets, if necessary, so that he could appear in Court if his bankruptcy was not to proceed for any reason.  He was under the impression that by having submitted his petition to AFSA on 19 August 2024, he had properly and lawfully avoided the need to appear in Court on 22 August 2024 as his bankruptcy would be official and the proceedings automatically stayed.  He would not have sought refundable flights if he was not planning to comply with his obligations.

f. There is commentary available online which states that AFSA takes between 1 and 2 days to process a debtor’s petition (although [the applicant] did not refer to this at the time, and simply accepted the advice of the employee at the trustee’s office).  It appears that that the 1 to 2 day time frame advised to [the applicant] is generally accurate.  For example, the publication Dealing with Debt – A legal guide to Personal Bankruptcy in NSW is available free online via the State Library of New South Wales and provides:

‘You must lodge your completed forms with AFSA within 28 days of signing.  AFSA usually takes 1-2 days to process voluntary bankruptcy.  If accepted, you will receive a letter containing your bankruptcy number and outlining your duties and obligations, while bankrupt.’

(underlining added)”.[3]

  1. [27]
    The letter dealt with other aspects of the applicant’s bankruptcy, asserting that the applicant’s trustee in bankruptcy had met with the applicant and was aware that he was planning to travel overseas and was considering filing for bankruptcy; that the trustee had no intention of holding the applicant’s passport upon being appointed as trustee; that the trustee no longer requires bankrupts to surrender their passports; and that on 29 August 2024, the trustee provided the applicant with a letter confirming that he did not object to him travelling overseas until 2 September 2024.
  2. [28]
    The letter stated that there was no plan on the applicant’s part to take any unethical course to avoid the judgment debt or circumvent his restrictions on travel.  The applicant sought appropriate advice from solicitors and a registered trustee.  The applicant accepted that his failure to appear was a very unfortunate error and regrettable circumstance of his own making and apologised for that error.  The applicant said that he had incorrectly assumed that his bankruptcy would be processed before the enforcement hearing, with the consequence that the enforcement hearing would be stayed and he would not be required to personally appear in court.
  3. [29]
    The letter further stated that the bankruptcy, in part, had been caused by the substantial judgment debt.  The costs of the applicant’s ongoing criminal defence, the civil debt matter and medical expenses, among other matters, had also led him to fall behind in his payments to the ATO, such that he had a sizeable tax debt of approximately $400,000 at the time of his bankruptcy.
  4. [30]
    The letter stated that the applicant was lawfully entitled to utilise the bankruptcy laws to reset his financial position, that there was no evidence of dishonesty or incompetence and that in the event that his practising certificate was restored, the applicant was confident that he would earn significantly more than the bankruptcy threshold, such that money would be distributed to his creditors.
  5. [31]
    In his third affidavit, the applicant addressed concerns that he had failed to sign the Statement of Financial Position in respect of the enforcement proceeding.  The applicant deposed that at the time the statement was due, he and his solicitors were desperately attempting to engage in fruitful negotiations about the judgment debt, as that was his only chance of avoiding bankruptcy.  An unsigned statement was provided, together with an offer to settle, part of which included providing a signed Statement of Financial Position.  There was no dishonesty in providing the statement unsigned; it was completed truthful.  The applicant said that he and his solicitor had a concern that if they provided a signed statement, it would be handed to the media and published in whole or part.
  6. [32]
    The applicant also deposed to having taken the judgment debt and enforcement proceedings very seriously.  He repeated the timeline set out in the communication dated 23 August 2024.  The applicant said that he sought the opinion of his trustee and another trustee in bankruptcy as to the effect of bankruptcy on the enforcement proceeding, wanting to satisfy himself that if he was a bankrupt, the enforcement hearing could not proceed.  He also sought confirmation from his solicitor that if he was a bankrupt, he would not be required to attend the enforcement hearing.  The applicant denied that he was flagrantly ignoring his responsibility to the court to appear.  The applicant said he was very stressed at this time:

“I felt that I may be close to a psychiatric break given the stress.  One thing that I have found that settles down my mind is being in another location where I cannot simply ruminate on my thoughts.  I have found that travelling helps my mind relax completely as in places such as China, when you are there, your attention is immediately drawn to the most mundane tasks such as directing a taxi driver who does not speak English, crossing the street, ordering food and the like.  In this way, my mind gets a break from negative thoughts and it helps me to find a way to avoid my mental health reaching very low points.  Whilst it might seem strange to others for me to travel overseas at this juncture, at the time I felt I needed to do so for my mental health and my wife agreed that I should go.”[4]

  1. [33]
    The applicant further stated that he did not leave for overseas thinking that he would be in breach of the summons to appear at the enforcement hearing; and that he felt terribly embarrassed and distraught when it was relayed to him what had occurred at the hearing.  The applicant said that when he first booked his tickets, he purchased flexible ones in case he had to remain in Australia, but that by the time he left for overseas, the arrangements to become a bankrupt had been made with the incoming trustee and he was able to submit his debtor’s petition from overseas, so he thought it was safe to travel.  The applicant deposed that he had prepared the petition between 13 and 14 August 2024, but did not file it until 19 August 2024, due to ongoing attempts to negotiate a resolution of the judgment debt.
  2. [34]
    In that affidavit, the applicant also said that he had lodged his tax returns and business activity statements in a generally timely manner, but not always on time; that he had notes going back to around 2021/2022 with respect to attempts to defer and agree a repayment schedule with the ATO; that over a period of some 18 months, he spoke to a number of people relating to entering into a payment plan; that due to the pressures associated with criminal matters, medical conditions and the ongoing effects of missed income during the COVID period, his communications lapsed, such that around December 2022, he stopped contacting the ATO except for occasional calls, in an attempt to remove penalties due to his unique circumstances; that at one stage he had asked his accountant to prepare a payment plan, but he was unable to meet those proposed payments, as it was too onerous; and that  he continued to contact the ATO in 2023 and 2024, but only to get out of penalties and interest amounts.  The applicant said that but for the judgment debt, he believed he would be in a position to trade out of his tax debts.

Contempt

  1. [35]
    The applicant deposed that he notified the respondent of the contempt proceedings when applying for his practising certificate in June 2016 and June 2017.

Mental health difficulties

  1. [36]
    In his second affidavit, the applicant acknowledged that he had failed to disclose his mental health difficulties but said it was not intentional.  The applicant said he had been able to recognise he needed help and treatment and voluntarily ceased work.  By the time the disclosure was required he had been released from hospital and had to a large extent recovered from the psychological injury.  However, the mental health issues made it particularly difficult for him to concentrate on his own personal affairs and he placed his clients’ interest above his own, such that he regretfully did not mention his hospitalisation at the time of the application to renew his practising certificate.
  2. [37]
    The applicant denied that he remained incapacitated at the time of making his application for renewal.  The applicant was following doctor’s advice in relation to a gradual return to work.  When the applicant completed the online renewal form for the first time it did not cross his mind that he should disclose his recent mental health episode as he was in the recovery phase.  He was not experienced using computers to complete these types of forms and was assisted by his wife, also a barrister.  However, when it came to the declaration, the applicant confirmed it himself.  His wife just assisted him to navigate the process.

Client complaint

  1. [38]
    The applicant said he had engaged solicitors to make submissions to the Legal Service Commission.

Undertaking

  1. [39]
    The applicant referred to his solicitor’s response, by letter dated 24 June 2024.  In that response, the applicant accepted that he had been notified of a complaint by the Legal Services Commission on 19 January 2023; that on 21 July 2023 he provided an undertaking to the respondent to keep it advised as to the status of that complaint; that on 12 September 2023 the Legal Services Commission wrote advising that they intended to start a proceeding against him; that he did not advise the respondent of that correspondence, as required by the undertaking; and that he apologised for his failure to comply with the undertaking.  That failure was a reflection on the applicant’s lack of personal administration and individual personal circumstances at the time rather than any deliberate disrespect towards the respondent.
  2. [40]
    That letter recorded that the applicant was at the time facing criminal charges, had been the subject of distressing medical complications, was in the middle of personal civil litigation, was subject to processes in regard to his fitness to practice, including a direction to attend upon a psychiatrist, and was suffering other personal medical issues.  All of these factors had a significant compounding effect.  The letter stated that although the applicant was unable to provide a definitive explanation as to how the failure occurred, the applicant believed it arose due to confusion in communications with his then solicitor.  The applicant accepted that the undertaking was a personal obligation and again apologised for the oversight.

Other evidence

  1. [41]
    Affidavits were filed by the applicant’s solicitor (multiple), the applicant’s wife, several solicitors who briefed the applicant as a barrister and a businessman who acted as an intermediary in negotiations about the judgment debt.
  2. [42]
    The solicitors’ affidavits annexed relevant correspondence, including correspondence from the trustee in bankruptcy as well as references from barristers, solicitors and former clients of the applicant.  All attested to the applicant’s competence as a barrister.  Two barristers, both King’s Counsel, gave detailed reasons for their views as to the applicant’s competence and fitness to practice as a barrister.  One offered to be the applicant’s mentor, as part of suggested conditions.  The Queensland Law Society also offered to modify its ethics course to allow the applicant to participate as part of suggested conditions.

Expert reports

  1. [43]
    Dr Khoo, who had been consulting with the applicant since 7 February 2017, opined that the applicant suffered from major depressive disorder, panic disorder and post-traumatic stress disorder (PTSD).  The depression and anxiety are chronic and relapsing.  The PTSD is chronic and residual which could be aggravated by exposure to cues indicative of his traumatic exposures in the past.  The applicant’s longitudinal course is characterised by intermittent discrete syndrome or mood episodes on a background of chronic residual sub-syndromal symptoms.  Whilst usually managed well, the applicant had experienced chronic, moderately severe major depression in recent years due to the cumulative effects of various stressful life events.
  2. [44]
    Dr Khoo further opined that the applicant’s health conditions did not adversely impact his intellect or professional performance; that the applicant had good insight and remained actively engaged in his treatment, demonstrating good judgment in identifying early warning symptoms and taking appropriate interventions; and that the applicant’s medical status did not impose any substantial risk to the general public and was unlikely to bring the Bar Association of Queensland into disrepute.
  3. [45]
    Dr Kingswell, who examined the applicant at the request of the respondent, opined that the applicant suffered from major depressive disorder (in remission), post-traumatic stress disorder (chronic residual features) and panic disorder (in remission).  Notwithstanding those conditions and what was a long history of psychiatric illness, Dr Kingswell opined that the applicant had demonstrated an episodic disorder with excellent recovery of function between episodes with an ability to comply with treatment and seek additional assistance when there was a worsening of his condition.  As such, it was very unlikely that the applicant would continue to practice when unfit to do so.  Accordingly there was no psychiatric cognitive or substance use disorder that would prevent the applicant from making satisfactory disclosures to the respondent in the future.

QCAT decision

  1. [46]
    Relevantly, QCAT found:
    1. When the applicant applied for renewal of his practising certificate for the 2018/2019 year, he was required to answer a question to the following effect: “In the past 12 months have you been or are you currently subject to any of the suitability matters listed in sections 9 and 46 of the LPA which may affect your eligibility or fitness to hold a practising certificate”, in response to which the applicant did not disclose his conviction and punishment for contempt on 2 August 2017.  QCAT had been told that it “slipped his mind”.  QCAT said, “If this was true, it evidenced a staggeringly lack of regard for the significance of the conviction”.
    2. In written submissions for the applicant it had been contended that the omission was of no importance because the applicant had disclosed the fact of a contempt charge when he applied for renewal of his practising certificate in 2017 and 2018.  That submission reflected “a failure to take the contempt conviction seriously.  It was also misleading and disingenuous”.  In 2017, the applicant had disclosed the contempt charge telling the respondent that he intended “to vigorously defend this matter” and in 2018 he had informed the respondent that the matter was “still before the courts” and that “the date for the final resolution of the matter is yet to be made”.  QCAT said that as a barrister of many years’ experience, the applicant appreciated the significant difference between being charged with an offence, which one intends to vigorously defend and being convicted and punished for committing the offence and that a conviction for contempt of court, for a barrister, is a serious matter.
    3. It had also been submitted for the applicant that there was “no attempt to hide” the fact that he was convicted of contempt.  However, when the applicant completed each application to renew his practising certificate in each of the following five years, he never disclosed the conviction for contempt.  If the applicant did not intentionally leave the contempt conviction out of his answer to the direct question in 2019 and did not intentionally omit to disclose it, it was more likely than not “he continued to treat it with the same lack of regard”.
    4. That on or about 28 May 2023, when the applicant applied to the respondent for renewal of his practising certificate for the 2023/2024 year, the applicant did not disclose that in the opinion of the treating medical specialist placed before the District Court, his mental health difficulties had made him so unwell that he could not defend a civil proceeding in which he was a party and that he had been hospitalised with that condition for nine days from 11 to 19 May 2023.  Although the applicant later relied on these mental health difficulties to explain his failure to disclose another matter in the same renewal application, the applicant did not contend they were an explanation for the non-disclosure of an apparently acute mental health situation and hospitalisation, less than two weeks before his renewal application.  The applicant, in the review application, denied that he remained incapacitated at the time he applied for renewal of his practising certificate, stating that he was in recovery and following medical advice in relation to a gradual return to work, such that there was no current incapacity that he had failed to disclose.
    5. The applicant’s submission that the apparently acute medical episode had passed from his memory, could not be accepted as the applicant had been discharged from hospital only eight days before he submitted the renewal application, having spent nine days in hospital.  In the circumstances, the applicant displayed a lack of candour in his explanation for his failure to disclose this relevant matter and the applicant did not rectify this lack of candour during the hearing.
    6. Also on about 28 May 2023, in answer to the same question, the applicant did not disclose that on 19 January 2023, he had been advised by the Legal Services Commission that a client had lodged a complaint about the applicant’s conduct as a legal practitioner, a disclosable suitability matter.
    7. On 21 July 2023, the respondent wrote to the applicant requesting an explanation for not disclosing the complaint in his renewal application.  On the same day, the applicant had replied that the complaint had completely slipped his mind; that nothing had occurred with respect to the complaint; and there was no follow up from the Legal Services Commission.  The applicant undertook to inform the respondent of the status of the new complaint, “when requested to do so, or upon any event that would reasonably prompt an update”.
    8. This was not a trivial complaint.  The client had alleged that the applicant had demanded to be paid $5,000 in advance for professional work as a barrister, had been paid that sum, had not performed the work and had refused to refund the payment.  The applicant’s apparent disregard of the complaint indicated an inappropriate attitude towards complaints about his professional conduct and the processes of the Legal Services Commission.  Due to the applicant’s disregard, he had misled the respondent by answering the renewal question as if there was no such complaint.  If the complaint had not come to the attention of the respondent in some other timely way, the applicant’s practising certificate renewal would have been decided on that false basis.
    9. On 12 September 2023, the applicant received a letter from the Legal Services Commission setting out its intention to commence a disciplinary proceeding in relation to that complaint.  Whilst that letter was received about eight weeks after the applicant had given the undertaking to inform the respondent, the applicant did not inform the respondent of this letter, in breach of that undertaking.  The applicant was in breach of his undertaking for about eight and a-half months, until 27 May 2024 when the respondent wrote to the applicant, having become aware of the matters by other means.  This lengthy period of default was more remarkable because the respondent on 9 February 2024, wrote to the applicant seeking his confirmation that the undertaking continued for the duration of his 2023/2024 practising certificate and the applicant, by his solicitors on 20 February 2024, had confirmed his obligation.
    10. On 27 May 2024, the respondent wrote to the applicant inviting him to provide reasons as to why he had failed to comply with his undertaking.  On 28 May 2024, the applicant replied advising that he was seeking legal advice and stating that he was not a person who intentionally ignores undertakings, “either to the courts my colleagues the Bar Association or for that matter anyone”.
    11. On 28 May 2024, the respondent replied, referring to the exchange of correspondence in February 2024 and stating that it was imperative that the respondent be provided with a clear explanation as to his reasons for not informing it of the change in status in respect of the complaint matter.  The applicant did not respond until 24 June 2024 when, through a new firm of solicitors, he confirmed that he did not advise the respondent of the correspondence from the Legal Services Commission as required by the undertaking and further, disclosed for the first time that he had, through other solicitors, “filed a submission with the Legal Services Commission in response on 31 October 2023”.  The applicant’s response included an apology for his failure to comply with the undertaking, stating that the failure was a reflection upon the applicant’s lack of personal administration and his individual distressed personal circumstances, rather than any deliberate disrespect or malfeasance directed towards the respondent.  The applicant had been facing criminal charges since 2017, there had been media publications about him in August 2023, there was a personal civil trial on 23 October 2023 and there was a direction from the respondent on 30 October 2023 that the applicant attend an independent medical specialist to assess his ability to perform as a barrister and “personal medical issues”.  Those factors had a significant compounding effect from a personal health perspective and also from a professional administrative perspective.
    12. By 31 October 2023, the applicant had given his solicitors instructions to make a written submission to the Legal Services Commission about its intention to commence disciplinary proceedings, based on the client’s complaint and that when his attention was focussed on that change of status of the complaint, the applicant ought to have honoured his undertaking to the respondent.  By then, the civil trial had been adjourned, the media publications about him were some months in the past, and the respondent had directed the applicant to attend an assessment by an independent medical specialist, for advice on his contention that he had fully recovered from his May 2023 acute mental health episode.
    13. The independent specialist who saw the applicant on 4 December 2023, diagnosed the applicant with two disorders in remission and residual features of a third; opined that the applicant had recovered almost completely from the acute episode in May 2023 and opined that the applicant had shown an ability to comply with treatment and seek additional assistance when there was a worsening; and that by his account, there were no other issues threatening his psychiatric health, such as substance abuse or cognitive decline in the absence of active psychiatric symptoms.  The independent specialist further opined that the applicant “does not currently have a psychiatric, cognitive or substance use disorder that would prevent him from satisfactorily carrying out” the work of a barrister, or that would prevent the applicant from “making satisfactory disclosures” to the respondent.
    14. In the all now known circumstances, the applicant had capacity to receive and understand the Legal Services Commission’s 12 September 2023 communication and to give instructions to respond with a submission on 31 October 2023, such that he did not lack capacity to honour his undertaking to update the respondent in either respect for more than eight months and that the applicant’s lengthy breaches of his undertaking indicated that he continued to give little respect to the complaint and that he gave even less respect to his undertaking to the respondent.
    15. On 24 June 2024, the District Court gave judgment against the applicant in an amount of $240,000 and made directions for the parties to seek agreement on the interest to be included in the judgment.  After judgment was entered, the plaintiff as enforcement creditor, had given written notice to the applicant requiring him to complete and return a Statement of Financial Position as an enforcement debtor, which the applicant was obliged to complete and return within 14 days, but did not do so.  Although the applicant sought an extension of time, he never completed and returned the signed Statement of Financial Position as an enforcement debtor.
    16. When the time for its return had lapsed, the enforcement creditor applied to the District Court for an enforcement hearing.  An enforcement hearing summons in the approved form was issued by the Registrar, with the applicant’s solicitors accepting service of the summons on his behalf on 24 July 2024.  By the summons, the District Court required the applicant to attend an enforcement hearing on 22 August 2024, to provide information, answer questions and to produce documents before the Registrar in Brisbane.
    17. On 29 July 2024, the applicant sent an email to his solicitor stating that, should he decide to go bankrupt before the enforcement hearing, an issue was whether the bankruptcy would put an end to that hearing, which would involve the applicant’s wife as well.  Whilst the applicant later told the respondent that he was “made aware” of the summons “around early August”, as the applicant had been communicating with his solicitor about putting an end to the enforcement hearing as early as 29 July 2024, it seems likely that the applicant was aware of the summons closer to the date it was served, 24 July 2024, and had given the solicitor instructions to accept service.
    18. On 4 August 2024, the applicant sent his solicitor an unsigned incomplete draft of the Statement of Financial Position, instructing that he wanted to go ahead with the plan “that we made”.  The solicitor replied on 5 August 2024, “will do”.
    19. On 9 August 2024, the applicant purchased plane tickets to travel out of Australia.  The applicant had sworn that he arranged tickets that “would have allowed me to cancel and obtain a refund for the tickets, if necessary, so that I could appear in Court if my bankruptcy was not to proceed for any reason”.
    20. On 15 August 2024, the applicant’s then-solicitor sent the enforcement creditor’s solicitors a copy of the unsigned Statement of Financial Position with supporting material on a without prejudice basis, making an offer to compromise the judgment debt which was open for acceptance until 4.00 pm that day, after which the offer was withdrawn completely.
    21. On 17 August 2024, the applicant left Australia for China, remaining there until he returned on 2 September 2024.  QCAT said the applicant “never explained the purpose of this travel”.
    22. On 23 August 2024, the applicant, through his solicitors, wrote to the respondent to give notice of his bankruptcy.  The solicitors confirmed that judgment had been entered against the applicant and that the decision was under appeal.  The letter further stated:

“An Enforcement Summons was served on [the applicant] to produce documentation.  Without prejudice negotiations then ensued and these failed and accordingly [the applicant] filed an Application for Bankruptcy.

[The applicant] departed Australia on Saturday 17 August, 2024.  At that time he was suffering a great deal of stress because of all of these economic matters and his pending criminal proceedings of which you are aware and has been visiting his psychiatrist … .

When he departed he was of the honest belief that the Certificate of Appointment of a Trustee would be issued well prior to the Enforcement Proceedings on 22 August, 2024 and that they would be stayed.

We requested an adjournment prior to that date and that was rejected and [the solicitor] appeared before the Registrar in the District Court on 22 August to advise the Registrar and at that stage it was understood that [the applicant] would be returning on 29 August and the hearing was adjourned to that date.

On the same day, 22 August 2024 the Certificate of Appointment was issued and we promptly gave notice to the solicitors for the enforcement creditor.  There was no intention by [the applicant] to abuse the process or not respect his obligations but that has to be understood in the context of all of the matters with which he is now dealing.”[5]

  1. The applicant’s solicitors adopted the same sequential description of the events in correspondence on 16 September 2024, as had the applicant in his affidavit sworn 4 August 2025.  Each of these narratives represented that the applicant had filed an application for bankruptcy before he flew out of Australia on 17 August 2024, when the applicant had in fact agreed not to file it, to allow time to reach a settlement.  These misrepresentations made more plausible, assertions that at the time he left Australia, the applicant was of the honest belief that a certificate of appointment of a trustee would be issued well prior to the enforcement proceedings on 22 August 2024 and that his bankruptcy would be processed prior to that enforcement hearing.
  2. Whilst the applicant had, in his affidavit, later sworn that the debtor’s petition was lodged electronically on 19 August 2024; that he had taken the enforcement proceedings very seriously and was not careless or reckless with respect to his obligations; and that he had erred in assuming that his bankruptcy would be made official before the enforcement hearing, “a person served with a summons to appear can hardly have been less cautious or more reckless than to purchase an airline ticket 16 days after service of the summons and fly out of Australia to China three days before the date they are commanded to appear, intending to be absent from the country on that date”.
  3. Whilst the applicant seemed to accept, on the final day of the hearing, this proposition, telling the Tribunal in a voluntary, unsworn statement from the Bar table that he had acted “cavalierly” in leaving Australia whilst the enforcement summons was pending, the applicant said:

“I have always had respect for the courts, my colleagues, and will always have respect for the courts, the colleagues, the clients.  I’ve never made, in my life, a misrepresentation to the court or to misled colleague or a court, and I pride myself in that.  What I’ve done though is that I stupidly went to China.  I have no idea what I was thinking at that particular time.  I can’t even comprehend the nature of my thought.  It was – to say it was cavalier is being generous to me in those circumstances.  It was wrong and I apologise sincerely for that conduct.  It was an affront to the court.  I accept that.  And one of the things I’ve learnt is that it doesn’t matter who’s on the bench, our duty is to the court, because that is justice and that’s what we’re looking at.”[6]

  1. Even by the end of the Tribunal hearing, it seemed to have escaped the applicant’s attention that what he did was wrong:

“The steps he took to prepare to lodge a bankruptcy application (and apparently lodge it electronically from outside Australia) were expressly aimed at preventing the judgment creditor (…) from taking further steps against him consequent upon his failure to comply with the summons.  Simply put, the applicant planned and intended to disobey the summons issued by the District Court on 24 July 2024: a command that he appear and produce material to the Court on 22 August 2024.  The discussions he had with his proposed trustee, with other accountants and advisers, with a colleague, and with his solicitor, were about how he might immunise himself from any ill-effect of his defiance of the Court’s summons.”[7]

  1. (aa)The applicant was not a teenager, unfamiliar with the role and authority of a court.  By leaving the country shortly before the enforcement hearing, he showed a public disrespect for the District Court and its processes.  His apparent lack of understanding and appreciation of the nature and effect of his conduct, marks his character.
  1. (bb)Whilst the applicant had stated to the respondent that the reason he went bankrupt was because he could not afford to pay the judgment debt, such a subjective reason for filing a bankruptcy application, overlooked the other significant liabilities that had been accruing over the preceding five years, with the applicant’s taxation returns produced on the last day of the Tribunal hearing, making it likely he was unable to meet his debts as and when they fell due, long before that judgment debt.
  1. (cc)Those returns revealed that the applicant had not paid any income tax, or remitted any GST he had collected to the ATO, since 1 August 2022 and likely not since 2019.  Whilst in the review application the applicant stated that he had maintained constant contact with the ATO and was endeavouring to enter into an achievable payment plan, the applicant’s sworn evidence and the documents he produced, did not make good that contention.  The applicant was behind in the payment of his taxation liabilities since about 2019.  His accountant had negotiated two payment plans, counselling the applicant to pay them on time, but the applicant rejected both payment plans.  The applicant also accepted that since December 2022, he had made only occasional contact with the ATO by telephone.
  1. (dd)Although the applicant did not consciously decide to cease paying tax or remitting GST indefinitely, he knew he was not paying those sums and he knew the money he spent on any other thing was money he was denying to the ATO.  That was at best irresponsible and reckless, as “[m]ost right-thinking members of the community expect people to honour their obligations to meet their debts, if they can.  The applicant’s failure to do so, over a long period, would lead most people to conclude he was not a fit and proper person to hold a [practising certificate]”.
  1. (ee)References supportive of the applicant continuing to hold a practising certificate contained opinions expressed by solicitors, which were confined to the applicant’s work and that the matters going to the applicant’s fitness to practise, did not concern in any substantial way, his ability to act as a representative of persons before the courts, charged with offences.  They were character matters, rather than competency issues.
  1. (ff)Weight was to be given to the opinions expressed by two King’s Counsel, but QCAT’s decision must be the correct and preferable decision based on all of the evidence before it.  QCAT concluded:

“[106] A person’s initial response to an adverse event (or a series of adverse events) likely indicates something of the person’s character.  Due allowance should be made for the rawness of an initial reaction.  It is likely to be more driven by emotion than by reason.  The course a person has adopted with the benefit of time and professional advice is likely more representative of their character.  The applicant was more fortunate than others.  He did not have to deal with adversity alone.  He had representatives and advisers for each of his various fields of tribulation.  His conduct over time, with the benefit of professional advice, is likely a better gauge of his character than his initial untutored responses.

[107] The Tribunal has evidence of the applicant’s conduct over a reasonable period of recent time.  This covers the period from August 2017, when he was convicted of and punished for contempt, from 2019, when he seems to have stopped paying income tax and ceased remitting GST to the ATO, from 2023, when he was less than frank with the Association about his mental health, failed to disclose a formal professional complaint, and breached his undertaking to the Association for an extended period, to August 2024, when he defied the enforcement summons.

[108] There was a pattern to the applicant’s conduct.  It has marked his responses from the contempt in 2016 to the Association’s decision to suspend his practising certificate in August 2024.  With the contempt charge, he retained leading counsel and was to vigorously defend himself.  At the hearing, he admitted his guilt and submitted to the penalty.

[109] In the most recent iteration of this cycle, the applicant began the hearing on 2 December 2024 denouncing the Association’s decisions.  His failure to disclose the contempt conviction was ‘of no significance’.  The Association’s concern that he may have remained incapacitated nine days after being discharged from hospital for an acute mental health episode ‘cannot be sustained.’  His failure to disclose a complaint about his professional conduct and his subsequent breach of the related remedial undertaking did not reflect upon his fitness to practise law.  His failure to appear in response to a court summons was ‘regrettable’, but not ‘careless’ or ‘reckless’.  It was due to his ‘honest and mistaken belief’.  By 5 December 2024, he was proposing to submit to five conditions if granted a PC.  These included 12 months’ mentoring under a leading counsel, three-monthly reporting by his trustee in bankruptcy, six-monthly reporting from his private accountant, completing a Queensland Law Society Legal Ethics Course, and an additional five hours of professional development focussed on tax accounting and management.

[110] In his voluntary unsworn statement to the Tribunal, the applicant said it was only in the ‘last 90 days’ when he had been unable to practise as a barrister that he came to realise ‘it was also important that [he] look after [his] own affairs.’  Even so, the applicant was unable to explain his conduct or identify what he would actually do differently in the future.  He offered nothing in respect of his history of failures to disclose suitability matters to the Association.  He had ‘no idea’ what he was thinking when he flew to China a few days before the summons required him to appear in the District Court. He could not ‘begin to think’ why he did not make a payment arrangement with the ATO.  In the end, the applicant described his conduct as ‘stupidity’.  He concluded:

“And so essentially, what I want to do is apologise to the court and just put on the record that … I’d like to think I’m not bad intentioned, but I made bad mistakes and I apologise to the court and to the Bar Association and my colleagues and to the public at large for my stupidity.  And I don’t know that I can say much more, your Honour.  That is my apology.  If I could be excused. … that’s all I have to say.”

[111] The applicant continues to be subject to criminal charges, which were first pressed against him in 2017.  So, he continues to be on the ‘rollercoaster’ he has been riding for about seven years.

[112] The courts are experienced in assessing the genuineness of human sentiments including remorse and resolutions to make amends.  The courts make these assessments every day in sentencing offenders.  The conduct of a person is the surest guide.  Words unsupported by action leave unproven the genuineness of an expressed desire to change.  The applicant’s recent remorse has this difficulty.

[113] Considering the matter afresh, on the merits, and using the evidence before it of the applicant’s previous behaviour and its causes, so far as is reasonably possible, the Tribunal cannot be confident the applicant will follow the appropriate course of action in the future, nor that he could properly be entrusted to undertake the tasks that attach to the practise of a barrister in accordance with the demanding requirements under the LPA.

[114] By this conduct, he showed himself unsuitable to share what Kitto J called the privilege of the delicate relationship and intimate collaboration with the courts and with fellow members of the Bar.”[8]

Consideration

  1. [47]
    The appeal is a rehearing to which the correctness standard applies.[9]  The relevant principles were summarised in Wang v Hur:[10]

“[23] The principles governing the circumstances in which an appellate court should be prepared to interfere with the fact finding made by a primary judge are settled.  The leading High Court authorities are Warren v Coombes; Allesch v Maunz; Fox v Percy; Robinson Helicopter Company Incorporated v McDermott; and Lee v Lee.

[24] The relevant passages from those authorities were recently examined at length in this Court in Sutton v Hunter.  To summarise further, but retaining the language used by the High Court authorities referred to in the previous paragraph:

  1. On an appeal by way of rehearing, it is for the appellant to satisfy the appellate court that the order that is the subject of appeal is the result of some legal, factual or discretionary error.
  1. On such an appeal, the appellate court is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge's reasons for judgment to determine whether it should be so satisfied.
  1. If the appellate court concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.
  1. When determining whether a judge has erred in fact, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.
  1. However, in determining whether the judge has erred in fact, an appellate court is required to exercise restraint when invited to interfere with a primary judge’s findings of fact, at least where those findings are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence.  Such appellate restraint applies not merely to findings of primary facts but also applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.
  1. In such cases, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  The finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused [his or her] advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’, or which was ‘glaringly improbable’, or which was ‘contrary to compelling inferences’.”

Ground 1

  1. [48]
    The applicant submits that QCAT failed to conduct a fresh hearing on the merits, as was its statutory duty under s 20(1) of the QCAT Act, for three reasons.  First, QCAT wrongly defined the relevant period of time during which the applicant’s impugned conduct was said to have occurred.  Second, the personal situation of the applicant did not receive any adequate or rigorous analysis in the reasons.  Third, QCAT failed to consider much of the uncontradicted evidence that supported the applicant’s case that he should be permitted to practise and in some respects QCAT made findings that were contradicted by unchallenged evidence.
  2. [49]
    The applicant accepts that the question for the determination of QCAT was whether the decision not to renew the applicant’s practising certificate was the “correct or preferable one on the material”.[11]  That was the test expressly adopted by QCAT.
  3. [50]
    Further, a consideration of the record supports a conclusion that QCAT did carry out a fresh hearing on the merits, in accordance with that test.
  4. [51]
    First, the reference to the relevant period relates to the applicant’s impugned conduct.  That was a period from August 2017 to August 2024, as recorded by QCAT.  Aspects of the applicant’s conduct post that period, insofar as it was relevant to an assessment of whether a refusal to renew the practising certificate was the correct or preferable decision on the material before QCAT, was considered by QCAT.  Such conduct included the information notice issued by the respondent on 2 October 2024, the offer of conditions in order to obtain a practising certificate (expressly referred to in the reasons), the evidence adduced by the applicant by way of affidavits, evidence adduced by other witnesses, and the applicant’s apology.
  5. [52]
    Second, QCAT expressly considered the personal situation of the applicant.  QCAT was not satisfied that those personal circumstances provided a satisfactory explanation for the applicant’s repeated non-compliance with his disclosure obligations, his non-attendance at the enforcement hearing in accordance with the summons served upon his solicitors, of which he had due notice, and the non-payment of the taxation obligations for several years.  QCAT gave reasons for those conclusions, consistent with its obligations.
  6. [53]
    Nothing in those reasons supports a conclusion that QCAT disregarded aspects of those personal circumstances when considering the ultimate question.  Having regard to the nature of the decision to be reached by QCAT, it is unsurprising that the reasons only referenced the aspects of the evidence relevant to the determination ultimately reached by QCAT.
  7. [54]
    Third, there is also no merit in the applicant’s contention that QCAT failed to consider important and relevant evidence, for the reasons expressed under ground 2.

Ground 2

  1. [55]
    The applicant submits that QCAT failed to conduct the hearing fairly, failing to consider relevant evidence and making findings contrary to unchallenged evidence.  However, a consideration of the record does not support that contention.
  2. [56]
    At the hearing, there was no dispute as to the applicant’s pre-existing mental health conditions, his acute mental health episode in 2023, and the circumstances in which the applicant had obtained his wife’s assistance to complete the renewal application.  The issue was whether those circumstances provided a satisfactory explanation for the applicant’s non-disclosure of the mental health difficulties.
  3. [57]
    Unsurprisingly, QCAT found an assertion that the applicant’s hospitalisation had “slipped his mind” unpersuasive.  His release from a not insignificant nine day period in hospital had occurred but days before his application was completed.  As the applicant was asserting that by that stage he had recovered and was undertaking, on doctor’s advice, a gradual return to work, memory loss and confusion did not provide a satisfactory explanation.  The explanation consistent with the evidence as a whole, was that the applicant chose not to disclose it on an incorrect belief that there was no obligation to do so.  Importantly, QCAT made no adverse finding in relation to the circumstances in which the renewal application had been completed with the assistance of the applicant’s wife.
  4. [58]
    There was also no dispute that the applicant had taken steps to avoid bankruptcy by entering into negotiations with the judgment creditor.  The involvement of others in those negotiations was specifically referred to in the judgment, albeit by reference to that person as an intermediary.
  5. [59]
    The issue was whether those circumstances provided an explanation for the applicant’s failure to comply with his obligations in relation to the provision of a signed Statement of Financial Position and attendance at the enforcement hearing.  It was in that context that QCAT made the observation that the applicant had overlooked other significant liabilities if the judgment debt was the applicant’s subjective reason for filing bankruptcy.  That observation was consistent with the evidence.  The applicant had significant other liabilities.  His taxation liabilities had accumulated over extended periods.  No payments toward those taxation liabilities had been made by the applicant over that period and no payment plan was in place.

Ground 3

  1. [60]
    The applicant submits that the proceeding was conducted unfairly as QCAT’s finding cast doubt on the applicant’s honesty and candour in circumstances where the case to be met did not have allegations of dishonesty, the applicant was not cross-examined and that process was in fact suggested by the judicial member.
  2. [61]
    The contention that the proceeding was conducted unfairly is not established for two reasons.
  3. [62]
    First, the transcript reveals that the judicial member expressly raised at the outset what appeared to be the ultimate issue and that resolution of the proceeding was to be determined by a consideration of whether the evidence was consistent with the applicant’s explanation for his impugned conduct, or that the explanation was inconsistent with the evidence or not supported by the evidence.
  4. [63]
    The transcript also reveals that senior counsel appearing for the applicant expressly agreed with that proposed course.  No unfairness arises from a process undertaken with due notice and the express concurrence of the applicant’s senior counsel.
  5. [64]
    Second, there is no substance in the applicant’s contention that the proceeding was conducted unfairly because the respondent had conceded that there was no allegation of dishonesty, but QCAT made findings impugning the applicant’s honesty.
  6. [65]
    Whilst there was no allegation of dishonesty, there were allegations of a lack of candour.  That was apparent from the detailed written submissions of the respondent.  Those were the findings made by QCAT.  Against that background, there was no unfairness in the hearing of the application.
  7. [66]
    The applicant equates honesty with candour.  However, the authorities expressly refer to “honesty and candour”, consistent with the concepts being different.  Whilst a lack of candour can also involve deliberate dishonesty, a lack of candour can involve a lack of frankness in circumstances where there is an obligation for frank disclosure.
  8. [67]
    The determination of whether a legal practitioner is a fit and proper person to either be admitted as a legal practitioner or to be the holder of a practising certificate to allow practise as a legal practitioner, either as a barrister or solicitor, does involve an obligation of frank disclosure.  A failure to disclose consistent with that obligation can evidence a lack of candour which does not amount to deliberate dishonesty.
  9. [68]
    The applicant’s failures to disclose fell within those categories.  Having regard to the nature of the disclosures, those failures supported a conclusion that the applicant evidenced a lack of candour.  That was the conclusion reached by QCAT.  It was a conclusion consistent with the evidence.
  10. [69]
    There was no unfairness in the conducting of the hearing or in the findings made in circumstances where the applicant was on notice that there was a contention that the applicant’s impugned conduct involved a lack of candour supporting a finding that he was not a fit and proper person to hold a practising certificate as a barrister.

Ground 4

  1. [70]
    The applicant submits that QCAT erred in law by failing to give adequate consideration to whether the applicant should be granted a practising certificate, subject to conditions.
  2. [71]
    QCAT expressly referred to the proposed conditions in the judgment.  There is no basis to conclude that QCAT failed to give proper consideration to those conditions, in those circumstances.
  3. [72]
    Further, there was no necessity to analyse those conditions.  The issue was whether the circumstances warranted a finding that whatever conditions be imposed, the applicant’s conduct was consistent with a conclusion that he was not a fit and proper person to hold a practising certificate.  QCAT’s conclusion that he was not, was consistent with the evidence.  The applicant repeatedly failed to disclose relevant suitability matters in circumstances where his explanation was not consistent with the evidence.  In addition, his personal circumstances remained with the same significant stressors, consistent with a conclusion that the applicant was not a fit and proper person to hold a practising certificate.

Ground 5

  1. [73]
    The applicant submits that QCAT erred in applying a test of “what most right thinking members of the community expect”.
  2. [74]
    The reference to that test related to the applicant’s failure to meet his taxation obligations.  As QCAT explicitly acknowledged, the expectation was “one of meeting debts, if they can”.
  3. [75]
    Contrary to the applicant’s contentions, QCAT did give consideration to the circumstances in which the applicant had not met his taxation obligations.  Those circumstances included significant other financial obligations.  As was observed by QCAT, the applicant chose to spend his available money on those other obligations rather than meet any of his taxation obligations over a number of years.
  4. [76]
    There is no inconsistency between the test as applied by QCAT and the totality of the test enunciated in Wardell v New South Wales Bar Association.[12]  The applicant had failed to meet any of his taxation obligations for a number of years.  He had not made any payments despite the advice of his accountant to enter into a payment plan.  His explanation was consistent with “the money being spent elsewhere” such that even though there were reasons for the spending of that money “right-thinking people in our community [would conclude] that that person was not a fit and proper person to hold a practising certificate”.

Ground 6

  1. [77]
    The applicant submits that QCAT’s reasoning about his trip to China, just before he filed for bankruptcy, was wrong as QCAT erred in finding that the applicant never explained the purpose of his travel; that he had represented that he had filed an application for bankruptcy before he flew out of Australia on 17 August 2024; and that even by the end of the hearing, it had seemed to escape the applicant’s attention that what he did was wrong.
  2. [78]
    QCAT’s findings in respect of the applicant’s conduct in travelling to China, whilst subject to a formal notice requiring his attendance in court, but a few days after his departure from Australia, was entirely consistent with the evidence.
  3. [79]
    First, although the applicant had sworn that he had travelled to China in circumstances where he was suffering extreme stress and he had found travel had relieved stress in the past, the applicant had expressly stated, in his apology to QCAT, that he did not know why he travelled to China, knowing that he was subject to an upcoming enforcement hearing.  That inconsistency supported an observation that the applicant had not explained the purpose of the travel.
  4. [80]
    Second, the initial representation made on the applicant’s behalf to the respondent, specifically outlined a chronology of events that conveyed a factual scenario of the applicant having filed for bankruptcy prior to leaving Australia.  The applicant submitted that the correspondence did not specifically state that an application had been filed.  However, the only rational inference from that chronology was that the applicant had filed for bankruptcy prior to his departure, particularly as the chronology was being provided to support an assertion that the applicant had an honest belief, at the time of his departure, that the enforcement hearing would not proceed because of his bankruptcy.
  5. [81]
    Such a chronology was a misrepresentation of what the applicant knew to be the true position, namely, that at the time of his departure from Australia, he had deliberately refrained from lodging a bankruptcy petition as he was continuing efforts to negotiate a resolution of the judgment debt.
  6. [82]
    The misrepresentation was particularly significant.  Once consideration was given to the true position namely, that the applicant knew at the time of his departure from Australia that he was not bankrupt and that the enforcement hearing would still be proceeding, absent his bankruptcy, the applicant swore a different honest belief namely, that by the time of the enforcement hearing he would be bankrupt, as he could submit the petition online and it would be processed in 24 to 48 hours.
  7. [83]
    In circumstances where the applicant, an officer of the court, knowing that he was required to appear in court, had left Australia without any plans to return so that he could appear in accordance with that notice, QCAT rightly concluded that the applicant’s conduct was worthy of serious censure.
  8. [84]
    QCAT’s reference to it having escaped the applicant’s attention, even by the end of the hearing, that what he did was wrong, was made specifically after QCAT recorded the applicant’s apology in which the applicant expressly said that it was wrong and that he apologised sincerely for that conduct.  In context, the observation was apt.  The applicant’s apology and acknowledgment of wrongness related to the travel to China.  However, the relevant impugned conduct was the applicant’s placement of himself out of the jurisdiction with the consequence he disobeyed a summons that had been issued by a court.  That was not conduct to be adopted by an officer of the court.  Such an officer would be expected by right thinking people to attend the court hearing.  That would show the appropriate degree of respect for the court process.
  9. [85]
    Once QCAT’s observations are understood in this way, there is also no substance in the applicant’s criticism that QCAT inferred an improper motive in the applicant’s conduct, by observing that the applicant’s discussions with the proposed trustee, his accountants and advisers, another barrister and his solicitor, were “about how he might immunise himself from any ill-effect of his defiance of the Court’s summons”.  That observation was consistent with the evidence.  The applicant’s discussions with each of those persons was about steps he could take which would prevent action being taken as a consequence of his non-appearance at court, in accordance with the terms of the enforcement summons.
  10. [86]
    The gravity of the applicant’s conduct was not answered by a submission that the applicant was entitled to utilise the bankruptcy laws, having regard to his financial circumstances.  The impugned conduct was the applicant’s actions in leaving the country, such that he could not comply with a summons of which he had due notice.  An officer of the court, who was a fit and proper person to hold a practising certificate, would not show such disrespect to a court order.

Ground 7

  1. [87]
    The applicant submits that there were fundamental errors in QCAT’s analysis of the applicant’s omission to reveal his conviction for contempt.  The errors are said to be a finding that submissions made on the applicant’s behalf reflected a failure to take the contempt conviction seriously with the submission being misleading and disingenuous and a rejection of the applicant’s explanation in circumstances where there was uncontested and unchallenged evidence that the applicant could be prone to disturbances in concentration, memory, processing capacity and cognitive speed.
  2. [88]
    QCAT’s reference to a failure to take the contempt charge seriously concerned a submission on behalf of the applicant that the omission to disclose the previous contempt conviction was of no importance.  That submission was not corrected on the first day of the hearing by senior counsel appearing for the applicant.  The correction made by senior counsel was to an interpretation of the submission to the effect that there was no need to disclose the fact that the applicant had been punished for contempt as it was “so notorious that he had been punished for contempt”.[13]  That was a different contention to the omission being “of no importance”.
  3. [89]
    As QCAT found, a conviction for contempt by a barrister is of great significance.  Further, the non-disclosure occurred in circumstances where the applicant’s disclosure that he had been charged with contempt was in the context of it being challenged by the applicant.  QCAT rightly observed that type of disclosure as vastly different to disclosing that a practising barrister had been convicted of contempt.
  4. [90]
    Finally, disturbances in memory and concentration provided no satisfactory explanation for the failure to disclose that fact over several years.  The applicant had continued throughout that time to practise successfully as a barrister.

Ground 8

  1. [91]
    The applicant submits that QCAT’s rejection of his submission that his hospitalisation did not “cross his mind”, when applying for renewal of his practising certificate, was unfair as the evidence gave rise to a number of explanations for why that matter did not in fact cross his mind; the Tribunal gave no regard to the applicant’s unsworn evidence that it was not intentional and occurred in circumstances where it was difficult for him to concentrate on his own personal affairs; and where the applicant was not cross-examined about his evidence, or afforded an opportunity to respond to an assertion that there was a continuing lack of candour.
  2. [92]
    QCAT’s rejection of the applicant’s submission that the hospitalisation did not “cross his mind”, was consistent with the evidence.  The applicant applied to renew his practising certificate days after his release from hospital, after a nine day period as an inpatient.  The applicant’s stated reason for non-disclosure of this fact was that he was recovering and had commenced a gradual return to work in accordance with doctor’s advice, such that there was no need to disclose that hospitalisation.  The applicant’s belief in that respect was wrong, having regard to the nature of the question and the circumstance that the deterioration in his mental health had been a basis for the adjournment of civil proceedings.
  3. [93]
    Those circumstances amply supported QCAT’s conclusion that an assertion that the hospitalisation did not cross the applicant’s mind was implausible and consistent with a continuing lack of candour in relation to his obligation to disclose.  Candour is being used in the sense of a lack of frankness, not deliberate dishonesty.  The applicant was on notice of a contention that this conduct evidenced a continuing lack of candour.  No unfairness arises in those circumstances.

Ground 9

  1. [94]
    The applicant submits that QCAT erred in its approach to the applicant’s failure to pay tax, in that QCAT ignored the applicant’s personal circumstances and the fact that he was not evading tax.  The applicant had significant other demands for funds.  Further, it is submitted that QCAT gave insufficient weight to the repeated genuine and unchallenged steps taken by the applicant to engage with the ATO.
  2. [95]
    A consideration of the evidence supports a conclusion that QCAT’s finding in respect of the applicant’s failure to pay tax was consistent with the evidence.  Whilst the applicant was having ongoing interactions with the ATO over some of the period, the applicant had made no payment towards his taxation obligations, had declined to enter into payment plans prepared by his own accountants in respect of which he was counselled to make such payments and his later interactions were only in relation to seeking relief from penalties rather than any steps to meet his taxation obligations.  That is not conduct supportive of a conclusion that the applicant was undertaking voluntary interactions to meet his taxation obligations.
  3. [96]
    QCAT also did not disregard the fact that the applicant had significant financial demands on his available resources.  QCAT accepted the existence of those demands, but properly observed that the applicant chose to meet those demands in preference to meeting any of his taxation obligations since 2019.  That conduct was not consistent with the expectations of right thinking members of the community.  It was also not conduct consistent with the applicant being a fit and proper person to hold a practising certificate as a barrister.

Ground 10

  1. [97]
    The applicant submits that QCAT erred when it found that the applicant “was more fortunate than others” in that he did not have to “deal with adversity alone”.  That observation was consistent with evidence which established that the applicant had significant support.  Further, nothing in the reasons supports a conclusion that QCAT erred in its ultimate conclusions by reason of that observation.

Ground 11

  1. [98]
    The applicant submits that QCAT erred at law and in fact in misconstruing and giving insufficient weight to the applicant’s apology.  That submission is to be rejected for two reasons.
  2. [99]
    First, QCAT specifically referred to the applicant’s apology.  The weight to be given to it was a matter for QCAT.
  3. [100]
    Second, in circumstances where the applicant had been found to have repeatedly, over a number of years, failed to comply with his obligation of disclosure and the applicant at the time of the QCAT decision, was still under the same stressors said to be the reason for his chaotic life and those non-disclosures and the other circumstances of his impugned conduct, it was open to QCAT to conclude that notwithstanding that apology, there could be no confidence that the applicant would follow the appropriate course of action in the future, consistent with the applicant then being a fit and proper person to hold a practising certificate.
  4. [101]
    Such a conclusion was consistent with the evidence as a whole.

Ground 12

  1. [102]
    The applicant submits that QCAT erred in failing to give proper analysis of the character references filed in support of the applicant.
  2. [103]
    There is no substance to this submission.  QCAT rightly observed that the character references provided by solicitors and clients related to the applicant’s competence.  However, the impugned conduct went to character, not competence.  Those references were to be considered in that light.
  3. [104]
    The references provided by two King’s Counsel, were expressly treated differently by QCAT.  However, their contents were to be weighed in the context of the evidence as a whole.  Once QCAT had made its findings, there was no error in QCAT’s conclusion that notwithstanding the opinions expressed by those two King’s Counsel, the applicant was not a fit and proper person to hold a practising certificate.

Conclusions

  1. [105]
    The applicant has not established any error of fact or law in QCAT’s decision.
  2. [106]
    Further, a consideration of the evidence as a whole supports a conclusion that QCAT’s decision that the applicant was not a fit and proper person to hold a practising certificate as a barrister, was the correct and preferable decision.
  3. [107]
    As no error has been shown and a real review of the record as a whole supports a conclusion that QCAT’s decision was correct, the appeal must be dismissed.
  4. [108]
    The applicant submits that having regard to the evidence that since QCAT’s decision, the applicant’s serious outstanding criminal charges have been resolved either by acquittals, or withdrawal of the charges, this Court ought to find that the applicant is now a fit and proper person to hold a practising certificate, as the stressors said by QCAT to still exist in the applicant’s life, now no longer exist.
  5. [109]
    Whilst this Court can receive and act on that evidence,[14] it is not appropriate for this Court to determine that the change of circumstances supports a conclusion that the applicant is now a fit and proper person to hold a practising certificate.
  6. [110]
    The change of circumstances, although significant and resulting in the removal of what were significant stressors said to have led to the applicant having such a chaotic personal and professional life, does not mean automatically that the applicant would now be found to be a fit and proper person to hold a practising certificate as a barrister.
  7. [111]
    Such a conclusion is properly to be made by the respondent, upon application in the approved form and having regard to the disclosure of any relevant suitability matters.  One such suitability matter may be the outcome of any report by the applicant’s trustee in bankruptcy, as to the circumstances of that bankruptcy.

Orders

  1. [112]
    The Court orders:
  1. Leave to appeal granted.
  2. The appeal be dismissed.
  3. There be no order as to costs.

Footnotes

[1]  AB 1391/10–40.

[2]  AB 312.

[3]  AB 195.

[4]  AB 1145 at [26].

[5]  AB 58 at [67].

[6]  AB 60 at [78].

[7]  AB 60 at [80].

[8]  AB 36–38.

[9] Warren v Coombes (1979) 142 CLR 531 at 551.

[10]  [2024] QCA 126 at [23]–[24].

[11] Reef House Property Pty Ltd v Commissioner of Liquor and Gaming Regulation [2024] QCA 121 at [63], citing Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419.

[12]  [2002] NSWSC 548 at [42].

[13]  AB 1437/38–46.

[14]  QCAT Act ss 153, 154.

Close

Editorial Notes

  • Published Case Name:

    Di Carlo v Bar Association of Queensland

  • Shortened Case Name:

    Di Carlo v Bar Association of Queensland

  • MNC:

    [2025] QCA 143

  • Court:

    QCA

  • Judge(s):

    Boddice JA, Freeburn J, Sullivan J

  • Date:

    01 Aug 2025

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QCAT 53009 Dec 2024Application to review decision of bar association refusing to renew practising certificate; decision confirmed and application dismissed: Bradley J.
Notice of Appeal FiledFile Number: CA 60/2507 Jan 2025Application filed.
Appeal Determined (QCA)[2025] QCA 14301 Aug 2025Application for leave to appeal granted; appeal dismissed: Boddice JA, Freeburn and Sullivan JJ.
Application for Special Leave (HCA)File Number: B26/202526 Aug 2025Application for special leave to appeal filed.

Appeal Status

Appeal Determined (QCA) Special Leave Sought (HCA)

Cases Cited

Case NameFull CitationFrequency
Di Carlo v Bar Association of Queensland [2024] QCAT 530
1 citation
Jump To
Cite 1 - [2024] QCAT 530
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
1 citation
Jump To
Cite 1 - (1979) 46 FLR 409
Reef House Property Pty Ltd v Commissioner of Liquor and Gaming Regulation [2024] QCA 121
2 citations
Jump To
Cite 1 - [2024] QCA 121
Cite 2 - [2024] QCA 121
Wang v Hur [2024] QCA 126
2 citations
Jump To
Cite 1 - [2024] QCA 126
Cite 2 - [2024] QCA 126
Wardell v New South Wales Bar Association [2002] NSWSC 548
3 citations
Jump To
Cite 1 - [2002] NSWSC 548
Cite 2 - [2002] NSWSC 548
Cite 3 - [2002] NSWSC 548
Warren v Coombes (1979) 142 CLR 531
2 citations
Jump To
Cite 1 - (1979) 142 CLR 531
Cite 2 - (1979) 142 CLR 531
Warren v Coombes (1979) HCA 9
1 citation
Jump To
Cite 1 - (1979) HCA 9

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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