Pope v Bar Association of Queensland
[2015] QCAT 305
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- Unreported Judgment
- Pope v Bar Association of Queensland[2015] QCAT 305
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Pope v Bar Association of Queensland[2015] QCAT 305
Pope v Bar Association of Queensland[2015] QCAT 305
CITATION: | Pope v Bar Association Of Queensland [2015] QCAT 305 |
PARTIES: | Marshall Earl Pope (Applicant/Appellant) |
v | |
Bar Association Of Queensland (Respondent) |
APPLICATION NUMBER: | OCR123-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 4 August 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Justice Thomas, President |
DELIVERED ON: | 5 August 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – PRACTISING CERTIFICATES – REFUSAL TO ISSUE – where Bar Association of Queensland refused to renew practising certificate – where applicant applied for review of that refusal – where applicant applied for stay of the refusal until review is determined – where applicant is a declared bankrupt – where applicant not subject to disciplinary proceedings – whether to grant an order staying the operation of reviewable decision Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 22 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 King v Queensland Law Society Incorporated [2012] QCAT 489 Legal Services Commissioner v Baker (No.1) [2005] QCA 482 New South Wales Bar Association v Stevens [2003] NSWCA 95 Robb v The Law Society of the Australian Capital Territory, unreported, Federal Court, No ACT G34 of 1996, 21 June 1996 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Savage, D. QC |
RESPONDENT: | McLeod, C. of Bartley Cohen Lawyers |
REASONS FOR DECISION
- [1]Mr Pope applies for:
- directions for an expedited hearing of his substantive application; and
- a stay of the Bar Association of Queensland’s resolution with the effect that his current practising certificate will remain until his substantive application for review is resolved.
- [2]The application for directions has been resolved by consent.
- [3]The application for a stay cannot be resolved by consent as it involves the exercise of a discretion, but the application is not opposed by the Bar Association.
Discussion
- [4]The power of the Tribunal to grant a stay is not in issue. Relevantly, s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) provides:
- (1)The tribunal may, on application of a party or on its own initiative, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started under this Act.
- (2)The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following –
- (a)the interests of any person whose interests may be affected by the making of the order or the order not being made;
- (b)any submission made to the tribunal by the decision-maker for the reviewable decision;
- (c)the public interest.
- [5]It is well accepted that before granting a stay, the Tribunal must also take into account the applicant’s prospects of success in the review proceedings, the effect of any stay on them, and whether irremediable harm may be suffered if a stay is not granted.[1]
- [6]As to the applicant’s prospects of success, it is a matter for the applicant to demonstrate that there is a good arguable case. The applicant must also demonstrate that the balance of advantage and disadvantage favours the grant of a stay.[2]
- [7]The Bar Association does not oppose the application and does not submit that Mr Pope does not have prospects on the review. The outline of argument for Mr Pope points out that the prima facie complaints in the grounds for review are not met with a response from the Bar Association.[3]
- [8]The assessment of the case on review is a preliminary assessment of the strength of the case, bearing in mind that the proceedings are at an early stage and it is impossible to undertake a detailed assessment of the prospects.
- [9]Mr Savage drew attention to the various letters which were issued by the Bar Association, particularly the show cause letter, dated 1 June 2015, as compared with the reasons for decision outlined in the information notice forwarded to Mr Pope on 24 July 2015. Mr Savage submitted that a comparison of these communications, sent before and after Mr Pope provided information in response to requests from the Bar Association, suggests that the Bar Association failed to take into account Mr Pope’s explanation.
- [10]The final outcome will depend upon the evidence but at this stage, I conclude that there is a sufficiently arguable case.
- [11]
- [12]In professional misconduct cases, it has long been acknowledged that the protection of the public is the paramount consideration. As was said by Finn J in Robb v The Law Society of the Australian Capital Territory:[6]
“…this is not the usual instance of civil litigation in which the question is whether a reason is there to hold a successful party out of the benefit of a judgment…until the appeal is heard. [The] “reason” must be considered, not in the context of a judgment giving a benefit to a litigant, but rather as one designedly made to protect both the public and the reputation of the profession”.
- [13]It is also well established that, in legal disciplinary proceedings, a stay should not be granted lightly, particularly where there is a need to protect the public and to maintain public confidence. It therefore follows that in cases involving lawyers and their right to practice, the factors that would justify a stay must be such as to outweigh the public interest, which is to be afforded particular significance.[7]
- [14]The applicant must show a cogent reason for a stay and does not succeed in doing this by merely showing that the applicant would be unable to practice until the final resolution of the matter.[8]
- [15]In this case, in terms of protection of the public and the broad public interest considerations, Mr Savage has made submissions that:
- The allegations against Mr Pope involve no risk to the public – they are not allegations of professional misconduct or dishonesty in the sense of conduct directly related to legal practice.
- There has been no hearing, where evidence has been tested and reviewed, which has led to adverse findings against Mr Pope.
- There is evidence of irremediable prejudice, not just to Mr Pope but to third parties. Those third parties include creditors which will be deprived of payments which are made under Mr Pope’s current arrangements (including the Australian Taxation Office), clients whose briefs will necessarily be returned if a stay is not granted, and Mr Pope’s wife and family who will lose the benefit of Mr Pope’s support.
- There is no evidence of any prejudice or risk to the community (such as trust account breaches as identified in other cases).
- Mr Pope has been a barrister since 1980 and has an unblemished record of practice at the Bar.
- Mr Pope immediately notified the Bar Association of the event of insolvency and has fully cooperated with the Bar Association. This is to be contrasted with the matter of Stevens in the New South Wales Court of Appeal.[9]
- Since notice was given of the insolvency event, Mr Pope has been allowed to practice (for a period of around 7 months) without any incident which is adverse to the interests of the public.
- [16]In short, Mr Savage submits on behalf of Mr Pope that no material supports a view that any person will be benefited by not reinstating Mr Pope’s practising certificate and, rather, the materials suggest (compellingly) that any person who can be identified will be detrimentally affected in a way that the detriment will not be capable of remedy.[10]
- [17]Mr Pope points to factors which go beyond the mere fact that he will be unable to practice, and outlines disadvantages which will be suffered by others than himself. This is to be contrasted with the decision in King v Queensland Law Society Incorporated.[11]
- [18]In the circumstances, I conclude that:
- Mr Pope’s appeal is sufficiently arguable.
- Mr Pope has demonstrated a cogent reason for a stay beyond merely asserting that he will be unable to practice. If the stay is not granted, irretrievable disadvantage will flow to persons other than Mr Pope, including creditors and clients.
- The interests of persons whose interest may be affected by the making of the order or the not making of the order favour the making of the order.
- In terms of the public interest, there is no suggestion that there is any danger to the public in allowing a stay of the decision. There is no allegation against Mr Pope which involves dishonesty or any obvious danger to the public. There is no reason, in terms of protection of the public, why a stay should not be granted.
- The Bar Association, being the decision maker, has not opposed the application.
- Because of the directions being made for an expedited hearing of the substantive application, the stay will be over a limited period of time.
- [19]I order that the decisions of the Bar Association of Queensland, made on 20 July 2015, cancelling the Applicant’s local practising certificate for 2014/2015 on which the Applicant had been holding over because the Bar Association did not consider the Applicant to have shown that he was a fit and proper person to continue to hold a local practising certificate, be stayed with the effect that the Applicant will continue to hold that practising certificate until this matter (OCR123-15) has been resolved by agreement or by order of this Tribunal or until other earlier order of this Tribunal.
- [20]I direct, by consent, that:
- The Respondent must file in the Tribunal two copies and give to the Applicant one copy of its response by 21 August 2015.
- The Applicant must file in the Tribunal two copies and give to the Respondent one copy of his statement of evidence by 4 September 2015.
- The Respondent must file in the Tribunal two copies and give to the Applicant one copy of its statement of evidence by 18 September 2015.
- The Application is listed for a compulsory conference at Brisbane on a date not before 25 September 2015.
Footnotes
[1] King v Queensland Law Society Incorporated [2012] QCAT 489 at [12].
[2] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 at [14].
[3] Applicant’s Outline of Argument, handed up 4 August 2015,paragraph 12.
[4] QCAT Act s 22(4)(a).
[5] Ibid s 22(4)(c).
[6] Unreported, Federal Court, No ACT G34 of 1996, 21 June 1996.
[7] Legal Services Commissioner v Baker (No.1) [2005] QCA 482 at 28 per Chesterman J.
[8] Ibid.
[9] New South Wales Bar Association v Stevens [2003] NSWCA 95.
[10] Paragraph 14 of the outline.
[11] [2012] QCAT 489.