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- Unreported Judgment
Legal Services Commissioner v Warren QCAT 289
Legal Services Commissioner v Warren  QCAT 289
Legal Services Commissioner
Occupational regulation matters
21 July 2016
15 August 2016
THE TRIBUNAL ORDERS THAT:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the respondent was a legal practitioner – where the applicant investigated a third party complaint against the respondent – where a disciplinary application was brought on the basis of the third party complaint – whether the disciplinary application was misconceived.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – where the applicant seeks to strike out disciplinary proceedings against her – whether the disciplinary application is an abuse of investigatorial power – whether the disciplinary application is misconceived and deceptive – whether the proceedings are outside the tribunal’s jurisdiction.
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS – VEXATIOUS PROCEEDINGS – where the disciplinary application was pursued on and off for eight years – whether the disciplinary proceedings are unfairly prejudicial and vexatious due to extreme unexplained delay.
Legal Profession Act 2007 (Qld) ss 432, 433, 443, 452, 491
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 47,48
APPEARANCES and REPRESENTATION (if any):
Mr M Nicolson instructed by the Legal Services Commissioner.
REASONS FOR DECISION
- This is a counter-application in response to a disciplinary proceeding (proceeding) by the Legal Services Commissioner (commission) against the applicant under s 452 of the Legal Profession Act 2007 (Qld) (LPA).
- The orders applied for in the counter-application against the commission are for the dismissal or striking out of the proceeding under ss 47 and 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- The applicant’s net is cast wide enough to embrace nearly every available ground, but her major contention is that the proceedings are beyond the tribunal’s jurisdiction because they are (a) an abuse of investigative and “prosecutorial” power and procedures denying her sufficient particulars of the charges and withholding access to documents helpful to the legal practitioner’s defence, (b) unfairly prejudicial and vexatious due to extreme unexplained delay in progress between receipt of the third party complaint in 2007 and filing charges in 2015 and (c) deceptive and misconceived.
- For the applicant to succeed, the tribunal (not her) has to consider that the proceeding is frivolous, misconceived, lacking in substance, or otherwise an abuse of process or, alternatively, that the commission is acting in a way that necessarily disadvantages the applicant by not complying with the LPA or QCAT Act, attempting to deceive the tribunal or conducting the proceeding vexatiously.
- The discretion to terminate proceedings early is not lightly exercised and summary disposal applications are not the occasion for entering into a complicated examination of evidence or other matters that should be resolved at trial. Rather, the power is intended to nip in the bud proceedings that are unworthy of serious attention, harassing, unfair, oppressive or hopelessly devoid of merit. It is reserved for putting a stop to cases that should never have been started in the first place and are just clogging up the system and wasting finite administrative and judicial resources.
- The application was heard over a day solely on the basis of the evidence filed in the proceeding by the commission in proof of the two alleged disciplinary charges supplemented by oral submissions.
- The applicant is a lawyer who also owns a lot in a managed unit complex at Albion Heights. In an ex parte court application to enforce an inspection order by a BCCM adjudicator granting her access to certain controversial body corporate records in 2007, the applicant read and relied on allegedly misleading statements in supporting affidavits.
- Another charge of misleading conduct relates to allegedly deceptive submissions to the presiding magistrate based on the alleged misrepresentations in the affidavit.
- The ex parte enforcement order was subsequently set aside for fraud. The body corporate’s legal representative later complained about the applicant’s alleged professional misconduct to the commission.
- The commission conducted an investigation on and off for eight years before referring the matter to the tribunal under s 452 LPA.
The so-called jurisdictional point
- The applicant submits that the commission fails to meet the conditions and criteria for starting tribunal proceedings and that the tribunal lacks jurisdiction to hear and decide them because:
- the third party complaint was not authorised by the body corporate;
- the commission should have dismissed the complaint under s 432 LPA due to the complainant’s failure to provide or verify required information;
- the unreasonable and unexplained delay in progressing the investigation since 2007 combined with personal difficulties including her father’s death in 2008 and mother’s infirmity have a serious prejudicial effect on her;
- the commission had no statutory power to request or require information in a third party complaint and knowingly exceeded or abused the power of this office by:
- (a)purporting to act under s 433(1) LPA;
- (b)trying to compel the applicant to provide information in forms under ss 443(2),(3) and (4) LPA she was not legally obliged to provide;
- (c)threatening disciplinary action for non-compliance with notices, despite the contrary provisions of s 491 LPA which relieve her of the disclosure obligations in relation to confidential communications or privileged information for an investigation where the client is the complainant or consents to its release.
- the commission breached its own complaints handling performance criteria and standards;
- the commission’s investigation was defective because it is clear from their omission from the brief of evidence that the body corporate’s legal submissions nor the complainant’s affidavits of 10 and 14 August 2007 which cast doubt on the complaint’s veracity informed the commission’s referral discretion;
- not pleading all relevant information; especially matters favourable to the applicant;
- not conducting thorough enquiries or a timely investigation;
- engaging an “unlawful operator” to serve the disciplinary proceedings contrary to the LPA.
Findings and conclusions
- I find that the complainant had sufficient standing to make the complaint in 2007. The commission had the authority to receive it and a duty under the LPA to act on it.
- I do not consider that the referral proceeding is, wholly or in part, frivolous, vexatious, misconceived or lacking in substance. There are triable liability issues and evidence that, prima facie, is capable of making out each charge of misleading professional conduct.
- Nor do I think that any substantial procedural breaches or other litigation conduct having the effect of unnecessarily disadvantaging the applicant in the proceeding have been demonstrated. I am not satisfied that the way the Commission conducted the investigation or made the decision to prosecute exceeded or abused its statutory functions and powers.
- The commission must investigate a complaint in the circumstances mentioned in ss 436(1) and (2). As an investigative entity, it may require a full explanation from an Australian legal practitioner subject of a disciplinary investigation under s 443 and the production of documents in the practitioner’s custody that are not protected by a duty of confidence or privilege that have not been waived and do not have a self-incriminatory effect or one that jeopardises an indemnity policy of insurance. Non-compliance without a reasonable excuse may constitute professional misconduct.
- Nothing the commission did in the course of the investigation has been shown to be unlawful, improper or unfair.
- The application for tribunal orders under s 452 was regularly commenced; albeit after the lapse of eight years. The tribunal has the jurisdiction and statutory duty to hear and make findings on each allegation in the proceeding under s 453 LPA.
- My only reservation is the potential prejudice to the applicant in hearing eight year old misconduct allegations. Although a long unexplained delay can, of itself, imply forensic disadvantage, the applicant has not identified any specific prejudice or shown that, for delay alone, the proceedings are abusive or incurably unfair. Moreover, although it does not excuse the delay, the applicant’s own prevarications – either by design or in effect – significantly prolonged the investigation.
- The proceedings are principally documentary-based and do not depend much on the recollections of adverse witnesses except perhaps the body corporate manager who has already sworn affidavits which may be denied and said by the applicant to have been recanted as still admissible as evidence of the truth in tribunal proceedings, subject, of course, to discretionary exclusion on policy or fairness grounds.
- The applicant is a formerly practising lawyer with an apparently good grasp of the relatively small number of issues to be decided and is more than capable of protecting her interests.
- Accordingly, the counterclaim application to dismiss or strike out the proceedings is dismissed.
- Published Case Name:
Legal Services Commissioner v Warren
- Shortened Case Name:
Legal Services Commissioner v Warren
 QCAT 289
15 Aug 2016