Legal Services Commissioner v Bosscher (No 2)
[2016] QCAT 413
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- Unreported Judgment
- Legal Services Commissioner v Bosscher (No 2)[2016] QCAT 413
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Legal Services Commissioner v Bosscher (No 2)[2016] QCAT 413
Legal Services Commissioner v Bosscher (No 2)[2016] QCAT 413
CITATION: | Legal Services Commissioner v Bosscher (No 2) [2016] QCAT 413 |
PARTIES: | Legal Services Commissioner (Applicant) v Michael Frederick Bosscher (Respondent) |
APPLICATION NUMBER: | OCR063-14 |
MATTER TYPE: | Occupational Regulation matters |
HEARING DATE: | 22 April 2016 |
HEARD AT: | On the papers |
DECISION OF: | Justice CRR Hoeben Assisted by: Mr Ken Horsley, Legal Panel Member Dr Margaret Steinberg AM, Lay Panel Member |
DELIVERED ON: | 11 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PENALTY AND COSTS – finding of unsatisfactory professional conduct – public reprimand – whether practitioner should pay Commissioner’s costs – whether special circumstances exist – practitioner not required to pay all of Commissioner’s costs. Legal Profession Act 2007 (Qld) ss 456(1), 462 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 Attorney-General (Queensland) v Francis [2008] QCA 243 Legal Services Commission v Madden (No 2) (2009) 1 Qd R 149 Legal Services Commissioner v Scott (No 2) [2009] LPT 9 |
APPEARANCES: | |
APPLICANT: | Mr GR Rice QC for the Legal Services Commissioner |
RESPONDENT: | Mr PJ Davis QC for Mr Bosscher |
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
Nature of proceedings
- [1]On 27 May 2016, the Tribunal found the Respondent guilty of unsatisfactory professional conduct. Submissions on penalty and costs were ordered. It had previously been agreed between the parties and the Tribunal that following the conclusion of the primary proceedings, the question of penalty and costs could be dealt with on the papers.
Applicant’s submissions
- [2]The Applicant submitted that the Tribunal may make such order as it thinks fit including one or more of the orders in s 456 of the Legal Profession Act (2007) (‘the Act’). Relevantly, the section provides:
“456(1) If, after the Tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct the Tribunal may make any order as it thinks fit including any one or more of the orders stated in this section …”
- [3]It was common ground that the purpose of disciplinary penalties was set out by the Queensland Court of Appeal (Holmes and Fraser JJA, White J) in Legal Services Commission v Madden (No 2) [2008] QCA 301; (2009) 1 Qd R 149 at [122]:
“[122] Disciplinary penalties are not imposed as punishment but rather in the interests of the protection of the community from unsuitable practitioners. In determining what order the Court should now make, regard should primarily be had to the protection of the public and the maintenance of proper professional standards. That is reflected in the expression of the main purposes of ch 4 (“complaints and discipline”) in the 2007 Act, which include “to promote and enforce the professional standards, competence and honesty of the legal profession”, (c) “to provide a means of redress for complaints about lawyers”, and (d) “to otherwise protect members of the public from unlawful operators.”” (Citations omitted)
- [4]Deterrence of other practitioners is also a relevant consideration.
- [5]The Applicant identified the following matters as indicative of the seriousness of the Respondent’s conduct:
- The scandalous nature of the material tendered.
- The material was known by him to have been baseless.
- Failure to ensure that there was a legitimate forensic purpose for the tender of the material when he knew that it contained baseless allegations against a senior Judge.
- The client’s interests could have been easily advanced without the tender of the scandalous material.
- Tendering the scandalous material in a highly publicised commission of inquiry when it was foreseeable that the scandalous material could be further publicised by the media with the attended likelihood of prejudice to public confidence in the administration of justice.
- [6]While accepting that the Respondent was otherwise a person of good character and that the conduct comprised a single lapse in an otherwise “distinguished career”, the Applicant stressed the seriousness of the lapse and submitted that there had not subsequently been any insight into or remorse for the lapse.
- [7]The orders sought by the Applicant for the Respondent’s unsatisfactory professional conduct were:
- A public reprimand; and
- A fine in the order of $7,500.00 - $10,000.00; and
- The payment by the Respondent of the Applicant’s costs.
- [8]The Applicant submitted that a fine was appropriate, given the seriousness of the conduct and that the amount should be substantial having regard to those matters and the deterrent aspect of penalty.
- [9]In relation to costs, the Applicant relied upon the provisions of s 462(1) of the Act:
“(1) A disciplinary body must make an order requiring a person whom it has found to have engaged in prescribed conduct to pay costs including costs of the commissioner and the complainant unless the disciplinary body is satisfied exceptional circumstances exist.”
- [10]The Applicant submitted that there were no exceptional circumstances in this case justifying an order departing from s 462(1).
Respondent’s submissions
- [11]The Respondent submitted that there was a legitimate forensic purpose for tendering those parts of the Rofe Audit which related to the Commissioner. He submitted that he genuinely believed that the contents of the Rofe Audit were relevant and that he needed to put before the Commissioner the full scope of the matters to be raised by his client, Mr Lindeberg, on a subsequent occasion. The Respondent expected that Mr Lindeberg would appear on his own behalf at the substantive hearing and would seek to raise all the matters in the Rofe Audit. It was never his intention to impugn the integrity of any person named in the Rofe Audit, in particular the then Justice Holmes. The Respondent submitted that it was not his intention or purpose to bring the administration of justice in Queensland into disrepute. He submitted that he tendered the Rofe Audit for the limited purposes identified in his primary submissions at the hearing because in his opinion it was relevant to the issue of the Commissioner’s apprehended bias.
- [12]The Respondent noted that in the exchanges between himself and the Commissioner when the material was tendered, he was careful not to allege that any person was guilty of misconduct and made it clear that his submissions were limited to informing the Commissioner of the areas into which Mr Lindeberg would ask the Commission of Inquiry to venture. The Respondent submitted that he assumed that given that the subject matter of the inquiry included alleged sexual offending against children, the Commission of Inquiry would itself regulate in some way the release and publication of sensitive material. He submitted that this was the background to his lapse of judgment in tendering the scandalous material. He submitted that another factor contributing to that lapse was the short period of time he had to prepare the application after it became clear that Mr Rofe QC would not appear.
- [13]The Respondent submitted that the administration of justice in Queensland and the standing of the Chief Justice were not seriously injured by the publication of the parts of the Rofe Audit which contained the scandalous material. Only a single article was published in a newspaper and the Chief Justice was mentioned only once in that article. The allegations against her were not specified and the article itself called the claims “unsubstantiated” and said of the Rofe Audit “The document does not claim wrongdoing on the part of the named individuals, but calls for an examination of the matter”. The Respondent submitted that the allegations soon disappeared from public discussion overtaken by other evidence heard by the Commission of Inquiry.
- [14]The Respondent relied upon his previous good character. He was born in 1969 and is currently aged 47. While completing his law degree as a student at the University of Queensland, he was a fulltime employee at the Crown Solicitor’s Office. In March 1994 he was admitted to practice as a solicitor of the Supreme Court of Queensland.
- [15]Shortly after being admitted to practice, the Respondent was employed by a firm of solicitors and practised almost exclusively in the area of criminal law. In May 1995 he formed a partnership and until 2011 was a partner in the firm of Ryan & Bosscher Lawyers. Since 2011 he has been an employee of Bosscher Lawyers, an incorporated legal practice.
- [16]The Respondent has been an Accredited Specialist in Criminal Law in New South Wales since 2004 and qualified in Queensland at the inception of the program in about 2006. He served for numerous years as a member of the Queensland Law Society Criminal Law Committee and the Queensland Law Society Specialist Accreditation Criminal Law Committee.
- [17]The Respondent has served as Deputy Chairman of AFL Queensland (voluntary) since 2006. He has served as President of the Kenmore Bears Junior Football Club (voluntary) since 2013. He is a Committee member and active volunteer of the Serendipity Animal Rescue Farm.
- [18]The Respondent agreed with the principles relevant to penalty set out by the Applicant. He submitted that the proceedings themselves have had a punitive effect upon him. He submitted that it was no small thing for an experienced solicitor, regarded as a leading practitioner in his field, to be the subject of a formal complaint by a serving Judge of the Court of Appeal (as the Chief Justice was when the complaint was first made). He submitted that the proceedings have limited or delayed his career options to pursue other employment or qualify to practise at the Bar. He submitted that the disciplinary proceedings have attracted publicity to a greater extent than was generated by the tender of the Rofe Audit. The Tribunal’s decision of 27 May 2016 has been published on the website of the Supreme Court Library. He has incurred the costs of being legally represented in the proceedings by a solicitor and Queen’s Counsel.
- [19]The Respondent submitted that the nature of the disciplinary breach that was found is of importance. There was no allegation, let alone any finding, that he acted dishonestly or maliciously or with any intention to cause harm to any person. He submitted that his only intention was to promote his client’s interests in the way that he thought at the time was appropriate.
- [20]The Respondent submitted that there is no suggestion that he is an unsuitable practitioner, nor that the public requires protection to any greater extent than that he learn from this experience and not repeat his mistake. He submitted that a public reprimand was sufficient for both personal and general deterrence, as well as the maintenance of standards in the profession. A financial penalty would serve no proper purpose.
- [21]The Respondent accepted that the Tribunal must make an order requiring a person who it is found to have engaged in prescribed conduct to pay costs unless the Tribunal was satisfied that exceptional circumstances exist. He submitted that exceptional circumstances did exist in his case.
- [22]The first matter relied upon by the Respondent is a letter of 18 June 2014 from his solicitors to the Applicant which stated that if the charge were amended to allege only unsatisfactory conduct, then he would admit the charge. That proposal was rejected by the Applicant on the basis that such an amendment would be “an attempt to usurp the Tribunal’s power”.
- [23]By letter dated 27 June 2014 the Respondent’s solicitors replied to the effect that the drafting of charges was within the Applicant’s power and pointing out that this was made clear in Legal Services Commissioner v Madden (No 2).
- [24]On 27 May 2015 the Respondent’s solicitors again wrote to the Applicant referring to the earlier correspondence and again advising that a charge of unsatisfactory professional conduct would be accepted by him. By letter dated 3 June 2015 the Applicant refused to amend the Discipline Application.
- [25]The Respondent submitted that the result of the Tribunal’s decision on 27 May 2016 was in accordance with the proposal put forward by him. He submitted that it would be unjust in the circumstances for him to bear the Applicant’s costs of the proceedings between 27 June 2014 and the Tribunal’s decision of 27 May 2016 in circumstances where the Applicant had adopted an erroneous view of the law and had not taken steps to expeditiously and efficiently resolve the matter before the Tribunal by accepting his proposal.
- [26]The Respondent submitted that the practical effect was to prolong the proceedings at great expense, including an unnecessary oral hearing. He submitted that this was not simply a case in which an offer to settle was rejected by a party who failed to obtain a better outcome than was offered. The distinguishing feature was the failure by the Applicant to properly consider his proposal because of an inexplicable misunderstanding of its proper function. He submitted that this was a truly exceptional circumstance and justified a departure from the usual course as to costs.
- [27]The Respondent did not seek to be indemnified for any of the costs he has incurred in the proceedings. Even so, he submitted that the fact that he has experienced a significant costs burden was relevant to whether or not the circumstances of this matter were such as to be truly exceptional.
- [28]The Respondent submitted as an additional consideration that the Investigation Report prepared by Ms Ingram, on behalf of the Applicant, on 23 January 2014 was misconceived in that Ms Ingram proceeded on the assumption that the Respondent had himself made allegations against the then Justice Holmes. As a result, the charges proposed by Ms Ingram were breaches of the professional rules concerned with the making of allegations. The Respondent submitted that the proposed charges and Ms Ingram’s analysis of the evidence were misconceived.
- [29]The Respondent submitted that if he were unsuccessful in his primary submission as to costs, he should not be obliged to pay for the costs associated with the preparation of the fundamentally misconceived Investigation Report of 23 January 2013.
- [30]As an additional matter, the Respondent submitted that a Directions Hearing on 23 March 2016 was listed at the request of the Applicant because it had briefed Mr Bell QC to appear in the matter knowing that Mr Bell QC was not available on the day the matter had been set down for hearing. The Respondent submitted that it would be unjust for him to have to bear the costs of the Applicant briefing Mr Bell QC and any costs associated with the Directions Hearing of 23 March 2016 in those circumstances.
Consideration
Penalty
- [31]There is considerable force in the submissions as to penalty by the Respondent. When regard is had to the purpose of disciplinary penalties and the particular circumstances of this matter, there is little utility in the imposition of a fine. As was submitted by the Respondent, he has already been the subject of publicity as a result of the discipline proceedings, he has personally incurred substantial legal costs and no question of the protection of the public arises. Importantly there was no malicious intent in his conduct. Accordingly, the Tribunal has concluded that the purpose of disciplinary penalties would be adequately served by a public reprimand.
Costs
- [32]The issue between the parties on costs is whether the circumstances identified by the Respondent can properly be regarded as “exceptional” so as to give rise to the exception in s 462(1) of the Act.
- [33]On that issue the consideration of the meaning of “exceptional circumstances” by Fryberg J in Legal Services Commissioner v Scott (No 2) [2009] LPT 9, which in turn was taken from Attorney-General (Queensland) v Francis [2008] QCA 243 is helpful. There his Honour said:
“19 The Act does not identify what is meant by “exceptional”. The Commissioner relied on a passage from Attorney-General (Queensland) v Francis”
“The issue of what are exceptional circumstances in a particular case is one that depends on judicial determination. It is fruitless to attempt to define what exceptional circumstances might be but a practical working approach to it is to be found in the following passage from R v Kelly (Edward) [2000] QB 198 at 208 where Lord Bingham of Cornhill CJ had to construe the term in a statutory context. He said:
“We must construe “exceptional” as an ordinary familiar English adjective and not as a term of art. It describes a circumstance which is such as to form an exception which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare but it cannot be one that is regularly or routinely or normally encountered.”
Although that was said in relation to different legislation I am prepared to apply it in the present context.”
- [34]By reference to the Act, as explained in Legal Services Commission v Madden and the contents of the letter from the Applicant (Ms Ingram) of 18 June 2014, it is clear that Ms Ingram’s understanding of the powers of the Applicant were unduly restrictive and incorrect as a matter of law. It was clearly within power for the Applicant to have proceeded against the Respondent only on the basis that he was guilty of unsatisfactory professional conduct. The true position at law was set out, albeit briefly, in the letter from the Respondent’s Solicitors of 27 June 2014.
- [35]The fact that Ms Ingram expressed an incorrect understanding of the Applicant’s power in the letter of 25 June 2014 does not end the matter. Her error was pointed out within a matter of days. The real issue is whether the Applicant’s failure to accept the Respondent’s offer of a finding of unsatisfactory professional conduct in the light of the conclusion ultimately arrived at by the Tribunal, amounts to an exceptional circumstance. The Tribunal is of the opinion that it does not.
- [36]These were not civil proceedings where an unaccepted Offer of Compromise can produce costs consequences where the result is less advantageous than the offer. These were disciplinary proceedings. The subject matter was serious, involving as it did a serving Justice of the Queensland Court of Appeal. There was the potential to diminish public confidence in the administration of justice. These were not just proceedings inter partes, there was a public interest involved. While the Applicant had investigated the complaint, it did not have the advantages of the Tribunal, which had before it comprehensive written and oral submissions. Given the Applicant’s state of knowledge in 2014, minds could reasonably differ as to the likely result before the Tribunal.
- [37]There was no evidence of how often in matters concerning legal practitioners an offer is made by the practitioner to accept a finding of unsatisfactory professional conduct, rather than have a matter proceed before the Tribunal. It is, however, unlikely to be exceptional or unusual. In some circumstances the factual background to a complaint will be so straightforward as to allow the Applicant to determine without much difficulty whether the impugned conduct of the legal practitioner amounts to unsatisfactory professional conduct or professional misconduct. This was not one of those cases. In the particular circumstances of this matter, it was not unreasonable for the Applicant to decline to reformulate the charge and to allow the Tribunal to perform its adjudicatory function. It follows that the Tribunal is not satisfied that the Applicant’s refusal to accept a finding of unsatisfactory professional conduct in satisfaction of the complaint when that was the result ultimately achieved, amounts to exceptional circumstances.
- [38]The situation is somewhat analogous to the exercise of prosecutorial discretion in criminal matters. A refusal to downgrade a charge in circumstances where the final result is a lesser offence or an acquittal is certainly not something which is “out of the ordinary course, unusual, special or uncommon”. While the analogy is only partially appropriate, the Tribunal is of the opinion that what occurred here can be characterised in a similar way, i.e. not a circumstance which was “out of the ordinary course, unusual, special or uncommon”.
- [39]The two further matters relied upon by the Respondent are in a different category. It is undoubtedly correct that the Investigation Report of Ms Ingram, dated 23 January 2013 was based on a fundamental misunderstanding of the facts, and that the proposed charges were inappropriate. The charges which were ultimately brought against the Respondent and which were before the Tribunal, were very different.
- [40]There was no evidence before the Tribunal of how often inaccurate Investigation Reports are prepared by the Applicant. In the absence of such evidence, and applying the principle of regularity, the Tribunal is prepared to accept that reports which were as inaccurate as this one are comparatively rare so that the preparation and dissemination of this Report did constitute an exceptional circumstance.
- [41]That does not mean that no order for costs should be made against the Respondent. It does mean that the Tribunal is not bound to order him to pay all of the Applicant’s costs of the whole proceedings. The Respondent should not have to pay any costs relating to the preparation of that Investigation Report.
- [42]The final matter raised by the Respondent is whether he should be required to pay the costs associated with the briefing of Mr Bell QC in circumstances where it was known at the time that he would be unable to appear on the date fixed for the hearing of the charges.
- [43]Relying upon a general knowledge of briefing practices, the Tribunal is of the opinion that if the scenario relied upon by the Respondent did occur, i.e. senior counsel was briefed to appear in circumstances when it was known that he would be unavailable on the hearing date, that is a circumstance which is sufficiently unusual as to amount to exceptional circumstances. The Tribunal is of the opinion that if that factual scenario is made good, the Respondent should not be required to pay the costs associated with the briefing of Mr Bell QC.
Conclusion
- [44]It follows that the orders of the Tribunal are:
- The Respondent is to be publically reprimanded in respect of the unsatisfactory professional conduct identified in the Reasons of the Tribunal handed down on 27 May 2016.
- The Respondent is to pay the Applicant’s costs incurred in the bringing of disciplinary proceedings against him with the following qualifications:
- Such costs are not to include any costs associated with the preparation of the Investigation Report by Ms Ingram, dated 23 January 2013.
- Such costs are not to include any costs associated with the briefing of Mr Bell QC, including the costs of the Directions Hearing on 23 March 2016.