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Legal Services Commissioner v Bosscher QCAT 75
Legal Services Commissioner v Bosscher  QCAT 75
Legal Services Commissioner
Michael Frederick Bosscher
Occupational regulation matters
22 April 2016
Justice CRR Hoeben
Mr Ken Horsley, Practitioner Panel Member
Dr Margaret Steinberg AM, Lay Panel Member
27 May 2016
PROFESSIONS AND TRADES – LAWYERS – COMPLAINT AND DISCIPLINE – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where Applicant charged the Respondent with tendering a document before a Commission of Inquiry which contained scandalous and untrue allegations against a serving Judge – whether tender relevant – whether relevance covered by the discipline application – whether tender amounted to conduct which was likely to a material degree to diminish public confidence in the administration of justice – whether tender amounted to the failure to exercise proper forensic judgment – practicality of alternatives to tender of document.
Australian Solicitors Conduct Rules 2012
Commissions of Inquiry Act 1950 (Qld)
Constitution of Queensland Act 2001
Legal Profession Act 2007 (Qld)
Attwells v Jackson Lalic Lawyers Pty Ltd  HCA 16
Legal Services Commission v Madden  QCA 301; (2009) 1 Qd R 149
Mr GR Rice QC for the Legal Services Commissioner
Mr PJ Davis QC for Mr Bosscher
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
Nature of Application
- The application is made under s 452 of the Legal Profession Act 2007 (Qld) (‘the Act’). The Applicant alleges that on the particulars of charge set out below, the Respondent is guilty of professional misconduct and/or unsatisfactory professional conduct.
- Upon a finding that the Respondent is guilty of professional misconduct and/or unsatisfactory professional conduct the Applicant seeks the following orders:
- Disciplinary orders pursuant to section 456 of the Act.
- Any such further or other orders or directions as may be just.
- The Respondent pay the Applicant’s costs of the application.
PARTICULARS OF CHARGE
- The Commissioner alleges that the following charge constitutes professional misconduct and/or unsatisfactory professional conduct:
- That on 24th July 2012 the Respondent, in an appearance before a Commission of Inquiry, engaged in conduct which amounted to unsatisfactory professional conduct or professional misconduct pursuant to the Legal Profession Act 2007 (Qld).
1.1 On the 24th of July 2012, the Respondent appeared before the Queensland Child Protection Commission of Inquiry conducted by Mr TF Carmody SC ("the Commission of Inquiry") in relation to an application that Mr Carmody recuse himself from sitting on the inquiry as Commissioner;
1.2 During his appearance, the Respondent tendered an outline of argument with a number of attachments which became exhibit 5 in the proceedings. The attachments included a document entitled "The Rofe QC Audit of the Heiner Affair" ("the Rofe Audit");
1.3 The Rofe Audit was referred to in the outline. It, to the Respondent's knowledge, included allegations that Justice Holmes, in her position (at the time as a barrister) as Counsel assisting the Forde Commission of Inquiry into the abuse of children in Queensland institutions ("the Forde Inquiry"), was guilty of the offence of official corruption pursuant to s 87 of the Criminal Code (Qld);
1.4 The Rofe Audit also, to the Respondent's knowledge, stated that Justice Holmes should be removed from the bench of the Supreme Court;
1.5 The Respondent was aware that Justice Holmes was a former barrister and a serving Justice of the Supreme Court;
1.6 The Respondent did not, at the time of the tender, attempt to redact from the Rofe Audit any passages relating to Justice Holmes, nor did he submit that there should be any restriction on the publication of the Audit;
1.7 The Commission of Inquiry was, to the Respondent's knowledge, a public proceeding and allegations contained in the Rofe Audit were subsequently published in The Australian newspaper on 11 August 2012. This was reasonably foreseeable at the time of the tender;
1.8 By his tendering of the Rofe Audit, the Respondent released into the public arena the allegations therein, including, as described in the Rofe Audit, the 'alleged prima facie criminal counts', and including the commentary under the heading 'Count 53' that Justice Holmes had committed the offence of official corruption;
1.9 There were no reasonable grounds for a belief that available material by which the allegation of Rofe QC concerning Justice Holmes could be supported provided a proper basis for it. In particular;
- (i)The Rofe Audit took no, or insufficient, account of the fact that the terms of reference in the Forde Inquiry did not include the shredding of documents which was the subject of the alleged official corruption;
- (ii)The Rofe Audit took no, or insufficient, account of whether the terms of reference of the Forde Inquiry were limited to the State Childrens Act 1991, Childrens Services Act 1965 and the Juvenile Justice Act 1992;
- (iii)The Rofe Audit made no reference to any evidentiary material which bore on an essential element of such a suggested charge, namely whether anything that Justice Holmes did or did not do as Counsel Assisting to the Forde Inquiry was done 'corruptly';
- (iv)To the Applicant's knowledge, neither Mr Rofe QC nor the Respondent had sought a response from Justice Holmes in relation to the allegations contained in the Rofe Audit prior to the Respondent tendering the Rofe Audit to the public hearings of the Commission of Inquiry;
1.10 The above conduct:
- (i)Was conduct which was likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice by enabling the publication of untrue allegations about a member of the judiciary;
- (ii)Was a failure to exercise the forensic judgement called for by the circumstances, where a proper forensic judgement would have resulted in one or more of the following alternatives;
- (A)the non-tender of the report; alternatively
- (B)the tendering of only so much of the report as concerned Commissioner Carmody; alternatively
- (C)tendering of the report in a redacted form; alternatively
- (D)tendering the report but requesting that the Commission of Inquiry not publish same or publish an appropriately redacted version thereof.
- (iii)amounts to unsatisfactory professional conduct or professional misconduct pursuant to the Legal Profession Act 2007 (Qld).
- Most of the particulars in the Particulars of Charge were not in dispute, i.e., 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8 and 1.9. It follows that the Tribunal is relieved of the obligation to make findings in relation to those matters.
- It is also apparent that particulars 1.10(i) and 1.10(ii) are based on the Australian Solicitors’ Conduct Rules being Rules 5.1 and 17.1.
- Rule 5.1 relevantly states:
“5.1 A solicitor must not engage in conduct in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
5.1.1 Be prejudicial to or diminish the public confidence in, the administration of justice …”
- Rule 17.1 relevantly states:
“17.1 A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.”
Additional factual background
- Despite the concessions by the Respondent, it is necessary to set out additional background matters so that there can be a proper appreciation of what occurred.
- There had been allegations concerning sexual offences committed at the John Oxley Youth Detention Centre in the late 1980’s. The Queensland State Government of the time appointed former magistrate, Mr Heiner, to inquire into particular allegations. Concerns emerged about the validity of Mr Heiner’s appointment and consequent possible lack of protection of material gathered by him as would normally be the case pursuant to the Commissions of Inquiry Act 1950 (Qld). It was feared that without such statutory protection, what was being gathered was defamatory material. The response of the government at the time (acting on advice) was to cease the Inquiry and shred the relevant offending material. This shredding had been criticised in some quarters and became known generically as the “Heiner Affair”.
- Justice Holmes was a Counsel Assisting in the Forde Inquiry into the Abuse of Children in Queensland Institutions in 1998 – 1999 (the Forde Inquiry). Mr Kevin Lindeberg was a long time advocate in relation to matters involving abuse of children in government institutions. Mr Lindeberg wanted the Forde Inquiry to investigate the shredding of documents gathered for the purpose of the Heiner Inquiry. Justice Holmes as Counsel assisting, took the view and advised the Commissioners of the Forde Inquiry that the shredding of documents was not within the terms of reference of the Inquiry.
- On 1 July 2012 the Honourable TF Carmody SC (as he then was) was appointed to make full and careful inquiry in an open and independent manner of Queensland’s child protection system (the Commission of Inquiry). Included in Commissioner Carmody’s terms of reference was reference 3(e) which was directed to allegations of criminal conduct associated with government responses into historic child sex abuse in youth detention centres. It appears from its terms that reference 3(e) was specifically directed to the Heiner Affair.
- Term of reference 3(e) was as follows:
“(e) Reviewing the adequacy and appropriateness of any response of, and action taken by, Government to allegations, including any allegations of criminal conduct associated with government responses, into historic child sexual abuse in youth detention centres.”
- The Respondent represented Mr Lindeberg before the Commission of Inquiry in which Mr Lindeberg was granted leave to appear. The Respondent made an application to Commissioner Carmody that he recuse himself from considering the matters raised by reference 3(e). In support of that application the Respondent provided written submissions and tendered as part of exhibit 5, the Rofe Audit. The tender was in the form of a USB stick. The Rofe Audit document then became part of the record of the Commission of Inquiry and could be obtained from the Commission upon application.
- The Rofe Audit document is extensive and comprises in excess of 2,500 pages. Mr Lindeberg commissioned Mr Rofe QC, a Sydney barrister, to prepare the document. His commission was to examine in detail the full nature of the Heiner Affair and to make recommendations as to any potential “prima facie” acts of criminal conduct that may have occurred.
- The Rofe Audit contained allegations against a large number of people, including Justice Holmes personally. Included in those accusations was an alleged breach of s 87 of the Criminal Code, i.e. official corruption, asserting that as Counsel Assisting that she “did corruptly confer an advantage on another in her handling of abuse of children allegations … by failing to act honestly, impartially and in the public interest”.
- Later in the document, there is an allegation that “the accused … is a Justice of the Queensland Court of Appeal … As the allegations against Justice Holmes involve prima facie criminal conduct pursuant to s 87 of the Criminal Code giving rise to judicial misbehaviour within the meaning of s 61 of the Constitution of Queensland Act 2001 – removal from office for misbehaviour or incapacity, it is proper for their requirement to be considered as a matter of first priority”.
- There is an allegation that Justice Holmes engaged in “a deliberate act of perverting what was plainly stated and had the obvious effect of protecting certain members of the Beattie Government from potential serious criminal charges”.
- There is an allegation that Justice Holmes as Counsel Assisting had engaged in an “act of wilful blindness at the material times knowingly advantaged another … We submit that she may therefore have placed herself in prima facie breach of s 87 of the Criminal Code which in turn opens up serious questions concerning her Honour’s fitness to sit on the Queensland Court of Appeal ..”.
- The accusations against Justice Holmes comprise in excess of 25 pages and are to similar effect as the material set out above. The import and effect of those allegations against her Honour in the Rofe Audit need to be taken into account with the Respondent’s concession that they were baseless and known by him to be baseless.
- The Respondent’s application to Commissioner Carmody had two limbs. The first was to persuade the Commissioner that the scope of the term “government” where used in term of reference 3(e) was sufficiently extensive to take in the position of Crime Commissioner on the Queensland Crime Commission which he had previously held. The argument proceeded that as a Commissioner, he had failed to investigate the Heiner Affair. That first argument turned on the scope of the word “government” as used in the term of reference.
- The second limb of the argument was to persuade the Commissioner that there was apprehended bias on his part which would disqualify him from conducting that part of the Inquiry which concerned that term of reference.
- The nature of the argument and the context in which the tender of the Rofe Audit occurred is best understood from the exchanges between the Respondent and Commissioner Carmody.
“COMMISSIONER: Now, Mr Bosscher, having read the material produced by the CMC, do you still persist in your application?
MR BOSSCHER: Thank you, Commissioner, I do. My instructions are to proceed.
COMMISSIONER: Right. All right then. Proceed away.
MR BOSSCHER: Thank you. As a preliminary matter I filed with the Commission on Friday, or Mr Lindeberg did, in fact, an outline of submissions. Attached to that outline were a number of documents. I would seek to tender those to form an exhibit as part of this particular application.
COMMISSIONER: When you say, “a number of documents”, how many?
MR BOSSCHER: There were nine.
COMMISSIONER: Nine. Okay, thank you.
MR BOSSCHER: Well, there were nine attachments. Some of those attachments comprised a number of documents, but they were clearly marked as individual attachments to my outline.
COMMISSIONER: Okay. Well, the position paper, as I will call it, and the annexures will be admitted and marked Exhibit 5 in these proceedings.” (Attachment to Ms Twinn’s affidavit, pp21.41-22.10)
- At pages 23.1-24.48 of the attachment to Ms Twinn’s affidavit is the following:
“MR BOSSCHER: Again, Commissioner. Mr Commissioner, as was foreshadowed last week by Mr Rofe QC, this is an application requesting that you as Commissioner recuse yourself from hearing Term of Reference 3(e) … The sole focus for determination for this Commission in relation to Mr Lindeberg’s application is solely in relation to term 3(e) and is to be confined to that particular term.
Mr Commissioner, it is impossible to make such an application as this without going into some little detail, and I stress “little detail” in relation to the background of this particular matter, the matter that is commonly known in the public domain as either the Heiner Affair or Shreddergate.
COMMISSIONER: Yes, that would be helpful because I – you know, when everybody talks about the Heiner Affair, I’m not sure if they’re all talking about the same thing, so I would like to know what it means in the context of your submissions.
MR BOSSCHER: Certainly Commissioner. Probably the best way to articulate it is the material contained in the attachments to my outline would contain all of the relevant material that we would say constitute the Heiner Affair, but a little explanation on to the back – in relation to the background of it will assist.
Commissioner, Term of Reference 3(e), as you know, requires you to consider and to make full and careful inquiry in an open and independent manner of Queensland’s child protection system with respect to reviewing the adequacy and appropriateness of any response of and action taken by Government to allegations including any allegations of criminal conduct associated with Government responses into historic child sexual abuse in youth detention centres. Mr Copley SC when he opened his address to this Commission last week firmly put the Heiner Affair on the agenda and he affirmed its relevance for consideration under term 3(e) when he addressed you, and I could take you to what he said, but I don’t see the necessity of doing that.
COMMISSIONER: No, I remember what he said. Are you going to address – see, I see that there are two issues here. They’re related and they can’t be severed. One is the scope of the Term of Reference, that is, what does it require me to look into and report on.
MR BOSSCHER: Yes.
COMMISSIONER: Then the separate but related question is, is anything I’ve done in the past in my capacity as Crime Commissioner going to embarrass me in performing that role or in some way undermine community confidence in the findings and authority of the Commission because of apprehended bias? All right. They’re the two limbs of your argument, aren’t they?
MR BOSSCHER: Yes, your Honour.
COMMISSIONER: Okay. Can you address me on the scope of the Term of Reference first because until you decide that, you can’t know what the relevance of anything I did as Crime Commissioner is, can you?
MR BOSSCHER: Well, that was foreshadowed by Mr Copley in his opening remark to you, Commissioner, or the opening remarks to the Commission and the term “Government” was not – there is no definition section attached to the order that forms the Term of Reference of this Commission and so the definition or to use your Commissioner’s word the scope of the term “Government” is one that is relevant. It is to be submitted on behalf of Mr Lindeberg in support of this application that a narrow reading of the term “Government” to simply be confined to elected officials and public servants would be, with respect, reading that far too narrowly in all the circumstances and that the term – particularly given what this Commission is required to do in total, the term must be read to include other Government agencies and statutory authorities and it is submitted on behalf of Mr Lindeberg that the Crime Commission and your role as the Queensland Crime Commissioner at a point in time is something that must come under the Terms of Reference 3(e), as would all other Government agencies either direct or quasi Government agencies such as Corrective Services, then CJC, the now CMC, Department of Family Services and its various names over the course of time, but you couldn’t properly consider Term of Reference 3(e), nor could you properly consider many of the other Terms of Reference with respect if the term “Government” was given its narrow interpretation.”
- At page 25 of the attachment to Ms Twinn’s affidavit is the following:
“COMMISSIONER: It is confined to that and then buried in that is a direction to investigate whether a Government’s response or action was allegedly criminal in nature. Now, as I understand Mr Lindeberg’s propositions, it is that the shredding of the documents collected by Magistrate Heiner in the course of his inquiry into the rape at the John Oxley Youth Detention Centre amounted to criminal interference in the process and began a cover up – Government-wide cover-up of the information that Mr Heiner’s documents disclosed. Is that right?
MR BOSSCHER: In summary, yes, that is right.
COMMISSIONER: So there are three concerns your client has got. One is that the rape incident - the original rape incident was never properly investigated by law enforcement.
MR BOSSCHER: That's so.
COMMISSIONER: That's so. The second one is that the Heiner documents were shredded, so therefore other than Mr Heiner nobody - and those who were involved in the inquiry, the general public is denied access to the information contained in those documents.
MR BOSSCHER: That is so.
COMMISSIONER: And to the extent that those documents embarrassed Government, the shredding of them meant that that embarrassment was never going to be brought to light.
MR BOSSCHER: That is also correct in its scope, yes.
COMMISSIONER: Yes. The third thing is the shredding didn't only destroy evidence, but it triggered a cover-up which over the years has involved everybody, I think, from the Premier up to the Governor; is that right?
MR BOSSCHER: That is - not that it has involved, Mr Commissioner, that it may have involved.
COMMISSIONER: All right.
MR BOSSCHER: Mr Lindeberg doesn't prejudge effectively the rights or wrongs of what's occurred, what he brings to this Commission and through the Heiner Affair in his pursuit is the request that somebody make those determinations as to whether those events have occurred.
COMMISSIONER: That's right, that's why I called them his concerns.
MR BOSSCHER: Yes, they are his concerns.”
- In his written submissions filed with Exhibit 5, the Respondent said:
“1 This is an application made to the Queensland Child Protection Commission of Inquiry (QCPCI) and “the Commission” that Commissioner the Honourable Tim Carmody SC, recuse himself from hearing and considering Term of Reference 3(e) as contained in the Commissioner of Inquiry Order (No 1) 2012 …
6 It is submitted on behalf of the applicant that Mr Carmody SC should not proceed in relation to Term of Reference 3(e) as he is unable to fulfil his statutory duty on the grounds that:
a) There is a reasonable apprehension of bias; and/or
b) Mr Carmody SC, by virtue of previous professional activity, may be called upon to effectively judge his own conduct.
14 To be able to adequately consider this matter the Commission must be aware of the background and nature of the series of events now commonly referred to as the “Heiner Affair”. The Commission needs also to be aware of the chronology of subsequent events, considerations, hearings and developments that have occurred in the Heiner Affair.
17 To assist in that activity Mr Lindeberg, in October of 2005, engaged Mr David Rofe QC, of the Sydney Bar, to examine all of the relevant material collected in relation to the Heiner Affair and to effectively conduct an audit of the matter.
18 Mr Rofe QC was admitted to the Bar in NSW in 1956 and took silk in 1974.
19 One of the functions to be conducted by Mr Rofe QC, after considering all of the material, was to advise on potential criminal activity that may have occurred during the lifetime of the Heiner Affair.
20 In August 2007 Mr Rofe QC completed his audit and presented same to Mr Lindeberg.
21 A copy of the report is provided as Attachment 2 to this outline. (Given the size of the document it is provided in electronic format but a hard copy can be provided upon request.)”
- In relation to Particular of Charge 1.10(i) the Applicant submitted that it was not in dispute that the allegations against Justice Holmes in the Rofe Audit, tendered by the Respondent in the Commission of Inquiry, were defamatory, scandalous and untrue. The Applicant submitted that because the allegations were made against a senior sitting judge they had a tendency to be prejudicial to or to diminish the public confidence in a member of the judiciary and thus the administration of justice.
- The Applicant submitted that there were a number of factors which supported such a finding. The tender took place in an environment where wider reporting was foreseeable and likely. The tender was to a Royal Commission, newly established, with a high degree of public interest in it. The media had taken a significant interest in the Commission of Inquiry. The Applicant submitted that even though the Rofe Audit had previously been placed in the public domain, its tender in the Commission of Inquiry enabled a wider publication of the document because of the topicality of the subject matter of the Commission of Inquiry.
- The Applicant submitted that while the Respondent did not assert the truth of the allegations against Justice Holmes, the Rofe Audit was tendered as a document authored by an experienced silk. His name was given prominence in the material that was tendered and the allegations carried with them the status of his position and experience to an ordinary reader. The allegations against Justice Holmes alleged a charge of corruption on a prima facie basis and asserted that it would be proper for consideration to be given to her removal from office. To a reader untrained in the law, the fact that allegations of criminal corruption were made concerning a senior serving judge by someone of pre-eminence was likely to diminish confidence in the office holder and in the administration of justice. The Applicant submitted that while a trained lawyer might have serious reservations about the content of the Rofe Audit, it outwardly had the appearance to members of the public of a serious and impressive study undertaken by someone well credentialed. The Applicant submitted that this increased the likelihood of the allegations in the Rofe Audit being given credence by members of the public with the consequence of a diminution of confidence in the office holder and therefore the administration of justice.
- The Applicant submitted that it did not matter that the Respondent was not the author of the Rofe Audit and did not endorse the allegations against Justice Holmes. The Applicant submitted that it was sufficient that the Respondent tendered the Rofe Audit, including as it did the baseless allegations against Justice Holmes, knowing that it was likely that those allegations would be picked up by the media and further promulgated. The Applicant submitted that as a matter of common sense, an advocate does not normally tender documents in support of an argument unless the advocate relies on those documents. The Applicant submitted that it was not the intention behind the tender of the Rofe Audit, including as it did the allegations against Justice Holmes which was relevant to this particular of charge, but the likely effect of that tender.
- The Applicant submitted that while the Respondent did not in terms endorse the truth of the contents of the Rofe Audit, its form could not be ignored. The document, insofar as it involved Justice Holmes, was framed as “Count 53” and had the appearance of a draft indictment providing particulars of alleged misconduct describing Justice Holmes as “the Accused”. The Applicant submitted that the form of the Rofe Audit insofar as it was directed to Justice Holmes undermined the submissions of the Respondent that neither he nor his client were endorsing the truth of the allegations but were going no further than saying that the officials referred to in the Rofe Audit may have been involved in criminal misconduct.
- The Applicant submitted that even though the tender of the Rofe Audit was not directed at Justice Holmes, the allegations in it against her would be likely to prejudice and diminish public confidence in her as a judicial officer. The Applicant submitted that this was particularly so when legal terminology, such as “prima facie”, was used in the allegations against her, i.e. it was implicit in the allegations against Justice Holmes that the author was saying that there was a case to be answered by Justice Holmes in relation to these allegations. The Applicant submitted that the suggestion that the conduct of Justice Holmes justified her removal from the bench could hardly be other than prejudicial or reduce confidence in the administration of justice.
- In relation to Particular of Charge 1.10(ii) the Applicant submitted that the tender of the Rofe Audit was irrelevant to the submission put by the Respondent and accordingly was inadmissible. In the alternative, even if the Rofe Audit had some peripheral relevance, it was not necessary for it to be tendered. The Applicant submitted that the fact of the Rofe Audit’s existence and the relevance of the Heiner Affair to the application for the Commissioner to recuse himself could have been briefly dealt with in summary form in submissions (as in fact happened). As an alternative, the Applicant submitted that if the Rofe Audit were relevant the exercise of proper forensic judgment required that those parts relating to Justice Holmes not be tendered and that one of the options set out in Particular of Charge 1.10(ii)(B), (C) and (D) be utilised.
- The Applicant submitted that the Rofe Audit had no relevance to the first limb of the Respondent’s argument in the recusal application, i.e. that the word “government” in term of reference 3(e) included the position held by Commissioner Carmody at an earlier point in time as a Commissioner of the Criminal Justice Commission. The Applicant submitted that this was a question of construction which did not involve a consideration of any part of the Rofe Audit. The Applicant submitted that the correctness of that submission could be seen from the transcript of the exchanges between the Respondent and Commissioner Carmody on that issue. The Applicant submitted that the conduct of Justice Holmes, as Counsel Assisting in the Forde Inquiry, could not and did not fall within the terms of reference of the Commission of Inquiry and was irrelevant to the recusal application.
- The Applicant submitted that Justice Holmes’ position as Counsel Assisting in the Forde Inquiry was irrelevant to the second limb of the Respondent’s recusal argument, i.e., that there was a reasonable apprehension that Commissioner Carmody might be biased in some way because of his own inaction in respect of the Heiner Affair when he was a member of the Criminal Justice Commission. The Applicant submitted that the Respondent should have recognised the nature and limitations of his submissions as to the recusal of the Commissioner. Had he done so, and being aware that scandalous material involving Justice Holmes was part of the Rofe Audit, he should have tailored his tender to fit the argument which he was advancing. The Applicant submitted that because of the way in which the oral argument was advanced, that part of the Rofe Audit which involved Justice Holmes was not relevant.
- The Applicant accepted that the Respondent’s written submissions did refer to the Heiner Affair. They did so, however, simply as a matter of historical fact. The Applicant submitted that it did not emerge from a perusal of the written submissions what forensic purpose was being served by the tender of the Rofe Audit and in particular, that part of the Rofe Audit relating to Justice Holmes. The Applicant submitted that all that was required was what actually occurred, i.e. that the Respondent provide to the Commissioner a description of the Heiner Affair and its history. The Applicant submitted that it did not require 2,500 pages to achieve that purpose, particularly since a chronology of events was the first attachment which was tendered by the Respondent. The Applicant submitted that there was either no forensic purpose or no sufficient forensic purpose in tendering the 2,500 pages of the Rofe Audit if all that was intended was to inform the Commissioner about the fact of the Heiner Affair. The Applicant submitted that some greater discrimination was called for in the tender of the Rofe Audit and that the degree of discrimination which was applied to its tender was below the standard of reasonable competence of a legal practitioner making the recusal application.
- The Applicant concluded his oral submissions on the issue as follows:
“… the applicant contends that the tender involved defamatory and unjustified allegations which the respondent either knew or ought to have known that that’s what it was, knew objectively the material was unnecessary and irrelevant to the application. It was unnecessary and irrelevant to the argument as the respondent framed it and the tender should have been tailored to such argument as was actually advanced. The applicant contends further that the publishing of the material carried with it a real and foreseeable prospect of wider reporting. The tender was made in the early days of a newly-established commission of inquiry in relation to which it might be presumed that there was a significant degree of public interest.” (Tribunal transcript, 12.39)
The Respondent’s submissions
- The Respondent submitted that it was not open to the Applicant to rely on matters of relevance since this issue had not been raised in the particulars of charge. The Respondent relied upon the decision of Legal Services Commission v Madden  QCA 301; (2009) 1 Qd R 149. The Respondent submitted that this case was authority for the proposition that the statutory context which enabled these proceedings to be brought, confines the Tribunal’s jurisdiction to the particular allegations made by the Legal Services Commissioner in the discipline application. The Respondent submitted that since no allegation of irrelevance was set out in the particulars of charge, such a matter could not be raised before the Tribunal. He submitted that the issue was a jurisdictional one and that the Tribunal does not have jurisdiction to hear an allegation which was not set out in the particulars of charge in the discipline application.
- The Respondent submitted that by reference to the particulars of charge, there was no allegation that the Rofe Audit was irrelevant, only that it should not have been tendered because it contained scandalous material. The Respondent submitted that there was no jurisdiction to embark upon a consideration of whether or not the document should have been tendered because it was irrelevant. He submitted that this was an entirely different allegation to those made and a consideration of that question was beyond the jurisdiction of the Tribunal.
- The Respondent submitted that it was of significance that when the Rofe Audit was tendered in the Commission of Inquiry, there was no objection to the tender. There was a purpose articulated for the tender, i.e. that it was relevant to the Heiner Affair and the fact of the Heiner Affair was relevant to the recusal application. On that issue, the Respondent referred to the exchange between himself and the Commissioner which is set out at  hereof. The Respondent submitted that this was in the context of the Commissioner inquiring as to the scope of the potential conflict of interest that might arise if he did not recuse himself. The Respondent noted that in the concluding part of the exchange between himself and the Commissioner, set out in  hereof, he made it clear to the Commissioner that he and his client were not saying that the matters in the Rofe Audit report were true but that they may be true and therefore required investigation.
- The Respondent submitted that because the draft charges originally prepared following the Commissioner’s investigation were effectively abandoned, it was necessary for the Tribunal to look very carefully at how these particulars of charge were drafted. He submitted that there was now no allegation that he alleged anything in the Commission of Inquiry but only that he tendered a document which contained allegations. He submitted that what the present charge really concerned was advocate’s privilege. There is no allegation of irrelevance. The only allegation is that the Rofe Audit should not have been tendered because it contained scandalous material. He submitted that the document was clearly relevant and that there is no allegation in the particulars of charge that it was not. The Respondent submitted that if those propositions were accepted, the Applicant’s case must be that there is a positive obligation upon an advocate when tendering a relevant and admissible document to make an application for redaction or non-publication.
- The Respondent accepted that the Rofe Audit had the potential to inflict damage upon a third party. He submitted that this can happen when an advocate is properly representing his client. He submitted that the position should not be different even if the potential damage to the third party involved the criticism of a serving judge. He submitted that every time an appeal from the decision of a judge was filed, there is actual criticism of that judge. He submitted that the important question was to identify where the obligation to adjust or remove any damaging material from the tendered document emanates. This Respondent submitted that this question had been left unanswered.
- The Respondent submitted that it was the responsibility of Counsel Assisting the Commission of Inquiry to determine what documents placed before the Commission should be published. The Respondent submitted that Counsel Assisting had the responsibility of checking such documents and deciding whether or not to redact or remove any parts thereof. Accordingly, this was not the responsibility of a practitioner appearing before the Commission and tendering documents.
- In making that submission, the Respondent relied upon Procedural Guideline 4 of 2012 relating to the Commission of Inquiry which was Exhibit 1 to the affidavit of Kenneth Mackenzie, sworn 29 January 2016. That guideline relevantly provided:
“2(c) For the purpose of and to the extent necessary for the public reporting of proceedings of the Commission any authorised representative of a newspaper, magazine, radio station, online publication or television channel may inspect and take extracts from any book, document or writing tendered in evidence after it has been notified as available for inspection by Counsel Assisting subject to the condition that:
- (ii)Any part of the contents thereof indicated by Counsel Assisting as unsuitable for publication must not be published without the leave of the Commission itself. Such leave can be sought for example if there is a restriction which is believed to obstruct proper reporting of any matter of significance. Any application for leave should be made in writing in the first instance to the Executive Director of the Commission;”.
- The Respondent submitted that it was a decision of Counsel Assisting to make available for inspection the whole of the 2,500 pages comprising the Rofe Audit. The Respondent submitted that implicit in the fact of that publication was that a decision had been made by Counsel Assisting, whether negligent or otherwise, to publicise the document. In those circumstances, given the content of the guideline, there was no obligation on his part to redact any parts of what was a relevant and admissible document before tendering it in the Commission of Inquiry.
- In written submissions the Respondent submitted that at no time in the tender of the Rofe Audit did he or his client make any allegations against Justice Holmes and at no time did either he or his client assert the truth of those allegations. He submitted that the only sensible way to read particulars 1.6, 1.8 and 1.10 of the particulars of charge was that it is not alleged that the tender of the Rofe Audit per se constituted “unprofessional conduct or professional misconduct” but that the Commissioner’s case as charged is that an un-redacted copy of the Audit could be ethically tendered, but only if it were accompanied by a non-publication request. He submitted that it was implicit in the notice of charge that the use of the Rofe Audit document was a legitimate forensic exercise.
- The Respondent submitted that Rule 17 of the Australian Solicitors’ Conduct Rules can be ignored because he did not act as the “mere mouthpiece” of Mr Lindeberg in tendering the Rofe Audit. In addition, he made it clear that the truth of what was asserted in the Rofe Audit was not endorsed by either him or his client.
- The Respondent submitted that rule 5.1 of the Australian Solicitors’ Conduct Rules cannot be an exception to the advocate’s privilege. He submitted that there are many cases where submissions are legitimately made which might diminish confidence in the judiciary, e.g. in appropriate cases, bias or an apprehension of bias by a judicial officer can be submitted. He submitted that every advocate appearing for an appellant on an appeal from a judicial officer by way of re-hearing alleges error by a judicial officer and thereby implicitly criticises the judicial officer. The Respondent submitted that there is no suggestion that he acted other than bona fides and the Commissioner’s complaint is not against the tender of the Rofe Audit per se but the tender without an application for a non-publication order. He submitted that once the document was tendered, it was under the control of Commissioner Carmody and through him Counsel Assisting. He submitted that it was up to Commissioner Carmody and his staff to determine what part of the Rofe Audit, if any, ought be published. It was their decision to publish which caused the damage complained of.
- Section 418 of the Act defines “unsatisfactory professional conduct”. It includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonable competent Australian legal practitioner.
- Section 419 of the Act defines “professional misconduct”. It includes:
“(a) Unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
- (b)Conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise that in connection with the practice of law that would, if established justify a finding that the practitioner is not a fit and proper person to engage in the legal practice.”
- Section 420 of the Act provides that conduct consisting of a contravention of a relevant law (such as the Australian Solicitors Conduct Rules 2012) is capable of constituting either category of misconduct.
The Jurisdictional Issue
- There is an important preliminary issue, i.e. whether the Tribunal has jurisdiction to consider the question of the relevance of the Rofe Audit. The Tribunal has concluded that the issue of relevance is raised by the notice of charge and accordingly can be considered by it.
- Particular of charge 1.10(ii) raises squarely the inadequate exercise of proper forensic judgment in the tender of the Rofe Audit. It asserts without qualification that one of the matters which ought to have been considered was the non tender of the Report. That opens for scrutiny, by way of submission, on what basis that allegation can be supported. In any event, the issue is squarely stated and opened up. This then leaves as a matter for submission, both for and against, whether that allegation can be supported.
- The notice of charge does refer to the scandalous nature of part of the Rofe Audit. One reason for that is to give support to particular 1.10(i). The reference to that aspect of the tender does not otherwise serve as a limitation on what other bases might be relied upon to establish that the document ought not to have been tendered. It is not a fair reading of the notice of charge to say that what is set out in paragraphs 1.1 to 1.9 limits the basis on which it might be argued that the Rofe Audit should not have been tendered. In any event, it could not be submitted and has not been submitted that the scandalous material relating to Justice Holmes was in any way relevant to the recusal application.
- The notice of charge, so far as it characterises the tender of the material in particular 1.10(ii), does not limit itself to any particular basis. It does not limit itself to the ways in which it might be argued that the Rofe Audit should not have been tendered.
- It cannot be said that the Respondent was in some way taken by surprise by the argument as to relevance. In that regard paragraph 25 of the Applicant’s written submissions (prepared 4 August 2014) is directly on point. Issue was not joined on the point in that the Respondent in his written submissions (prepared 29 January 2016) chose to avoid the issue by taking the point which has been referred to. There was good reason for this. As was conceded by the Applicant in oral submissions, there was at best a peripheral relevance of some small part of the tender to the recusal application. It could not, however, be said that the material relating to Justice Holmes was relevant to any aspect of the recusal application made to Commissioner Carmody by the Respondent.
- Paragraph 25 of the Applicant’s written submissions raised the issue of relevance and how it should have been approached. In fairness to the Respondent, at no time did he submit that he was surprised that the issue had been raised.
- The Respondent submitted that the matter should proceed before the Tribunal on the basis that the Rofe Audit was both relevant and admissible. There were two bases for this submission. The first was that no objection had been taken to its tender and the second was that the document had peripheral relevance in that it referred to the Heiner Affair and it was the Commissioner’s inaction in relation to the Heiner Affair when on the Criminal Justice Commission which provided the reason for seeking his recusal.
- The only person who could object to the tender was Counsel Assisting. It is clear that at the time of the tender he was unaware of the content of the 2,500 pages electronically recorded on the USB stick and was relying on the assertion by the Respondent that it was relevant. His failure to object, therefore, carries little weight.
- If any part of the Rofe Audit was relevant, such relevance would have been on the limited basis referred to and would have applied to only a few of the pages which comprised the tender. Certainly no part of the material relating to Justice Holmes was relevant. It follows that if the tender or part of the tender, i.e. that which related to Justice Holmes was not relevant, it was not admissible. As was pointed out by the Applicant in oral submissions, all that was required to make out the recusal submission was a brief description of the Heiner Affair, not the tender of the 2,500 pages which comprised the Rofe Audit. It is not without significance that when making the recusal application the Respondent did not refer to any part of the Rofe Audit.
- An important part of the Respondent’s submissions was that at no time did he or his client endorse the contents of the Rofe Audit. What he submitted to Commissioner Carmody was that the Rofe Audit raised allegations which may be true and should be investigated. This submission is, with respect, somewhat disingenuous. While this is an answer to the charges which were foreshadowed in the Legal Services Commissioner’s investigation, it is not an answer to this disciplinary application and particular of charge 1.10(i).
- That particular of charge says nothing about personal belief on the part of the practitioner. It is concerned with the effect of the conduct, i.e. that to a material degree it had the potential to diminish public confidence in the administration of justice. The actus identified is the publication of scandalous allegations against a member of the judiciary. The effect of the tender of the Rofe Audit containing the allegations against Justice Holmes without any qualification had the potential to bring about that result, i.e. a diminution of public confidence in the administration of justice. The allegations were extremely serious, i.e. official corruption, corruptly conferring an advantage on a third party and were such as to constitute a breach of the Criminal Code and require the removal from office of her Honour. The allegations were in every sense of the word “scandalous”. It matters not that this material had already been released by Mr Lindeberg into the public domain. Their tender as part of the Rofe Audit in a highly publicised Commission of Inquiry made it not only reasonably foreseeable but almost inevitable that the allegations would be accessed and publicised by the media.
- It is no answer to that particular of charge that the robust representation of a client may on occasions damage a third party. This was not such a case. The damaging of a third party was in no way necessary to advance the argument being made, i.e. a recusal application. Similarly, the nature of the allegations and the circumstances in which they came into the public domain as a tender before the Commission of Inquiry are very different to the sorts of matters which are raised in an appeal against a judicial decision. The issue raised in particular of charge 1.10(i) is not the criticism of a finding in judicial proceedings but the effect on the administration of justice of the likely publication of scandalous allegations against a serving senior judge.
- It is no answer to particular of charge 1.10(i) to say that the responsibility for the publication of the whole of the Rofe Audit, including the allegations against Justice Holmes, was that of Counsel Assisting and that no responsibility should be borne by the Respondent. Such a submission amounts to an unjustified abrogation of responsibility by an advocate.
- The position of Counsel Assisting was an unenviable one. The subject matter of the Commission of Inquiry would almost certainly have involved the tender by interested parties of a substantial quantity of material. It would be very difficult for Counsel Assisting and the Commission of Inquiry staff, without the assistance of the legal profession, to examine every document tendered so as to make a determination of whether that document should be made available for inspection. In any event, even if there were some default on the part of Counsel Assisting and/or the staff of the Commission of Inquiry, this does not exculpate the Respondent from responsibility for what occurred.
- It is trite to observe that Courts rely implicitly on the expertise and candour of those who appear before them. Without the candour and assistance of the legal profession, no proceedings in any Court could proceed efficiently. Matters before the Courts often proceed by way of submissions from the bar table. The Bench must be able to have trust and confidence in those professionals who appear before them. Courts rely upon the legal professionals who appear before them to have vetted material and to only tender that which is capable of being relied upon. In criminal matters it is often impossible for hard pressed Prosecutors to carefully read all the material which is put before them in written form. They are rarely in a position to challenge defence material so presented. There is no reason why a Commission of Inquiry should not have a similar expectation of the legal profession.
- Counsel Assisting a Commission of Inquiry such as this one, even with the assistance of additional staff, would be equally hard pressed. Accordingly, it was necessary for both Counsel Assisting and the Commissioner to rely upon the candour and efficiency of the profession when documents were tendered. This is particularly so when a large quantity of documents such as 2,500 undifferentiated pages were tendered in electronic form.
- No assistance was provided by the Respondent to either Counsel Assisting or the Commissioner when the Rofe Audit was tendered. This was in circumstances where the Respondent was aware of the contents of the Rofe Audit and in particular, was aware that it included the scandalous allegations against Justice Holmes. He tendered the document in circumstances where he was aware of the publicity attending the Commission of Inquiry and knew, or ought to have known, that if the allegations against Justice Holmes became part of the public record of the Inquiry, serious damage could be caused to her reputation and thereby be prejudicial to or diminish the public confidence in the administration of justice. Despite that knowledge, the Respondent did nothing to alert either Counsel Assisting or the Commissioner to the existence of that scandalous material within the tender.
- Although particular 1.10(1) of the notice of charge involves a serious matter, the Tribunal is satisfied that the elements of that charge have been made out against the Respondent.
- There is an overlap between particular 1.10(i) and 1.10(ii) of the particulars of charge. The Respondent sought to answer particular 1.10(ii) by reference to rule 17.1 of the Australian Solicitors’ Conduct Rules upon which it was based. The Respondent submitted that because he did not “act as the mere mouthpiece of” his client, that rule and therefore the particular of charge, did not apply. Apart from the fact that particular 1.10(ii) is expressed in different terms to rule 17.1, the submission does not provide an answer to either.
- There is uncontradicted evidence to the effect that Mr Lindeberg’s instructions to the Respondent were to tender the Rofe Audit. If it be the case that the Respondent failed to exercise appropriate forensic judgment in tendering the Rofe Audit, he was in fact acting as the mere mouthpiece of the client. The Tribunal’s reading of rule 17.1, however, is that the vice to which the rule is directed is a failure by the solicitor to exercise an appropriate forensic judgment called for by the particular circumstances of the case in which he or she is involved. The rule sets out an illustration of such a failure, i.e. acting as the mere mouthpiece of the client. In any event, the Respondent is not charged with a breach of rule 17.1 in terms but with the matters raised specifically in particular of charge 1.10(ii).
- The Tribunal has already referred to why it concluded that the tender of the Rofe Audit was irrelevant to the recusal application and therefore inadmissible. If that conclusion is wrong, the matters set out in the notice of charge overwhelmingly establish a lack of proper forensic judgment in the Respondent tendering the Rofe Audit in the way in which he did.
- To tender in electronic form a document comprising 2,500 pages without indicating to either a Court or a Commission of Inquiry what parts of that material are relevant and identifying the issue to which it goes is of itself indicative of a failure to exercise proper forensic judgment. It imposes an unacceptable burden on a Court or a Commission to sort through the documents in order to identify what, if anything, is relevant to a fact in issue. In the circumstances of this matter, however, the situation was more serious. On this occasion the Respondent was well aware that within the material tendered were scandalous accusations against a senior sitting judge.
- It has not been suggested by the Respondent that those allegations had any relevance to any fact in issue in the recusal application to Commissioner Carmody. In those circumstances, despite the seriousness of the matter alleged, I am satisfied that the tender of the Rofe Audit without any of the qualifications suggested, in particular 1.10(ii), involved a failure to exercise proper forensic judgment. It is the Respondent’s knowledge of the existence of the scandalous material in the tender and the seriousness of the allegations which formed part of that scandalous material which render this failure to exercise proper forensic judgment to be of such seriousness as to attract the charge. Also relevant is the ease with which the promulgation of this material within the public domain could have been avoided. No submission has been made by the Respondent to the effect that any of the proposed alternatives, i.e. tendering only relevant material, redacting the scandalous material or requesting a non-publication order of the scandalous material were not able to be implemented by the Respondent.
- It follows that the Applicant has made out particulars of charge 1.10(i) and 1.10(ii).
- For completeness and because they were raised in either oral or written submissions, the Tribunal should say something about other matters submitted on behalf of the Respondent.
- The Respondent submitted that, in a way not otherwise particularised, the particulars of charge involved an attack on the principle of advocate’s privilege and that rules such as 5.1.1 and 17.1 of Australian Solicitors’ Conduct Rules should be read so as to avoid an attack on that privilege. I find it difficult to understand that submission. The privilege referred to is immunity from suit for negligence and defamation where the actions concerned occurred in or in relation to court proceedings. The privilege says nothing about any immunity from disciplinary proceedings. There is nothing in these proceedings which involves an attack on an advocate’s immunity from suit which was recently restated by the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd  HCA 16.
- The Respondent submitted that the charges were not made out because the tender was not directed at Justice Holmes. As already indicated, that submission is irrelevant. The issue is the effect of the public dissemination of the scandalous material, not the intention of the Respondent in tendering it.
- Since the charges have been made out, the final issue is whether the Respondent’s conduct amounts to unsatisfactory professional conduct or professional misconduct. It is on this issue that the intention of the Respondent is important. The Tribunal is of the opinion that for the reasons set out, the conduct of the Respondent in tendering the Rofe Audit containing as it did the scandalous material without taking any steps to prevent its dissemination to the public and knowing the likelihood of such dissemination taking place, fell short of the standard of competence and diligence that a member of the public was entitled to expect from a reasonably competent Australian legal practitioner. In other words, the Tribunal is satisfied that unsatisfactory professional conduct has been established.
- There remains an issue as to whether the Respondent’s conduct was such as to also amount to professional misconduct. The Tribunal has concluded that despite the seriousness of the failure by the Respondent and the serious consequences for a senior serving judge of the Queensland Supreme Court, the Respondent’s conduct giving rise to the charges does not amount to professional misconduct. The Respondent did not intend to harm Justice Holmes. The conduct involved a single episode in a distinguished career as a legal practitioner which commenced on 17 March 1994. The circumstances do not demonstrate a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence. There is no suggestion that there will be any repetition of the impugned conduct. It is the opinion of the Tribunal that the protection of the public does not require a finding against the Respondent of professional misconduct.
- At the commencement of the hearing, it was agreed that any submissions as to penalty would await the findings of the Tribunal on the issue of liability. It was accepted that no further hearing on that issue would be required and that it could be decided on the papers. Accordingly, the findings and orders of the Tribunal are:
- Particulars 1.10(i) and (ii) of the particulars of charge have been made out against the Respondent.
- In relation to the matters set out in the discipline application, the Respondent is guilty of unsatisfactory professional conduct.
- The Applicant is to file within 14 days of the date of these reasons, written submissions as to penalty including any costs questions. Such submissions should be no longer than six pages.
- The Respondent is to file and serve within a further 14 days his submissions in reply to those of the Applicant, also limited to no more than six pages.
- Published Case Name:
Legal Services Commissioner v Michael Frederick Bosscher
- Shortened Case Name:
Legal Services Commissioner v Bosscher
 QCAT 75
27 May 2016