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Adamson v Queensland Law Society Inc[2017] QCAT 1

Adamson v Queensland Law Society Inc[2017] QCAT 1

CITATION:

Adamson v Queensland Law Society Incorporated [2017] QCAT 001

PARTIES:

Mark Gordon Adamson

(Applicant)

v

Queensland Law Society Incorporated

(Respondent)

APPLICATION NUMBER:

OCR247-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

10 January 2017

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

DELIVERED ON:

11 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal orders that:

Upon Mr Adamson undertaking to the Queensland Law Society and to the Tribunal:

  1. To act only in the matters listed in the attached schedule and not provide any other legal advice in relation to any other matter.
  2. To meet at least three times each week with Mr Delaney and report to Mr Delaney as to the steps, which have been taken in relation to each of the matters in which Mr Adamson has completed work.
  3. Without delay, to inform the clients and Counsel briefed in relation to the matters in which Mr Adamson continues to act of the decision of the Queensland Law Society and of the terms of this order.
  4. Not to undertake any court appearances in relation to any of the matters in which Mr Adamson acts.

And upon Mr Delaney undertaking to the Queensland Law Society and to the Tribunal:

  1. To ensure that within Mr Delaney’s legal practice, Mr Adamson acts only in relation to the matters listed in the schedule.
  2. To ensure that the clients and Counsel briefed in relation to the matters in which Mr Adamson continues to act are, without delay, informed of the decision of the Queensland Law Society and of the terms of this order.
  1. To meet at least three times each week with Mr Adamson when Mr Adamson will report to Mr Delaney as to the steps, which have been taken in relation to each of the matters in which Mr Adamson has completed work with the aim of ascertaining whether any ethical issues have arisen with respect to any of the matters in which Mr Adamson is acting.
  2. On Friday of each week, to report in writing to Mr Smiley, General Manager professional Leadership Queensland Law Society Incorporated as to whether any ethical issues have arisen in relation to any of the matters being undertaken by Mr Adamson and if so to provide full details of such issues.

The decision of the respondent contained in the information notice dated 19 December 2016 is stayed until further order of the Tribunal.

The Tribunal further orders that the schedule not be published to any person other than the parties to these proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – where respondent refused to renew practicing certificate – where applicant sought stay of that decision

PRACTICE AND PROCEDURE – STAY OF DECISION – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where there is an arguable case – whether balance of advantage and disadvantage favours grant of stay – whether damage to innocent third parties can be prevented – whether public interest can be protected by giving of undertaking with conditions

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 22, 23, 33

Legal Profession Act 2007 (Qld) s 51

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254

King v Queensland Law Society [2012] QCAT 489

Legal Services Commissioner v Baker (No 1) [2005] QCA 482

Legal Services Commissioner v Madden [2008] QCA 52

New South Wales Bar Association v Stevens [2005] NSWCA 95

Robb & Anor v The Law Society of the Australian Capital Territory, unreported, Federal Court, number ACT G34 of [1996]

APPEARANCES:

APPLICANT:

Mr PL Hanlon of Counsel

Anthony Delaney Lawyers

RESPONDENT:

Ms G Hartridge of Counsel

Mr M Novakov of the Queensland Law Society

REASONS FOR DECISION

  1. [2]
    Mr Adamson is a legal practitioner who was admitted on 16 June 1999.[1]
  2. [3]
    The facts which gave rise to the decisions in the Federal Court against the applicant in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in Liq)[2] and Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in Liq) (No.2)[3]  led the respondent to make the decision under s 51(1)(b) and s 51(5)(b) of the Legal Profession Act 2007 (LPA) to refuse to renew a local practicing certificate for the 2016/2017 financial year as applied for by the applicant in an application of 31 May 2016.
  3. [4]
    The decision of the respondent was communicated to the applicant on 19 December 2016.  Thus, since 19 December 2016, the applicant has not held a local practicing certificate.
  4. [5]
    It is accepted that the application for review of the decision was made within the period of 28 days required under s 33(3) Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and s 51(9) LPA, so that QCAT has jurisdiction to hear these proceedings.
  5. [6]
    For the purpose of the current application, the applicant seeks to stay the decision of the respondent contained in the information notice dated 19 December 2016 wherein:
    1. The respondent determined that the applicant was not a fit and proper person to continue to hold an unrestricted employee practicing certificate; and
    2. The respondent decided not to renew the unrestricted employee practicing certificate of the applicant.

Agreed Timetable

  1. [7]
    Following indication of available times from the Tribunal, the parties have agreed the following timetable:
    1. A compulsory conference will take place on 17 January 2017 at 1.30 pm.
    2. The applicant will file two copies and serve one copy upon the respondent of all evidence upon which the applicant wishes to rely by 24 January 2017.
    3. The respondent will file two copies and serve one copy upon the applicant of all evidence upon which the respondent wishes to rely by 7 February 2017.
    4. The applicant will file two copies and serve one copy upon the respondent of submissions upon which the applicant intends to rely by 14 February 2017.
    5. The respondent will file two copies and serve one copy upon the applicant of submissions upon which the respondent intends to rely by 21 February 2017.
    6. The matter will be heard, by way of oral hearing, on 23 February 2017.

Discussion

  1. [8]
    As to the application for stay, so far as is relevant, s 22 QCAT Act provides:
  1. (3)
    The tribunal may, on application of a party or on its own initiative, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started under this Act.
  1. (4)
    The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following –

(a) the interests of any person whose interests may be affected by the making of the order or the order not being made;

(b) any submission made to the tribunal by the decision- maker for the reviewable decision;

(c) the public interest.

  1. [9]
    In considering whether a stay should be granted, the Tribunal must take into account the applicant’s prospects of success in the review proceedings.  The parties agree that the applicant must demonstrate that there is an arguable case. 
  2. [10]
    The respondent accepts that, in this case, there is an arguable (although not strong) case.
  3. [11]
    The respondent submits that, on the basis of the application, the supporting affidavits (including affidavit evidence filed and served on 5 January 2017) and the applicant’s submissions, the applicant has not satisfied the onus for granting any stay.[4]
  4. [12]
    The respondent further submits that should the Tribunal find that there is a basis for the order of a stay, the terms of the order sought by the applicant are not appropriate.[5]
  5. [13]
    The applicant must demonstrate that the balance of advantage and disadvantage favours the grant of the stay.[6]
  6. [14]
    As is contemplated by s 22 QCAT Act, in addition to the submissions of the respondent, the Tribunal must have regard to the interests of any person whose interests may be affected by the making of the order or the order not being made[7] and also the public interest.[8]
  7. [15]
    Prejudice to a practitioner, in not being able to practice until an appeal is heard, is not a reason of sufficient cogency to justify a stay.[9]
  8. [16]
    In cases involving professional misconduct, the protection of the public is the paramount consideration.
  9. [17]
    As Finn J in Robb & Anor v The Law Society of the Australian Capital Territory[10] observed:

“this is not the usual instances of civil litigation in which the question is whether a reason is there to hold the successful party out of the benefit of a judgement...until the appeal is heard. .. The “reason” must be considered, not in the context of a judgment giving a benefit to a litigate, but rather one designedly made to protect both the public and the reputation of the profession”.

  1. [18]
    When discussing whether it is sufficient for the practitioner to demonstrate just that the practitioner will be unable to practice,  Chesterman J observed:

“Something more must be shown than “prejudice” of this kind.  The additional factors which would justify a stay must be such as to outweigh the public interest in having unfit practitioners debarred from practice.  This interest is to be afforded particular significance.”[11]

  1. [19]
    The applicant submitted that, on the facts of the case, there was material which established irremediable prejudice not just to the applicant but also to third parties.[12]
  2. [20]
    The applicant listed the prejudice as follows:
    1. If the applicant cannot work the applicant cannot support his family;[13]
    2. If the applicant cannot work the applicant cannot pay contributions to his trustee in bankruptcy;[14]
    3. Clients of the firm that employed the applicant until 19 December will suffer harm if the stay is not granted.[15]
  3. [21]
    In relation to the clients of the firm, the applicant filed an affidavit of Anthony Delaney which was sworn on 21 December 2016.  The affidavit deposes amongst other things to the following:
    1. Excluding Mr Adamson, the firm was comprised of two senior solicitors and one junior solicitor;[16]
    2. Mr Delaney and Mr Adamson were the only two lawyers with any experience in litigation matters;[17]
    3. The work undertaken by Mr Adamson cannot be distributed to a number of persons within the firm.[18]
    4. Whilst Mr Adamson has had the carriage of matters handled by him, Mr Adamson has demonstrated to Mr Delaney that[19]
      1. He does the right thing even when not subject to scrutiny.
      2. He will be honest in his dealings with courts and other members of the profession.
      3. He has the best interests of his clients at heart.
    5. Mr Adamson has shown that he is an honest and reliable employee[20].
  4. [22]
    The affidavit also deposes to a number of deadlines in relation to client matters and work which was required to be undertaken which included work between Christmas and New Year[21] and also work which was to be completed by “early January”, in one case “on or before 9 January 2017”,[22] and another case “on or before 10 January 2017”.[23]
  5. [23]
    Having referred to a number of matters, Mr Delaney continues, “There are other matters where the interests of clients of the firm will be prejudiced if Mr Adamson were unsuccessful in his stay application.”[24] These are not specified.
  6. [24]
    Mr Delaney swears that if Mr Adamson is unable to continue to act for the clients “the good name and reputation of the firm and Mr Adamson will be damaged where client’s needs cannot be met.”[25]
  7. [25]
    The affidavit of Mr Delaney does not point, with any particularity, to substantial pressing needs beyond early to mid-January. 
  8. [26]
    In that sense, the submission by the respondent that the applicant has not satisfied the onus has a great deal of merit.
  9. [27]
    At the hearing, Mr Adamson was allowed to give oral evidence and was subject to cross-examination.
  10. [28]
    Mr Adamson identified a number of matters, in which he believes the clients will suffer prejudice if he is unable to continue to act for them. A brief summary follows.
    1. A Federal Court matter:

Mr Adamson is acting for the defendants in a dispute over development copy right of the settled plans.  The client is well-known to Mr Adamson, who has a personal relationship with him.  Mr Adamson has prepared all the affidavit material and the client relies heavily upon him for advice.  In additional to the matters relating to the litigation, Mr Adamson has had detailed involvement in the development since the outset and has at least 6-8 boxes of material with which he is familiar.  He has spoken with all the witnesses and so in in a position to deal effectively and efficiently with them.  Senior and junior counsel are briefed.

  1. District Court matter involving defamation:

Mr Adamson acts on behalf of two plaintiffs, one of whom has a close connection by marriage with him.  The matter involved urgent injunctive relief, and requires work to be completed in January and February. Senior and junior counsel are briefed.

  1. District Court – North Queensland:

Mr Adamson acts for the plaintiff.  There was an application for security of the costs in which Mr Adamson’s client was successful.  There is a matter of assessment of costs concerning that application which must be attended to without delay. In addition, the claim must be progressed.  Substantial work must be undertaken in January and early February.  Mr Delaney would be capable of completing this work but is fully committed with other clients.  No court dates have been set. Counsel is briefed.

  1. Supreme Court matter:

Mr Adamson acts on behalf of the applicant.  A mediation will likely take place in February or March.  Counsel is briefed but only will appear at the mediation if the other side brief counsel for that purpose.  Mr Adamson believes that he and the other solicitor have good prospects of being able to settle the matter if allowed to participate in direct negotiations.

  1. Family Court matters:
    1. There are 5-7 matters in this category.  These clients are direct clients of Mr Adamson who have been either former clients or have come to Mr Adamson by direct referral or close relationship. 
    2. Some of these matters are being conducted at reduced rates, compared with what would be expected in similar Family Court matters.
    3. In two matters there are urgent applications involving children of a marriage where one of the parents is wishing to take the child overseas for a vacation.
    4. In one of the matters, where the child custody related aspect has been resolved, there is a property element where valuations will take place in January with a mediation to follow shortly thereafter.
    5. In another complex family law matter, Mr Adamson is the second solicitor to be appointed, the client having being dissatisfied with the first solicitor.  The matter involves a hearing late January/early February.
  1. [29]
    In all matters but the Supreme Court matter and one of the Family Court matters, the clients are aware of the issues involving Mr Adamson’s practicing certificate and have expressed a desire that Mr Adamson continue to act in the matters pending the outcome of these proceedings.
  2. [30]
    The applicant submits that the clients involved in those matters will suffer prejudice (including financial prejudice) if Mr Adamson is unable to continue to act on their behalf.
  3. [31]
    The respondent submits that it would be possible for the clients’ interests to be preserved, and for any prejudice to be minimised, by use of a locum within Mr Delaney’s practice and the involvement of the junior solicitor, in conjunction with reliance upon counsel. In addition, some matters might be transferred to another law firm.
  4. [32]
    The respondent submits that, in this context, maintenance of public confidence is an important consideration. As was put in the case of NSW Bar Association v Stevens:[26]

“Such confidence is likely to be undermined for practitioner who’s right to practice is the subject of a serious challenge and able to successfully call upon the court to exercise the discretion in his favour permitting him … to continue in practice pending the ultimate determination.”

  1. [33]
    If Mr Adamson is allowed to continue to act on behalf of clients, Mr Delaney has said that, as principal of the firm, he will continue to supervise Mr Adamson and the work that he performs.[27] He swears that he believes public interest will be served and protected, where Mr Adamson operates as an employed solicitor under Mr Delaney’s supervision.[28]
  2. [34]
    At the hearing, Mr Hanlon on behalf of the applicant, indicated that Mr Delaney is prepared to meet with Mr Adamson on a daily basis to receive a report in relation to each of the matters and will undertake to comply with whatever conditions are imposed by the Tribunal.
  3. [35]
    It is necessary for the Tribunal to balance the various interests, bearing in mind the time-frame within which the matter will be heard (23 February 2017).
  4. [36]
    As has been mentioned, it is accepted by the respondent that the applicant has an arguable case.  This case will be determined after the hearing on 23 February 2017.
  5. [37]
    If the stay is not granted, existing clients may be in a position where they are forced (because of steps in their proceedings which must be taken) to make other arrangements, possibly for the short time of just a few months, only to find that these other arrangements are unnecessary as a result of the hearing on 23 February 2017.  Without considering the merits, it is reasonable to take this into account as a possible outcome, as it is conceded that the case is arguable.
  6. [38]
    In that event, those clients will suffer irreparable prejudice. The Tribunal finds that those clients identified by Mr Adamson will run the risk of suffering serious and identifiable prejudice.
  7. [39]
    In addition, if the stay is not granted, the applicant will not be employable and so payments to the creditors through the trustee and bankruptcy will cease.
  8. [40]
    Those factors weigh in favour of a stay being granted.
  9. [41]
    Of course, each case necessarily turns upon the particular facts.
  10. [42]
    This issue has been considered in earlier cases including Legal Services Commissioner v Madden[29] and King v Queensland Law Society Incorporated.[30]
  11. [43]
    In Legal Services Commissioner v Madden,[31] in an appeal from a decision of the Legal Practice Tribunal removing his name from the roll, Mr Madden sought a stay from Fraser JA. Fraser JA considered that, because of the fact that Mr Madden was a sole practitioner in a small country town, there would be particular prejudice to him and to his many elderly clients which would be substantial. Thus, a stay was granted under restrictions.
  12. [44]
    The imposition of the conditions was sufficiently effective to mitigate damage to public confidence in the integrity of the disciplinary processes and so satisfy the public interest.
  13. [45]
    The decision in Madden’s case demonstrates that it is possible to impose appropriate conditions that will adequately protect those who might suffer prejudice as well as mitigating damage to public confidence in the integrity of the disciplinary processes.
  14. [46]
    In King v Queensland Law Society Incorporated,[32] the Law Society refused to renew Ms King’s practising certificate. Ms King was bankrupt and there were unresolved investigations. In seeking a stay, Ms King pointed to factors which included the need for her to support herself and her children, and also the fact that she was acting in three matters which were due to go to trial in the following three months which involved complex issues and clients who had received psychiatric treatment. Ms King submitted that if she could not continue to act, these matters would be adjourned for a considerable time.
  15. [47]
    Wilson J refused the stay and distinguished Madden’s case. He found that the risk to the practitioner’s clients was not so compelling as the tangible and serious consequences found and relied upon by Fraser JA. He expressed the view that other practitioners could take over the conduct of the matters.
  16. [48]
    The facts of Kings case are, of course, very different from those of this matter, and the case is distinguishable. Ms King was a Principal in a law firm. Mr Adamson is an employed solicitor under the direction of Mr Delaney. Conditions, such as those which are available in this case, were not available in King’s case.
  17. [49]
    The Tribunal has taken account of the fact that Mr Adamson has no criminal or disciplinary history and, particularly, since Mr Adamson’s involvement in ActiveSuper no issues regarding his conduct have arisen. In his current employment, Mr Delaney swears that Mr Adamson is honest in his dealings with courts and other members of the profession. The Tribunal also has had regard for the very short time, which will elapse before the application is heard.
  18. [50]
    The Tribunal has taken into account the submissions made by the respondent, and has balanced the interests of those existing clients who may suffer prejudice and the public interest in the maintenance of confidence in the integrity of the disciplinary processes.
  19. [51]
    The right of the applicant to practice after the decision, which has been taken by the respondent, should be allowed only in so far as it prevents irreparable damage to innocent third parties being the clients identified in evidence by Mr Adamson, who will be effected by the stay. This will, to some extent, minimise the prejudice to creditors who would be deprived of repayments. This approach takes account of the interests of those whose interests might be affected by the making or not making of an order to stay.
  20. [52]
    Consistent with authority, the Applicant should not be allowed to continue in practice generally, especially given the short time-frames involved in the matter coming to hearing.
  21. [53]
    This approach recognises the public interest in maintenance of confidence in the integrity of the disciplinary processes.
  22. [54]
    Safeguards should be put in place so as to minimise any risk to those clients.
  23. [55]
    As the respondent has submitted, the terms of the order sought by the applicant are not adequate.
  24. [56]
    Section 23(6) QCAT Act provides that, in making an order staying the operations of a reviewable decision, the tribunal may require an undertaking.
  25. [57]
    In the context of reviewable decisions concerning legal practitioners, the provision of an undertaking is of particular significance.  This is especially so when the undertaking is given to the Queensland Law Society and to the Tribunal, which has jurisdiction under the Legal Profession Act 2007.
  26. [58]
    Essentially, the provision of undertakings, will regulate the way in which the applicant must act pending further order of the Tribunal. Breach of the undertakings given in these circumstances would be a very serious matter for each practitioner.
  27. [59]
    The provision of undertakings by both Mr Adamson and Mr Delaney has been offered by Mr Hanlon.  The provisions of those undertakings is a requirement of the order, which is made by the Tribunal.
  28. [60]
    The order, which will be made attaches a list of the clients referred to by Mr Adamson in his evidence. There is no reason why the identities of clients need be published generally. When Mr Adamson gave evidence, he referred in a general way to the description of the matters.
  29. [61]
    However, it is necessary that there is certainty as to the scope of the undertakings given. On that basis for the purposes of the undertakings and the orders made, the list of the matters including detail sufficient to identify the matter (including names of clients and other parties) referred to by Mr Adamson should be attached to the undertaking and order.
  30. [62]
    To preserve client confidentiality it is in the interests of justice that the names not be published except to the parties.
  31. [63]
    The Tribunal orders that:

Upon Mr Adamson undertaking to the Queensland Law Society and to the Tribunal:

  1. To act only in the matters listed in the attached schedule and not provide any other legal advice in relation to any other matter.
  2. To meet at least three times each week with Mr Delaney and report to Mr Delaney as to the steps, which have been taken in relation to each of the matters in which Mr Adamson has completed work.
  3. Without delay, to inform the clients and Counsel briefed in relation to the matters in which Mr Adamson continues to act of the decision of the Queensland Law Society and of the terms of this order.
  4. Not to undertake any court appearances in relation to any of the matters in which Mr Adamson acts.

And upon Mr Delaney undertaking to the Queensland Law Society and to the Tribunal:

  1. To ensure that within Mr Delaney’s legal practice, Mr Adamson acts only in relation to the matters listed in the schedule.
  2. To ensure that the clients and Counsel briefed in relation to the matters in which Mr Adamson continues to act are, without delay, informed of the decision of the Queensland Law Society and of the terms of this order.
  1. To meet at least three times each week with Mr Adamson when Mr Adamson will report to Mr Delaney as to the steps, which have been taken in relation to each of the matters in which Mr Adamson has completed work with the aim of ascertaining whether any ethical issues have arisen with respect to any of the matters in which Mr Adamson is acting.
  2. On Friday of each week, to report in writing to Mr Smiley, General Manager professional Leadership Queensland Law Society Incorporated as to whether any ethical issues have arisen in relation to any of the matters being undertaken by Mr Adamson and if so to provide full details of such issues.

The decision of the respondent contained in the information notice dated 19 December 2016 is stayed until further order of the Tribunal.

The Tribunal further orders that the schedule not be published to any person other than the parties to these proceedings.

Footnotes

[1]Affidavit of Mark Gordon Adamson sworn 21 December 2016, para 2.

[2][2015] FCA 342 (decided 14 April 2015).

[3][2015] FCA 527 (delivered 29 May 2015).

[4]Submissions on behalf of the respondent filed 6 January 2017, at [5].

[5]Ibid, at [7].

[6]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 at [14].

[7]QCAT Act, s 22(4)(a).

[8]QCAT Act, s 23(4)(c).

[9]Robb & Anor v The Law Society of the Australian Capital Territory, unreported, Federal Court, number ACT G34 of [1996], 21 June 1996; Legal Services Commissioner v Baker (No 1) [2005] QCA 482 at [28] per Chesterman J.

[10]Unreported, Federal Court, number ACT G34 of [1996], 21 June 1996.

[11]Legal Services Commissioner v Baker (No 1) [2005] QCA 482 at [28].

[12]Outline of submissions on behalf of the applicant filed 3 January 2017, at [108].

[13]Outline of submissions on behalf of the applicant filed 3 January 2017, at [109]; Affidavit of Mark Gordon Adamson sworn 5 January 2017, at [5].

[14]Outline of submissions on behalf of the applicant filed 3 January 2017, at [109]; Affidavit of Mark Gordon Adamson sworn 5 January 2017, at [6].

[15]Outline of submissions on behalf of the applicant filed 3 January 2017, at [112].

[16]Affidavit of Anthony Delaney sworn on 21 December 2016, at [5].

[17]Ibid, at [6].

[18]Ibid, at [8].

[19]Ibid, at [19].

[20]Ibid, at [16].

[21]Ibid, at [52].

[22]Ibid, at [31].

[23]Ibid, at [41].

[24]Ibid, at [42].

[25]Affidavit of Anthony Delaney sworn on 21 December 2016, at [45].

[26][2003] NSWCA 95.

[27]Affidavit of Anthony Delaney sworn 21 December 2016, at [60].

[28]Ibid, at [61].

[29][2008] QCA 52.

[30][2012] QCAT 489.

[31][2008] QCA 52.

[32][2012] QCAT 489.

Close

Editorial Notes

  • Published Case Name:

    Mark Gordon Adamson v Queensland Law Society Inc

  • Shortened Case Name:

    Adamson v Queensland Law Society Inc

  • MNC:

    [2017] QCAT 1

  • Court:

    QCAT

  • Judge(s):

    Thomas P

  • Date:

    11 Jan 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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