Legal Services Commissioner v Trost
[2017] QCAT 171
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- Unreported Judgment
- Legal Services Commissioner v Trost[2017] QCAT 171
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Legal Services Commissioner v Trost[2017] QCAT 171
Legal Services Commissioner v Trost[2017] QCAT 171
CITATION: | Legal Services Commissioner v Trost [2017] QCAT 171 |
PARTIES: | Legal Services Commissioner (Applicant) v Benjamin Che Trost (Respondent) |
APPLICATION NUMBER: | OCR254-13 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 26 August 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Justice DG Thomas, President Assisted by: Ms Julie Cameron, Legal panel member Dr Margaret Steinberg, Lay panel member |
DELIVERED ON: | 26 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
The Tribunal further directs, that:
4:00pm on 16 June 2017.
4:00pm on 7 July 2017.
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – JURISDICTION – where respondent alleged that Tribunal did not have jurisdiction to hear the disciplinary application – where charges in disciplinary application made pursuant to repealed Legal Profession (Solicitors) Rule 2007 – where respondent also alleged conduct subject of the charges did not occur in Queensland – whether Tribunal has jurisdiction to hear the disciplinary application Acts Interpretation Act 1954 (Qld) ss 7, 20 Legal Profession Act 2007 (Qld) ss 418, 419, 420, 423 Legal Profession (Solicitors) Rule 2007 (Qld) r 18.6 Statutory Instruments Act 1992 (Qld) s 7 Monis v The Queen (2011) 256 FLR 28 Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92 |
APPEARANCES: | |
APPLICANT: | Mr N Weston and Ms P Prasad |
RESPONDENT: | Mr K Wilson QC and Mr I Collie (Cleary Hoare Solicitors) |
REASONS FOR DECISION
- [1]This matter arose out of a compulsory conference and deals with questions relating to:
- The jurisdiction of the Tribunal to determine the referred disciplinary matter; and
- The jurisdiction of the Tribunal to hear a disciplinary matter based upon repealed disciplinary rules.
The nature of this application
- [2]The application relates to the threshold issues of jurisdiction. It is not the role of the Tribunal in these circumstances to deal with the evidence and is therefore appropriate to proceed with the matter as on demurrer – that is by assuming (without deciding) that the asserted evidence exists, and dealing with the questions of law which have been raised by the respondent. The absence or presence of evidence is not a matter of jurisdiction, but is relevant to success or failure on the merits, which must happen at the hearing.
Background
- [3]The respondent is an Australian Legal Practitioner. The respondent acted in relation to proceedings heard in the Supreme Court of New South Wales.[1]
- [4]The hearing concluded without any order or authority for further submissions to be filed be either of the parties.
- [5]The respondent emailed the presiding Judge’s Associate on three occasions after the conclusion of the hearing with further arguments.
- [6]The disciplinary application asserted that on each of three occasions the respondent communicated in the opponent’s absence and without the opponent’s consent with the court, concerning a matter of substance in connection with proceedings in contravention of Rule 18.6 of the Legal Profession (Solicitors) Rule 2007 (Qld) (‘2007 Rules’).
The jurisdiction of the Tribunal to hear a disciplinary matter based upon repealed disciplinary rules
The respondent’s submissions
- [7]The respondent accepts that each of the alleged breaches occurred when the rule was in force.
- [8]However, the disciplinary proceedings were not brought until after the rules were repealed. Neither the rules nor the Legal Profession Act 2007 (Qld) (‘LPA’) contains transitional provisions.
- [9]The proceedings are brought under the LPA, not the 2007 Rules.
- [10]It is accepted that the 2007 Rules were a statutory instrument and that section 20 of the Acts Interpretation Act 1954 (Qld) potentially applies to the 2007 Rules.
- [11]However, section 20 of the Acts Interpretation Act does not assist the applicant because:
- The respondent did not incur any liability under the 2007 Rules – with any liability being under the LPA. Therefore section 20(2)(c) is not applicable;
- No offence arose or was prescribed under the 2007 Rules - with any offence arising under the LPA. Therefore section 20(2)(d) is inapplicable;
- If neither section 20(2)(c) or 20(2)(d) apply, then section 20(2)(e) cannot be engaged.
The applicant’s submissions
- [12]Under the Acts Interpretation Act and the Statutory Instruments Act 1992 (Qld), a contravention in relation to LPA (a contravention of a relevant law) would include a contravention of a Legal Professional Rule under LPA.
- [13]The conduct occurred when the rules had application.
- [14]Section 7 of the Acts Interpretation Act provides that a reference to “the Act” “includes a reference to the statutory instruments made or enforced under the law or provision”.
- [15]Section 7 Statutory Instruments Act provides that a statutory instrument can be a rule under an Act.
- [16]The Legal Profession (Solicitors) Rule 2007 is a rule made under LPA and hence is a statutory instrument as defined in section 7 of the Statutory Instruments Act.
- [17]The right to proceed against the respondent in respect of the conduct in breach of the rules is therefore preserved by section 20 of the Acts Interpretation Act.
Discussion
- [18]Sections 418 and 419 LPA define the concepts of “unsatisfactory professional conduct” and “professional misconduct”. When analysing conduct in any particular case, those definitions are inclusive definitions.
- [19]They do not purport to “cover the field” of conduct which might be unsatisfactory professional conduct or professional misconduct.
- [20]Section 420 LPA describes conduct which is capable of constituting either unsatisfactory professional conduct or professional misconduct. Section 420 LPA does not limit section 418 or 419 LPA.[2] Relevantly, section 420(1)(a) provides that conduct constituting a contravention of a relevant law is capable of constituting unsatisfactory professional conduct or professional misconduct.
- [21]In all cases, it is necessary to consider the particular conduct to determine whether the conduct is professional misconduct or unsatisfactory professional conduct (or neither). The focus is on the underlining conduct. For example, in terms of the nature of the conduct, at law, improper ex parte communications with a court may amount to serious contempt, showing that the offender is not a fit and proper person to engage in legal practice.[3]
- [22]The focus of 420(1)(a) is that the conduct, when it occurred, involved a contravention of a relevant law. The position as at the time of the conduct is the relevant point in time at which to consider whether there was a contravention. It is a matter of determining whether the particular conduct, in the circumstances in which it occurred and at the time in breach of a relevant law was unsatisfactory professional conduct or professional misconduct.
- [23]Reference has been made to section 20(2) Acts Interpretation Act. Section 20(4) is also relevant and provides that without limiting (2) and (3) the repeal or amendment of an Act does not affect -
- the proof of anything that has happened; or
- any right, privilege or liability saved by the operation of the Act.
- [24]The respondent submits that the proceedings are brought under the LPA and not the Rules. Therefore, the saving provisions of subsection (2) do not apply because of the use of the words “under the Act”.
- [25]The saving provisions, the preservation achieved by the Acts Interpretation Act, extends very broadly to “anything…done” under the former rules and “the proof of anything that has happened” in relation to them. If relevant, such events are then the subject of proceedings under LPA.
- [26]Therefore, the provisions of the Acts Interpretation Act do apply in the circumstances of this case.
- [27]The Tribunal therefore rejects the arguments based upon the repealed 2007 Rules.
Did the impugned conduct occur in this jurisdiction? The jurisdiction of the Tribunal to determine the referred disciplinary matter
Submissions by the respondent
- [28]The respondent refers to section 423(1) LPA and particular the words used in that subsection, “happening in this jurisdiction”.
- [29]Relevantly to the jurisdiction point, rule 18.6 says that the solicitor “must not….communicate in the opponent’s absence with the court”.
- [30]The “conduct” cannot be the singular act of sending an email. That is merely sending an email. Merely sending an email is not communication “with” a recipient. The recipient must receive the email in order for there to be a communication “with” that recipient. In this case, the alleged inappropriate communication was with the Supreme Court of New South Wales sitting in Sydney, and so the communication must have occurred in Sydney, thereby outside the jurisdiction.
- [31]Even assuming each email was sent from Queensland, the conduct cannot have occurred wholly within the jurisdiction.
Submissions by the applicant
- [32]The relevant emails, the subject of the disciplinary application were sent within the jurisdiction in breach of the professional rules and this constitutes conduct of the respondent happening within the jurisdiction.
Discussion
- [33]The Legal Profession Act focuses upon the conduct of an Australian Legal Practitioner. This is obvious from sections 418 and 419 LPA. It is also obvious from section 420 LPA which refers to “conduct” consisting of a contravention.
- [34]At the hearing, counsel conceded an inability to assist the Tribunal as to the concept of “communication” beyond a reference to the “dictionary definition”.[4]
- [35]One meaning, attributed to “communication” in the concise Oxford Dictionary is “to transmit”. The email is transmitted from the place the sender is located - the transmission is initiated from that location.
- [36]The conduct of the practitioner in the process of communicating happens at the place of transmission.
- [37]In Monis v The Queen,[5] a decision of the New South Wales Court of Criminal Appeal, Allsop P described the postal services:
That brings communications into the homes or the places of work or business of people…that will be opened by the person to whom the communication is addressed.[6]
- [38]It seems implicit from these dicta that in law, something which is intended to reach another person is a communication when it is sent even before the receipt by the addressee.
- [39]In the High Court, French CJ treated communications as such when sent.[7] Crennan, Kiefel and Bell JJ speak of a “service that brings communications…in packages that will be opened”.[8] From this it would seem that messages are communications before they are opened. Hayne J remarked that “the user of the service frames his or her offensive communication in private.[9] Likewise, Heydon J suggested that communications already possessed that character before they are received.[10]
- [40]There remains the evidentiary question of where the communication was sent from and also the effect of the simultaneous transmission to the opponents.
- [41]However, assuming (without deciding) that the emails were generated in Queensland, the conduct charged happened in Queensland, because the communication happened in Queensland and so the Tribunal has jurisdiction.
- [42]The respondent’s objection to jurisdiction is dismissed.
Request for Better Particulars
- [43]The respondent has, as a third point, submitted that further particulars should be provided.
- [44]In the written submissions, the respondent referred to the need for particulars in relation to:
- How the conduct alleged could constitute professional misconduct;
- Each fact and circumstance relied on to elevate the conduct from what is contended to be unsatisfactory professional conduct to professional misconduct;
- The facts relied upon to allege that the communication in each case was in the opponent’s absence;
- The matter of substance said to have been communicated on each occasion.
- [45]The particulars mentioned above are a summary of those outlined in the submissions.
- [46]The respondent should be given the opportunity to formulate a request for particulars, and the applicant should respond, indicating whether he is prepared to provide the particulars.
- [47]In the event that there is a dispute about the particulars, the matter can be listed for a ruling by the Tribunal.
- [48]The Tribunal will today issue directions dealing with that issue.
Order
- [49]It is the decision of the Tribunal, that:
- The respondent’s objection to jurisdiction is dismissed.
- [50]As to the request for better particulars, the Tribunal further directs, that:
- The respondent must file in the Tribunal four (4) copies and deliver to the applicant one (1) copy of a request for further particulars which the respondent wishes to make regarding the charges, by:
4:00pm on 16 June 2017.
- The applicant must file in the Tribunal four (4) copies and give to the respondent one (1) copy of a response to the request for particulars, by:
4:00pm on 7 July 2017.
- In the event that there is a dispute about particulars, either party may at any time apply for directions on three days notice.
Footnotes
[1]Equititrust Limited v R M Walsh Land Holdings Pty Ltd [2012] NSWSC 427.
[2]LPA s 420(3).
[3]FAL Management Group Pty Ltd v Denham Constructions Pty Ltd [2015] NSWSC 1035; R v Vasilou [2012] VSC 206 at [17]-[18]; R v Bonacci [2015] VSC 121 at [88]; Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 368-369; Re JRL; ex parte CJL (1986) 161 CLR 342 at 350-351.
[4]Transcript of Hearing, 26 August 2015, T1-14, ll 8-9.
[5](2011) 256 FLR 28.
[6]Ibid at 46.
[7]Monis v The Queen (2013) 249 CLR 92 at [39] & [73].
[8]Ibid at 308.
[9]Ibid at 200.
[10]Ibid at 241.