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- Unreported Judgment
Legal Services Commissioner v Trost QCAT 357
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Legal Services Commissioner v Trost  QCAT 357
legal services commissioner
benjamin che trost
Occupational regulation matters
9 December 2019
19 June 2018
Justice Daubney, President
Mr Scott Anderson
Mrs Patrice McKay
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent is charged with communicating in his opponent’s absence and without their consent with the Court concerning a matter of substance in connection with current proceedings – where those communications were made by email – where the respondent’s location when sending the emails is not in evidence before the Tribunal – where the emails were sent from a server located in Brisbane, Queensland – whether the sending of the emails is conduct happening in this jurisdiction for the purposes of s 423 of the Legal Profession Act 2007
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent is charged with communicating in his opponent’s absence and without their consent with the Court concerning a matter of substance in connection with current proceedings in breach of r 18.6 – whether communications in opponent’s absence – whether communications without opponent’s consent – whether communications on a matter of substance in connection with current proceedings – whether the breach of r 18.6 of the Legal Profession (Solicitors) Rule 2007 should be characterised as unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2007
Legal Profession Act 2007, s 227, s 418, s 419, s 420, s 423, s 456, 656C
Legal Profession (Solicitors) Rule 2007, r 18.6
Adamson v Queensland Law Society Inc (1990) 1 Qd R 498
ASIC v Flugge & Geary (2016) 342 ALR 1
Carbotech Australia Pty Ltd v Yates  NSWSC 540
Council of the New South Wales Bar Association v Asuzu  NSWADT 209
John Holland Rail Pty Ltd v Comcare  FCAFC 34; (2011) 276 ALR 221
Jones v Dunkel (1959) 101 CLR 298
Legal Services Commissioner v Bone  QCAT 550
Legal Services Commissioner v Bussa  QCAT 388
Legal Services Commissioner v Madden (2009) 1 Qd R 149
LSC v Trost  QCAT 171
Monis v The Queen (2013) 249 CLR 92
Monis v The Queen  NSWCCA 231; (2011) 256 FLR 28
Re JRL; ex parte CJL  HCA 39; (1986) 161 CLR 342
Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2)  VSC 239; (2012) 266 FLR 243
APPEARANCES & REPRESENTATION:
M Nicholson instructed by the Legal Services Commission
M F Wilson instructed by Cranston McEachern Lawyers
REASONS FOR DECISION
- There are three charges in this discipline application under the Legal Profession Act 2007 (“LPA”) brought by the applicant Legal Services Commissioner (“LSC”) against the respondent, Benjamin Che Trost. Each charge alleges that the respondent communicated in the opponent’s absence and without their consent with the Court concerning a matter of substance in connection with current proceedings, in contravention of r 18.6 of the Legal Profession (Solicitors) Rule 2007.
- Most of the factual background to this matter is not in dispute and, by virtue of a Joint Statement of Agreed Fact and Issues dated 15 February 2018, not required by the respondent to be the subject of formal proof.
- As at the relevant time, which is admitted to be 30 March 2012 to 20 April 2012, the respondent was a solicitor who held a local practising certificate in Queensland. He was employed by the Brisbane law firm Cleary Hoare (“the firm”). At that time, the firm was acting for a defendant in certain proceedings before the Supreme Court of New South Wales. The respondent had carriage of the matter on behalf of the defendant. Another Brisbane law firm, Tucker & Cowen, was acting for the plaintiff.
- An application by the defendant for security for costs came on for hearing before Harrison AsJ in the Supreme Court of New South Wales on 29 March 2012. After hearing argument, her Honour reserved her decision. Ultimately, on 4 May 2012 Harrison AsJ dismissed the application.
- Just after 5 pm on 29 March 2012 (i.e. the day of the hearing), the plaintiff’s counsel sent an email to the Judge’s Associate. This email was copied to the defendant’s counsel. This email said:
I attach a copy of Re Staff Benefits Pty Ltd  1 NSWLR 207, being the case referred to in footnote 28 on page 275 of the Australian Law Journal article by Mr Williams QC (as His Honour then was), which article [the defendant’s barrister] handed up. The case is the one to which I referred her Honour. I have copied [the defendant’s barrister] on this email.
- At about 4.40 pm on 30 March 2012, the following email was sent to the Judge’s Associate:
Given the amount of case law that was referred to at the security for costs motion yesterday, we consider that her Honour may be assisted by the provision of some concise closing submissions. In addition, we proposed to enclose some extracts from some of the more relevant cases that Counsel referred to.
The submissions will only relate to the right of the indemnity and why we say it will not be available where the trustee is in default of the trust.
If her Honour agrees to this course, please advise by return. The submissions can be provided within a reasonably short amount of time.
We await your reply.
- This email was contemporaneously copied to both counsel for the plaintiff and counsel for the defendant and to Ashley Moore, a solicitor employed by Tucker & Cowen.
- By the Agreed Statement of Facts, the respondent agreed that proof was not required for the conclusion that this email was sent from the respondent’s Cleary Hoare email account. It is clear on the face of the email that this was the case. It is also clear on the face of the email that it was electronically signed by the respondent. The clear inference is that this email was actually written and sent by the respondent. The respondent did not adduce any evidence to displace the drawing of that inference. The conventional principles derived from Jones v Dunkel, which have application in proceedings such as the present allows this Tribunal, in the absence of evidence on this point from the respondent, to more comfortably draw the inference which is readily available on the facts. Accordingly, this Tribunal finds that the email of 30 March 2012 was actually written and sent by the respondent.
- By an affidavit sworn on 28 April 2014 and filed in this proceeding, Mr Moore deposed to the following facts:
- (a)He was not given any notice of the respondent’s email of 30 March 2012 prior to it being sent;
- (b)The respondent did not seek Mr Moore’s consent before sending the email; and
- (c)Mr Moore did not consent to the email being sent.
- None of Mr Moore’s evidence was challenged or disputed by the respondent. Accordingly, this Tribunal proceeds on findings that the respondent did not give the plaintiff’s solicitors notice of his intention to communicate with the Court in terms of his email of 30 March 2012, nor seek their consent to that communication, nor hold their consent at the time the email was sent.
- This email sent by the respondent on 30 March 2012 is the subject of Charge 1.
- On 2 April 2012 at 10.53 am, Mr Nase of Tucker & Cowen sent an email to the Judge’s Associate in which, amongst other things, he took issue with the respondent’s communication of 30 March 2012. Mr Nase’s email of 2 April 2012, which was also copied to the respondent and counsel for the plaintiff, stated:
We refer to the email from Mr. Trost, solicitor for the Defendants, in the matter, at 5:40 pm Sydney time on Friday.
The Plaintiff’s legal representatives were not given prior notice by Mr. Trost that he intended to contact the Court in the manner set out, or at all. The Plaintiff did not consent to such contact being made.
The Plaintiff opposes a direction for any further submissions.
- On 9 March 2012, the parties were directed to exchange submissions last Monday, 26 March 2012.
- The Plaintiff filed and served submissions on Monday afternoon.
- The Defendant failed to file and serve any submissions until after 6 pm (Sydney time) on Tuesday 27 March.
- Reply submissions were provided by the plaintiff on Wednesday at 1:22 pm.
- At the hearing, the Defendants made further legal submissions on the point now being raised, including by handing up an article by Mr. Williams QC (as His Honour then was) in the Australian Law Journal.
- These submissions were responded to by counsel for the plaintiff, including by reference to the authority of Re Staff Benefits Pty Ltd  1 NSWLR 207, referred to in footnote 28 on page 275 of the article. A copy of that case has been provided.
- Leave was not sought at the hearing for further submissions.
- Her Honour then reserved.
Whilst ultimately it is of course a matter for Her Honour the Plaintiff submits that the Defendant has had ample opportunity to make submissions in accordance with the court’s directions.
If leave is given to the Defendants to make further submissions in support of their application, the plaintiff asks that leave also be given to it to make submissions in response, and that any timetable be a short one permitting only short written submissions.
- At 11.51 am on 2 April 2012, the Judge’s Associate sent an email to the respondent in response to his email. This email from the Associate was copied to Mr Moore and counsel for the parties, and said:
Dear Mr Trost
I refer to your email dated 30 March 2012.
Her Honour has said that the defendant had an opportunity to put on submissions by 27 March 2012 and they did not do so. The plaintiff opposes submissions now be [sic] provided. In the circumstances her Honour declines.
- Then on 4 April 2012 at 3.06 pm, the email which is the subject of Charge 2 was sent from the respondent’s Cleary Hoare email account to the Judge’s Associate, and simultaneously copied to Mr Nase of Tucker & Cowen and to both counsel for the plaintiff and the defendant. It was electronically signed by the respondent. He has not adduced any evidence to counter the inference that he wrote and sent the email. For the same reason stated previously, the Tribunal finds that this email of 4 April 2012 was actually written and sent by the respondent. This email said:
The defendants note that on Monday 29 March 2012, counsel for the plaintiff forwarded to you for the attention of her Honour, one of the cases referred to in footnote 28 of the ALJ Article of D Williams QC “Winding Up Trading Trusts: Rights of Credits and Beneficiaries” (“the Article”), which Article counsel for the defendants had provided to her Honour and made submissions about.
In order to assist her Honour, the defendants provide by way of assistance the relevant extract from the other case referred to in footnote 28 of the Article as well as relevant extracts from some of the cases referred to in:
- the extract from Lewin of Trusts (8th edition) (“Lewin”) provided to her Honour by the defendants’ counsel;
- paragraph  at page 566-567 of Jacobs’ Law Of Trusts In Australia (7th edition) (Jacobs”), which her Honour had on the bench, and in respect of which the defendants’ counsel made submissions.
The defendants also provide as part of the attachment relevant extracts of some further cases which have applied these cases.
The cases (and relevant extracts), with appropriate cross references to the footnote of the Article, Jacobs or Lewin are:
- 1.In re Johnson, at pages 1 to 5 of the Attachment, which case is referred to in footnote 10 at [21-29] on page 687 and footnote 70 at [21-39] on page 695 of Lewin.
- 2.Vacuum Oil, at pages 6 to 10 of the Attachment, which case is referred to in footnote 28 on page 275 of the Article.
- 3.RWG Management Ltd, at pages 11 to 14 of the Attachment, which case is referred to in footnote 43 of  on page 566 and in footnote  on page 567 of Jacobs.
- 4.Corozo, at pages 15 to 18 of the Attachment, which applies In re Johnson (see no 1 above) and Vacuum Oil (see no 2 above).
- 5.Nolan v Collie, at pages 19 to 24 of the Attachment, which explains and considers RWG Management Ltd (see No 3 above).
- 6.Irvine, at pages 25 to 27 of the Attachment, which applies RWG Management Ltd (see No 3 above).
If required, the defendants will provide the complete cases.
- The unchallenged and uncontroverted evidence of Mr Nase, which this Tribunal accepts, is that he was not given any notice of the respondent’s email of 4 April 2012 prior to it being sent, nor did he consent to the respondent sending the email. Both Mr Tucker and Mr Moore also give evidence to that effect.
- In those circumstances, it is hardly surprising that at 3.32 pm on 4 April 2012, Mr Nase sent an email to the Judge’s Associate (copied to the respondent and counsel for both parties) in which he said:
We note the email from Mr. Trost below.
Mr. Trost did not seek the Plaintiff’s consent before sending that communication. No prior notice was provided to the Plaintiff that such a communication would be sent.
We note that on 30 April 2012 Mr. Trost sent to you an email in which he said:
“Given the amount of case law that was referred to at the security for costs motion yesterday, we consider that her Honour may be assisted by the provision of some concise closing submissions. In addition, we propose to enclose some extracts from some of the more relevant cases that Counsel referred to.”
We note your email to the parties of 2 April 2012 in which you stated
“Her Honour has said that the defendant had an opportunity to put on submissions by 27 March 2012 and they did not do so. The plaintiff opposes submissions now be provided. In the circumstances her Honour declines.”
Contrary to that direction from Her Honour, it appears that Mr. Trost has nevertheless purported to:
- (a)enclose some extracts from some of the more relevant cases that Counsel referred to;
- (b)refer Her Honour to additional material to that to which the Defendants’ counsel referred;
- (c)make submissions (albeit limited) as to that material.
The Plaintiff protests this further communication from Mr. Trost.
The plaintiff assumes, given Her Honour’s earlier direction, that this material will not be put before Her Honour. If that is wrong, the Plaintiff respectfully requests to be heard before any material is put before Her Honour.
- The respondent countered with a further email to the Judge’s Associate (copied to Mr Nase and the barristers) at 4.14 pm on 4 April 2012, saying:
For the record, the defendants have not made and are not making any further submissions. This is in accordance with her Honour declining to accept further submissions.
Our earlier email referred to an email sent by the plaintiffs on Monday, 29 March 2012. The date is correct but the day is not. The email we were referring to is an email from Counsel for the plaintiff which was sent to you after the motion concluded, at approximately 5.09pm. We note he did not seek our permission to do this.
We see no prejudice to the plaintiff in the extract material being put before her Honour.
- The communication which is the subject of Charge 3 was sent to the Judge’s Associate from the respondent’s Cleary Hoare email account at 4.50 pm on 20 April 2012. It was electronically signed by the respondent, and no evidence has been adduced to suggest it was not the respondent’s email. For the same reasons as above, the Tribunal finds that this email was written and sent by the respondent. The email, which was contemporaneously copied to Mr Nase, Mr Tucker and the barristers for the parties, said:
In the interests of keeping her Honour informed of developments, we advise that the plaintiff company has today been placed into liquidation with the three administrators from Hall Chadwick jointly appointed.
We have carbon copied the plaintiff’s representatives on this email.
- The unchallenged and uncontroverted evidence of Messrs Tucker, Nase and Moore, which the Tribunal accepts, is that none of them was consulted by the respondent prior to that email being sent, nor did any of them consent to it being sent.
- At the hearing of this discipline application, the respondent raised preliminary jurisdictional issues by reference to s 423 of the LPA and further and better particulars which had been provided by the applicant.
- Section 423 provides:
423 Conduct to which this chapter applies – generally
(1) Subject to subsection (3), this chapter applies to conduct of an Australian legal practitioner happening in this jurisdiction whether before or after the commencement of this section.
(2) Also, this chapter applies to an Australian legal practitioner’s conduct happening outside this jurisdiction, whether or not the conduct was engaged in before or after the commencement of this section, but only–
(a) if the conduct is part of a course of conduct that happened partly in this jurisdiction and partly in another jurisdiction, and either –
(i) the corresponding authority of each other jurisdiction in which the conduct happened consents to it being dealt with under this Act; or
(ii) the practitioner and, if a complaint is made by a person about the practitioner, the complainant consent to it being dealt with under this Act; or
(b) if the conduct happened in Australia but entirely outside this jurisdiction and the practitioner is a local lawyer or a local legal practitioner, and either –
(i) the corresponding authority of each jurisdiction in which the conduct happened consents to it being dealt with under this Act; or
(ii) the practitioner and, if a complaint is made by a person about the practitioner, the complainant consent to it being dealt with under this Act; or
(c) if the conduct happened entirely or partly outside Australia and the practitioner is a local lawyer or a local legal practitioner.
(3) This chapter does not apply to conduct happening in this jurisdiction if–
(a) the commissioner consents to the conduct being dealt with under a corresponding law; or
(b) the Australian legal practitioner and, if a complaint is made by a person about the practitioner, the complainant consent to the conduct being dealt with under a corresponding law.
(4) Subsection (3) does not apply if the conduct is not capable of being dealt with under a corresponding law.
(5) The commissioner may give consent for subsection (3)(a), and may do so conditionally or unconditionally.
Conduct before the commencement of this provision, that contravened the Personal Injuries Proceedings Act 2002, chapter 3, part 1, and had not been dealt with, or finally dealt with, under that Act, may be dealt with under this Act. See the Personal Injuries Proceedings Act 2002, section 83 (Provision for advertising of personal injury services and touting).
- On 15 November 2017, the Tribunal directed that the applicant provide further and better particulars of the “facts, matters and circumstances relied on by [the applicant] to found the locality of the impugned conduct”.
- The following particulars were then provided:
Location of the conduct
- The respondent is a local lawyer in Queensland and held a local practising certificate;
- The complainant [sic] resides, works and has an office in this jurisdiction;
- The conduct identified in the discipline application, namely charges 1, 2 and 3 happened partly in this jurisdiction;
- The conduct that the respondent engaged in the discipline application, namely charges 1, 2 and 3 is part of the course of the conduct because the email server of the respondent’s firm was located in Queensland;
- The emails from the respondent to the Court as particularised in charges 1, 2 and 3 were sent via the server of the respondent’s law firm and is located in Queensland.
- There was no evidence before the Tribunal as to where the respondent actually was when each of the impugned emails was sent, nor was there any evidence from which his physical location at those times could be inferred.
- The Tribunal did, however, have uncontested evidence in the form of an affidavit by Mr Matthew Clarke, a computer systems administrator employed by Tucker & Cowen. Mr Clarke deposed to examining the electronic version of each of the subject emails in his firm’s document management system. In each case, Mr Clarke conducted searches by reference to the emails’ metadata. In respect of each email, the searches identified that the email had been sent from a source host named “mail.clearyhoare.com.au” at an IP address located in Brisbane. In other words, each email had been transmitted from the respondent’s firm’s server which was physically located in Brisbane.
- The respondent submitted that the location of the email server through which the emails were sent did not establish the location of the respondent’s conduct and on that basis, this Tribunal did not have jurisdiction under s 423(1).
- Separately, insofar as the LSC alternatively contended that the Tribunal had jurisdiction under s 423(2) on the basis that the conduct had occurred partly in Queensland and partly in New South Wales, the respondent argued that the Tribunal lacked jurisdiction because the consent of the New South Wales Legal Services Commissioner had not been obtained when the applicant started dealing with the complaint in this case. Written consent of the New South Wales Legal Services Commissioner was ultimately obtained in October 2017, i.e. some five and a half years after the complaint was originally made and some four years after this discipline application was filed. Relying on the decision of the New South Wales Administrative Decisions Tribunal in Council of the New South Wales Bar Association v Asuzu, the respondent argued that such consent could not operate retrospectively to cure the lack of jurisdiction.
- The relevant conduct under each charge is the act of the respondent communicating with the Court. The mode of communication used by the respondent was his firm’s email system. Using that system meant, on the evidence, that each email was sent from the firm’s server, which was located in Queensland. That is, regardless of the respondent’s physical location when he formulated the emails, each communication occurred when the email was dispatched electronically from the server located in Queensland.
- In a previous hearing in this matter, Thomas J discussed the meaning of “communication” in the context of a practitioner’s conduct for the purposes of the LPA and said:
 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.
 The conduct of the practitioner in the process of communicating happens at the place of transmission.
 In Monis v The Queen, 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.
 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.
 In the High Court, French CJ treated communications as such when sent. Crennan, Kiefel and Bell JJ speak of a ‘service that brings communications … in packages that will be opened’. 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. Likewise, Heydon J suggested that communications already possessed that character before they are received.
- On the evidence before this Tribunal, the place at which the respondent’s emails were transmitted was the location of the firm’s server in Brisbane. Accordingly, regardless of the respondent’s physical location when he formulated each email, his conduct of communicating happened at the place each email was transmitted from the firm’s server, i.e. Brisbane, and the conduct was complete for the purposes of the LPA when that transmission occurred. This analysis under which jurisdiction is conferred by reference to the location of a server from which an email is actually transmitted is consistent with the approach adopted in a different context in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd, in which allegedly misleading and deceptive emails which originated overseas were transmitted to the plaintiff through a server located in Australia, and this locality was sufficient to allow the invocation of s 6(3) of the Trade Practices Act 1974 to permit the representations to be treated under that legislation as having been made using telegraphic or telephonic services.
- Accordingly, this Tribunal has jurisdiction in respect of each of the charges brought in this discipline application.
- Having made that finding, it is not necessary to deal with the alternative argument.
The impugned conduct
- The LSC contends that the respondent’s conduct in sending each of the impugned emails was in breach of r 18.6 of the Legal Profession (Solicitors) Rule 2007:
18.6 A solicitor must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:
18.6.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
18.6.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
- For the purposes of the LPA, the power of this Tribunal to impose sanction orders under s 456 arises if the Tribunal is satisfied that a practitioner has engaged in unsatisfactory professional conduct or professional misconduct.
- It is uncontroversial that, to the extent that matters are not admitted, the onus of proof in respect of each charge rests on the LSC, and the Briginshaw standard applies. Those propositions are statutorily enshrined in s 656C of the LPA.
- The LPA contains non-exhaustive definitions of the terms “unsatisfactory professional conduct” and “professional misconduct”:
418 Meaning of unsatisfactory professional conduct
Unsatisfactory professional conduct 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 reasonably competent Australian legal practitioner.
419 Meaning of professional misconduct
- (1)Professional misconduct 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 than 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 legal practice.
- (2)For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.
- Section 420 also enumerates various forms of conduct which are capable of constituting unsatisfactory professional conduct or professional misconduct including the following described in s 420(1)(a):
The following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct –
- (a)conduct consisting of a contravention of a relevant law, whether the conduct happened before or after the commencement of this section;
Under the Acts Interpretation Act 1954, section 7, and the Statutory Instruments Act 1992, section 7, a contravention in relation to this Act would include a contravention of a regulation or legal profession rules and a contravention in relation to a previous Act would include a contravention of a legal profession rule under the Legal Profession Act 2004.
- Moreover, s 227 of the LPA provides:
227 Binding nature of legal profession rules
- (1)Legal profession rules are binding on Australian legal practitioners, Australian-registered foreign lawyers and government legal officers to whom they apply.
- (2)Failure to comply with legal profession rules is capable of constituting unsatisfactory professional conduct or professional misconduct.
- A contravention of r 18.6 would be a “contravention of a relevant law” for the purposes of s 420(1)(a), and a failure to comply with a legal profession rule for the purposes of s 227(2). Such a contravention would thereby be capable of being held to constitute unsatisfactory conduct or professional misconduct.
- Before turning to the arguments advanced in this case, it is necessary to say something about the purpose of r 18.6 and the mischief to which it was directed.
- It is fundamental to the maintenance of the rule of law and the proper administration of justice that a judge is, and is able to be seen to be, impartial and independent of the parties whose dispute is the subject of adjudication. It is an incident of every legal practitioner’s paramount duty to the administration of justice to ensure that the actuality and appearance of this judicial independence is preserved and, equally, to avoid any conduct which might have the effect of causing that independence to be questioned.
- While r 18.6 (and its current cognate equivalent, r 22.5 of the Australian Solicitors Conduct Rules) is prescriptive in relation to the conduct of a solicitor, the purpose served by that prescription is not merely to regulate the proper conduct of a solicitor, but to preserve and maintain the independence of the judge before whom the solicitor has a pending case. As the Full Federal Court said in John Holland Rail Pty Ltd v Comcare:
The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case.
A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide.
- Viewed from this purposive perspective, it also explains why r 18.6 only prohibits communication on a “matter of substance”. Not every communication with a judge, or a judge’s chambers, will be one which necessarily touches the substance of the particular case or will be made “with a view to influencing the conduct or outcome of the case”. Much will depend on the content of the communication and the whole of the circumstances in which the communication was made, including any explanation for not seeking an opponent’s consent before sending the communication. As Brereton J noted in Carbotech Australia Pty Ltd v Yates, which was concerned with whether ex parte communication between a court appointed referee and the solicitors for one side gave rise to an apprehension of bias, the mere fact that an ex parte communication has taken place is important but not decisive, and “closer examination may show that the informed reasonable lay observer might not form an apprehension of bias despite such communications”.
- Again, this underscores the notion that the purpose to which the prescription in r 18.6 is directed is the preservation of the judicial officer’s independence.
- In the present case, the applicant’s argument was that each of the impugned emails was a communication on a matter of substance which was sent in breach of r 18.6. The LSC contended that the breach under Charge 1 amounted to unsatisfactory professional conduct because the sending of the email was not a momentary or inadvertent failure, while the breaches under Charges 2 and 3 were professional misconduct because they involved substantial and consistent failures to maintain a reasonable standard of competence and diligence.
- In denying breaches of the rule, the respondent put the LSC to proof and addressed his submissions to the following issues:
- a denial that the emails were in the opponent’s absence (issue 1);
- a denial that the emails contained a matter of substance (issue 2);
- a denial that there was no consent by the opponent (issue 3).
- The respondent then argued that, even if there was a breach of the rule, it was not unsatisfactory professional conduct because:
- there was no cause and effect in that the alleged breach did not affect the proceeding, and in the eyes of a member of the public this would not constitute unsatisfactory professional conduct (issue 4);
- the respondent only responded to a line of communication with the Court initiated by his opponent, and, in the eyes of a member of the public this would not constitute unsatisfactory professional conduct (issue 5).
- Further, the respondent argued that, even if there was a breach of the rule, there was no professional misconduct because:
- any breach, if established, did not constitute a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence (issue 6);
- any breach, if established, could not justify a finding that the respondent is not a fit and proper person to engage in legal practice (issue 7).
- It is convenient to deal with each of these issues as follows.
- The gist of the respondent’s argument here is that the fact that each of the three emails was simultaneously copied to the opponent meant there was no breach of the rule.
- It was argued that the particular provided by the LSC, namely that the opponents “were not in the presence of the respondent at the time email was sent” ignored the contemporary reality of court proceedings when, for example, opposing parties are not in one another’s physical presence, but one or both might appear by telephone or video link. It was argued, by way of corollary, that this supports the notion that the purpose of the rule is fulfilled merely by the emails being copied to the opponent at the time they were sent. Counsel for the respondent contended:
- Thus the essence of the rule is not that the parties are not in each other’s presence but that the communication was made without the opponent’s knowledge. The cc copy ensured the opponent knew of the communication immediately. There was thus no breach of the rule.
- The cc copy of the email meant that the opponent immediately became party to the communication with the court and it thus cannot be framed as being in the opponent’s absence.
- The Tribunal does not accept any of these arguments. The reference in r 18.6 to a solicitor communicating “in the opponent’s absence” cannot be cherry-picked, and must be read in the proper context of the prescription of which it forms part:
A solicitor must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with the current proceedings unless … the opponent has consented beforehand to the solicitor communicating with the court in a specific matter notified to the opponent by the solicitor.
- Undoubtedly this was derived from the practices before instantaneous electronic communication, when it was understood that:
… there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party.
- Even in the contemporary age of instantaneous communication, this Tribunal does not accept that the purpose to which the rule is directed can be met by nothing more than “cc-ing” the opponent. If that was so, it would open the gate for all manner of otherwise improper or inappropriate communications to a judge to be justified by the simple expedient of sending a copy to the opponent.
- Indeed, the invocation of modern instantaneous communication in this context is a red herring. Say a solicitor, rather than sending an email “cc-d” to the opponent, wrote a letter, sent by prepaid mail, to the judge without previously consulting with and obtaining the consent of the opponent, and at the same time sent a hard copy of that letter by prepaid mail to the opponent. On the respondent’s argument, this would be enough to get around the rule. Clearly, that would be an intolerable position.
- The reference to a communication “in the opponent’s absence” when read properly in context, draws attention to the unilateral nature of the impugned conduct. The act of sending an email is not rendered bilateral by the simple expedient of simultaneously copying it to the opponent.
- The Tribunal rejects the respondent’s arguments under issue 1, and finds that each of the emails was sent “in the opponent’s absence” within the meaning of that term in r 18.6.
- The respondent first sought to place the emails he sent in the context of an email having just been sent by counsel for the plaintiff later in the afternoon after the hearing had concluded. That email is described above at .
- The respondent then referred to his email of 30 March 2012 (subject of Charge 1), and contended that this did not contain a matter of substance but was a matter of procedure. It was argued that it did not attach any cases but sought directions on how to proceed, was administrative in nature, and made no argument nor enclosed any case.
- The other side’s response was the email of 2 April 2012 (quoted above at ).
- Ultimately, the Judge’s Associate responded, advising to the effect that the judge would not receive any further submissions from the parties.
- The respondent’s email of 30 March 2012:
- effectively sought the judge’s leave for the respondent’s side to provide the judge with further “concise closing submissions”, and identified the issues to which those submissions would be addressed;
- advised the respondent’s intention to provide the judge with “some extracts from some of the more relevant cases that counsel referred to”; and
- asked whether the judge agreed to this course.
- The Tribunal does not consider that this email of 30 March 2012 contained matters of substance in connection with the relevant proceeding. The email did not, in itself, advance any further submissions or evidence, but rather, relevantly, went no further than seeking the judge’s leave to put on further submissions. That request was ultimately declined. The email also seems to have assumed an entitlement on the part of the respondent to provide extracts of authorities to the judge. That, of course, became the subject of the respondent’s email of 4 April 2012.
- The Tribunal finds that the respondent’s email of 30 March 2012 was not a communication on a matter of substance in that its contents, of themselves, could not influence the outcome of the case. Accordingly, the dispatch of that email was not in breach of r 18.6.
- The respondent’s email of 4 April 2012 is, however, in a different category. Counsel for the respondent before this Tribunal could not elevate his case any higher than that it was “arguable” that this email did not go to matters of substance.
- The email of 4 April 2012, which was sent despite the email from the Judge’s Associate on 2 April 2012, clearly did descend into matters of substance. The respondent sought to rationalise and justify this email by reference to the fact that the opponent’s counsel had sent the email of 29 March 2012. In fact, however, that previous email did nothing more than provide the judge with a copy of a case to which the plaintiff’s counsel had actually referred in argument. So much is clear from the face of that email.
- The respondent’s email of 4 April 2012 went much further. Under the guise of “assisting the judge”, the respondent sent the judge a welter of authorities and extracts. There is no suggestion that any of these had been referred to in argument before the judge. Indeed, it is apparent from the respondent’s email that not only had they not been referred to in argument, some were extracts “of some further cases which have applied these cases”. In other words, contrary to the assertion in his earlier email that he would only be providing “some extracts from some of the more relevant cases that counsel referred to”, the respondent used his email of 4 April 2012 to put before the judge research material to which the judge had not been referred in argument. This was self-evidently done with a view to influencing the outcome of the case. The email concerned substantial matters of law which were in issue in the case.
- The Tribunal finds that the respondent’s email of 4 April 2012 concerned a “matter of substance” in connection with the relevant proceeding.
- So far as the email of 20 April 2012 (the subject of Charge 3) is concerned, the highest that the respondent’s submission goes is that the information that the plaintiff company had been placed into liquidation “was a matter of public record and was not in the nature of submission or argument”.
- That contention cannot be accepted for several reasons. First, it ignores the fundamental proposition that the Court acts on evidence, not on assertions made in unsolicited emails. Secondly, the matter before the Court was an application for security for costs against the plaintiff. The fact of the plaintiff's liquidation would obviously have been a relevant consideration on such an application, and manifestly a “matter of substance” in connection with the application for security for costs.
- Accordingly, the Tribunal finds that the respondent’s email of 20 April 2012 concerned a “matter of substance” in connection with the relevant proceeding.
- It was argued that each of the respondent’s emails “were part of a course of conduct of communicating with the court by email and cc without prior consent by both the respondent and the opposing legal team”.
- Counsel for the respondent argued that the other side had started this conduct with the email of 29 March 2012, that the respondent was “only responding” to that email, and that it can be “fairly assumed that the respondent had the implied consent of his opponent for all three emails”.
- None of these arguments can be accepted:
- The opponent’s email of 29 March 2012 did not invite a response, nor did it require a response;
- The respondent’s first email of 30 March 2012 was not, on its face, responsive, and did not purport to be responsive, to the opponent’s email of 29 March 2012;
- The subsequent emails from the opponent (Mr Nase’s emails of 2 April and 4 April 2012) made abundantly clear that there was no consent to the respondent communicating with the Court as he did.
- The respondent’s arguments on issue 3 are rejected, and the Tribunal finds that the opponent had not consented to the respondent sending any of the three impugned emails.
- The respondent argued that, even if the sending of any of the emails was in breach of r 18.6, the judgment delivered in the case did not mention the emails, nor did the judge admonish either side for sending the emails or suggest that they cease. Thus, says the respondent, any breach of the rule was “technical only, and without effect on the proceeding”. Counsel for the respondent then submitted:
Disciplinary proceedings are a matter of cause and effect like all criminal proceedings. Without any effect, there can be no misconduct finding.
- These submissions are gravely erroneous:
- Disciplinary proceedings are not, and are not “like all” criminal proceedings. If authority be required for that proposition, it is sufficient to refer to Adamson v Queensland Law Society Inc (1990) 1 Qd R 498 at 505;
- This Tribunal has repeatedly affirmed and applied the propositions stated by the Court of Appeal in Legal Services Commissioner v Madden that this disciplinary jurisdiction is not punitive, that orders in this jurisdiction are shaped in the interests of the protection of the community from unsuitable practitioners, and that in determining what orders ought be made regard should primarily be had to the protection of the public and the maintenance of proper professional standards;
- The statutory purposes of disciplinary proceedings include “to promote and enforce the professional standards, competence and honesty of the legal profession”.
- There is no question of “cause and effect”, as suggested on behalf of the respondent. The question is whether the practitioner has engaged in conduct which should be characterised as unsatisfactory professional conduct or professional misconduct.
- The respondent made an equally erroneous submission under this rubric that the only test for unsatisfactory professional conduct is by reference to an assessment by a member of the public and not the legal profession. This will be dealt with below.
- The Tribunal rejects the respondent’s arguments under issue 4.
- This was an argument to the effect that, even if in technical breach of r 18.6, the respondent’s conduct was part of a line and form of communication which had been initiated by the opponent.
- For the reasons given above, this argument is rejected.
- The respondent argued that there had been no unsatisfactory professional conduct which involved a “substantial or consistent failure to reach or keep a reasonable standard of competence and diligence” under the definition of “professional misconduct” in s 419(1)(a) of the LPA. This issue will be dealt with below.
- The LSC did not advance any case that the respondent was not a fit and proper person to engage in legal practice for the purpose of the definition of “professional misconduct” in s 419(1)(b). Accordingly, it is not necessary to address this issue further.
Discussion – characterisation of the conduct
- For the reasons stated above under issue 2, the applicant’s case of breach of r 18.6 in respect of the email of 30 March 2012 cannot be sustained, and Charge 1 must be dismissed.
- Equally, for the reasons set out above, it is clear that the communication of each of the other emails by the respondent was in breach of r 18.6.
- The Tribunal must now consider whether those breaches ought be characterised as professional misconduct or unsatisfactory professional conduct.
- As noted above, s 418 and s 419 provide non-exhaustive definitions of the terms “unsatisfactory professional conduct” and “professional misconduct” respectively. In other words, conduct which does not necessarily fall squarely within the ambit of one or other of those definitions may nevertheless, in appropriate circumstances, be regarded by the Tribunal as constituting either professional misconduct or unsatisfactory professional conduct. Contrary to the submission of the respondent, the terms of s 418 do not impose an overarching test of expectations of the general public rather than members of the profession as a prerequisite for a finding of unsatisfactory professional conduct. Each case must be considered on its own facts and merits. As was said by Wilson J in Legal Services Commissioner v Bussa, the question whether or not a practitioner’s misconduct in a particular case amounts to unsatisfactory professional conduct or professional misconduct is generally a matter of degree and each case will be determined on its own facts.
- Proven breach of a legal profession rule is capable of founding a conclusion that the practitioner engaged in unsatisfactory professional conduct or professional misconduct – so much is clear from the express terms of s 420(1)(a) and s 227(2). But proof of a breach of a professional rule does not automatically or necessarily compel a finding that the practitioner engaged in unsatisfactory professional conduct or professional misconduct. Again, the characterisation of the conduct constituted by the breach will be a matter of degree, determined on the facts of each case.
- Not every professional failing constitutes unsatisfactory professional conduct:
Both sections 418 and 420 of the LPA contain flexible tests, such that not every error which a practitioner may make will constitute unsatisfactory professional conduct. Decided cases suggest, rather, that a finding of that kind will usually involve repeated errors or a significant departure from accepted standards of competence.
- Relevant considerations include the seriousness of the conduct in question, and whether there has been any repetition of the conduct.
- These principles have been regularly applied in this Tribunal – see, for example, Legal Services Commissioner v Astley.
- There are a number of factors which point to the seriousness of the professional shortcoming involved in the breaches committed by the respondent in this case:
- (a)For the reasons given above, this conduct involved breaches of a professional rule which was not merely part of a code of conduct but which was supportive of, and indeed an incident of, the respondent’s paramount duty to the administration of justice;
- (b)The respondent demonstrated a degree of persistence in the conduct of writing to the Judge’s Associate, despite clear communication that his opponent objected;
- (c)The respondent has demonstrated no insight into his breaching conduct, nor has he given the Tribunal any explanation or justification for his conduct.
- That being said, this Tribunal does not consider that the conduct under Charges 2 and 3 falls short of, to a sufficiently substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency such as to warrant findings of professional misconduct.
- But these breaches are not, by their very nature, so trivial as to warrant exoneration. Each was a significant departure from appropriately competent professional conduct, and ought be characterised as such.
- Even if one applies the definition in s 418, this Tribunal considers that members of the public are entitled to expect that reasonably competent Australian legal practitioners will observe the professional rules which bind them and, more fundamentally, act in accordance with their paramount duty to the administration of justice. The breaches under Charges 2 and 3, by their very nature, fall short of the standards of competence which are required by observance of those rules.
- In all the circumstances, the Tribunal has concluded that the conduct under each of Charges 2 and 3 should be characterised as unsatisfactory professional conduct.
- Having made those findings, the Tribunal’s discretion to make sanction orders under s 456 is enlivened. The parties have asked to be heard in relation to such orders.
- Accordingly, for the foregoing reasons, there will be the following orders and directions:
- Charge 1 is dismissed;
- On each of Charge 2 and Charge 3, it is found that the respondent engaged in unsatisfactory professional conduct;
- The Tribunal will hear from the parties with respect to consequential orders and as to costs.
The respondent had accepted that each of the alleged breaches occurred when the Legal Profession (Solicitors) Rule 2007 was in force. Despite the fact that these rules have since been repealed, a contravention of those rules, if proved, may nevertheless be dealt with by a discipline application under the LPA. So much was decided in this case by the Tribunal in Legal Services Commissioner v Trost  QCAT 171.
(1959) 101 CLR 298.
ASIC v Flugge & Geary (2016) 342 ALR 1.
Affidavit sworn 28 April 2014.
 NSWADT 209.
LSC v Trost  QCAT 171.
 NSWCCA 231; (2011) 256 FLR 28.
Ibid at 46.
Monis v The Queen (2013) 249 CLR 92 at  & .
Ibid at 308.
Ibid at 200.
Ibid at 241.
(2012) 266 FLR 243.
Briginshaw v Briginshaw (1938) 60 CLR 336;  HCA 34.
(2011) 276 ALR 221 at .
(1986) 161 CLR 342.
 NSWSC 540 at .
Respondent’s written submissions.
Reg. v Magistrates’ Court at Lilydale; ex parte Ciccone  VR 122, per McInerney J at 127.
Respondent’s written submissions, para 71.
Respondent’s written submissions, para 73.
Respondent’s written submissions, para 76.
Respondent’s written submissions, paras 78 and 79.
Respondent’s written submissions, para 83.
Respondent’s written submissions, para 83.
(2009) 1 Qd R 149 at .
LPA, s 416(b).
 QCAT 388 at .
See also Legal Services Commissioner v Coburn  QCAT 435.
Legal Services Commissioner v Bone  QCAT 550, per Wilson J at  and omitting references.
See, for example, Legal Services Commissioner v Laylee & Devlin  QCAT 237 at .
 QCAT 274.
Applying the test propounded by Thomas J in Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 at 507.
- Published Case Name:
Legal Services Commissioner v Benjamin Che Trost
- Shortened Case Name:
Legal Services Commissioner v Trost
 QCAT 357
09 Dec 2019