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Legal Services Commissioner v SD[2021] QCAT 204

Legal Services Commissioner v SD[2021] QCAT 204

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v SD [2021] QCAT 204

PARTIES:

Legal services commissioner

(applicant)

v

sd

(respondent)

APPLICATION NO/S:

OCR203-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

25 May 2021 (ex tempore)

HEARING DATE:

25 May 2021

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:

Ms Susan Forrest

Ms Patrice McKay

ORDERS:

  1. In respect of each of Charges 1 and 2, there is a finding of professional misconduct.
  2. In respect of Charge 3, there is a finding of unsatisfactory professional conduct.
  3. The Tribunal recommends that the name of the Respondent be removed from the Roll of Legal Practitioners in Queensland.
  4. The Respondent shall pay the Applicant’s standard costs of and incidental to this discipline application, such costs to be assessed as if this were a matter before the Supreme Court of Queensland.
  5. These reasons for decision be anonymised for publication.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – CRIMINAL OFFENCES – where respondent committed serious offence of common assault-domestic violence – where respondent breached conditions of domestic violence temporary protection order and bail – where respondent failed to give required notifications to QLS relating to charges – where applicant filed discipline application in the Tribunal – where respondent has failed to engage with applicant, disciplinary body or the Tribunal – whether there should be a finding of professional misconduct or unsatisfactory professional conduct – whether the respondent’s name ought be removed from the local roll

Domestic and Family Violence Protection Act 2012 (Qld), s 159

Legal Profession Act 2007 (Qld), s 57, s 68, s 418, s 419, s 456, s 462

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66, s 92

Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

APPEARANCES &:

REPRESENTATION:

Applicant:

D A Holliday QC instructed by the Legal Services Commissioner

Respondent:

No appearance

REASONS FOR DECISION

  1. [1]
    On 8 July 2020, the Applicant, the Legal Services Commissioner, filed a discipline application under the Legal Profession Act 2007 (Qld) (“LPA”) against the Respondent. 
  2. [2]
    The Respondent was admitted as a solicitor in Queensland in 2014.  He held a restricted employee level practising certificate, but that practising certificate was then cancelled by the Queensland Law Society (“QLS”) in 2019. 
  3. [3]
    The discipline application brings three charges against the Respondent.  The first two charges arise out of conduct which led to him being convicted on 21 August 2019 of the serious offence of common assault–domestic violence.  Charge 3 arose out of his failure to give the QLS the required notifications of that event within the timeframes prescribed under the LPA. 
  4. [4]
    The Respondent was served with the discipline application, and there is an affidavit of service on file proving service.  The Respondent has not, however, engaged in any way with this discipline application.  He has not filed a response.  He has not appeared to respond to the charges.  The last contact by the Respondent to the Tribunal indicated that he was overseas.  That was as long ago as August 2020.  He did not respond to the notice of hearing for today’s hearing despite that having been sent to the email address he has customarily used in the past.  He has not appeared at today’s hearing.  Accordingly, the Tribunal considered it appropriate under s 92 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to proceed to hear and determine the matter in his absence.
  5. [5]
    I should also note that the allegations made in the discipline application are supported by primary evidence in the form of an affidavit by a senior investigator in the employ of the Applicant.  That affidavit exhibits relevant court transcripts, certificates, copies of orders and other relevant documentation from which the Tribunal can be satisfied to the requisite standard that the Applicant has proved each and every one of the allegations contained in the discipline application. The Tribunal finds on the basis of the evidence adduced by the Applicant, that each of those factual matters has been made out to the requisite standard. 
  6. [6]
    The background to this matter can be stated briefly.  In February 2017, the Respondent was named as the Respondent in a domestic violence temporary protection order.  His wife was named as the aggrieved.  One of the conditions of that order was that the Respondent was prohibited from remaining, entering or approaching within 100 metres of the aggrieved. 
  7. [7]
    Notwithstanding that, in April 2018, the Respondent, in knowing contravention of that protection order, commenced cohabiting with his wife. 
  8. [8]
    Then, in May 2018, an incident occurred in which the Respondent unlawfully assaulted his wife at their home.  A transcript of the hearing of the criminal charge subsequently brought against the Respondent in which, after a contested hearing, the Respondent was found guilty of common assault, is in evidence before the Tribunal.  As appears from that transcript, the basic circumstances of the domestic violence incident, and the basis upon which he was sentenced in the Magistrates Court, was that the Respondent, while his wife was crouching on the ground, stood over her and  made, at the very least, a kneeing gesture towards her.  He then grabbed her by the hair with both hands and dragged her for one and a half metres.  He let go of her only when a witness yelled out words to the effect that he should let her go. On that same day, the Respondent was charged with common assault–domestic violence and also with a breach of the protection order.  Subsequently, the Respondent failed to report in accordance with his bail conditions and he was then charged with having breached his bail. 
  9. [9]
    The matter then came on for trial in the Magistrates Court.  The Respondent, at the outset, pleaded guilty to the breach of bail but contested the common assault charge.  After a hearing during which the Magistrate heard from a number of witnesses to the event, and also heard evidence given by the Respondent, the Respondent was found guilty of the charge of common assault. As I have said, the Respondent had pleaded guilty to the breach of bail condition and he also had indicated a plea of guilty to having breached the protection order.  When sentencing the matter, the Magistrate imposed a global fine of $2,500.00.  A conviction was not recorded. 
  10. [10]
    Those facts form the basis of Charges 1 and 2 in the present discipline application.  Charge 1 is that the Respondent engaged in conduct which was likely, to a material degree, to bring the profession into disrepute, contrary to rule 5 of the Australian Solicitors Conduct Rules.  Charge 2 is founded in the fact that the Respondent was convicted of the serious offence of common assault–domestic violence by his engaging in the conduct of unlawfully assaulting his wife. 
  11. [11]
    In the circumstances that I have briefly described, and which are fully particularised in the discipline application, it is clear that the facts underpinning each of Charges 1 and 2 have been made out. 
  12. [12]
    Charge 3 of the discipline application turns on the fact that, under s 57 of the LPA, it is a statutory condition of every local practising certificate that the certificate holder must give notice to, relevantly, the QLS if, amongst other things, the certificate holder is charged with a serious offence. That notice must be given within seven days after having been charged. 
  13. [13]
    The Respondent, in this case, was charged with the offence of common assault–domestic violence on 2 May 2018.  That was a serious offence within the meaning of that term in the LPA.  He did not give the requisite notice within the prescribed time. Nor, for that matter, did he give notice to the QLS of the fact that he had then been convicted of the serious offence.  Again, under s 57 of the LPA, a certificate holder is required to give notice to the QLS of the fact of conviction for a serious offence within seven days of the conviction.  This Respondent did not do so.  The facts underpinning Charge 3 are therefore made out. 
  14. [14]
    I have already commented on the Respondent’s lack of engagement with this discipline application.  The fact that the Respondent has not at all engaged in respect of this very serious professional matter is itself indicative of a lack of remorse and indeed, a lack of insight into the characteristics which attach to membership of an honourable profession.  The fact that the Respondent has not filed a response to the  discipline application or any material in relation to the discipline application is, however, consistent with his previously evinced attitude to the incident that gave rise to the discipline application and its sequalae. For example, the Respondent had previously denied the assault, blamed his wife and family for his breaches of the protection order, and sought to explain away his breach of bail condition on the basis that he forgot to report in the face of family issues.
  15. [15]
    Notably, at no time has the Respondent, either in the course of the criminal proceedings or in the course of this discipline application, expressed any insight into the seriousness of his conduct, either at a personal level or, relevantly for today’s purposes, in respect of the implications that this sort of conduct has so far as his professionalism is concerned.  The highest that the Respondent could pitch his behaviour was in a submission he made to the QLS under s 68 of the LPA in which he sought to explain why he was and remained a fit and proper person to continue to hold a practising certificate, at which time he advanced arguments that there had been no elements of dishonesty or fraud in the offence, and that the offence was very unlikely to happen again. Casting his submissions in that way indicated that, again, the Respondent had no insight into the very serious personal and professional issues that arise and are evidenced by the conduct which led to his being convicted of the serious offence of common assault–domestic violence. 
  16. [16]
    The Tribunal is satisfied that each of Charges 1, 2 and 3 are made out. The question then is how to characterise the conduct. 
  17. [17]
    In respect of Charges 1 and 2, those matters are founded on the facts underpinning, and the fact of, the Respondent’s conviction of the serious offence of common assault–domestic violence. 
  18. [18]
    The Respondent committed the offence of violence against his domestic partner in a domestic setting.  The incident of violence was witnessed by third parties.  He only desisted when a witness intervened.  Moreover, the assault was committed in breach of the protection order, and the Respondent knew that he was the subject of a protection order.  He was, after a contested hearing, convicted of common assault and also pleaded guilty to other offences of failing to comply with court orders.  All of these matters bespeak a fundamental lack of fitness and propriety to engage in legal practice.  It is clear to this Tribunal that the circumstances of this case warrant a finding of professional misconduct on each of Charges 1 and 2. 
  19. [19]
    In respect of Charge 3, the Tribunal accepts the Applicant’s submission that the conduct ought be characterised as unsatisfactory professional conduct.  As noted above, the conduct in question amounted to a failure to observe statutory timeframes.  Those matters are, of course, serious but do not rise to the level which would warrant a finding beyond that of unsatisfactory professional conduct. 
  20. [20]
    Turning then to the question of sanction, I have described the nature of the conduct which has led to the findings of professional misconduct.  I have noted on several occasions the absence of remorse or regret, let alone insight on the part of the Respondent.  There is no evidence whatsoever of any rehabilitation on his part.  On the contrary, he has left the country and disengaged from this disciplinary process. 
  21. [21]
    The Tribunal accepts the Applicant’s submission that, as of 25 May 2021, this Respondent cannot be regarded as a person in whom clients, especially vulnerable people, could place their trust, nor could he command their respect.
  22. [22]
    It is also the case that the offending conduct falls into that category of case described by Kitto J in Ziems v The Prothonotary of the Supreme Court of New South Wales[1] as being conduct which provides instant demonstration of unfitness for membership of the profession.  The Respondent’s engagement in this act of common assault–domestic violence bespeaks unsuitability for ongoing membership of this honourable profession. 
  23. [23]
    Accordingly, the Tribunal is of the view that this is an appropriate case to recommend that the Respondent be struck off. 
  24. [24]
    Finally, I note for completeness that s 462 of the LPA mandates the making of a costs order in this case. 
  25. [25]
    Accordingly, there will be the following orders:
    1. In respect of each of Charges 1 and 2, there is a finding of professional misconduct.
    2. In respect of Charge 3, there is a finding of unsatisfactory professional conduct.
    3. The Tribunal recommends that the name of the Respondent be removed from the Roll of Legal Practitioners in Queensland.
    4. The Respondent shall pay the Applicant’s standard costs of and incidental to this discipline application, such costs to be assessed as if this were a matter before the Supreme Court of Queensland.
    5. These reasons for decision be anonymised for publication.

Footnotes

[1]  (1957) 97 CLR 279, 288.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v SD

  • Shortened Case Name:

    Legal Services Commissioner v SD

  • MNC:

    [2021] QCAT 204

  • Court:

    QCAT

  • Judge(s):

    Justice Daubney

  • Date:

    25 May 2021

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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