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Bhandari v Morgan Conley Solicitors Pty Ltd[2022] QCAT 282

Bhandari v Morgan Conley Solicitors Pty Ltd[2022] QCAT 282

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Bhandari & Ors v Morgan Conley Solicitors Pty Ltd [2022] QCAT 282

PARTIES:

puna bhandari

(applicant)

australian management skills pty ltd

(applicant)

future college pty ltd

(applicant)

 

v

 

morgan conley solicitors pty ltd

(respondent)

APPLICATION NO/S:

OCL104-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 September 2022

HEARING DATE:

20 June 2022

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons KC, Judicial Member

ORDERS:

  1. The application by Mr Puna Bhandari for leave for Mr Rudy Frugtniet to represent him in these proceedings is refused.
  2. Declare that the applicants Australian Management Skills Pty Ltd and Future College Pty Ltd may appear in these proceedings through Mr Rudy Frugtniet.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – where Mr Frugtniet wrote the applicant’s submissions for leave to be represented by him – whether appropriate

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – where corporate applicants propose that leave of the tribunal to be represented by Mr Frugtniet is not required because he is an officer of each applicant – where Mr Frugtniet has never been an Australian legal practitioner – whether leave is required

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – where natural person applied for leave for Mr Frugtniet to represent him in proceedings in the Tribunal – where Mr Frugtniet was not found to be a fit and proper person to be admitted to the legal profession – where Mr Frugtniet was designated as a ‘disqualified person’ for three years by VCAT – other misconduct of Mr Frugtniet considered – whether Mr Frugtniet an appropriate person to represent applicant in proceedings in the Tribunal

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – where the applicants applied for leave for Mr Frugtniet to represent them in proceedings before QCAT – where the application was opposed – where the applicants applied to refer a question of law to the Queensland Court of Appeal – whether Tribunal had power to refer question to Court of Appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 42(2)(b)(iv), s 43, s 43(1), s 43(2), s 43(2)(i)(v), s 43(3), s 43(4), s 118, s 224(3)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 54, s 57

Legal Profession Act 2007 (Qld) s 6

Castillon v P&O Ports Ltd [2008] 2 Qd R 219

Frugtniet v Board of Examiners [2002] VSC 140

Frugtniet v Board of Examiners [2005] VSC 332

Frugtniet and Tax Practitioners Board (2014) 148 ALD 401

Frugtniet and Tax Practitioners Board (2015) 67 AAR 336

Frugtniet v Migration Agents Registration Authority [2016] AATA 299

Frugtniet and Australian Securities and Investments Commission [2022] AATA 295

Hollington v Hewthorn [1943] KB 587

In re A Solicitor [1993] QB 69

Law Institute of Victoria Limited v Frugtniet [2011] VCAT 596

APPEARANCES

& REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    The named applicants have commenced proceedings in this Tribunal to have a costs agreements which they entered into with the respondent set aside under s 328 of the Legal Profession Act 2007 (Qld) (“LP Act”).  They rely on allegations of fraud, misrepresentation, non-compliance with the disclosure requirements of the LP Act, and on circumstances and the conduct of the respondent both before and after the agreements were made. They have applied to be represented in these proceedings by Mr Rudy Frugtniet.  The application is made under s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). It is opposed.

Background

  1. [2]
    Four costs agreements are the subject of the principal application.  The first, dated 19 June 2019, is between Mr Bhandari and Australian Management Skills Pty (“AMS”), and the respondent.  The second, dated 4 February 2020, is between Mr Bhandari and Future Colleges Pty Ltd (“FC”) and the respondent.  The third is dated 29 October 2019, and is between Mr Bhandari and AMS and the respondent.  The fourth, dated 2 December 2019, is between Mr Bhandari and AMS, and the respondent.             
  2. [3]
    The proposed representative is the Executive Officer of AMS and FC.  A Certificate of Authority for him to represent these applicants was executed by the directors on 7 February 2022.  Attached to the submissions in support of the application are letters of authority signed by Mr Bhandari as a director of each of the companies, stating that Mr Frugtniet has been appointed as an officer to represent each company in the proceedings, and that he has been appointed as secretary of the company.  The latter appointment appears in an ASIC extract for each company. 
  3. [4]
    This is the second application of this kind.  An earlier application was refused on 25 January 2022.

Submissions

  1. [5]
    The applicants in their submissions dated 7 March 2022 stated that they seek leave to be represented in this matter by Mr Frugtniet if leave is required under s 42(2)(b)(iv) of the QCAT Act.  They submitted that the three of the individuals named in the principal proceedings are Australian legal practitioners.  They submitted that the proceedings involve complex questions of law and fact, including whether persons were authorised or otherwise had the capacity to give instructions; and whether the respondent was entitled to make Mr Bandhari a party to the costs agreements when he was not an officer the corporations.  Moreover, Mr Bandhari does not have experience in the conduct of the processes involved in a Tribunal hearing.  They submitted that Mr Frugtniet is not disqualified from representing a party in these proceedings under s 57 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (“QCAT Rules”).  They also submitted that leave is not required by virtue of s 54 of the QCAT Rules, as Mr Frugtniet is not a legal practitioner. 
  2. [6]
    In the material provided to the Tribunal, the application (dated 10 February 2022) is attached to these submissions.  Also attached is a submission dated 22 February 2022, referred to as a reply submission (to avoid confusion, this submission will be referred to as “the February submission”). It is apparent from this submission that the applicants anticipated that the respondent will be represented in the proceedings by one of its directors who is a solicitor, a fact on which they rely for the grant of leave.  They submitted that Mr Frugtniet’s legal qualifications are a matter which favour a grant of leave. They also submitted that the applicants cannot afford legal representation.  They submitted that allegations relating to earlier conduct of Mr Frugtniet are not relevant.  The matters were not disciplinary matters, but applications by him where he was unable to establish that he was a fit and proper person.  The question is to be considered as of now.  A prohibition against him being employed as a lay associate to a legal practice expired more than a decade ago.  The conviction in 1978 in the United Kingdom was spent.  Mr Frugtniet has been acquitted of other charges, and the acquittals are to be respected.  The article relied upon by the respondent is inaccurate.
  3. [7]
    The application itself sets out matters relied upon in support of the application.  Mr Frugtniet has legal qualifications.  He is an officer of the corporate applicants, and has complied with s 54 of the QCAT Rules.  Indeed, in such a case, leave may not be required.  Since the directors of the respondent are all lawyers, it will be represented in the proceedings in the Tribunal by a lawyer.  Mr Frugtniet has considerable knowledge of the matter, and would be able to assist the Tribunal to apply the relevant law.  The applicants would be disadvantaged if not represented by Mr Frugtniet.  The businesses of the corporate applicants have closed, and they are otherwise unable to obtain legal assistance.
  4. [8]
    In submissions received by the Tribunal on about 14 July 2022, the applicants submitted that a question of law should be submitted to the Court of Appeal pursuant to s 118 of the QCAT Act.  The question appeared to be whether the disqualification found in s 57 is limited to a person who was or is a lawyer; and whether a corporation may appear as of right under s 54 through an officer who is a lawyer, or if leave is required.  The disqualification found in s 54 applies only to a person who is or was a lawyer; and who has been suspended or struck off.  Matters in previous disciplinary proceedings “have expired”, with one exception.  Mr Frugtniet has always conducted himself well in proceedings.  There has been no prohibition on Mr Frugtniet acting as an officer of a corporation.  The question whether a person is an appropriate person to represent a party in a proceeding is to be determined by reference to the proposed representative’s knowledge of the dispute, and capacity to conduct the case, matters relating to disqualification being dealt with by other legislative provisions.
  5. [9]
    In further submissions dated 20 July 2022, the applicants contended that leave was not necessary, apparently for the corporate entities to appear through Mr Frugtniet; and that the disqualification in s 57 applies only to a person who is or was a lawyer.
  6. [10]
    The respondent has filed submissions on 18 February 2022, 9 March 2022, 13 June 2022, 13 July 2022 and 19 July 2022.  The last-mentioned submissions deal with the applicants’ application for the referral of a question of law to the Court of Appeal.  The respondent otherwise intended that its submissions be “wholly contained” in the submission filed on 13 July.
  7. [11]
    The respondent submitted that the material relied upon by the applicants is wholly inadmissible as evidence.  It ought to be disregarded.  They submitted that an earlier application for leave for Mr Frugtniet to represent the applicants was refused by Mellifont J on 25 January 2022.  Thus the matter is res judicata.  The applicants have not demonstrated that any complex question of law or fact arises.  Nor have they shown that the proposed representative would facilitate the timely resolution of the matter.  Mr Bhandari is an appropriate person to represent the applicants, in view of his involvement in the dealings with the respondent.  The applicants could obtain legal assistance without the appointment of Mr Frugtniet to represent them.  Mr Frugtniet was appointed company secretary on 22 February 2022.  This seems to be a contrived attempt to skirt the Tribunal’s representation requirements.
  8. [12]
    The respondent submitted that Mr Frugtniet has been the subject of a number of disciplinary proceedings involving professional misconduct.  He made an application to the Victorian Board of Examiners for admission to the legal profession and was denied it on the basis that he was not a fit and proper person to engage in legal practice.  It was submitted that a number of convictions between 1989 and 2000 were considered in assessing the fitness of Mr Frugtniet to engage in practice.  A second application for admission was refused in 2005.  In 2011, Mr Frugtniet was designated as a disqualified person for three years pursuant to s 2.2 of the Legal Profession Act (Vic) (2007) (“VLPA”). He also failed to establish that he was a fit and proper person to engage in credit activities under the National Consumer Credit Protection Act 2009 (Cth) (“NCCP Act”); to be registered as a tax agent; to give immigration assistance; and to work as a licensed conveyancer.  A banning order was made against him under the NCCP Act (though this was subsequently overturned by the High Court).  Notwithstanding that the applicants may nominate someone to represent them, the suitability and appropriateness of Mr Frugtniet to act in this capacity must be taken into consideration.  He is not an appropriate person to represent a party for the purposes of s 43(4) and/or s 224(3) of the QCAT Act.  He is a disqualified person pursuant to s 57.
  9. [13]
    In its submission filed on 19 July 2022, the respondent submitted that the application does not raise a question of law, and so should not be referred to the Court of Appeal under s 118 of the QCAT Act.  Any question can be decided by the Tribunal as presently constituted.  The applicants are engaging in delaying tactics by their application.
  10. [14]
    In reply submissions dated 24 March 2022, the applicants submitted that their evidence is admissible in this Tribunal.  The previous unsuccessful application does not give rise to a res judicata, nor to an estoppel.  Mr Frugtniet has sufficient knowledge of the dispute.  His positions qualify him as an officer, through whom the corporate applicants might appear.  They appeared to submit, by reference to s 224(3) of the QCAT Act and s 57, that disciplinary proceedings are only relevant when those proceedings result in a guilty finding.  In the circumstances of this case, to grant leave to Mr Frugtniet to represent Mr Bhandari would not increase costs, and would contribute to the just, economical and fair presentation of the case.  Earlier cases on questions of leave seek to achieve equality of representation before the Tribunal.  The applicants relied upon material supporting Mr Frugtniet’s competence and knowledge of the dispute.

Statutory provisions

  1. [15]
    The QCAT Act makes the following provision in relation to representation in a proceeding:

43 Representation

  1. (1)
    The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.
  1. (2)
    In a proceeding, a party.

(a)  may appear without representation; or

(b)  may be represented by someone else if—

  1. (i)
    the party is a child or a person with impaired capacity; or
  1. (ii)
    the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or
  1. (iii)
    an enabling Act that is an Act, or the rules, states the person may be represented; or
  1. (iv)
    the party has been given leave by the tribunal to be represented.
  1. (3)
    In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave—

(a)  the party is a State agency;

(b)  the proceeding is likely to involve complex questions of fact or law;

(c)  another party to the proceeding is represented in the proceeding;

(d)  all of the parties have agreed to the party being represented in the proceeding.

  1. (4)
    A party can not be represented in a proceeding by a person—
  1. (a)
    who, under rules made under section 224(3), is disqualified from being a representative of a party to a proceeding; or
  1. (b)
    who is not an Australian legal practitioner or government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the party.
  1. (5)
    A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give the tribunal a certificate of authority from the party for the representation if—

(a) the party is a corporation; or

(b) the tribunal has asked for the certificate.

  1. (6)
    The tribunal may appoint a person to represent an unrepresented party.
  1. (7)
    In this section—

Australian legal practitioner see the Legal Profession Act 2007.

government legal officer see the Legal Profession Act 2007.

  1. [16]
    The expression, “Australian legal practitioner” is defined in s 6 of the LP Act as follows:

An Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate.

  1. [17]
    The QCAT Rules include the following provisions (ss 52 and 54 are found in Division 1 of Part 7 of the Rules):

52 Purpose and explanation of div 1

  1. (1)
    This division provides for—
  1. (a)
    how a party that is not an individual may appear in a proceeding; and
  1. (b)
    how a group of applicants may appear in a proceeding.
  1. (2)
    This division does not provide for how a party may be represented in a proceeding.

Note—

See section 43 of the Act in relation to representation of a party in a proceeding, including the limited circumstances in which a party may be represented.

54 Corporation

  1. (1)
    A corporation may appear in a proceeding through an officer of the corporation who is authorised by the corporation to act for it in the proceeding.
  1. (2)
    However, the corporation may appear through an Australian legal practitioner only with the tribunal’s leave.
  1. (3)
    Subrule (2) does not apply if all of the officers of the corporation are Australian legal practitioners.
  1. (4)
    If the officer authorised to act for the corporation under subrule (1) is not an Australian legal practitioner, the corporation must give the tribunal a certificate of authority for the authorisation.
  1. (5)
    In this rule—

officer, of a corporation, means—

  1. (a)
    an officer within the meaning given by the Corporations Act, section 9 for a corporation; or
  1. (b)
    an employee of the corporation.

57 Person who is or was a lawyer

  1. (1)
    A person is disqualified from representing a party to a proceeding if—
  1. (a)
    the person has been the subject of—
  1. (i)
    a discipline application under the Legal Profession Act 2007; or
  1. (ii)
    an application equivalent to a discipline application under a corresponding law within the meaning of the Legal Profession Act 2007; and
  1. (b)
    the person has been, in the proceeding, found guilty of professional misconduct or unsatisfactory professional conduct; and
  1. (c)
    the president has not made a declaration under subrule (2) about the person.
  1. (2)
    The president may declare that a person to whom subrule (1) applies is not disqualified from representing a party in a proceeding if the president is satisfied the conduct of the person constituting the misconduct or conduct mentioned in the subrule is not serious enough to disqualify the person from representing the party in the proceeding.
  1. (3)
    In this rule—

professional misconduct see the Legal Profession Act 2007.

unsatisfactory professional conduct see the Legal Profession Act 2007.

  1. [18]
    The following appears in s 9 of the Corporations Act:

officer of a corporation means:

  1. (a)
    a director or secretary of the corporation; or
  1. (b)
    a person:
  1. (i)
    who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
  1. (ii)
    who has the capacity to affect significantly the corporation’s financial standing; or
  1. (iii)
    in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation); or
  1. (c)
    a receiver, or receiver and manager, of the property of the corporation; or
  1. (d)
    an administrator of the corporation; or
  1. (e)
    an administrator of a deed of company arrangement executed by the corporation; or
  1. (ea)
    a restructuring practitioner for the corporation; or
  1. (eb)
    a restructuring practitioner for a restructuring plan made by the corporation; or
  1. (f)
    a liquidator of the corporation; or
  1. (g)
    a trustee or other person administering a compromise or arrangement made between the corporation and someone else.
  1. [19]
    Schedule 2 of the LP Act includes

corresponding law means the following—

  1. (a)
    a law of another jurisdiction that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the other jurisdiction to be a law that corresponds to this Act, the law declared under that regulation for the other jurisdiction;
  1. (b)
    if the term is used in relation to a matter that happened before the commencement of the law of another jurisdiction that, under paragraph (a), is the corresponding law for the jurisdiction, a previous law applying to legal practice in the other jurisdiction.
  1. [20]
    Reference should also be made to s 118 of the QCAT Act, as follows:

118 Referring question of law to Court of Appeal

  1. (1)
    The president may refer a question of law in a proceeding before the tribunal to the Court of Appeal.

Note—

See also section 155 (Particular documents to be given to Court of Appeal).

  1. (2)
    The president, or the appeal tribunal with the president’s consent, may refer a question of law in a proceeding before the appeal tribunal to the Court of Appeal.
  1. (3)
    A referral under subsection (1) or (2) may be made on the application of a party to the proceeding or on the president’s or appeal tribunal’s own initiative.
  1. (4)
    If a question of law is referred to the Court of Appeal under subsection (1) or (2)—
  1. (a)
    the Court of Appeal may decide the question and make consequential or ancillary orders and directions; and
  1. (b)
    the tribunal or appeal tribunal must not make a decision about the matter for which the question arose or is relevant until it receives the Court of Appeal’s decision on the question; and
  1. (c)
    the tribunal or appeal tribunal must not proceed in a way, or make a decision, that is inconsistent with the Court of Appeal’s decision on the question.
  1. (5)
    If the Court of Appeal decides a question of law referred to it under subsection (1) or (2), the tribunal’s or appeal tribunal’s decision on the question is the decision of the Court of Appeal.

Preliminary matters

  1. [21]
    Throughout, the submissions for the applicants have been prepared by Mr Frugtniet.  It is quite inappropriate for this course to have been followed, at least so far as the submissions are made in support of an application on behalf of Mr Bhandari, without a grant of leave to do so.  No objection has been taken by the respondent.  In the circumstances, and for the sake of some efficiency, it is proposed nevertheless to deal with the matter on the basis of the submissions that have been received.
  2. [22]
    The general objection made by the respondent to the whole of the applicants’ material is unsustainable.  No authority was provided in support of it.  It flies in the face of s 28 of the QCAT Act.
  3. [23]
    No authority was provided by the respondent in support of its submission that the present application is defeated by the doctrine of res judicata.  To succeed, the respondent would need to demonstrate that the decision was final for the purposes of res judicata, that is, it finally determined a dispute between the parties.[1] The respondent has made no attempt to do this. The power to grant leave found in s 43 is plainly discretionary, notwithstanding the identification of some factors which may support the grant of leave.  The exercise of such a power would not ordinarily result in a final determination. Accordingly, the application is not defeated by the doctrine of res judicata.

Representation of Mr Bhandari: legal context

  1. [24]
    The primary position established under s 43 of the QCAT Act is that parties to proceedings in this Tribunal are to represent themselves.  That view is consistent with the purpose of the section, stated in s 43(1).  It is also consistent with the limited circumstances in which a party may be represented by someone else, stated in s 43(2).
  2. [25]
    The only circumstance relevant to Mr Bhandari’s position is that stated in s 43(2)(iv), that is, that he has been given leave to be represented. 
  3. [26]
    Section 43(3) then identifies matters which may support a grant of leave.  However s 43(4) identifies circumstances in which a person may not represent a party to proceedings in the Tribunal.  It follows that, if s 43(4) applies, the Tribunal may not grant leave.  The effect of s 43(4) is that a party cannot be represented in a proceeding before the Tribunal[2] by a person, unless the Tribunal is satisfied that the proposed representative is “an appropriate person to represent the party”.  It follows that leave may not be granted, unless the Tribunal is satisfied that the proposed representative is an appropriate person to represent the party.

Is Mr Frugtniet an appropriate person to represent Mr Bhandari?

  1. [27]
    The first matter relied upon by the respondent is the decision of Pagone J in Frugtniet v Board of Examiners.[3]  This is one of a number of decisions relied upon by the respondent.  Pagone J refused an appeal, conducted as a hearing de novo, from a decision of the Board of Examiners declining to find that Mr Frugtniet was a fit and proper person for admission to legal practice.  His Honour was not satisfied that Mr Frugtniet was a fit and proper person for admission, though he declined to make a positive finding against him.[4]
  2. [28]
    Apart perhaps from a general objection to relevance, no submission was made about the respondent’s reliance on this decision (and others). In a proceeding in a court bound by the rules of evidence, such a question might arise, by reason of the rule in Hollington v Hewthorn.[5] However, this Tribunal is not bound by the rules of evidence.[6] In re A Solicitor[7] the Court of Appeal upheld the striking off of a solicitor by the English disciplinary tribunal, based on findings of the Barristers’ Board of Western Australia.  It held that an objection based on Hollington “falls to the ground once it becomes clear that the tribunal is not bound by the rules of evidence”.  Such decisions, therefore, are matters to which the Tribunal can have regard.
  3. [29]
    Having said that, some care is required when having recourse to them.  It is necessary to be aware of the question which was being considered, and the context in which it was decided. There may be evidence available to this Tribunal which was not available to the earlier decision maker.  On the other hand, that decision maker may have had the benefit of observing a witness give evidence and be cross-examined (a benefit not available to this Tribunal in the present application); and of evidence not otherwise available to this Tribunal.  Respect should also be paid to findings made by a court after a contested hearing.
  4. [30]
    The respondent submitted that a number of convictions of Mr Frugtniet between 1989 and 2000 were considered in assessing the fitness of Mr Frugtniet to engage in legal practice. That is not an accurate representation of the judgment.  Pagone J referred to these, and to some other charges, but his refusal to find that Mr Frugtniet was a fit and proper person for admission was based, not on the convictions and charges, but on the failure of Mr Frugtniet to make adequate disclosure of them when required to do so for the purposes of his application for admission to practice.[8] In my respectful opinion, it is appropriate to accept the finding on which his Honour’s judgment is based.
  5. [31]
    The respondent also relied upon the decision of Gillard J in Frugtniet v Board of Examiners.[9] His Honour dismissed an appeal by Mr Frugtniet against the Board’s later decision to refuse a certificate entitling him to practise as a barrister and solicitor in Victoria. The respondent’s submissions refer to the fact that the certificate was refused, but do not identify specific matters in the decision on which it relies.  However it is difficult to know what significance, if any, should be attributed to the decision, without some understanding of its basis. 
  6. [32]
    There was evidence before his Honour that Mr Frugtniet had been convicted of criminal offences of dishonesty in 1978, when he was 23 years of age.  For these he was sentenced to imprisonment for a total period of 4 years, of which he served two years.
  7. [33]
    In December 1989, Mr Frugtniet was charged with offences of obtaining property by deception (involving credit card facilities at the State Bank of Victoria).  In 1997 he appeared on five charges of obtaining property by deception during the period 1994-1996, relating to the sale of airline tickets which had been obtained unlawfully.  He was charged in 1997 with three counts of perjury relating to evidence he gave in 1992 before the Travel Agents Licensing Authority and subsequently in the Administrative Appeals Tribunal (“AAT”).  In 1998 he was charged with six counts of theft, and three counts of attempted theft, while working at the ANZ Bank.  In 2003 Mr Frugtniet was charged with defrauding the Commonwealth, it being alleged that he obtained money from Centrelink by deception between March 1998 and April 2002.
  8. [34]
    Mr Frugtniet pleaded guilty to one of the charges relating to the sale of airline tickets.  The remainder of these charges were withdrawn.  All of the other charges from 1989 onwards resulted in acquittals or did not proceed. 
  9. [35]
    In a tribunal hearing in 1995, Mr Frugtniet’s evidence was described in part as incredible, and it was said that he could not be regarded as a witness of truth.  Before Gillard J, Mr Frugtniet gave evidence of past wrongdoing and dishonesty, but claimed to be a reformed person who would not engage in such conduct in the future. 
  10. [36]
    Gillard J considered that, in view of the way the matter had been conducted, of the matters not resulting in a conviction, he could only take into account the airline ticket charges.  However the charges meant that a heavy burden fell on Mr Frugtniet to persuade the Court that he was a man of good character, and a fit and proper person to be admitted to practise as a lawyer.  He also regarded Mr Frugtniet’s failure to disclose most of his criminal history on his first application for a certificate to practise as a serious non-disclosure.  He also considered that, on cross-examination, Mr Frugtniet was exposed as a person who was loose with the truth, and who had sworn affidavits that were misleading and inconsistent.  Some of his evidence was not truthful or accurate.  He was not prepared to accept that his obvious wrongdoing was very wrong.  He gave a false declaration in support of an application to the Migration Agents Registration Authority.  His Honour relied upon a number of other matters, which it is unnecessary to set out in detail.  He concluded that Mr Frugtniet had failed to discharge the heavy burden of persuading the Court that he was of good character and reputation, and a fit and proper person to practise law.
  11. [37]
    In view of his Honour’s decision to consider the airline ticket charges notwithstanding that only one of them ultimately proceeded, it is worth recording that his Honour found that Mr Frugtniet purchased the tickets on behalf of his wife’s travel agency, knowing that he should not have purchased them; that he held back the sale of the tickets, hoping that the invalidity of the tickets would not be observed; that he then sold them over a period of two years; and that these actions were all part of a plan.  His Honour stated that this history showed a significant level of criminality; and he described the conduct as dishonest.
  12. [38]
    It is unsatisfactory that the respondent has failed to set out in some detail the matters from the judgement of Gillard J on which it relies.  However the respondent’s material included his Honour’s reasons, and an article by a lawyer which identifies some of the matters found in his Honour’s judgment.[10] It must have been obvious to the applicants that the respondent was relying on the findings in the judgment. 
  13. [39]
    There appears to be no challenge to the references to convictions and charges identified by Gillard J, and I accept that they are correctly identified by his Honour.  Likewise, I propose to act on the other findings made by his Honour, set out earlier in these reasons.  They have not been challenged, and appear, in my respectful opinion, to be the result of a careful consideration of the material and arguments presented to him.
  14. [40]
    The respondent also relied on the fact that in 2011 Mr Frugtniet was designated by the Victorian Civil and Administrative Tribunal (“VCAT”) as a disqualified person for a period of three years,[11] which had the effect that a law practice was prohibited from employing or paying him in connexion with the law practice. The respondent also relied on findings of credit made against Mr Frugtniet by that Tribunal with respect to his veracity.  The Tribunal expressed grave reservations about the veracity of Mr Frugtniet’s evidence on some matters, and did not accept the accuracy or reliability of his evidence in relation to some other matters.[12] The Tribunal found that in relation to proceedings in the Werribee Magistrates Court, Mr Frugtniet falsely represented that he was a solicitor, both to the Court, and to Counsel representing an opposing party.[13] Again the findings are unchallenged, and appear to be the result of careful consideration.  It is proposed to act on them.
  15. [41]
    The respondent also relied upon the fact that the AAT made orders permanently prohibiting Mr Frugtniet from engaging in any credit activities.[14] By and large, this Tribunal relied on factual matters which are the subject of some of the other decisions previously referred to.  However it found that Mr Frugtniet gave false evidence in the proceedings in VCAT which resulted in his designation as a disqualified person,[15] describing his conduct in the earlier proceedings as a “deliberate decision to lie”.  For reasons similar to those expressed in relation to earlier decisions, it proposed to act on this finding.
  16. [42]
    The respondent’s submissions, rather unhelpfully, stated that at various times Mr Frugtniet failed to meet the criteria to engage in credit activities, be a registered tax agent, give immigration assistance, or even be eligible to work as a licensed conveyancer.  As originally made, this submission relied upon a decision of the AAT which was subsequently set aside on the ground of bias.  When this was drawn to the attention of the respondent, it omitted the reference to the AAT decision from its submissions, but maintained the reference to the article.  That article itself relied upon the AAT decision which has been set aside.[16]  In those circumstances it is difficult to place much reliance on the article. 
  17. [43]
    The reference in the respondent’s submissions to Mr Frugtniet’s failure to meet the criteria to be eligible to work as a licensed conveyancer appears to be a reference to the decision of VCAT to designate the respondent as a disqualified person for three years, previously discussed. The AAT decision to prohibit Mr Frugtniet from engaging in credit activities has also been discussed.  Given the respondent’s failure to identify any other relevant decision relating to Mr Frugtniet’s being a registered tax agent, it is not proposed to give further consideration to this part of the respondent’s submission.  That leaves for consideration the decision of the AAT to uphold the cancellation of Mr Frugtniet’s registration as a migration agent.[17]
  18. [44]
    The AAT determined that Mr Frugtniet had knowingly given false or misleading answers in his application for repeat registration as a migration agent, on 5 November 2013.  One such answer was to the effect that he was not the subject of any relevant investigation, when he was subject to an investigation by the Tax Practitioners’ Board.  Another was that no disciplinary action was being taken against him, when in fact the Tax Practitioners’ Board had decided, to his knowledge, to cancel his registration as a tax agent.[18]
  19. [45]
    The AAT also found that Mr Frugtniet was a “key player” in the creation of false documents to be submitted to Trades Recognition Australia, for a decision ultimately to be relied upon in support of an application made under the Migration Act or the Migration Regulations.[19]  The application to Trades Recognition Australia was made in August 2007.
  20. [46]
    I see no reason not to accept the findings of the AAT.  The evidence on which they are based is clearly identified.  The reasoning, in my respectful opinion, is careful.  It follows that I accept the Mr Frugtniet gave false answers to the Migration Registration Authority in 2013.  He also was a “key player” in the preparation of false documents for submission to Trades Recognition Australia, for a decision in turn to be relied upon in support of an application made under the Migration Act or the Migration Regulations.
  21. [47]
    The closest the applicants came to providing a substantive response to these matters is in submissions dated 22 February 2022, apparently still relied upon.[20]  They there submitted that the article relied upon by the respondent has many inaccuracies; the present application relates not to Mr Frugtniet, but the representation of the applicants; the question of fitness and propriety is to be determined now; the applications for admission to the legal profession were not disciplinary matters; the prohibition on acting as a lay associate of a law practice has expired more than a decade ago, and was not a disciplinary matter; Mr Frugtniet’s only conviction is a spent conviction in the United Kingdom dating back to 1978; and for the charges one must respect the paramountcy of acquittals.
  22. [48]
    In these reasons, reliance has not been placed on the article.  The submission relating to the present application not relating to Mr Frugtniet is misconceived. The application for leave for Mr Bhandari to be represented by Mr Frugtniet makes it necessary to consider whether Mr Frugtniet is an appropriate person to represent Mr Bhandari in this Tribunal.  It is correct to say that that question must be determined by reference to current circumstances.  The nature of earlier proceedings is of no particular significance, and nor is the fact that orders have expired; what is significant is what the proceedings show about the character of Mr Frugtniet.  In the present application it is generally unnecessary to consider charges of which Mr Frugtniet was acquitted (thought the findings of Gillard J in relation to airline ticket charges which did not proceed remain relevant).
  23. [49]
    The submissions of 22 February 2022 bear Mr Frugtniet’s signature.  It is particularly concerning that Frugtniet asserts that he had only one conviction dating back to 1978, which is spent.  In fact, in 1978 he pleaded guilty to 15 counts of handling stolen goods, forgery, obtaining property by deception, and theft; and he requested that seven additional charges be taken into account.[21]  Notwithstanding the passage of time, it is difficult to think that Mr Frugtniet could think there was only one conviction.  To describe the convictions as “spent” is a distraction, but Mr Frugtniet must be very well aware that the description is misleading.  Gillard J found that Mr Frugtniet understood the limited effect of relevant legislation concerning spent convictions.[22] The submissions also overlook the fact that in in 1997 he pleaded guilty to a charge of obtaining property by deception, relating to the sale of airline tickets; and the findings of Gillard J relating to the sale of airline tickets.
  24. [50]
    The question to be considered, by reference to s 43(4) of the QCAT Act, is whether Mr Frugtniet is an appropriate person to represent Mr Bhandari in this Tribunal.  No authorities have been identified which are of direct relevance.  Authorities on the question whether a person is a fit and proper person to be admitted to practise as a lawyer are of limited assistance.  That is because higher standards are to be expected of a lawyer, than of a non-lawyer given leave to represent a party in this Tribunal for a particular proceeding.  Moreover, admission to practise as a lawyer is a holding out to the public of a person as someone who is a fit and proper person to engage in legal practice.
  25. [51]
    To be a fit and proper person to represent a party in a proceeding in this Tribunal, the proposed representative must have some capacity to present the case of the party, including to assemble and present the evidence and arguments in support of the party’s case.  In some cases questions may arise about the representative’s physical and mental capacity.  More importantly, where there is any issue about the representative’s character, the Tribunal would need to be satisfied of the representative’s fundamental honesty and integrity.  That is relevant to all aspects of the representative’s role. 
  26. [52]
    Over a period of the order of 40 years, Mr Frugtniet has been a person who has engaged in dishonest conduct.  He was a “key player” in the creation of false documents for submission to the Trades Recognition Australia.  He has given evidence before courts and tribunals where he has been found to be “loose with the truth”, to be a person who has sworn affidavits which are misleading and inconsistent, and to have given evidence which was not truthful or accurate; and he has been found by the AAT to have made a “deliberate decision to lie” in proceedings in VCAT.  No material has been relied upon to show any significant change in Mr Frugtniet’s character.  It is not possible to conclude, on the basis of the material relied upon, that Mr Frugtniet is an appropriate person to represent Mr Bhandari in these proceedings.  It is therefore unnecessary to consider whether other factors favour or do not favour a grant of leave.  The application for leave under s 43 will accordingly be refused.

The corporate applicants

  1. [53]
    Both AMS and FC are corporations.  Under s 43(2)(a) each has a right to represent itself in the proceedings in this Tribunal.  Indeed, the main purpose of the section is to have parties represent themselves unless the interests of justice require otherwise.  A question arises as to how this might occur in the case of a corporation. One view of s 54 of the QCAT Rules is that it explains and regulates how a corporation might represent itself in proceedings, that is to say, it may represent itself by having an authorised officer of the corporation act for it.
  2. [54]
    Section 43 of the QCAT Act provides that a party may be represented by someone else if “the rules” state that the person[23] may be represented.  The reference to the rules is a reference to the QCAT Rules.[24] On this basis, the effect of s 54 of the rules is that it provides specific authorisation for at least some officers of a corporation to represent it in proceedings in the Tribunal. 
  3. [55]
    I prefer the view that s 54 identifies how a corporation may represent itself; that is, how it might appear in a proceeding.  It seems to me that the view finds support in s 52 of the Rules, which makes plain the distinction between the representation of a party, and how a party might appear in proceedings.  It follows that leave is not required for an officer who otherwise satisfies the requirements of s 54 to appear in a proceeding on behalf of a corporation.
  4. [56]
    The respondent, in submissions filed on 13 June 2022, contended that s 54 is discretionary, and the discretion should be exercised to refuse the application.  Implicit in the contention is the proposition that the section confers some discretionary power on the Tribunal, in relation to the manner in which a corporation appears in a proceeding.  Reliance was placed on the use of the word “may” in the section.  The contention should not be accepted.  The section permits a corporation to appear through an officer.  It does not make the operation of the section subject to any exercise of a discretion by the Tribunal.  It does not provide a basis for ruling that Mr Frugtniet may not represent the corporate applicants.
  5. [57]
    The respondent’s submissions refer to the fact that Mr Frugtniet was appointed as secretary of each of the corporate applicants as recently as 22 February 2022; and they submit that the appointments were “contrived”.  Beyond the timing, no evidence is advanced to demonstrate this.  The respondent does not go so far as to contend that the appointments were of no effect.  On the material it should be found that Mr Frugtniet is a secretary of each corporate applicant.  As such, he is an officer of each corporation for the purposes of s 54. 
  6. [58]
    The respondent submitted that Mr Frugtniet is a disqualified person under s 57 of the QCAT Rules.  It is not entirely clear that this submission is not relied upon on the question whether Mr Frugtniet may be the person through whom the corporate applicants appear.
  7. [59]
    In my view, s 57 of the Rules responds to s 43(4) of the Act.  That is to say, it identifies persons who may not represent a party under s 43.  It does not affect the operation of s 54 of the Rules, in relation to the way in which a corporation appears in a proceeding. 
  8. [60]
    In any event, I am not satisfied that Mr Frugtniet is a disqualified person under s 57.  There is no suggestion that Mr Frugtniet has been the subject of a discipline application under the LP Act.  For the section to apply, it would therefore be necessary to find that Mr Frugtniet has been the subject of “an application equivalent to a discipline application under a corresponding law” within the meaning of the LP Act.  It is apparent from the definition of “corresponding law”[25] that, so far as a law of another jurisdiction is concerned, the law must be either one that corresponds to the relevant provisions of the LP Act; or if the matter occurred before the commencement of such a law, under a previous law applying to legal practice. 
  9. [61]
    The determinations relied upon by the respondent generally could not be said to be the outcome of discipline applications or their equivalent under a corresponding law.  The possible exception might be the proceedings in VCAT.  The legislation under which those proceedings were brought would appear to be legislation which includes provisions equivalent to the provisions of the LP Act, and thus be a “corresponding law”.  However, the respondent has not attempted to show that those proceedings were an “application equivalent to a discipline application”.  In s 57, the context shows that the reference to a discipline application is to a discipline application under the LP Act.  Such an application is an application brought against an Australian legal practitioner.[26] Mr Frugtniet has never been an Australian legal practitioner.  It follows that the proceedings in VCAT were not the result of an application equivalent to a discipline application, under a corresponding law.  Nor has it been suggested that Mr Frugtniet was found guilty of professional misconduct or unsatisfactory professional conduct.  It follows that Mr Frugtniet is not a disqualified person under s 57 of the QCAT Rules.
  10. [62]
    The applicants have contended that leave is not necessary for Mr Frugtniet to appear for them in these proceedings.  I am satisfied that the corporate applicants may appear through Mr Frugtniet.  The question was debated by the parties.  Since it is within the power of the Tribunal to do so, and in order to crystalise the outcome of that debate, it is proposed to make a declaration to that effect.

Referral of question of law to Court of Appeal

  1. [63]
    For convenience, consideration of this matter has been deferred until the end of these reasons.
  2. [64]
    The applicants appear to have asked the Tribunal as presently constituted to rule on this question.  There is no suggestion of an application to the President for the referral, or for an adjournment to permit such an application to be made.
  3. [65]
    The legislation does not permit the Tribunal, as constituted, to refer a question of law to the Court of Appeal.
  4. [66]
    Nor does there appear to be sufficient reason to invite the President to exercise her power to refer questions to that Court.  The applicants submitted that questions should be referred because there is currently no precedential decision on the construction of ss 54 and 57 of the QCAT Rules.  However the questions which arise are relatively straightforward questions of statutory interpretation.  Any error in relation to them can be more conveniently dealt with by way of appeal against this decision.  No particular need for an early determination by the Court of Appeal has been established.
  5. [67]
    Accordingly it is not proposed to take any step for the purpose of having questions of law referred to the Court of Appeal.

Conclusion

  1. [68]
    The following orders should be made:
  1. The application by Mr Puna Bhandari for leave for Mr Rudy Frugtniet to represent him in these proceedings is refused.
  2. Declare that the applicants Australian Management Skills Pty Ltd and Future College Pty Ltd may appear in these proceedings through Mr Rudy Frugtniet.

Footnotes

[1]  See Cross on Evidence (digital edition) para [5025].  See also the discussion by Holmes JA in Castillon v P&O Ports Ltd [2008] 2 Qd R 219 at [49]-[74]; and note in particular [70], discussing cases which deal with statutory provisions analogous to s 43.

[2]  See the definition of “proceeding” in Schedule 3 to the QCAT Act.

[3]  [2002] VSC 140.

[4]  See at [15].

[5]  [1943] KB 587.

[6]  See s 28(3) of the QCAT Act.

[7]  [1993] QB 69.

[8]  See at [11]-[15].

[9]  [2005] VSC 332, which appears as Exhibit TJL 3 to the affidavit of Timothy James Logan.  Filed on 9 March 2022.

[10]  See exhibit TJL 2 to Mr Logan’s affidavit.   I have found the article to be of limited utility, beyond its references to passages in several judgments.  The judgments themselves are available.  In part the article relies upon a decision of the AAT, Frugtniet and Tax Practitioners Board (2014) 148 ALD 401, which was subsequently set aside on the ground of apprehended bias: see Frugtniet and Tax Practitioners Board (2015) 67 AAR 336.

[11] Law Institute of Victoria Limited v Frugtniet [2011] VCAT 596.

[12]  At [152]-[154].

[13]  See at [145]-[151].

[14] Frugtniet and Australian Securities and Investments Commission [2022] AATA 295.

[15]  See at [55]-[68].

[16]  See footnote 10 above.

[17]Frugtniet v Migration Agents Registration Authority [2016] AATA 299.

[18]  See Frugtniet v Migration Agents Registration Authority [2016] AATA 299 at [82]-[97].

[19]  See Frugtniet v Migration Agents Registration Authority [2016] AATA 299 at [104]-[109].

[20]  See para 12 of their submissions dated 24 March 2022.

[21]Frugtniet v Board of Examiners [2005] VSC 332 at [17].

[22]Frugtniet v Board of Examiners [2005] VSC 332 at [51].

[23]  The reference to a person generally includes a reference to a corporation: see the Schedule 1 to the Acts Interpretation Act 1954 (Qld).

[24]  See the definition of “rules” in Schedule 3 to the QCAT Act.

[25]  See Schedule 2 of the LP Act.

[26]  See s 452 of the LP Act.

Close

Editorial Notes

  • Published Case Name:

    Bhandari & Ors v Morgan Conley Solicitors Pty Ltd

  • Shortened Case Name:

    Bhandari v Morgan Conley Solicitors Pty Ltd

  • MNC:

    [2022] QCAT 282

  • Court:

    QCAT

  • Judge(s):

    Hon Peter Lyons KC

  • Date:

    16 Sep 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Castillon v P&O Ports Ltd[2008] 2 Qd R 219; [2007] QCA 364
2 citations
Jump To
Cite 1 - [2008] 2 Qd R 219
Cite 2 - [2008] 2 Qd R 219
Frugtniet and Australian Securities and Investments Commission [2022] AATA 295
2 citations
Jump To
Cite 1 - [2022] AATA 295
Cite 2 - [2022] AATA 295
Frugtniet and Tax Practitioners Board (2015) 67 AAR 336
2 citations
Jump To
Cite 1 - (2015) 67 AAR 336
Cite 2 - (2015) 67 AAR 336
Frugtniet v Board of Examiners [2002] VSC 140
2 citations
Jump To
Cite 1 - [2002] VSC 140
Cite 2 - [2002] VSC 140
Frugtniet v Board of Examiners [2005] VSC 332
4 citations
Jump To
Cite 1 - [2005] VSC 332
Cite 2 - [2005] VSC 332
Cite 3 - [2005] VSC 332
Cite 4 - [2005] VSC 332
Frugtniet v Board of Examiners (2014) 148 ALD 401
2 citations
Jump To
Cite 1 - (2014) 148 ALD 401
Cite 2 - (2014) 148 ALD 401
Frugtniet v Migration Agents Registration Authority [2016] AATA 299
4 citations
Jump To
Cite 1 - [2016] AATA 299
Cite 2 - [2016] AATA 299
Cite 3 - [2016] AATA 299
Cite 4 - [2016] AATA 299
Hollington v F. Hewthorn & Co. (1943) KB 587
2 citations
Jump To
Cite 1 - (1943) KB 587
Cite 2 - (1943) KB 587
Law Institute of Victoria Limited v Frugtniet [2011] VCAT 596
2 citations
Jump To
Cite 1 - [2011] VCAT 596
Cite 2 - [2011] VCAT 596
Re a solicitor [1993] QB 69
2 citations
Jump To
Cite 1 - [1993] QB 69
Cite 2 - [1993] QB 69

Cases Citing

Case NameFull CitationFrequency
Gold Coast Tree Houses Pty Ltd v Lander No 2 [2022] QCATA 1782 citations
Huang v Health Ombudsman [2023] QCAT 4302 citations
James v Director-General, Department of Justice and Attorney-General [2024] QCATA 251 citation
Legal Services Commissioner v Winning [2025] QCAT 1982 citations
1

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