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Evans v Queensland Law Society[2022] QCAT 284

Evans v Queensland Law Society[2022] QCAT 284

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Evans & Anor v Queensland Law Society [2022] QCAT 284

PARTIES:

david alan evans

(applicant)

gold coast city council solicitors pty ltd

(applicant)

v

queensland law society

(respondent)

APPLICATION NO:

OCR100-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 November 2022

HEARING DATE:

17 October 2022

HEARD AT:

Brisbane

DECISION OF:

Hon. Duncan McMeekin KC, Judicial Member

ORDERS:

  1. Application dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by the Queensland Law Society about the employment of the applicant disqualified solicitor in his previous law firm – what is the correct and preferable decision – fresh hearing on the merits

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – EMPLOYMENT IN SOLICITOR’S OFFICE AFTER STRIKING OFF – whether the applicant disqualified lawyer should be permitted to be employed as a lay associate of the law firm he was formerly a director of – where the application is opposed – whether the public is protected – whether the standing of the legal profession is at risk – whether the applicant should be called a lay associate or law clerk – whether the proposed supervisor is appropriate

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – DUTIES TO COURT – OTHER MATTERS – where the applicant communicated with the tribunal without consent of its opponent

Legal Profession Act 2007 (Qld) s 3, s 26(4), s 68, sch 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 20(2), s 24, s 26

Aussel re McCaffrey [2013] NSWADT 102

Briginshaw v Briginshaw (1938) 60 CLR 336

Camille Eduoard Dezarnaulds and Stephen Wawn v The Law Society of New South Wales (Unreported Supreme Court 27 June 1995)

Council of The Law Society of New South Wales v Hutton [2012] NSWADT 48

Dona v Council of The Law Society of New South Wales [2014] NSWCA 444

Kyriackou v Law Institute of Victoria Ltd 45 VR 540

La Fontaine v Law Society of New South Wales [2006] NSWADT 244

Legal Services Commissioner v Munt [2019] QCAT 160

McGirr v The Council of the Law Society of NSW [2014] NSWCATOD 154

Michael John Charles Caiger (1994) 1 LPDR 32

APPEARANCES & REPRESENTATION:

Applicant:

N J Pearce ib Gold Coast City Solicitors

Respondent:

B W Wacker ib Queensland Law Society

REASONS FOR DECISION

  1. [1]
    Mr David Evans and the Incorporated Legal Practice, Gold Coast City Solicitors Pty Ltd (“GCCS”), apply for a review of the decision of the respondent to refuse an application under s 26(4) of the Legal Profession Act 2007 (Qld) (“LPA”) for Mr Evans to be employed as a “lay associate” of GCCS. The Society maintains its opposition to the application.
  2. [2]
    Mr Evans is a “disqualified person” as that term is defined under the LPA because he is “a person who has been refused a renewal of an Australian practising certificate under [the LPA] or a corresponding law, and to whom an Australian practising certificate has not been granted at a later time”.[1] In his case Mr Evans originally applied to obtain a practising certificate as an employed solicitor, which application was refused. That means he cannot hold himself out as a legal practitioner. Nor can he work for a legal practice save as permitted by the LPA provisions to which I will come.
  3. [3]
    GCCS is presently owned and controlled by Matthew Williams. Mr Williams is relatively new to the practise of the law. He is not yet five years admitted. He has held an employee practising certificate since February 2021 and a principal practising certificate since March 2021. Mr Evans was formerly the legal practitioner director of GCCS.
  4. [4]
    The proposal advanced by the applicants is that Mr Evans will be employed at GCCS under strict conditions – and will be supervised by Mr Williams to ensure the conditions are complied with – in “a role akin to a Law Clerk with para-legal duties”, and that his duties will be confined to:
  • Client and referrer liaison in a marketing capacity;
  • Monitoring and maintaining debtors and creditors;
  • Reviewing and implementing strategies to increase proficiency and overheads;
  • Reviewing and updating office and HR procedures and protocols.[2]
  1. [5]
    A slightly different list of tasks was advanced by Mr Evans’ former solicitors to the Executive Committee: administrative assistance with transitioning files from Williams Solicitors to GCCS, Lexon compliance, system and practice reviews, assistance with staffing matters, taking initial calls from clients or prospective clients and routing the work to the most suitable solicitor, and business marketing.[3]

The relevant principles

  1. [6]
    My task under the statute is to “produce the correct and preferable decision”: s 20(1) Queensland Civil and Administrative Act 2009 (“QCAT Act”). The applicants are entitled to a fresh hearing on the merits: s 20(2) QCAT Act. Section 24(1) of the QCAT Act provides that in exercising review jurisdiction, the tribunal may:
  1. (a)
    confirm or amend the decision; or
  1. (b)
    set aside the decision and substitute its own decision; or
  1. (c)
    set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
  1. [7]
    Both parties accept that the decision as to whether Mr Evans should be permitted to be employed as a lay associate by GCCS of the Tribunal must be determined on the circumstances that pertain at the time of the hearing.
  2. [8]
    The application is brought under s 26 of the LPA. Section 26 provides:

26 Associates who are disqualified or convicted persons

  1. (1)
    A law practice must not have a lay associate whom any principal or legal practitioner associate of the practice knows to be either of the following unless the lay associate is approved by the law society under subsection (2)-
  1. (a)
    a disqualified person;
  1. (b)
    a person who has been convicted of a serious offence.
  1. (2)
    The law society may, on application, approve a person as a lay associate for this section.
  1. (3)
    An approval under this section may be subject to stated conditions.
  1. (4)
    If the law society refuses an application mentioned in subsection (2) or imposes a condition on the approval—
  1. (a)
    the law society must give the applicant an information notice about the decision to refuse the application or to impose the condition; and
  1. (b)
    the applicant may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.
  1. (5)
    A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction.

Maximum penalty—200 penalty units.

  1. (6)
    This section does not apply in circumstances prescribed under a regulation.
  1. (7)
    In this section—

lay associate, in relation to a law practice, includes a consultant to the law practice, however described—

  1. (a)
    who is not an Australian legal practitioner; and
  1. (b)
    who provides legal or related services to the law practice, other than services prescribed under a regulation.
  1. [9]
    There are no circumstances prescribed for the purposes of s 26(6).
  2. [10]
    It is common ground that the overriding consideration is the protection of the public and the good standing of the profession: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [108], citing Dyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202 and New South Wales Bar Association v Evatt (1988) 117 CLR 183. So much follows from s 3(a) LPA that a main object of the LPA is:

To provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice for the protection of consumers of the services of the legal profession and the public generally.

  1. [11]
    The proper approach was well summarised in the decision of Spender AJ of the New South Wales Supreme Court in Camille Eduoard Dezarnaulds and Stephen Wawn v The Law Society of New South Wales:[4]

19. The general considerations (with some stating of the obvious) seem to me to be these:

  1. (a)
    The discretion is entirely general. No attempt has been made to circumscribe it by reference to particular matters, or to impose any particular threshold test which must be satisfied.
  1. (b)
    There are no time limits. Theoretically, the practitioner who was struck-off could apply the next day to become an associate of a legal firm.
  1. (c)
    Those guilty of indictable offences, or who have been guilty of the most extreme offences against the proper conduct of their profession and have been disqualified for such reasons, are equally able to make an application to become an associate.

…

  1. (e)
    There are obvious public interests which are to be served, and which must be taken account of. These interests include:
  1. (i)
    The protection of the public.
  1. (ii)
    The standing of the legal profession and the standards that are required of it.
  1. (iii)
    Affording those who are disqualified, or have been found guilty of indictable offences, the chance of rehabilitation and getting paid work in the profession.
  1. (f)
    While the standing of the profession in the public eye is of great importance, and the need to maintain the integrity of the profession is of equal importance, as has been emphasised time and time again by the courts (and recently by the Court of Appeal in Law Society of New South Wales v Bannister (1993) 4 LPDR 24) and must be taken account of, it is necessary to bear in mind that an associate is not a legal practitioner, and depending on the particular level of associateship, may be in a position which is really no more than that of a clerk to or employee of a legal firm. One does not, as it were, translate the requirements demanded of practising members of the profession, or of those who are applying for admission to the profession, to those who are applying to become associates. This is of course perfectly plain as the statute is dealing with situations where, a person has been disqualified from legal practice, or may never have been qualified but would otherwise be debarred from acting as an associate because of conviction for an indictable offence.
  1. [12]
    I will endeavour to give due weight to the matters mentioned in paragraph e(iii) and (f) above.

The basis of the respondent’s opposition

  1. [13]
    The respondent submits that I cannot be satisfied that the public will be protected whatever conditions might be imposed on Mr Evans’ employment. Respondent’s counsel submitted:

No evidence is led as to the sophistication of clients, or prospective clients of GCCS, however, the Society’s concern is that the mere failure to use a title [that being the suggestion at one time], and the proposed redirection of legal work internally to Mr Williams, will not adequately protect the public from:

  1. (a)
    taking Mr Evans to be a legal practitioner, or someone acting in the place of a legal practitioner; and
  1. (b)
    Mr Evans providing legal services contrary to an undertaking given by him.
  1. [14]
    The Society further submits that the standing of the legal profession is put at risk by the proposal. The Society’s concerns include the lack of candour and honesty shown by Mr Evans in his dealings with employees, the tax office and the Society, and Mr William’s lack of experience in the law.
  2. [15]
    I am told that a unique aspect of this application is that Mr Evans seeks to be employed as a lay associate at the very practise that he himself controlled until very recently.
  3. [16]
    It follows then that there are essentially four crucial aspects to the application that require determination. The first is whether the respondent’s view of Mr Evans’ character is justified. The second is the true nature of the role that the applicants have in mind for Mr Evans. The third is whether there are grounds for legitimate concerns about Mr William’s capacity to enforce strict conditions surrounding Mr Evan’s involvement in his legal practise. The fourth, and this is obviously dependent on the other considerations, is whether the imposition of the proposed conditions and undertakings would meet the Society’s legitimate concerns.

The Briginshaw test

  1. [17]
    I received conflicting submissions on the application of the Briginshaw[5] test. As is well understood the ultimate issues in a civil matter are determined on the balance of probabilities, however there are infinite gradations of the level of proof necessary depending on what is at stake. Dixon J (as he then was) said in Briginshaw:

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[6] 

  1. [18]
    Applicants’ counsel submitted that the respondent had fallen into error in failing to properly apply the Briginshaw standard in reaching its decision that the employment of Mr Evans as a lay associate presented an unacceptable risk to the public and the standing of the profession. The submission was:

These conclusions rest on a premise that Mr Evans cannot be effectively supervised at GCCS, and would be likely to reengage in conduct which poses a risk to the public.

There is, respectfully, no logical link here.

On the one hand, in Briginshaw terms, such a premise is a serious one, which should sound in a level of care and clear evidence before reaching such a conclusion.

  1. [19]
    The submission is misguided in two ways. It misunderstands what the focus of this enquiry is. And it misunderstands the relevance of the Briginshaw test to this application.
  2. [20]
    It is true that Mr Evans, if employed as a lay associate, is unlikely to reengage in the conduct that led to his disqualification – he should have no responsibility for paying employees’ superannuation and his income tax will presumably be attended to on a PAYG basis. It will be recalled that the original application was to be permitted to practise as an employed solicitor. Presumably in that capacity too he was unlikely to reengage in the conduct that led to his bankruptcy and for the same reasons. Despite that it is common ground that Mr Evans has been properly disqualified because he represents an unacceptable risk to the public and to the standing of the profession. So the concern here is not that he will reengage in his former activities. The focus is entirely different.
  3. [21]
    What is of concern are the matters identified by respondent’s counsel that I set out earlier.[7] Will members of the public perceive that Mr Evans is entitled to practise? Will clients assume that he has a more significant role in the firm than a mere unqualified lay associate? Will the standing of the profession suffer if it is perceived that a man who has acted in flagrant disobedience of his obligations under the law appears to be back at the helm of his old practise? Will Mr Evans honour any undertaking? Is Mr Evans likely to prefer his own interests when under pressure and so breach undertakings? Is Mr Williams up to the task of providing proper supervision?
  4. [22]
    As to the application of the Briginshaw test it is not to be applied to the seriousness of the effects of this decision on Mr Evans or GCCS but to the relevant issue here. The issue here is whether there is an unacceptable risk to the public or to the standing of the profession if Mr Evans is to be employed as a lay associate. The onus lies on the applicants to show that there is no such unacceptable risk, not on the respondent to show that there is such a risk. And the burden on the applicants is a heavy one – to the Briginshaw standard according to the authorities. The point was well put in Michael John Charles Caiger (1994) 1 LPDR 32 quoted in McGirr v The Council of the Law Society of NSW [2014] NSWCATOD 154, a case concerning an application to be appointed a lay associate under the NSW equivalent legislation:

... Anything, which places or is indeed likely to place any member of the public in a situation of risk, must be avoided. The need to protect the public falls squarely on the shoulders of all legal practitioners and through them this includes their employees. This is a heavy and onerous responsibility cast upon each practitioner and any proposed employer supporting an application of this nature is charged with a responsibility to ensure actively that if such an application is granted the public is put to no risk whatsoever.

This particular limb of consideration is consistent with the duties of the Tribunal in exercising its discretion under the Section. The Tribunal has to make a calculated assessment as to the probability of such risk occurring or not occurring. Indeed, the Tribunal is of the view that it has to be satisfied to a degree beyond the test of satisfaction on the balance of probabilities and into being comfortably satisfied pursuant to the principles enunciated in Briginshaw v. Briginshaw. The Tribunal’s view is that the burden of proving comfortable satisfaction lies with the Applicant and the prospective employer.

  1. [23]
    With those considerations in mind I turn to the facts and issues.

Mr Evans is disqualified

  1. [24]
    Mr Evans was admitted as a legal practitioner in January 1996. He held a principal practising certificate from November 2000 to 30 June 30 2021. From 1 January 2003 to 30 June 2021 he operated a sole practice, Evans Lawyers. On 1 May 2019 he became the legal practitioner director of GCCS. On 1 March 2021 he was made bankrupt on his own petition, and he remains an undischarged bankrupt. His bankruptcy came about to a significant degree because of his failure to meet his obligations to the tax office and to the employees of his legal practise.
  2. [25]
    It is relevant to note that the failure to meet superannuation obligations to employees and taxation obligations extended back over some 8 years prior to the bankruptcy, to 2013-14, and involved hundreds of thousands of dollars. Other creditors were involved. The trustee in bankruptcy advised creditors in his report that there were debts owed of over $1.6M and assets of $215,000 leaving a shortfall of over $1.4M. No dividend was expected to be paid. Employees will not be paid their superannuation entitlements. The tax debt owed by Evans Lawyers as at the date of bankruptcy was $295,671. Evans Lawyers failed to meet its employees’ superannuation entitlements in full from 2014 to 2016, brought those up to date by April 2016 but then from July 2017 accrued indebtedness for unpaid superannuation in an amount of $143,763.
  3. [26]
    Upon being made bankrupt Mr Evans ceased as the ILP legal practitioner director of GCCS and became the sole employed solicitor. One Alessandro Navarro became the sole legal practitioner director.
  4. [27]
    Mr Evans notified the Law Society of his bankruptcy as he was required to do.[8] He applied for a renewal of his employed solicitor practising certificate. On 8 December 2021 the Executive Committee of the QLS met and determined that Mr Evans had not shown that he was a fit and proper person to hold a local practising certificate and refused to renew his practising certificate under s 69(1)(b) of the LPA. The committee also determined that Mr Evans was not entitled to apply for the grant of a practising certificate until the 2024-25 practising certificate year. That period coincides, more or less, with the period he will remain a bankrupt. That decision was conveyed to Mr Evans on 4 March 2022.
  5. [28]
    Mr Evans did not challenge the decision of the Executive Committee. I do not understand him to challenge any of the facts that underlie that decision, save the information allegedly provided to employees about his non-payment of their superannuation entitlements. Having reviewed the evidence gathered by the Society it is clear to me where the probabilities lie.
  6. [29]
    Four days after being advised that his practising certificate was not to be renewed the applicants applied for Mr Evans to be employed as a “lay associate” of GCCS.

Mr Evans’ character

  1. [30]
    The starting point of any consideration of the application is that it is common ground that in order to protect the public and the profession Mr Evans ought not to be permitted to hold himself out as entitled to practise. It is important to understand why that is so.
  2. [31]
    The findings made against Mr Evans by the Executive Committee on his application to renew his practising certificate were compelling and showed his conduct to be egregious. I set the findings out in full:

That the Executive Committee decide that it does not consider that Mr Evans has shown that he is a fit and proper person to continue to hold a practising certificate, because:

  1. Mr Evans breached his professional obligation to ensure the statutory fiscal liabilities of the law practice were met. The breaches comprised repeated failures over an extended period of about 8 years. The breaches were deliberate and systematic.
  2. Mr Evans' preferred his own interests to that of his creditors and employees by:
  1. (a)
    Continuing to operate the sole practice for many years, paying himself and Mr Manhire [an associate] over $200,000 each per year and at the same time accruing significant statutory debts for unpaid taxation and compulsory employer superannuation contributions.
  2. (b)
    Loaning significant amounts of money to his family trust and EM Legal Services Pty Ltd[9] at a time when the law practice was heavily indebted to the ATO for unpaid taxation (GST and PAYG). These loans were an asset of the sole practice. Mr Evans was unable to advise whether the loans 'were required to be repaid or if, in fact, they were'.
  3. (c)
    Making superannuation contributions for himself and Mr Manhire[10] when the law practice was failing to pay compulsory superannuation contributions of the law practice employees.
  4. (d)
    Continuing to employ staff in the sole practice at a time when the law practice had significant debts for unpaid tax and superannuation.
  5. (e)
    Not reducing his spending until late 2020 (when the bankruptcy was imminent) and continuing to dine out 2-3 times per week and spending at least $400 per month on wine until he was declared bankrupt.
  6. (f)
    He acquired GCCS through his family trust and became the principal at a time when his and his sole practice's debts were substantial and after he knew Evans Lawyers may not pay the staff superannuation in full or at all. His family trust bought out the Manhire Family Trust’s interests in January 2021, just prior to him filing his debtor’s petition. Despite the bankruptcy and the failure of his sole practice, he has been able to continue in paid employment with GCCS and retain his practice manager Ms Barney, after finding another principal to appoint to GCCS.
  1. Mr Evans has not demonstrated candour and honesty in his dealings with his employees:
  1. (a)
    He failed to ensure frank disclosure to his employees regarding the law practice's failure to pay contributions towards their superannuation.
  2. (b)
    He did not inform the employees he engaged in 2019 and 2020, prior to them commencing employment or at any time, that the law practice would not be in a position to pay their superannuation entitlements in full by the due date.
  3. (c)
    When his personal assistant Ms Markovitch indicated she would leave if her superannuation was not paid, he told her it would be paid. He did so at a time when his bankruptcy was imminent.
  1. Mr Evans has not demonstrated candour and honesty in his dealings with the Society:
  1. (a)
    Mr Evans has indicated that shortly after the law practice first failed to make employer superannuation contributions by the due date, practice manager Tara Barney advised the staff verbally to ensure they were aware of the situation. All former employees that the Society has spoken to deny this occurred and all confirmed that they discovered the failure of the law practice to pay their superannuation either through other staff, from correspondence from their superannuation fund or by their own enquiries.
  2. (b)
    He stated 'No staff member ever raised a concern with me about the owed superannuation.’ That is directly contradicted by information provided to the Society by former employees Ms Markovitch, Megan Battams and Kim Gillroy.
  3. (c)
    In support of his fitness, he indicated that he reduced his salary by $100,000 but after further questions were asked, he revealed he reduced his income from GCCS on the date of his bankruptcy.
  4. (d)
    He did not disclose the $308,708.98 debt owed by EM Legal Services to the ATO until required by notice issued by the Society on 7 October 2021, despite being aware the Society was examining his failure to pay tax and superannuation in its enquiries into the show cause event.
  1. Mr Evans has not demonstrated the respect for the law (and the need to comply with his obligations under it), that society in general and his professional colleagues in particular could reasonably expect from a solicitor.[11]
  1. [32]
    Counsel for Mr Evans urged that, while relevant, only so much weight ought to be given to these findings and that Mr Evans accepted that his conduct was seriously wrong. Obviously, the fact of the disqualification is not the end of an application to become employed as a lay associate under s 26. The legislation contemplates that very thing. But that submission somewhat misses the point. Having cheated his employees and the tax office over many years, and preferred his own interests to theirs throughout that time, as described, and failed to deal in a candid manner with the QLS through 2021 as their officers investigated his affairs, one might legitimately ask what has changed? 
  2. [33]
    In an affidavit filed shortly before the hearing Mr Evans swears that he has received mentoring from senior lawyers, undertaken a rehabilitation course, and gained insight into the seriousness of his conduct.  His counsel summarised the effect of the evidence as follows:

Mr Evans has expressed remorse for his actions in terms that he:

  1. (a)
    Regrets the gross inaction that allowed the serious and mounting tax obligations of the firm to grow to a level where they became unmanageable;
  2. (b)
    Did not sufficiently respect the privilege of holding a solicitors' practising certificate;
  3. (c)
    Is ashamed of the effects his wrongdoing has had on many people from staff to close friends;
  4. (d)
    This period has been a humbling experience to which he intends never to return;
  5. (e)
    The protection of the public and the reputation of the profession should not be taken for granted, but which he did to a large extent take for granted.

Further, in Mr Evans' pursuit of rehabilitative education through the respondent's Ethics Centre, he recently was required to articulate his reasons for seeking to enrol in a remedial ethics course. This required him to respond to focussed questions about the reasons for seeking to enrol, and identification of his own flaws that have led to his current situation.

  1. [34]
    I am conscious that there is only so much that someone in Mr Evans’ position can do to show a change of heart. My reaction to the evidence is that it might well be the start of Mr Evans’ journey back into the profession. But it provides very little comfort that he will not prefer his own interests when it suits him, as has been his habit over the years, or that he will behave with great candour and honesty with the QLS when it comes to abiding strict conditions and undertakings, conditions and undertakings that the Society is in no position to monitor or supervise.

Some unexplained manoeuvrings

  1. [35]
    The concerns about Mr Evans and his readiness to prefer his own interests have not been alleviated by what has occurred with his former business GCCS. Counsel for QLS is rightly critical of the opacity surrounding the changes in ownership of GCCS.
  2. [36]
    Outwardly Mr Evans gave up his ownership and control of GCCS just prior to his bankruptcy. GCCS was established in 2019. Mr Evans, through a Unit trust of which he was trustee, owned 50% of the business. His business partner through a similar trust arrangement owned the balance. Shortly before his bankruptcy Mr Evans acquired, again through the family unit trust, that balance. On 25 February 2021, four days before entering bankruptcy, one Ms Alessandra Navarro became the director of GCCS and, so far as the records[12] show, beneficial owner of the one issued share in GCCS. Upon Mr Evans’ bankruptcy Tara Barney became the trustee of the unit trust. Ms Barney was the practice manager of Evans Lawyers, a position she had held since 2001, and remains the practice manager of GCCS. Mr Evans became an employee of GCCS. As the Executive Committee found in their decision of December 2021 not to renew Mr Evans’ employee practising certificate Mr Evans had protected his interests while his employees still did not have their superannuation. In December 2021 Mr Evans met Mr Williams at a social function. Two weeks later,[13] on 4 January 2022, Mr Williams replaced Ms Navarro as director of GCCS. At the time Mr Evans still awaited the decision of QLS as to the renewal of his practising certificate. As earlier mentioned, four days after receiving that decision in March 2022 the application under review here was made.
  3. [37]
    Counsel for the applicants endeavoured to deflect this criticism with a submission that the QLS have the resources to conduct their own enquiries and in any case could have required Mr Evans and Mr Williams for cross examination. These submissions are completely misguided. The applicants bear the onus of proof, not the respondent. I was informed by counsel that the written submissions of QLS were provided to the applicants several weeks before the hearing. The applicants were therefore aware of the criticisms and had ample time to respond by affidavits if they wished. If the applicants leave gaps in their evidence that only they can fill, that is a problem for them. And the point of cross examination is not to fill in gaps in the other side’s proofs – quite the opposite.
  4. [38]
    So, at a time when Mr Evans supposedly has no control over GCCS he met Mr Williams and a short time later Mr Williams was ensconced as owner. The relationship between Ms Navarro and Mr Evans, her willingness to become an owner and director of GCCS, her willingness to abandon that ownership and directorship, so far as is known to a person unknown to her, and a person known to Mr Evans for so short a period, all remain unexplained. Quite obviously the inference is that Mr Evans orchestrated these various changes and remained always in control, at least until Mr Williams’ involvement. Why would he do so? The obvious inference again is that he has orchestrated these ownership changes in an effort to have a continuing involvement with GCCS so as to preserve the business as best he could.
  5. [39]
    I have twice mentioned the very short period of time that elapsed between learning of his disqualification and making the application to be employed as a lay associate. Applicants’ counsel argues that this is an irrelevant consideration. I disagree. It is pertinent. While the legislation and judicial commentary make plain that in theory a disqualified person could be employed as a lay associate the very next day after the disqualification I doubt that there would be many cases where that could be possibly seen as appropriate. There is certainly the issue of allowing sufficient time to elapse to permit the subject of such disqualification to reflect and gain some true insight into their actions, which counsel concedes. But in this case, at least, there are additional considerations. One is that to allow Mr Evans anywhere near a law practice where all depends on his compliance with strict conditions and undertakings would require an objective view that he can be trusted. He needs to demonstrate that he has earned the right to be so trusted. That takes time and evidence usually from reliable people in a position to observe him and his conduct to persuade this tribunal or the executive committee that he is a changed character.
  6. [40]
    Another relevant consideration is that the speed of the bringing of the application suggests that this was always the scheme. As counsel submits Mr Evans and Mr Williams had a long time to think about their next move if the decision went against Mr Evans. But it is difficult to avoid the inference that the plan always was that while notionally disqualified Mr Evans would continue on, in the same practise with the same clients, doing precisely what to keep those clients remaining quite obscure.

What is to be Mr Evan’s role?

  1. [41]
    This then leads to a significant problem with this application. What is the real role that the applicants have in mind for Mr Evans? Counsel urged that “[t]here is no evidence to suggest that Mr Evans' application disguises an intention to have a role which exceeds the limitations of a lay associate”. I am not sure what evidence, independent of an individual’s own statements, can ever be available of someone’s future intention. The point here though is that the disclosed intent is for Mr Evans is to preserve the client base in some way. To preserve a legal practise the important point is not to let the clients move away to other firms and so become comfortable with their new advisors and to do that will require some means of ensuring a high level of competent service. And it seems evident that in entering into these arrangements Mr Williams saw Mr Evans’ continuing involvement as remaining integral to the success of the business he purchased. What plans the men formulated are not disclosed but Mr Williams has said:

…[since 2003] he has built up a large number of clients, many of whom I have been advised by other staff members and Mr Evans have continued with him for a very long time. Mr Evans has built up a significant level of goodwill and strong loyal relationships. It is my belief and that of others that if Mr Evans is not employed in some capacity with GCCS, many of those clients will be considerably inconvenienced and irritated given the large amount of files, securities, understanding and knowhow that Mr Evans has built with them which they will then need to procure or start again with someone new.[14]

  1. [42]
    I interpose that the need for clients to find “someone new” is usually an inevitable consequence of losing one’s practising certificate. It is not a relevant factor in determining this application. 
  2. [43]
    Mr Williams has advised the QLS that by reason of Mr Evans 26 years’ experience since his admission and his having built up significant goodwill and strong loyal relationships if Mr Evans did not continue at GCCS its revenue would reduce by more than 50% which would be likely to lead to the practise being closed.[15] The proposal is that Mr Evans would work at least 40 hours per week under Mr William’s supervision or the supervision of another practitioner with the duties I have earlier set out.[16]
  3. [44]
    I make two observations. I doubt that there are many practices which could or would claim that the practise revenue would reduce by 50% if they changed the employee performing the largely back-room duties outlined above. Presumably the retention of clients is expected to come about through the task described as “client and referrer liaison in a marketing capacity”. Quite what that entails I am not sure. And I fail to see the relevance of a reduction in the profits of GCCS to this application. If the price paid by Mr Williams for the practise was based on an assumption that Mr Evans would continue on in some role at GCCS and in a role that would retain the client base then he has made an assumption he had no right to make.
  4. [45]
    As respondent’s counsel submitted the suggested prospective duties have varied over time, nothing is known of the prospective remuneration Mr Evans will receive save that it will not be tied to the performance of the firm, and so far as the intended duties are disclosed it is difficult to see how they can result in saving the business of the firm as is proposed.
  5. [46]
    It is submitted that the various issues I have identified to date are met by the fact that Mr Williams is to supervise Mr Evans. I turn to that issue.

Mr Williams’ inexperience

  1. [47]
    I have mentioned Mr Williams relative lack of experience in the law. The Executive Committee took the view that having Mr Williams as supervisor “is unsatisfactory and would result in an inexperienced principal responsible for supervising the former principal and figurehead of the law practice.” The Committee also opined that “Mr Evans was and will continue to be the figurehead for the law practice.”
  2. [48]
    Applicants’ counsel put at the very forefront of her submissions that the executive committee were wrong to take this approach that Mr Williams lacked the necessary experience to properly supervise Mr Evans. At the time of their decision, she pointed out, they were unaware of his background. That was so because he had not revealed that background. He has now corrected that oversight to some, fairly limited, extent.
  3. [49]
    Mr Williams has sworn that he came to the law later in life, with valuable work and life experience behind him; that prior to becoming a solicitor he was a sales manager for a large national retailer; and that, as sales manager, he supervised many people in varying roles. In 2010, he obtained his Bachelor of Business majoring in human resources and industrial relations. In the period leading up to his return to studying law, he held various management positions whilst he recovered from open heart surgery and its complications. Further he proposes that he and Mr Evans will sit in the same room and so Mr Evans will be easily supervised.
  4. [50]
    Applicants’ counsel submission continued:

Being the ‘figurehead’ of a law practice is a nebulous expression, and tends to obscure the arrangement that is proposed, which in truth is as follows:

  1. (a)
    Mr Evans will continue to maintain key existing relationships with clients with whom he has built a relationship over the years – this is at the heart of the proposal and is not disputed;
  2. (b)
    Mr Williams (or another employed solicitor of GCCS) will undertake the client's business and provide legal services;
  3. (c)
    It will be plain to all that Mr Evans cannot provide legal services. This will be obvious – even assuming that such existing clients do not already know of his disqualification – from aspects of the proposal including the lack of any title for Mr Evans, and the manner in which it has been proposed that he will introduce clients and client matters through to Mr Williams, before leaving the delivery of legal services to Mr Williams and other admitted solicitors of GCCS; and
  4. (d)
    Within the law practice itself, the influence of Mr Evans formerly having been the principal is at least on an even footing with what (within the law practice's environment) has been a very public fall from grace by way of Mr Evans' bankruptcy, investigation and disqualification. It cannot be suggested that the staff would not be aware that his role in the practice has taken a downward turn.
  1. [51]
    The Executive Committee had this to say:

Your application is slightly unique in that you remain intrinsically interwoven with GCCS as a business and its clients past, present and future. The Executive Committee is not confident that you would be a lay associate, employed by the law firm, like any other law clerk with paralegal duties. The Committee considers that you remain so intrinsically interwoven with the operation of the firm that even taking into account the proposed arrangements and undertakings there would still be a significant concern ensuring the administration of justice, consumers of the services of the legal profession and the public generally were adequately protected.

  1. [52]
    I take a similar view to the executive committee. I think it inevitable that many clients will take the view that all is back to the way it was before with Mr Evans in charge. While I am not at all sure how public Mr Evans’ fall from grace might have been there is no doubt that some clients, perhaps many, will be aware of the gist of the problem, that is his bankruptcy. However, his re-appearance at the firm, should he be employed there, would also carry some considerable significance, effectively that the court approves of him continuing in the practise.
  2. [53]
    In addition to his responsibilities to GCCS Mr Williams continues with his own practise Williams-Solicitors. I am told he has 88 open files with that entity. The intention apparently is to transfer them across to GCCS. There is a legitimate concern as to Mr Williams’ capacity to manage both practices and supervise Mr Evans and all the while not breach any of the undertakings that so constrain Mr Evans’ ability to practise.
  3. [54]
    I have no reason to doubt that Mr Williams has good intent and would not undertake the task of supervision lightly. However, I have no confidence that he has any idea what he is letting himself in for. He is not yet five years in practise. He is very inexperienced. He wants to use Mr Evans’ influence in some way with clients while not crossing the line that the conditions proposed lay down. After 26 years in practise Mr Evans no doubt possesses knowledge and skill that Mr Williams does not. Somehow Mr Williams has to resist the very human urge to use the resource sitting next to him when grappling with legal problems that may will be novel for him and sometimes complex and sometimes when under severe time pressure. Mr Williams’s experience in retail, to the extent it is revealed, and his supervision of employees whose roles and numbers are unknown, provides me with little comfort that he is up to the task.

A communication from Mr Evans

  1. [55]
    My concern as to the suitability of the applicants’ proposal was further heightened by an exchange that took place after the hearing.
  2. [56]
    In the course of the hearing I had requested that the QLS supply a “Word” copy of a document their counsel had tendered[17] setting out the conditions that their counsel had submitted ought to be imposed on the applicants if I was minded to grant the application. On the day following the hearing my associate received an email from the QLS solicitor attaching the “Word” copy I had requested. There followed later that day, under the hand of one “Dave Evans” – the first applicant – an email in reply. Apparently, my request for an electronic copy of a document that had become an exhibit in the hearing was seen as an invitation to make further submissions. Mr Evans’ email read:

Dear Associate and Ms Hunt

With reference to the attached Draft Undertakings submitted by the respondent, the applicants do not agree to the reference in conditions 2 & 3 to "law clerk", which should be "lay associate", for these reasons:

  1. The applicants had maintained a position throughout these proceedings that the title would be "lay associate".  This is the position for which the Tribunal - in the event the application is successful - will have approved the first applicant;
  2. The term "law clerk" has no clear or settled meaning;
  3. The respondents surprised the applicants with the proposed conditions - spanning more than a page - in the course of the hearing and did not draw this change to the applicants' attention.  As there was minimal time to review the proposed conditions, it was overlooked and instructions on that specific issue were not sought from Mr Evans - counsel offers her apology for this.

In the event the application is successful, the applicants ask his Honour to amend conditions 2 & 3 in this way, or (if the respondent does not agree to the requested change) to hear further from the parties.

Regards

Dave Evans

  1. [57]
    The email did not indicate that the consent of the respondent had been obtained to such a communication. I observe that the email is not a non-contentious correction of a position misstated during the hearing. It involves arguing the point. This prompted a substantive response from the respondent. Thus, uninvited submissions were proffered to the Tribunal. More significantly, it is unique in my experience for a lay client, represented by counsel at the hearing and instructed by solicitors – here GCCS, to communicate directly with the tribunal charged with determining their case, and to advance submissions in doing so. To put it very mildly I was surprised by the communication from Mr Evans.
  2. [58]
    I sought advice from counsel as to what was going on. I received responses from both counsel. Unsurprisingly, respondent’s counsel was very critical of Mr Evans involving himself in this way. Counsel did so ignorant of the involvement of the applicants’ counsel in the matter. I mean no criticism of him – his submissions mirrored my own uninstructed thoughts on the matter.
  3. [59]
    Applicants’ counsel informed me in part as follows:

…the response was prepared by me for GCCS to send to the Tribunal.  I am instructed it was sent by Mr Evans directly to the Tribunal as there appeared to be an element of urgency to the communications (to finalise the matters raised in the hearing, which then included a necessity of response to a matter raised by the respondent in its email of 10:23am – about which more is said at 3 below).

Without disclosing the contents of otherwise privileged communications, I can state that Mr Williams was a party to my various correspondences to GCCS with the proposed wording of the emails.  I am instructed in the clearest of terms that Mr Williams was aware of the issues as they were unfolding, but was unable to do more himself as he was stuck in one meeting, and then had to rush to a second, around the time of the Tuesday morning email exchanges.

Mr Williams directed Mr Evans to send the emails in the terms drafted by me, because he (Mr Williams) also perceived some urgency in dealing with the matters raised.   It cannot be said that Mr Evans acted unilaterally, and in my submission no inference of that sort is available on the current material.

  1. [60]
    It should hardly be necessary to remind practitioners of the ethical issues involved in a party communicating to a Court without the consent of the opponent.[18] There was no urgency here that could have possibly justified any departure from those standards. Counsel are agreed that these ethical rules do not bind Mr Evans. I accept that view. But they do bind Mr Williams and they do bind counsel. And common-sense might have suggested that the course adopted was very unwise. It is true that once the applicants’ counsel realised that she had misunderstood or inadvertently misrepresented her instructions then it was incumbent on her to draw that to the attention of the respondent and the Tribunal promptly. The proper course to follow was for one counsel to alert the other to the issue, for them to agree on the terms of a noncontentious email, for that to be sent to my associate, and for them to seek leave to deliver further submissions. That leave would no doubt have been readily given and no great harm has been done by the approach adopted. If I have followed what I have been told applicants’ counsel did not advise that Mr Evans send the communication. I infer that she expected either Mr Williams to do so, or that she would be asked to do so in due course, once her draft was agreed.
  2. [61]
    However, it was not the breach of the ethical rules that so much concerned me but rather the point that counsel alluded to at the end of the passage I have quoted. Should this exchange impact on the decision under review? I think it does in two ways.
  3. [62]
    The first is that it shows a deal of concern about something I would have thought would be of little moment – the precise title to be used to describe Mr Evans. I was told that the conditions proposed, with one exception unrelated to this issue, were the standard ones QLS proposes in all such cases. “Law clerk” was the descriptor used by Mr Williams himself in describing the proposed duties that Mr Evans would undertake – see paragraph [4] above. Why the attempted insistence on the title “lay associate”? As I observed during the hearing, I doubt that members of the public uninstructed in the intricacies of the LPA would have any idea what that term means. This only adds to my concern as to precisely what role is envisaged and how Mr Evans is to be presented to clients.
  4. [63]
    But more importantly, what occurred here involved a serious error of judgment. The trenchant criticism of Mr Evans made by respondent’s counsel, which I will not detail, is not entirely valid. The criticisms were based on the assumption that Mr Evans acted off his own bat so to speak. As we now know Mr Evans sought and followed advice from his lawyers. But he does not come out of this unscathed. That Mr Evans did what Mr Williams told him to do is not much of an excuse and does not alleviate my concerns at all. After 26 years in practise he ought to know the conduct rules. If neither his counsel nor solicitor could do something without breaching those rules one would think it would give him pause before making the communication. More significantly Mr Evans acted just as a solicitor might and which he is assuring this tribunal he will not do as a lay associate – advancing legal argument, apologising on behalf of counsel, responding to the opponent, albeit ignoring the conduct rules in the process.
  5. [64]
    Even more significant, however, is the error of judgment committed by Mr Williams. I am told all this occurred with Mr William’s imprimatur.  This goes to the heart of the case. When Mr Williams was under time pressure he did not turn to counsel, the obvious person to involve, or send the email himself – it would have been the work of moments, or give the task to another person in the firm – I am told his brother is a solicitor employed there, but called on Mr Evans, effectively a lay client. I find that decision inexplicable. No doubt Mr Evans knew what to do, was the most knowledgeable about the case, and free of other compelling duties. The obvious concern is that if he continued with the firm as proposed that would not be the last time that there was such a confluence of factors.
  6. [65]
    In the context of what is in issue in this application the email speaks volumes as to Mr Williams’ apparent inability to realise the inappropriateness of the course adopted. While this event is not decisive in my reasoning it does confirm my concerns.

Financial contributions

  1. [66]
    Applicants’ counsel advanced four matters that she submitted should result in my reaching a different decision to that arrived at by the executive committee. The submission was as follows:

Four sets of additional factors – which occurred or have been clarified subsequent to the making of the decision – are, in the applicants' contention, relevant to the Tribunal's decision:

  1. (a)
    Steps taken by Mr Evans in demonstrated efforts to educate and rehabilitate himself and improve his suitability for approval as a lay associate;
  2. (b)
    The finalisation of the transfer of the GCCS business away from any ownership or control by Mr Evans;
  3. (c)
    Steps taken by each of Mr Evans and GCCS to continue to make financial amends formatters which led to Mr Evans' bankruptcy; and
  4. (d)
    Clarification of Mr Williams' prior experience and capacity for effective supervision of Mr Evans' work.
  1. [67]
    I have dealt with three of those matters – (a), (b) and (d). I have not mentioned the efforts to make financial amends.  The evidence as summarised by counsel was that each of Mr Evans and GCCS have sought to make financial contributions to reduce the debts owing to the ATO. GCCS entered into an agreement with the ATO in respect of an outstanding debt hanging over from the time of Mr Evans' leadership of the practice and is up to date with its monthly contributions. Mr Evans had been making voluntary contributions to the ATO in respect of the Evans Lawyers' staff superannuation debt but has been unable to maintain those contributions whilst he is without regular income. He is keen to revert to making those payments once either this application is resolved in his favour, or he is thereafter able to secure alternative employment.
  2. [68]
    Factually that submission is accurate, and those matters are relevant and in favour of both Mr Williams and Mr Evans. I add that the amounts paid are relatively modest. Giving due weight to that factor I am not persuaded that it is anywhere near sufficient to overcome my concerns about the proposed employment.

Other decisions

  1. [69]
    I was referred to a number of cases where courts and tribunals have considered applications such as these. None were comparable in the sense that none involved an applicant seeking to be re-employed in the practise that they previously controlled. I did not get much assistance from them.
  2. [70]
    Applicants’ counsel referred me to four decisions. Council of The Law Society of New South Wales v Hutton,[19] Dona v Council of The Law Society of New South Wales,[20] Legal Services Commissioner v Munt,[21] and Aussel re McCaffrey.[22] In Hutton the tribunal made an order prohibiting any law practice from employing Ms Hutton as a lay associate after she was found guilty of more than 50 charges of fraud when employed as a paralegal and secretary in a law practise. That case involves a level of dishonesty not present here and provides no insight into this decision. In Dona the Court was concerned to point out that no matter the method of stealing the public still needed to be protected. The decision does not assist the applicants. Munt was a case of drug trafficking and supply by a solicitor and inferentially the taking of drugs severely impacted on the solicitor’s capacities. That is a very different case to this one. As well, the Society did not oppose the application to him being employed as a lay associate subject to strict rules including the provisions of regular urine analysis testing. McCaffrey involved a barrister practising without a practising certificate. The court did approve of him being employed as a lay associate. Mr McAffrey’s circumstances that led to him ignoring his responsibilities were very different to those pertaining here. He had become clinically depressed and suicidal following the decline of his practise, his father becoming ill and dying, and he becoming estranged from his wife and family. He was to be employed in a friend’s solicitor’s practise. Several members of the Bar supported his application. A psychiatrist gave evidence to the effect that he was overcoming the psychiatric issues that had overwhelmed him. The considerations there were very different.  Most significantly in each of these cases there was no prior relationship with the clients of the firm that was to employ the disqualified person.

Conclusion

  1. [71]
    I bear in mind the obvious intent of the lay associate provisions in s 26 of the LPA that the applicant is to be afforded, where appropriate, the chance to gain re-employment. And I acknowledge that the applicants do not seek to have Mr Evans employed as a legal practitioner. Quite what they envisage is, as I have said, an issue of concern.
  2. [72]
    Applicants’ counsel referred me to the following passage from Kyriackou v Law Institute of Victoria Ltd,[23]a case concerning the disqualification of the appellant there, and the reference later in the decision to “evidentiary logic”:

Because the tribunal is not bound by the rules of evidence, it is not bound by the provisions of s 140 of the Evidence Act 2008 nor by the common law principles established by Briginshaw. Nevertheless, those principles reflect common sense notions of probability with respect to human conduct and it is entirely proper for the tribunal to take them into account when considering allegations of serious misconduct.[24]

…

We shall also approach the Tribunal’s findings of fact cognisant of the principles stated in Briginshaw.  We do so, however, on the basis that those principles inform consideration of the question whether it was open to the Tribunal to conclude as it did as a matter of evidentiary logic.[25]

  1. [73]
    Counsel’s submission was that there was no “evidentiary logic” to the decision below and so I should not follow it. I cannot agree. What lies at the heart of the problem with the proposal is the combination of the three matters I identified at the outset – the character of Mr Evans as disclosed by his conduct, the inexperience of Mr Williams, and the role envisaged for Mr Evans that is intended, in some way, to save the business of the clients of the firm. It is my perception of the “common sense notions of probability with respect to human conduct” that brings me to the conclusion that there is an unacceptable risk of the matters I have previously highlighted. I am not satisfied that the concerns I hold will be met by the imposing of the undertakings suggested.
  2. [74]
    The applicants have not discharged the onus on them.
  3. [75]
    I confirm the decision of the respondent. The application is dismissed.

CONDITIONS/UNDERTAKINGS PROPOSED BY QUEENSLAND LAW SOCIETY

TO BE GIVEN BY DAVID ALAN EVANS AND GOLD COAST CITY SOLICITORS PTY LTD

  1. David Alan Evans (Mr Evans) will be employed by Gold Coast City Solicitors Pty Ltd (GCCS) as a law clerk under the direct supervision of Matthew James Williams (Mr Williams).
  2. Mr Evans will be described in all of GCCS’s material, letters, costs agreements, advertising and communications with all other parties as a law clerk.
  3. Mr Evans and GCCS, by its legal practitioner director, Mr Williams, will inform all clients with whom Mr Evans has contact that Mr Evans is engaged as a law clerk, he is not a solicitor and he is not authorised and cannot provide to any person any legal advice.
  4. Mr Evans will not hold himself out or represent himself as being a solicitor or as operating or managing GCCS.
  5. Mr Evans will not meet with clients without Mr Williams being present.
  6. Mr Evans will not be a shareholder or director of GCCS.
  7. Mr Evans will not provide legal advice or legal services to the public.
  8. Mr Evans will not have access to or be a signatory on any law practice trust account, controlled money account or bank account operated by GCCS.
  9. Mr Evans will not be responsible for or in charge of any employees or contractors of GCCS.
  10. Mr Williams will monitor Mr Evans’ compliance with these conditions. If Mr Williams or Mr Evans becomes aware of any breach of any of these conditions, Mr Williams or Mr Evans, as the case may be, will promptly inform Queensland Law Society Incorporated (the Society).  
  11. GCCS, by Mr Williams, is to inform, in writing, all employees of the law practice (current and new employees) of the nature and conditions of the employment of Mr Evans, and specifically, that he is not entitled to engage in legal practice and he is not permitted to be in charge of or manage any employees of GCCS.
  12. The remuneration of Mr Evans is to be by way of a stipulated salary or hourly rate, and is not to include or be calculated by reference to income received, profit made or success in any matter or by GCCS generally.
  13. Upon Mr Evans ceasing to be employed by GCCS, GCCS shall advise the Manager & Principal Regulation Solicitor, Regulation, at the Society within 5 business days.
  14. If Mr Evans will undertake conveyancing, the following additional conditions apply:
    1. a.
      Mr Evans’ work will be limited to the usual and necessary part of the conveyancing process and administration and will not extend any further.
    1. b.
      GCCS will conduct any electronic settlements only through an Electronic Lodgment Network Operator (ELNO) approved by the Registrar under the Electronic Conveyancing National Law (Queensland)).
    1. c.
      Mr Evans will not provide authorisation in relation to power money in an ELNO, Mr Evans will be an ELNO user only, not an ‘authoriser’ (or similar term used by the ELNO).
    1. d.
      Mr Evans will have dealings with trust money only to the extent that he will provide direction regarding disbursement of funds from the ELNO platform (but not authorisation) and Mr Williams will ensure appropriate oversight to ensure client’s interests are protected.
    1. e.
      If GCCS deposits or GCCS directs a client to deposit settlement money into an account that is not controlled by GCCS, GCCS will ensure that:
    1. the relevant client is aware that:
      1. the funds will not be under the control of a law practice, and
      2. the client will no longer have the protection of the Legal Practitioner’s Fidelity Guarantee Fund; and
    2. it has appropriate written directions from the relevant client and those written directions will be retained on the client file for a minimum of seven years and will be provided to the law Society upon request.  
  15. Prior to the commencement of any employment by GCCS of Mr Evans, both Mr Evans and GCCS (by Mr Williams) are to inform the Tribunal and the Society, each in writing, that they individually understand these conditions and each individually gives an undertaking that each will, as far as the conditions relate to them, abide by those conditions; in each case such to be in writing, signed by Mr Evans and Mr Williams on behalf of GCCS.

Footnotes

[1]  See Dictionary at Schedule 2 LPA.

[2]  See p 89 trial book – letter from Mr Williams to QLS attachment MJW-03 to his affidavit 1 July 2022.

[3]  See letter Gilshenan & Luton to the respondent at p 753 trial book.

[4]  Unreported Supreme Court 27 June 1995 – as quoted in La Fontaine v Law Society of New South Wales [2006] NSWADT 244 at [29].

[5]Briginshaw v Briginshaw (1938) 60 CLR 336.

[6]  At p 362.

[7]  See paras [13]-[14] above.

[8]  LPA s 68(1), sch 2 Dictionary: “Show cause event” para (a) and (b)

[9]  A company under Mr Evans’ control and used as a services provider to the legal firm.

[10]  An associate previously involved in the ownership of the ILP.

[11]  See pp 189-190 trial book.

[12]  See pp 930-933 trial book – historical search ASIC records of GCCS as at 12 July 2022.

[13]  I take the period from the respondent counsel’s submissions.

[14]  See p 853 trial book.

[15]  See more fully at pp 873-874 of trial book.

[16]  At [4] above.

[17]  See the attachment to these reasons.

[18]  See r 53 of the Barristers’ Conduct Rules; r 22.5 Australian Solicitors’ Conduct Rules 2012.

[19]   [2012] NSWADT 48.

[20]   [2014] NSWCA 444.

[21]   [2019] QCAT 160.

[22]   [2013] NSWADT 102.

[23]  45 VR 540.

[24]  At [26].

[25]  At [29].

Close

Editorial Notes

  • Published Case Name:

    Evans & Anor v Queensland Law Society

  • Shortened Case Name:

    Evans v Queensland Law Society

  • MNC:

    [2022] QCAT 284

  • Court:

    QCAT

  • Judge(s):

    Member Hon. Duncan McMeekin KC

  • Date:

    17 Nov 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
Aussel re McCaffrey [2013] NSWADT 102
2 citations
Jump To
Cite 1 - [2013] NSWADT 102
Cite 2 - [2013] NSWADT 102
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Clyne v NSW Bar Association (1960) 104 CLR 186
1 citation
Jump To
Cite 1 - (1960) 104 CLR 186
Council of The Law Society of New South Wales v Hutton [2012] NSWADT 48
2 citations
Jump To
Cite 1 - [2012] NSWADT 48
Cite 2 - [2012] NSWADT 48
Dona v Council of The Law Society of New South Wales [2014] NSWCA 444
2 citations
Jump To
Cite 1 - [2014] NSWCA 444
Cite 2 - [2014] NSWCA 444
Kyriackou v Law Institute of Victoria (2014) 45 VR 540
2 citations
Jump To
Cite 1 - (2014) 45 VR 540
Cite 2 - (2014) 45 VR 540
La Fontaine v Law Society of New South Wales [2006] NSWADT 244
2 citations
Jump To
Cite 1 - [2006] NSWADT 244
Cite 2 - [2006] NSWADT 244
Law Society of New South Wales v Bannister (1993) 4 L.P.D.R. 24
1 citation
Jump To
Cite 1 - (1993) 4 L.P.D.R. 24
Legal Services Commissioner v Munt [2019] QCAT 160
2 citations
Jump To
Cite 1 - [2019] QCAT 160
Cite 2 - [2019] QCAT 160
McGirr v The Council of the Law Society of NSW [2014] NSWCATOD 154
2 citations
Jump To
Cite 1 - [2014] NSWCATOD 154
Cite 2 - [2014] NSWCATOD 154
McGirr v The Council of the Law Society of NSW (1994) 1 LPDR 32
2 citations
Jump To
Cite 1 - (1994) 1 LPDR 32
Cite 2 - (1994) 1 LPDR 32
New South Wales Bar Association v Evatt (1988) 117 CLR 183
1 citation
Jump To
Cite 1 - (1988) 117 CLR 183
New South Wales Bar Association v Stevens [2003] NSWCA 95
1 citation
Jump To
Cite 1 - [2003] NSWCA 95

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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