Merlo v Queensland Law Society Inc
[2022] QCAT 448
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- Unreported Judgment
- Merlo v Queensland Law Society Inc[2022] QCAT 448
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Merlo v Queensland Law Society Inc[2022] QCAT 448
Merlo v Queensland Law Society Inc[2022] QCAT 448
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Merlo v Queensland Law Society Inc [2022] QCAT 448 |
PARTIES: | john maximus merlo (applicant) v queensland law society inc. (respondent) |
APPLICATION NO/S: | OCR169-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 2 December 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Hon Peter Lyons KC, Judicial Member |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Tribunal is exercising its review jurisdiction to review a decision made by the Queensland Law Society – where the Tribunal has to come to the correct and preferable decision – where the Tribunal is to ensure that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts – where the Tribunal is required to act with speed – where the hearing has concluded but the Tribunal seeks further evidence – whether the Tribunal has power to direct the respondent to obtain evidence from a liquidator – whether that power should be exercised – form of an order PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – GENERALLY – where a solicitor is seeking review of a decision of the Queensland Law Society to not grant or renew his practising certificate – where the Tribunal seeks further information after the conclusion of the hearing – where the information relates to the transferring of the solicitor’s former legal practice to another company, which the solicitor was a director of Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 28, s 62, s 63, s 91, s 97, s 98 Commissioner for Railways (NSW) v Agalianos (1995) 92 CLR 390; [1995] HCA 27 Nursing and Midwifery Board of Australia v HSK [2019] QCA 144 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Rintoul v State of Queensland [2015] QCA 79 |
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]The principal application in these proceedings is for a review of the respondent’s decision not to grant or renew a practising certificate for the respondent for 2020/2021. It has resulted in a two day hearing.
- [2]Up to May 2018, the applicant conducted legal practice through Australian Construction Engineering Lawyers Pty Ltd (“ACEL”). In the course of the hearing, the respondent alleged that the applicant transferred the business of ACEL to another company, JMMLBW Pty Ltd, for $4,500, a company of which he was a director, and in which he had a shareholding (“the phoenixing allegation”), very shortly before it went into liquidation. This was achieved by an agreement described as a Business Sale Contract, dated 16 May 2018. The allegation arises from information in the report of the applicant’s trustee in bankruptcy to his creditors, to the effect that Mr Clifford Sanderson, the liquidator of ACEL, so informed him. The applicant gave evidence that the contract was made between the administrator of ACEL and Mr Watt representing JMMLBW; and the contract was only for the sale of a website. There is a clear conflict between the applicant’s evidence and other material relied upon by the respondent. In those circumstances, the Tribunal has sought from the parties submissions on the question whether the Tribunal has the power to direct the respondent to obtain further evidence from the liquidator of ACEL on this question, whether the power should be exercised, and on the form of any order.
Power
- [3]This Tribunal is a creature of statute. Its powers are limited to those conferred on it by statute, either directly or by necessary implication. Although the parties are not in dispute about the Tribunal’s power to make directions of the kind proposed, it is necessary nevertheless to identify the source of the Tribunal’s power to make such directions.
- [4]The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) includes the following:
62 Directions
- (1)The tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
- (2)The tribunal may hold a directions hearing for giving the direction before any other hearing is held for the proceeding.
- (3)Without limiting subsection (1), the tribunal may give a direction under this section requiring a party to the proceeding to produce a document or another thing, or provide information to—
- (a)the tribunal; or
- (b)another party to the proceeding.
- (4)A party must comply with a direction given under this section within—
- (a)the period stated in the direction; or
- (b)if the tribunal has extended the period within which the direction must be complied with—the extended period.
- (5)However, subsection (4) does not apply to a document or thing, a part of a document or thing, or information for which there is a valid claim to privilege from disclosure.
- (6)The tribunal may act under this section on the application of a party to a proceeding or on the tribunal’s own initiative.
- (7)The tribunal’s power to act under this section is exercisable only by—
- (a)the tribunal as constituted for the proceeding; or
- (b)a legally qualified member, an adjudicator or the principal registrar.
63 Obtaining a document or thing from third parties
- (1)The tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document or other thing relevant to the proceeding to produce the document or thing to—
- (a)the tribunal; or
- (b)a party to the proceeding.
- (2)The person in relation to whom the order is made must comply with the order within the period stated in the order.
- (3)However, subsection (2) does not apply to a document or thing, or a part of a document or thing, for which there is a valid claim to privilege from disclosure.
- (4)In making an order on the application of a party, the tribunal must consider whether it is appropriate to make an order requiring the party to pay the costs of producing the document or thing to which the order relates.
- (5)The tribunal may act under this section on the application of a party or on the tribunal’s own initiative.
- (6)The tribunal’s power to act under this section is exercisable only by—
- (a)the tribunal as constituted for the proceeding; or
- (b)a legally qualified member, an adjudicator or the principal registrar.
- [5]There are other provisions of the QCAT Act which are relevant, including:
19 Exercising review jurisdiction generally
In exercising its review jurisdiction, the tribunal—
- (a)must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
- (b)may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
- (c)has all the functions of the decision-maker for the reviewable decision being reviewed.
20 Review involves fresh hearing
- (1)The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
21 Decision-maker must help tribunal
- (1)In a proceeding for the review of a reviewable decision, the decision-maker for the reviewable decision must use his or her best endeavours to help the tribunal so that it can make its decision on the review.
…
- (2)If the tribunal considers there are additional documents or things in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the reviewable decision, the tribunal may, by written notice, require the decision-maker to provide the documents or things.
28 Conducting proceedings generally
…
- (3)In conducting a proceeding, the tribunal—
- (a)must observe the rules of natural justice; and
- (b)is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
- (c)may inform itself in any way it considers appropriate; and
- (d)must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
- (e)must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
97 Requiring witness to attend or produce document or thing
- (1)The tribunal or the principal registrar may, by written notice, require a person to—
- (a)attend at a stated hearing of a proceeding to give evidence; or
- (b)produce a stated document or other thing to the tribunal.
Note—
See section 214 for consequences of failing to comply with a notice under this subsection.
…
- (2)The tribunal may give a notice under subsection (1) on the application of a party to a proceeding or on its own initiative.
98 Powers relating to witnesses
- (1)In a hearing of a proceeding, the tribunal may—
- (a)on its own initiative call any person to give evidence; or
- (b)examine a witness on oath or require a witness to give evidence by affidavit; or
- (c)examine or cross-examine a witness to the extent the tribunal considers appropriate to obtain information relevant to performing its functions in the proceeding; or
- (d)compel a witness to answer questions the tribunal considers relevant to the proceeding.
- (2)Subsection (1) does not allow the tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question.
- (3)Without limiting subsection (2), it is a reasonable excuse for a witness to refuse to answer a question if answering the question might tend to incriminate the person.
- [6]In Nursing and Midwifery Board of Australia v HSK,[1] the Court dealt with the question whether this Tribunal had the power to direct a party to undergo a further health assessment. One ground relied upon by the appellant was the power to make directions found in s 62. The Court held that the power did not extend to the direction sought by the appellant. Boddice J (with whom the other members of the Court agreed,[2] said
- [29]While s 62 of the Act contains a broad power, the power is to be exercised in the context of what is necessary for a speedy and fair conduct of the proceeding in question. That context supports a conclusion that the power is procedural.
- [30]In Rintoul v State of Queensland, Holmes JA (as the Chief Justice then was) observed in respect of s 62:
“Section 62(1) of the Act confers on the Tribunal a number of powers, which include the power to “give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding”. That power is sufficiently broad to encompass an order which dismisses a proceeding in the event of non-compliance with a direction.”[3]
- [31]Dismissal of a proceeding for non-compliance with a direction involves the exercise of a power necessary for the speedy and fair conduct of the proceeding. Staying a proceeding until compliance with a direction similarly involves the exercise of a power in that context. Such directions are classically procedural in nature. They may be contrasted against a direction compelling the involuntary attendance of a registered practitioner for a health assessment. Compliance with that type of direction involves an interference with the liberty of an individual litigant.
- [32]A power to compel an interference with the liberty of an individual litigant is not generally considered a direction necessary for the speedy and fair conduct of a proceeding. Other directions, procedural in nature, can address what is necessary for the speedy and fair conduct of a proceeding. For example, if a registered practitioner refused to voluntarily consent to a further health assessment, procedural directions could include staying the proceeding until the registered practitioner voluntarily attended upon a health assessment.
- [7]A question arises as to the effect of the qualification found in s 62 relating to what is necessary for the speedy and fair conduct of the proceeding. In Project Blue Sky v Australian Broadcasting Authority,[4] McHugh, Gummow, Kirby and Hayne JJ said:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (45). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (46). In Commissioner for Railways (NSW) v Agalianos[5] (47), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (48).
- [8]The context in which s 62 is found includes the following:
- The requirement to decide the review in accordance with the QCAT Act (and any enabling Act);[6]
- The purpose of the review is to produce the correct and preferable decision;[7]
- The requirement that, in conducting the proceeding, the Tribunal is to act with as little formality and technicality and with as much speed as the requirements of the QCAT Act and a proper consideration of the matters before the Tribunal requires;[8]
- The requirement that the Tribunal ensure as far as is practicable, that all relevant material is disclosed to it to enable it to decide the proceeding with all relevant facts.[9]
- [9]It is considered that what is necessary for the speedy and fair conduct of a proceeding for the purposes of s 62 is to be determined bearing in mind the context just described. In other words, the proceeding must be one directed to the production of the correct and preferable decision, and one where the Tribunal has ensured, as far as is practicable, that all relevant material is disclosed to it to enable it to decide the proceeding with all relevant facts. In this context, and in view of one of the issues in the review, it is considered that the terms of the Business Sale Contract is a relevant fact, as is the state of the assets and dealings with them, at about the time of the appointment of Mr Sanderson.
- [10]Further, it is considered that this view is consistent with the express statement in s 28(3)(d) of the Act that the Tribunal is to act with as much speed as the requirements of the QCAT Act and a proper consideration of the matters before the Tribunal permit. It would be surprising if s 62 were intended to have a different effect.
- [11]The Tribunal may require a person to attend at a hearing, and to give evidence and produce documents.[10] No doubt that power is to be exercised, bearing in mind the other provisions of the QCAT Act, including s 28(3)(d). The course proposed is likely to provide greater speed and fairness in the conduct of the proceedings than would be the case if these powers were exercised, as the applicant is likely to have notice in advance of any further hearing, of the terms of the Business Sale Contract, and the evidence of Mr Sanderson. That would avoid the risk of a further adjournment. Indeed, it may avoid the need for a further oral hearing.
- [12]It might be noted that in Nursing and Midwifery Board of Australia, what concerned the Court was the interference with the liberty of a party, by the exercise of a procedural power, without other statutory authority. There has been no suggestion of such an interference in the present case. An order for the filing of a further affidavit would seem to be procedural.
- [13]In the circumstances, it is considered that the Tribunal has the power to make the directions under consideration.
- [14]The respondent submitted that the provisions of ss 20, 21 and 28 give the Tribunal power to inform itself by making a direction of the kind proposed to the respondent, in order to achieve the purpose of the review, which is to come to the correct and preferable decision. In my view, that submission is correct, if s 62 is not a sufficient basis for the direction. Provisions such as ss 28(3)(c), 63, 97 (particularly s 97(2)), and 98 (particularly s 98(1)(a)) reflect an intention to confer on the Tribunal sufficient power to enable the Tribunal to achieve the statutory purpose of the review.
Should the power be exercised?
- [15]The applicant submitted that no order should be made. The matters he relied upon may be summarised as follows:
- The respondent has had adequate time to provide evidence of the circumstances surrounding the liquidation of ACEL;
- The hearing has concluded;
- The further evidence is likely to result in a number of further actions by the applicant and his legal advisers, and possibly a further hearing, and further submissions, imposing a burden on the applicant and his legal team;
- Who will pay the costs of Mr Sanderson is problematic;
- The applicant is of seriously limited financial means, and his lawyers are acting pro bono;
- Making the order would offend the key principles of the QCAT Act, namely, its objective being to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick; and the function of the Tribunal, being to ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.
- [16]For the respondent, it was submitted that the answer depends on whether the Tribunal considers that the direction will assist it to achieve the statutory purpose of coming to the correct and preferable decision.
- [17]No doubt the power is to be exercised, bearing in mind the purposes of Act. They include speed, efficiency and economy. The submissions made by the applicant raise important considerations.
- [18]Nevertheless, the issue to which the directions relate is of some significance in the review. The information sought is in fairly narrow compass. It, and in particular the business sale contract, are likely to be of considerable importance in determining that issue. The determination of the issue may well be of importance in determining whether the applicant is a fit and proper person to hold a practising certificate. The information may well be of assistance on the question of the applicant’s credit, which is in issue. There is no suggestion that the direction is likely to be futile, though there is no guarantee that the information sought will be available. These considerations seem to me to be of greater importance than the matters raised by the applicant.
- [19]Accordingly it is proposed to make the direction.
Form of order
- [20]In this case, while the final decision is pending, a non-publication order was made on 29 August 2022. There has been some debate about whether a variation is needed of this order. To avoid uncertainty, any order should take into account any concern about breaching its provisions.
- [21]The applicant also submitted that, if the information sought is not produced by a specific date, then the order should lapse. It seems to me that the concern which lies behind this submission can be addressed by requiring the respondent to provide a report by a specified date; and by providing for liberty to apply.
Orders
- [22]The following orders are made:
- 1.The Respondent is directed to use its best endeavours to obtain from Mr Clifford John Sanderson as former liquidator of Australian Construction Engineering Lawyers Pty Ltd (in liquidation) (ACEL) information, including any documents, about ACEL’s dealings with its assets and liabilities, and in particular any business sale contract entered into on 16 May 2018 (ACEL Information) and, subject to Mr Sanderson agreeing to cooperate with the Respondent, procuring from Mr Sanderson an affidavit deposing to the ACEL Information.
- 2.For the purpose of enabling the Respondent to comply with the above direction, the directions dated 29 August 2022 are hereby amended to permit the Respondent to:
- make enquiries of Mr Sanderson as to any information in his possession or control relating to ACEL;
- disclose to Mr Sanderson the purpose of the enquiry, as set out in paragraph 1 above, and documents relating to ACEL as have been tendered in evidence in the Proceedings (Documents); and
- discuss the ACEL Information and Documents with Mr Sanderson;
- liaise with Mr Sanderson about obtaining an affidavit from Mr Sanderson for the above purpose.
- 3.For the avoidance of doubt, Mr Sanderson is permitted to make all relevant enquiries as necessary for him to inform himself about the liquidation of ACEL.
- 4.By 4:00pm on 12 December 2022 the Respondent is directed to file and serve:
- an affidavit as to its progress in its enquiries with Mr Sanderson; or
- any affidavit obtained from Mr Sanderson.
- 5.Notwithstanding the provisions of the directions made on 29 August 2022, these reasons may be published to the legal representatives of the parties, and to the parties themselves, but no further publication is permitted until further order.
- 6.That the parties have liberty to apply.
Footnotes
[1] [2019] QCA 144.
[2] Morrison JA and McMurdo JA.
[3] [2015] QCA 79, at [10].
[4] (1998) 194 CLR 355 at 381; [1998] HCA 28, at [69].
[5] (1995) 92 CLR 390; [1995] HCA 27.
[6] See s 19(a) of the QCAT Act.
[7] See s 20(1) of the QCAT Act.
[8] See s 28(3)(d) of the QCAT Act.
[9] See s 28(3)(e) of the QCAT Act.
[10] See s 97 of the QCAT Act; note also s 63.