Merlo v Queensland Law Society Inc
[2023] QCAT 205
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Merlo v Queensland Law Society Inc[2023] QCAT 205
- Add to List
Merlo v Queensland Law Society Inc[2023] QCAT 205
Merlo v Queensland Law Society Inc[2023] QCAT 205
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Merlo v Queensland Law Society Inc [2023] QCAT 205 |
PARTIES: | JOHN MAXIMUS MERLO (applicant) v QUEENSLAND LAW SOCIETY INC (respondent) |
APPLICATION NO/S: | OCR169-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 2 August 2023 (orders) 24 August 2023 (reasons) |
HEARING DATES: | 6 July 2022; 29 August 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Hon Peter Lyons KC, Judicial Member |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant applied for an unrestricted practising certificate and declared suitability matters – where the applicant also applied for a principal practising certificate and declared suitability matters – where the respondent found that the applicant was not a fit and proper person to hold either an unrestricted practising certificate or a principal practising certificate under s 51(5) of the Legal Profession Act 2007 (Qld) – where the applicant applied for review under ss 18, 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether the applicant engaged in misconduct – whether the applicant was untruthful during the course of Queensland Civil and Administrative Tribunal proceedings – whether the applicant had disregard of the law – whether the applicant had poor financial management – whether the applicant is a fit and proper person to hold a practising certificate Legal Profession Act 2007 (Qld), s 19(2), s 51(5), s 57 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 19, s 20, s 21(1), s 24(1), s 28 Adamson v Queensland Law Society Inc [1990] 1 Qd R 498 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2014] FCAFC 93; (2014) 226 FCR 555 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Kyriackou v Law Institute of Victoria [2014] VSCA 322; (2014) 45 VR 540 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Prior v Mole [2017] HCA 10; (2017) 261 CLR 265 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 |
APPEARANCES & REPRESENTATION: | |
Applicant: | D Cormack, counsel instructed by HopgoodGanim Lawyers |
Respondent: | J W Peden KC, counsel instructed by the Queensland Law Society |
REASONS FOR DECISION
- [1]On 25 May 2020, the applicant applied for an unrestricted employee practising certificate for 2020/2021 and declared suitability matters. On 29 September 2020, he applied for a principal practising certificate for the same year, again declaring suitability matters. On 17 May 2021, the respondent decided not to grant or renew the applicant’s practising certificate. The respondent found that the applicant was not a fit and proper person to hold either practising certificate. The applicant has applied to this Tribunal for a review of the respondent’s decision.
Nature of review
- [2]The respondent’s decision was made under s 51(5) of the Legal Profession Act 2007 (Qld) (“LP Act”). The review application was made under s 51(9) of the LP Act. The section includes the following:
51 Grant or renewal of local practising certificate
- A regulatory authority must consider an application that has been made to it for the grant or renewal of a local practising certificate and may—
- grant or refuse to grant the certificate; or
- renew or refuse to renew the certificate.
- The regulatory authority may, when granting or renewing a certificate, impose conditions as mentioned in section 53.
- The regulatory authority must not renew a local practising certificate if it is satisfied that the applicant—
- was not eligible to apply for the renewal of the certificate when the application was made; or
- is not a fit and proper person to continue to hold the certificate.
Note—
See section 46 (Suitability to hold local practising certificate).
- The regulatory authority must give the applicant an information notice if the authority—
- refuses to grant or renew a local practising certificate; or
- imposes a condition on the certificate and the applicant does not agree to the condition.
- The applicant may apply, as provided under the QCAT Act, to the tribunal for a review of the decision to refuse to grant or renew the local practising certificate as mentioned in subsection (8).
Note—
For matters relevant to the imposition of conditions, see section 54.
- [3]Relevant to the decision of the respondent, and of this Tribunal in this review application, is s 19(2) of the LP Act, as follows:
19 Grounds that are reasonable in the circumstances
- If, under this Act, a person who is satisfied or not satisfied of, or has a belief or suspicion about, a particular matter is required to do or refrain from doing an act, or make a decision, the person must be satisfied or not satisfied, or have the belief or suspicion, on grounds that are reasonable in the circumstances.
- [4]It will be seen that the review application is to be made under the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). The relevant sections are ss 18, 19 and 20, set out below.
18 When review jurisdiction exercised
- The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.
- A person may apply to the tribunal to exercise its review jurisdiction for a reviewable decision, and the tribunal may deal with the application, even if the decision is also the subject of a complaint, preliminary inquiry or investigation under the Ombudsman Act 2001.
19 Exercising review jurisdiction generally
In exercising its review jurisdiction, the tribunal—
- must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
- 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
- has all the functions of the decision-maker for the reviewable decision being reviewed.
20 Review involves fresh hearing
- The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
- The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
- [5]The Tribunal’s conduct of proceedings is also regulated by s 28(3) of the QCAT Act, as follows:
28 Conducting proceedings generally
- In conducting a proceeding, the tribunal—
- must observe the rules of natural justice; and
- 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
- may inform itself in any way it considers appropriate; and
- 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
- 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.
- [6]The Tribunal’s decision-making power, and the effect of its decision, are stated in s 24(1) and (2) of the QCAT Act, as follows:
24 Functions for review jurisdiction
- In a proceeding for a review of a reviewable decision, the tribunal may—
- confirm or amend the decision; or
- set aside the decision and substitute its own decision; or
- set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
- The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision—
- is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and
- subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.
- [7]It is convenient to note at this point the role of the respondent in these proceedings. It appears sufficiently from s 21(1) of the QCAT Act, as follows:
21 Decision-maker must help tribunal
- 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.
- [8]There is no dispute that the Tribunal is to decide the review application “on the merits”, that is to say, by reaching its own view of the matters it has to consider, on the basis of the materials placed before it.[1]
- [9]In its written submissions, the respondent identified the matter for determination in these proceedings as follows:
33. The decision for the Tribunal therefore requires consideration of all of the facts and circumstances before it, as set out in the documents and oral evidence before the Tribunal, and consider whether it is satisfied that the Applicant is not a fit and proper person, and if so satisfied, not to renew the Applicant’s practising certificate.
34. The issue arises, therefore, as to whether the evidence before the Tribunal leads to it being satisfied that the Applicant is not a fit and proper person, as at the date of the hearing.
- [10]Notwithstanding that the Tribunal must, for a proceeding such as this, be constituted by a judicial member who is a Supreme Court judge, or who is a former Supreme Court judge,[2] this application is significantly different from a proceeding in a traditional court. So much is made particularly clear by the provisions of s 28(3)(b), (c) and (d) of the QCAT Act. Nevertheless, the Tribunal is required to observe the rules of natural justice. That is usually achieved, as a consequence of the fact that there are parties to an application, by the identification and consideration of the issues raised by the parties.
- [11]The respondent submitted that no question of an onus of proof arises in this application. The submission is based upon Sun v Minister for Immigration and Border Protection.[3] The case dealt with a review by the Migration Review Tribunal of a decision of the Minister. The decision to be made in that case was whether the Minister was satisfied, or not satisfied, that specified criteria were met. One criterion was whether there was no evidence before the Minister that the applicant had given to the Minister a “bogus document” in relation to the application. As Logan J pointed out, that term was defined to mean a document that the Minister reasonably suspected to have particular qualities.[4] The Full Court of the Federal Court held that no burden of proof fell on the Migration Review Tribunal.[5] In reaching that conclusion, the Court referred on a number of occasions to the Migration Review Tribunal’s inappropriate reference to concepts such as the onus or burden of proof, with reference to decision making by administrators and administrative tribunals.[6] Notwithstanding some differences in the legislative context, and in the question under consideration, that view may well be appropriate in the present case; and no onus of proof falls on either party in these proceedings. I am prepared to proceed on that basis.[7] However, the question which arises is unchanged. It is whether the Tribunal is satisfied that the applicant is not a fit and proper person to continue to hold a practising certificate.
- [12]The respondent submitted that, for the Tribunal to be satisfied about something, it must have a state of mind about something. That submission may be accepted. It is consistent with a statement of Gageler and Keane JJ in Wei v Minister for Immigration and Border Protection.[8] The limits within which a decision maker must work if the decision maker is to reach a state of lawful satisfaction may be seen from the following passage from the judgment of the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[9]
[22] The expression of the requirements of lawful satisfaction have been set out in a number of High Court cases beyond which it is unnecessary to go: Council of the Municipality of Bankstown v Fripp [1919] HCA 41; 26 CLR 385 at 403; Boucaut Bay Company Ltd (in Liq) v Commonwealth [1927] HCA 59; 40 CLR 98 at 101; R v Connell; Ex Parte Hetton Bellbird Collieries Ltd (No 2) [1944] HCA 42; 69 CLR 407 at 430; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360; Federal Commissioner of Taxation v Brian Hatch Timber Co. (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118–119; Eshetu 197 CLR at 651–654 [130]–[136]; and Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at 35 [33].
[23] Relevantly, where the satisfaction depends upon satisfaction of a factual state of affairs in particular one involving an opinion, the approach of Latham CJ in R v Connell, of Gibbs J in Buck v Bavone, of Starke J in Boucaut Bay (approved by Windeyer J in Brian Hatch Timber) and of Gummow J in Eshetu should be noted.
[24] Chief Justice Latham in R v Connell approached the matter as presenting the question: “whether or not there was evidence upon which [the decision-maker] could be satisfied that [the] rates were anomalous”.
[25] Justice Gibbs in Buck v Bavone said (amongst other things) the decision-maker must “act in good faith; [he or she] cannot act merely arbitrarily or capriciously” and “where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that ... [the] decision could not reasonably have been reached”.
[26] Justice Starke in Boucaut Bay said, amongst other things, that the decision-maker “must not act dishonestly, capriciously or arbitrarily ... So long, however, as the Minister acts upon circumstances ... giving him a rational ground for the belief entertained, then ... the Courts of law cannot and ought not interfere”.
[27] Justice Gummow in Eshetu, after referring to Gibbs J in Buck v Bavone, said the following at 654 [137]:
.... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.
- [13]The statements set out in this judgment generally relate to a review of a decision where the decision maker has been “satisfied” of a matter. They identify constraints within which a tribunal must work if it is to be satisfied of a particular state of affairs. In other words, they deal with whether a tribunal can be (lawfully) satisfied of a particular matter. However, they provide limited assistance on the question whether the Tribunal should reach a state of satisfaction about a matter.
- [14]The respondent referred to George v Rockett[10] and the discussion of this decision in Prior v Mole.[11] These cases relate to the exercise of a power conditioned on there being reasonable grounds for suspecting or believing a fact. Both states of mind were relevant in George v Rockett. They are primarily concerned with the nature of the grounds required for the relevant state of mind. They do not provide direct assistance on the question whether this Tribunal should be satisfied that the applicant is not a fit and proper person to hold a practising certificate.
- [15]The respondent’s submissions on the Tribunal’s jurisdiction and decision-making process conclude with the following:
48. Taking all of the above matters into account, the Tribunal must be satisfied that the Applicant is not a fit and proper person. It must do so on the basis of all of the facts and circumstances and material before the Tribunal. The Respondent does not bear any onus. As to the state of mid of being satisfied, there must be reasonable grounds for the state of mind. But that does not invoke common law questions of being satisfied to a particular standard – rather, it is a matter about which the Tribunal should form an inclination of the mind towards assenting to, rather than rejecting, the proposition that the Respondent is not a fit and proper person. The grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
- [16]The submission appears to suggest that if the Tribunal were to form an inclination of mind towards assenting to the proposition that the applicant is not a fit and proper person to hold a practising certificate, then it should be satisfied of that proposition. The submission incorrectly conflates the test for determining whether reasonable grounds exist for a suspicion or belief, with the question whether the Tribunal is satisfied that the applicant is not such a person. Section 19(2) of the LP Act recognises that satisfaction, belief and suspicion are all terms used in the Act, no doubt because they are not identical. Nor is the task of the Tribunal simply to determine whether there are grounds which are reasonable in the circumstances for the view which the respondent took. The question is whether it is (in this case) satisfied that the applicant is not a fit and proper person to hold a practising certificate. In such cases the findings are likely to be of significance to the practitioner. There is every reason to think that the Tribunal should “examine the whole position with meticulous care”;[12] and that, on important questions, there is no place for surmise or conjecture.
- [17]The applicant submitted that, in determining whether it was satisfied that he was not a fit and proper person to hold a practising certificate, the Tribunal could have recourse to the test in Briginshaw v Briginshaw[13] and Adamson v Queensland Law Society Inc.[14] The latter case applied the test from Briginshaw to disciplinary proceedings before the Statutory Committee of the Queensland Law Society. These proceedings were characterised as civil proceedings. Proceedings before this Tribunal are of a different character to civil proceedings. Nevertheless, it does not follow that the principle stated in Briginshaw is of no relevance. In that case, Dixon J said:[15]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. 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. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
- [18]While the observations of Dixon J were ultimately directed to what was required for proof sufficient for a determination by a court, they also deal with what is required for reasonable satisfaction of a particular matter, and note that this may vary according to the nature and the consequences of the fact to be determined. His Honour identified considerations which might affect the question whether the decision maker is satisfied of a fact, being the seriousness of an allegation made, the inherent unlikelihood of the occurrence, and the gravity of the consequences of a finding. To varying degrees, these considerations may be relevant to the determination of matters raised in this Tribunal.
- [19]This is consistent with what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[16] immediately before a citation of a part of the passage from the judgment of Dixon J set out above:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. [1. See, e.g., Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430, at p 500; Rejfek v. McElroy [1965] HCA 46; (1965) 112 CLR 517, at pp 519-521.] On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear. [2. Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362; Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691, at p 701; Hocking v. Bell (1944) 44 SR (N.S.W.) 468, at p 477 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Rejfek v. McElroy (1965) 112 CLR, at p 521; Wentworth v. Rogers (No.5) (1986) 6 NSWLR 534, at p 539] or cogent [3. Rejfek v. McElroy (1965) 112 CLR, at p 521] or strict [4. Jonesco v. Beard (1930) AC 298, at p 300; Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; Helton v. Allen (1940) 63 CLR, at p 711; Hocking v. Bell (1944) 44 SR (N.S.W.), at p 478 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Wentworth v. Rogers (No.5) (1986) 6 NSWLR, at p 538] proof is necessary "where so serious a matter as fraud is to be found" [5. Rejfek v. McElroy (1965) 112 CLR, at p 521]. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct [6. See, e.g., Motchall v. Massoud [1926] VicLawRp 43; (1926) VLR 273, at p 276] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
- [20]Although the courts have made plain that rules relating to the onus and standard of proof do not apply to administrative tribunals generally, they do not appear to have excluded the applicability of the Briginshaw test, or the principles on which it is based. The following appears in the judgment of Logan J in Sun:[17]
[16] In Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33, Brennan J, in a case concerning the making of adverse findings touching upon an individual’s possible deportation and in his then capacity as President of the Administrative Appeals Tribunal, adverted to a well-known passage in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 (Briginshaw) about not acting on inexact proofs. A subsequent appeal against his Honour’s decision was dismissed: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 (Pochi). In that appeal, Deane J (with whom Evatt J agreed) stated (at 62):
In my view, the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Mr Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had. It seems to me that this conclusion follows, as a matter of law, from the authorities referred to and the reasoning advanced by the Tribunal to establish the proposition as a general principle to be observed by it as a matter of administrative practice.
[Emphasis added].
- [21]
[111] Some findings of fact, however, have been long-recognised as calling for considerable caution before being made and for care being exercised in respect to the evidence upon which the finding is made. Findings as to a party or a witness having engaged in fraud or having lied are but examples.
- [22]One ground of appeal raised in Bronze Wing International Pty Ltd v SafeWork NSW[20] included a contention that the single member of the New South Wales Civil and Administrative Tribunal (“NCAT”) had failed to apply the principles in Briginshaw in making her primary findings of fact said to constitute conduct by Bronze Wing in contravention of s 6(1) of the Explosives Act 2003 (NSW); and that the primary judge in the Supreme Court had erred in holding that the Briginshaw had no application in licensing review proceedings in NCAT. The review in NCAT was a review de novo, the Tribunal being required to decide “what the correct and preferable decision is having regard to the material before it”.[21] With regard to the ground of appeal relating to Briginshaw, Leeming JA said:[22]
It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply. One reason why it is inappropriate to do so is that the primary judge appears not to have been favoured with full submissions referring to intermediate appellate authority on this issue. It is true that his Honour was referred to a passage in the reasons of Santow JA in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35], to the effect that how the Briginshaw standard was to operate “must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence”. However, his Honour was not referred to the analyses in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 at [29]-[40] and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322 at [22]-[30] nor to that undertaken by a Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [98]-[122]. Nor was his Honour directed to what had been said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171:
“[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.” [Citations omitted]
In those circumstances, his Honour’s reasons at [77] (reproduced above) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.
[Emphasis added].
- [23]
[26] 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]The fundamental issue, as presented by the parties, is whether the Tribunal is satisfied that the applicant is not a fit and proper person to continue to hold a practising certificate. In the present case, the respondent has raised some serious allegations about the conduct of the applicant. In considering those allegations, it is appropriate to take the Briginshaw principle into account.
(paragraphs [25]–[80] excluded from publication by order of the Tribunal dated 24 August 2023 until further order)
Bow use at primary school
- [81]This is a matter relied upon by the respondent as an instance of the applicant’s disregard of the law, because he fired arrows when on the school oval, including across an adjoining road. It also gives rise to a submission that the applicant gave untruthful evidence in these proceedings.
- [82]On the afternoon of Sunday 27 August 2017, the applicant was at a school oval with three of his children. Members of the public complained to police that he was seen firing arrows from a bow at a small target close to the boundary fence of the oval, and close to a footpath and a public road. Shortly after, two police attended the oval and spoke to the applicant. He showed them a bow and some arrows.
- [83]The conversation was (in part) recorded.[25] At the commencement of the recording, the applicant was asked, “…Who is using it?”, and he replied, “Oh I was yeah”. He then said that his sons “are just with me watching”. He then said that he was packing up. When told that members of the public were concerned that the bow had been used, he said that he did not shoot anything when anyone was here, but he understood the concern. He acknowledged that it was not lawful to shoot the bow across a public area. There was then some discussion about whether the school was a public area. There was also some discussion about where arrows might land.
- [84]The applicant was subsequently charged with discharging a longbow towards, over and through a public place, namely the road adjacent to the oval. Ultimately no evidence was offered on this charge.
- [85]Sergeant La Frantz was one of the police officers who attended at the oval. In his affidavit he said that he wore video recording equipment during his interaction with the applicant, which he understood had been filed in evidence in these proceedings. He also said that when they went to the applicant’s car, the applicant said that a bow in the car was “the bow I was using on the oval”, but this was not recorded. The police took possession of the bow, but the affidavit does not mention them taking possession of an arrow from the applicant. The police inspected the Council land across the road and found several spent arrows that were the same colour, make, model and design as the arrows which the applicant had shown them. He took photographs of the arrows in situ, but the photographs were no longer available.
- [86]In his oral evidence Sergeant La Frantz said that police had seized the bow, and one of the arrows that the applicant was firing; and that they put the arrow they had taken from the applicant beside the arrow they had found, and compared them. He was adamant that he had seized possession of an arrow from the applicant; and had also seized possession of other arrows that were found, which were lodged as found property.
- [87]Sergeant La Frantz prepared a Court Brief (the QPS 9).[26] It records that members of the public saw a male person firing arrows from a bow, across the oval; and called triple zero. Police went to the oval. The applicant said that he was the sole person using the bow prior to police arrival. The police seized the bow. Two of the members of the public were interviewed, and provided photographs. They were said to have described seeing the applicant fire an arrow, and his son run across the road as if he was looking for it. It also recorded that police went to the area across from the oval, and, using torches, found an arrow. They took photographs, and seized the item. It had “the same likeness as those held in the hands of the (applicant) when he was speaking with police”. Where the QPS 9 identified evidence, there was reference to only one arrow, described as an “Easton Carbon One”. The photographs are no longer available.
- [88]A request for the return of the bow was made by email by a Senior Associate of Merlo Law on 28 August 2017.[27] It stated, “The issue of public concern (and safety) has been very much brought to (the applicant’s) attention, and he will not display (or use) The Bow in any such way again”. Exhibit 2 records the return of the bow and an arrow to someone representing the applicant, apparently on 13 November 2017.
- [89]In his affidavit filed on 29 June 2022, the applicant stated that, because of the power of his bow, it would not be possible for a bystander to see an arrow in flight. He denied firing the bow while at the oval. He said he was setting up the optical sighting components on his bow, a process which he explained in detail. He denied that he provided an arrow to the police at the oval. He said that he had seen a photograph of the arrow recovered, and it was not the same as his arrows. In his affidavit in the Parenting Trial,[28] the applicant said he had taken his bow to the oval to set the sight on it.
- [90]Sebastian gave evidence which was consistent with the applicant’s evidence. In cross-examination, he agreed that he had run across the road. That was because he had seen a bearded dragon. He said that the applicant did not shoot arrows when he was at the oval.
- [91]The respondent’s submissions drew attention to the fact that in his explanation of the process of setting the sight, the applicant described himself as a competitive archer; but in his cross-examination he said that at the time, he was not a competitive archer. It was also submitted that it did not make sense to set the sight, if that needs to be checked by firing an arrow. When questioned at the oval, he did not say that he had not fired arrows. His statement at the oval that he did not shoot anything when anyone was there is only explicable if he had been firing arrows. In the email the next day requesting the return of the bow, there was no statement that the applicant had not fired arrows on the previous day. The applicant did not have a coherent explanation for the presence of other arrows on the Council land.
- [92]The applicant submitted that Sergeant La Frantz’s evidence of what the applicant said at the oval “falls short” because the body camera was turned off at the crucial time. His recollection was affected by the passage of time. The arrows found on the Council land were not recorded as evidence. The photographs referred to by Sergeant La Frantz were not available. The people said to have seen the applicant using the bow had not provided statements, and could not be identified.
- [93]There are difficulties with the applicant’s evidence, but they do not necessarily lead to its rejection. The applicant’s admission that he was “using it” seems to be a reference to using the bow. While the most common use of a bow is to fire an arrow, it is not impossible that the applicant was referring to the exercise of setting the sight. His statement that he did not shoot anything when anyone was present was in response to a statement that his conduct had concerned members of the public that the bow had been used. The concern related to the firing of arrows. The response is capable of being understood as a denial of firing arrows when others were present, without being an admission that he was firing arrows in other circumstances.
- [94]There are also some difficulties with the QPS 9. It contains a summary or paraphrase of what the members of the public said. They have not themselves given evidence or been cross-examined. Nevertheless, it is clear that they were sufficiently concerned to take photographs and contact the police.
- [95]There is also a difficulty with the evidence of Sergeant La Frantz. In the QPS 9, he referred to seizing the bow, for which the applicant was given a receipt, and seizing one arrow, found on the Council land. He gave oral evidence that he seized an arrow from the applicant (subsequently returned with the bow), and he described finding several spent arrows on the Council land, which he said were “lodged as found property”. No record was produced to support this. Nor are the photographs available. It is noteworthy that the QPS 9 refers to a comparison between the arrow (only one) found on the Council land, and arrows held by the applicant, and not to an arrow seized from him. I am not satisfied that several arrows were found on this land; nor that they were retained as lost property. Nevertheless, I accept that the police found an arrow on the Council land, and retained it.
- [96]It follows that I reject the evidence of Sergeant La Frantz that police were able to put the arrow they took from the applicant beside the arrow they found and match them up. That is not the comparison described in the QPS 9; and if made, would have emphasised the importance of the arrows found on the Council land as evidence. Yet they are not referred to in the QPS 9.
- [97]Sergeant La Frantz gave evidence that the arrows found on the Council land were of the same colour, make, model and design as the arrows which the applicant had shown the police. I have already rejected his evidence that several arrows were found on the Council land. Nor do I accept that the arrow which was found was of the same colour, make, model and design as the applicant’s arrows. The QPS 9 simply records that the arrow had the “same likeness” as arrows in the applicant’s possession. The comparison appears to have been based on recollection. Neither police officer appeared to have much familiarity with archery. I accept that there was some similarity between the arrow from the Council land and the arrows used by the applicant. However, I am prepared to accept that the arrow of which the applicant saw a photograph was not the same as the arrows he used.
- [98]The request for the return of the bow is too ambiguous to be of assistance in determining whether it acknowledges that the applicant fired arrows at the oval. It is conciliatory in tone. The words in parentheses may refer to matters beyond what arose from the applicant’s conduct at the oval.
- [99]I do not consider the applicant’s evidence that he was sighting the bow without firing arrows to be so improbable that it should on that account be rejected.
- [100]There are other difficulties with the statement of facts, which are not surprising given the nature of the document. It stated that the applicant showed police the arrows he had been firing, which does not appear to be an accurate description of the interaction between the applicant and the police. It also recorded the applicant saying that he “should’ve known better”. That is not part of the conversation from the videocam footage, nor did the sergeant give evidence of it in the unrecorded conversation at the applicant’s car.
- [101]I am not satisfied that the applicant was firing arrows at the oval on 27 August 2017.
(paragraphs [102]–[115] excluded from publication by order of the Tribunal dated 24 August 2023 until further order)
Collapse of ACEL: phoenixing allegation
- [116]Prior to May 2018, the applicant was the sole director (and sole shareholder) of ACEL. On 16 May 2018, ACEL entered into an agreement described as a business sale contract with JMMLBW Pty Ltd (“JMMLBW”), the consideration being $4,500.[29] JMMLBW had been registered on 16 April 2018. The applicant and Leonard Bede Watt were the directors of this company. Mr Watt owned 90% of the shares, and the applicant 10%. The applicant was a legal practice director of JMMLBW until 3 June 2018. He was then an employed solicitor with this practice until 6 March 2019.
- [117]On 18 May 2018, a liquidator was appointed to ACEL. The applicant provided a report as to affairs dated 7 June 2018. It recorded unsecured creditors who were owed a total amount of $500,000, of which $380,000 was ascribed to trade creditors.[30] Sundry debtors were said to amount to “-$70k”.[31] On 1 June 2018, the liquidator lodged with the Australian Securities and Investments Commission (“ASIC”) a document containing information sent to creditors. The Australian Tax Office (“ATO”) was an unsecured creditor in the amount of $220,526.[32] The document did not identify any assets.
- [118]On 10 August 2018, the applicant declared himself bankrupt on his own petition. On the date of the petition, the applicant completed a statement of affairs which identified his income for the previous twelve months as $288,085.21; and a liability to the ATO of $367,456.[33] The list of creditors showed debts totalling $701,914.[34] There was subsequent disclosure of further creditors whose debts totalled $864,449. This subsequent disclosure did not attract attention in the trustee’s discussion of possible offences in bankruptcy. The document from the applicant did not disclose that he had a 10% interest in JMMLBW.
- [119]On 6 September 2018, the applicant made a statutory declaration, as a report to the respondent.[35] It stated that after growing concern about the solvency of ACEL, the applicant consulted with de Jonge Read, specialist business consultants, to discuss the company’s situation. After further consultation he formed the view that ACEL was insolvent, and he ceased trading at the earliest opportunity (on 11 May 2018). He entered into voluntary administration. He incurred no further debts, other than a debt of $5,000 to pay Dissolve Pty Ltd to carry out the liquidation of the company. There was no reference to the transfer of assets from ACEL to JMMLBW.
- [120]In his affidavit sworn 1 April 2022,[36] the applicant said that the statement in the report of his trustee that, on 16 May 2018 ACEL entered into a business sale contract with JMMLBW, was incorrect. He was not directly involved in the transaction. He believed there was an agreement between the administrator of ACEL and Mr Watt for JMMLBW for the sale of the Merlo Law website for fair market value. He overlooked disclosing his 10% interest in JMMLBW through oversight, related to his medical condition. In relation to the amount of debt Merlo Law was carrying, at the time there was between $300,000 and $400,000 in trust; and there was a significant pipeline of clients and ongoing matters at hand.[37]
- [121]The applicant was cross-examined about the transaction between ACEL and JMMLBW. He denied that he arranged for the business of ACEL to be transferred to JMMLBW just before the liquidator was appointed. He introduced clients to Mr Watts, as someone prepared to take over their files, if they so chose. The agreement of 16 May 2018 related to the sale of a website and the intellectual property associated with the website. He stated that, to the best of his recollection, Mr Watt was involved in negotiating with the administrator to purchase the website at fair market value from the administrator. He suggested that the administrator was the person who became the liquidator for ACEL. (The ASIC records indicate that there was no relevant appointment prior to the appointment of the liquidator for a Creditors Voluntary Winding Up on 18 May 2018).[38] He understood from submissions filed in the present proceedings that the respondent was alleging that he had “phoenixed” the business of ACEL into the business of JMMLBW, which he denied. Some of the clients went to the new firm. He said that the employees of ACEL went to the new company. Mr Watts undertook to pay their outstanding superannuation entitlements. He was taken to a passage in his statutory declaration which recorded that there were some minor unpaid superannuation entitlements which were owing to ACEL employees at the time of the liquidation; and that Mr Watts offered to employ the employees and reimburse the superannuation entitlements, but they declined the offer. The applicant said that the statement in the statutory declaration about declining employment was a mistake, and he had a clear recollection that the employees came to Sandgate and worked in the office for a time.
- [122]The respondent submitted that the transfer of the business of Merlo Law and subsequent winding up of ACEL leaving unpaid creditors of some $500,000 is a matter of concern about the applicant’s financial trustworthiness.
- [123]The applicant’s submission made reference to an answer of the applicant in cross-examination, where he said that he thought he had engaged a liquidator, and he understood that that person liquidated the company.[39] The applicant’s reference to an administrator was not sinister. The applicant denied that the business of ACEL was sold to JMMLBW, and that there was a “phoenix scheme”. What was sold was the website, for fair market value, as stated in the applicant’s affidavit filed 1 April 2022. This evidence has not been contradicted. The voluntary administrator no doubt did his duty, and it is far more likely that he sold the website than the assets of ACEL for $4,500. The applicant gave uncontradicted evidence that when ACEL went into liquidation, there was between $300,000 and $400,000 in the trust account and a significant pipeline of clients and ongoing matters at hand. He believed ACEL was solvent and that he had the capacity to service his debts.[40] His belief was inconsistent with poor financial management. His record with respect to trust monies was unblemished.
- [124]There is some difficulty with the applicant’s position about the sale to JMMLBW. Exhibit 3 discloses that on 18 May 2018, 3 documents were filed with ASIC. One was “Notice by External Administrator/controller-Appoint/cease Appointment of Liquidator (Creditors’ Voluntary Winding Up)”. This can only have been the appointment of Mr Sanderson as liquidator. The other documents were a notification of the resolution to wind up the company, and a copy of the minutes of a meeting of members, creditors, and contributories or committee of inspection. There is no record of the appointment of an administrator.
- [125]While not a particularly good source of evidence on this point, the report to creditors from the applicant’s trustee in bankruptcy recorded that Mr Sanderson advised that the business operations of ACEL were sold prior to his appointment to JMMLBW; and that on 16 May 2018, ACEL had entered into a business sale contract with JMMLBW.[41]
- [126]Because of the quality of the evidence, the Tribunal took steps to have the parties obtain further evidence about the sale. As a result, an affidavit of Mr Sanderson was filed by the respondent. Exhibited to it was a copy of the sale agreement, entitled “Contract Business Sale”. The material also included the standard conditions of sale, incorporated into the contract. The applicant filed a further affidavit, and both parties filed submissions. Neither party sought a further oral hearing.
- [127]Mr Sanderson deposed to his appointment as the liquidator of ACEL on 18 May 2018. He said that he did not enter into the sale agreement. He attempted unsuccessfully to recover money due under it. He received a copy of the sale agreement on 30 May 2018.
- [128]Mr Sanderson became aware of two sums owed to ACEL for fees which had been assessed. That totalled a little over $80,000. However, he was unable to recover these fees. He also became aware of loan accounts for loans made from the company to the Director, of a little over $144,000. The loans have not been repaid, the applicant having gone into bankruptcy. He also confirmed the amounts owing to the ATO and other creditors. Mr Sanderson established that ACEL had been trading while insolvent, and estimated that the sum of $318,000 could be the subject of a claim against the applicant as the Director of the company which traded while insolvent. However, in view of the applicant’s bankruptcy, he considered that recovery action could not be pursued. He also identified unreasonable director-related transactions, with an estimated maximum potential value of $38,814; but considered that there was no prospect of recovering this amount from the applicant.
- [129]Mr Sanderson provided copies of his two reports to creditors. They revealed that JMMLBW paid a deposit of $450 for the sale agreement; but the balance was not paid. JMMLBW subsequently was deregistered.
- [130]The applicant gave evidence that, prior to seeing Mr Sanderson’s affidavit, he thought that the contract had related to ACEL’s website, and that it had been entered into by an administrator of ACEL. He did not recall signing the contract on behalf of ACEL, but he accepted that he did so. He said that he was very much overwhelmed, and dealing with the shock of events at that time. He also accepted that it was not only for the sale of the website, but for computers and computer screens. He said that the contract only purported to sell the website and the computers and screens. It was not in fact for the sale of the business. He could not speak to whether JMMLBW paid the balance of the purchase price, as that was a decision made by Mr Watt, and the applicant had withdrawn as a director very early after the sale.[42]
- [131]The respondent submitted that it was open to the Tribunal to find that the applicant had given untruthful evidence to the Tribunal. He displayed a reckless or cavalier indifference to the truth, which demonstrated that he is not a fit and proper person to hold a practising certificate. It might be said that his evidence to the Tribunal was a deliberate lie, but it was not necessary to go so far.
- [132]Reference was made by the respondent to the earlier evidence of the applicant to the effect that there was no sale of the business, and that the contract was an agreement for the sale of the website, being a document created by an administrator of ACEL. It is apparent from the contract that it was in fact for the sale of the business. The evidence given by the applicant subsequent to the receipt of the affidavit of Mr Sanderson was false. That is because it is clear that the contract extended to the whole of the business and was not limited to the sale of the website, the computers and the monitors. The respondent submitted that it is open for the Tribunal to find that the applicant participated in some type of unlawful phoenixing of the business of ACEL to a new firm.
- [133]The applicant’s submissions noted that the applicant accepted that he had signed the contract, and that the sale included office computers and screens, in addition to the website; and that he had apologised for his mistake in earlier evidence. However, the applicant maintained that the sale was not a sale of the legal business of ACEL.
- [134]The applicant submitted that the contract does not include (in item J) information that would be expected to be included in a sale of a business, being a registered business name, telephone numbers, email addresses and the like. Item L did not specify a price, the deposit payable, and the balance to be paid. The only purchase price relates to the items previously referred to, and not to the business itself. Nor is any amount assigned to stock-in-trade, plant and equipment, intellectual property, goodwill and work-in-progress. It was submitted that, there being no amounts specified in item L, there was no sale of the business under the contract. It is apparent that very little attention was given to detail in the preparation of the contract. There was no unlawful phoenixing of the business.
- [135]On its opening page, the contract states that the parties have agreed to sell and buy “the business as described in J of the Items Schedule”. It would thus appear that the contract, in terms, is for the sale of the business. Item J identifies the type of business as “Legal Services”. Clause 3.1 of the standard conditions states that the business includes, amongst other things, the goodwill, work-in-progress, and other assets set out in schedules to the contract. However, the parties have assigned no value to the business, the goodwill, and the work-in-progress. In item O, the whole of the purchase price is assigned to computer and office equipment. There is provision for a purchase price, excluding stock in trade and work-in-progress, but that is assigned no value. The contract creates the impression that the substance of what was sold was the items to which the purchase price was assigned.
- [136]The evidence does not demonstrate that, as a consequence of the contract, the business of ACEL was transferred to JMMLBW, which appears to be the case the respondent is advancing. The applicant deposed that, except for the website, no assets of ACEL, including any work in progress and any debt due from any client, were transferred to JMMLBW.[43] That evidence must be understood as corrected by the applicant’s evidence subsequent to Mr Sanderson’s affidavit. However the evidence that work in progress, and any debt due from clients, were not transferred to JMMLBW, remains consistent with the applicant’s current position. This evidence was not the subject of any specific challenge, nor was it contradicted. There is no explanation of the situation relating to work in progress. The applicant’s evidence seems consistent with Mr Sanderson’s evidence of attempts to recover some unpaid fees. Interestingly, at least at one point, Mr Sanderson appeared to have regarded the contract as a “sale contract involving computers, peripherals and a website…sold for $4,500”.[44]
- [137]The allegation that the applicant illegally “phoenixed” his practice, or the business of ACEL, into a new company is not made out.
(paragraphs [138]–[181] excluded from publication by order of the Tribunal dated 24 August 2023 until further order)
Failure to give Form 6 – notice of conviction
- [182]Section 57 of the LP Act makes it a statutory condition of a practising certificate that the certificate holder must give notice to a relevant regulatory authority if the certificate holder is convicted of an offence that would have to be disclosed under the admission rules for an application for admission; and the section requires that the notice be in the approved form (in fact, Form 6), and given to the regulatory authority within seven days after the day the person is convicted.
- [183]On 6 March 2019, the applicant was convicted on a charge of trespass. This hearing has proceeded, without full explanation, on the basis that such a conviction was one to which s 57 of the LP Act applied.
- [184]On 6 March 2019, the applicant gave notice, by email, to the respondent of the conviction. On 27 March 2019, the solicitor then acting for the applicant sent to the respondent by email a copy of the verdict and judgment record. On 7 March 2019, and again on 27 March 2019, the respondent notified the applicant that the notice must be given in Form 6. With the first communication, the respondent provided a notice relating to procedures to be followed.
- [185]On 19 March 2019, the applicant wrote to the respondent. He pointed out (it would seem correctly) that the brochure provided by the respondent with its communication of 7 March 2019 was directed to a charge for a serious offence, and not to a conviction requiring disclosure in relation to an admission application. He expressed the view that the conviction was not one to which s 57 of the LP Act applied.[45] He had advice from the barrister and the solicitor then representing him, that no notice was required.
- [186]It would appear that in August 2019, the applicant received advice from another solicitor that in fact notice of the conviction was required to be given under s 57.
- [187]The applicant ultimately provided a Form 6 on about 13 February 2020.[46]
- [188]The applicant submitted that this matter was one of form rather than substance. That is correct. It has not been suggested that the use of the form would have provided the respondent with any information beyond what was provided to it in March 2019. Even if the effect of s 57 is to require notification in Form 6 of a conviction for trespass (something not demonstrated in the arguments presented in these proceedings), this matter is one which, in the context of a question of fitness for practice, is of no significance.
(paragraphs [189]–[265] excluded from publication by order of the Tribunal dated 24 August 2023 until further order)
Conclusion
- [266]The Tribunal is not satisfied that the applicant is not a fit and proper person to hold a practising certificate.
- [267]Having provided the parties a copy of the draft reasons on a confidential basis, and given them the opportunity to make submissions about the orders to be made, including any conditions relating to a practising certificate, I make the following orders:
- The decision of the respondent on 17 May 2021 to refuse the applicant’s application for renewal of his practising certificate under section 51(5)(b) of the Legal Profession Act 2007 (Qld) is set aside;
- The Tribunal substitutes for the decision of the respondent, a decision that the applicant be granted a principal level practising certificate subject to the usual statutory conditions.
Footnotes
[1] There is a significant analogy between the jurisdiction and powers conferred on this Tribunal, and those conferred on the Commonwealth Administrative Appeals Tribunal, though it is necessary to maintain clearly in mind the specific statutory provisions under which this Tribunal functions. For a consideration of what constitutes a review “on the merits” by the AAT, see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [33]–[34] per Kirby J; [134], [139]–[140] per Kiefel J.
[2] See s 598(1) of the LP Act.
[3] (2016) 243 FCR 220; [2016] FCAFC 52.
[4] Sun at [3].
[5] Sun at [1], [62]–[65], [95].
[6] See, in particular Sun, at [95].
[7] Apart from the fact that the Tribunal must be constituted by a judicial member, an appeal by leave may be made to the Court of Appeal on a question of fact or mixed law and fact; the appeal is by way of rehearing, with or without additional evidence; and the Court may substitute its own decision for that of the Tribunal: see ss 149 and 154 of the QCAT Act. There may be a stronger analogy with traditional court proceedings than has been accepted in these proceedings.
[8] [2015] HCA 51; (2015) 257 CLR 22, at [33].
[9] [2022] FCAFC 3; (2022) 289 FCR 21, at [22]–[27].
[10] [1990] HCA 26; (1990) 170 CLR 104, at 116.
[11] [2017] HCA 10; (2017) 261 CLR 265, at [4], [73] and [99]–[100].
[12] Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 at 287–288 per Fullagar J.
[13] [1938] HCA 34; (1938) 60 CLR 336.
[14] [1990] 1 Qd R 498.
[15] [1938] HCA 34; (1938) 60 CLR 336, at pp 361–362.
[16] (1992) 67 ALJR 170 at 170–171, per Mason CJ, Brennan, Deane and Gaudron JJ.
[17] At [16].
[18] [2014] FCAFC 93; (2014) 226 FCR 555.
[19] At [111].
[20] [2017] NSWCA 41.
[21] Bronze Wing at [73].
[22] With whom Gleeson JA agreed.
[23] [2014] VSCA 322; (2014) 45 VR 540.
[24] At [26].
[25] See Exhibit 1 p 1339.
[26] Exhibit 1 p 1181.
[27] Exhibit 1 p 1347.
[28] Exhibit 1 p 1016.
[29] Exhibit 1 p 1237.
[30] Exhibit 1 pp 472, 474.
[31] Exhibit 1 p 473.
[32] Exhibit 1 p 1186.
[33] Exhibit 1 pp 1206, 1219.
[34] Exhibit 1 p 1238.
[35] Exhibit 1 p 460.
[36] Exhibit 1 p 278.
[37] See also T-57/45.
[38] Exhibit 3.
[39] T2-24/21-26.
[40] Exhibit 1 p 280.
[41] Exhibit 1 p 1237.
[42] See the applicant’s affidavit filed 20 January 2023.
[43] Exhibit 1 p 279, para 20; see also T2-13 pp 30–37.
[44] See his report of 16 August 2018, exhibited to his affidavit, s 2.2, 2nd para.
[45] See Exhibit 1 p 503.
[46] See Exhibit 1 p 1072.