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Legal Services Commissioner v Hunter[2024] QCAT 220

Legal Services Commissioner v Hunter[2024] QCAT 220

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Hunter [2024] QCAT 220

PARTIES:

Legal services commissioner

(applicant)

v

ned mcgrane hunter

(respondent)

APPLICATION NO/S:

OCR010-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

4 July 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Mellifont, President

Assisted by:

Ms Susan Forrest

Practitioner Panel Member

Dr Julian Lamont

Lay panel Member

ORDERS:

  1. The respondent is proved to have engaged in professional misconduct in respect of each of the three charges in the applicant’s disciplinary referral to the Tribunal.
  2. The Tribunal recommends pursuant to section 456(2)(a) of the Legal Profession Act 2007 (Qld), that the name of the respondent be removed from the local roll.
  3. The respondent is to pay the applicant’s costs of and incidental to the Disciplinary Application filed 11 January 2024. The amount shall be as agreed between the applicant and respondent and if not agreed, to be assessed on the standard basis as if the matter were in the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSOINAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent was convicted in the District Court on his own plea of guilty of two serious offences – where the respondent was convicted in the Magistrates Court on his own plea of guilty of 17 offences – where the respondent contravened a probation order and condition on a suspended sentence and was re-committed in the District Court – where the applicant has brought charges against the respondent for the convictions of offences and for engaging in conduct which is likely, to a material degree, bring the profession into disrepute – where the respondent accepts that the conduct constituted professional misconduct – where the respondent agreed to the proposed sanction to remove his name from the roll – whether the Tribunal is satisfied as to the agreed characterisation of the respondent’s conduct and the agreed sanction

Legal Profession Act 2007 (Qld)

Criminal Code Act 1899 (Qld) 

Barristers’ Board v Darveniza [2000] QCA 253

Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145

Legal Practitioners’ Complaints Committee v Palumbo [2001] WASCA 129

Legal Services Commissioner v Madden (No 2) [2008] QCA 301

Legal Services Commissioner v McKenzie [2021] QCAT 377

Legal Services Commissioner v Munt [2019] QCAT 160

Legal Services Commissioner v Shand [2018] QCA 66

Legal Services Commissioner v Yarwood [2015] QCAT 208

Prothonotarv of the Supreme Court of New South Wales v P [2003] NSWCA 320

Watts v Legal Services Commissioner [2016] QCA 224

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

Introduction

  1. [1]
    This is a referral by the applicant to QCAT alleging disciplinary conduct against the respondent, containing three disciplinary charges. The respondent admits that he has engaged in the conduct as alleged. 

Facts

  1. [2]
    The respondent was admitted to the legal profession by the Supreme Court of Queensland on 16 March 2015.
  2. [3]
    At all material times, the respondent was an Australian lawyer as defined by section 5(1) of the Legal Profession Act 2007 (Qld) (Act).
  3. [4]
    The respondent has never been issued a practising certificate, of any kind, by the Queensland Law Society.

Charge 1 – District Court convictions

  1. [5]
    On 1 November 2020 between approximately 2:00pm and 4:00pm the respondent:
    1. entered the premises of a chemist at Jindalee;
    2. was approached by the owner of the chemist and asked whether he needed assistance; and
    3. declined the request and proceeded to leave the chemist.
  2. [6]
    On 1 November 2020, at approximately 5:40pm, the respondent re-entered the chemist wearing a baseball cap and surgical mask in order to try to conceal his identity.
  3. [7]
    The respondent approached a pharmacist working at the chemist and told her that he had a note from his doctor.
  4. [8]
    The respondent handed her a note which read:

“Don’t panic. I have a knife and acid in my bag. I want you to go to the back and put all your oxycodone’s in my bag without making a scene.”

  1. [9]
    The respondent then handed her a plastic bag and took back the note he had previously handed to her.
  2. [10]
    The pharmacist then proceeded to retrieve nine boxes of 5mg Oxycodone from the back of the chemist. Those boxes contained a total of 180 tablets. She placed them into the plastic bag provided by the respondent.
  3. [11]
    The pharmacist gave the plastic bag containing the nine boxes of Oxycodone to the respondent, who proceeded to leave the Premises.
  4. [12]
    Later that evening, at approximately 6:50pm, the Queensland Police Service (‘QPS’) attended the respondent’s home in Taringa, Brisbane during which he advised the QPS that:
    1. the nine boxes of Oxycodone were in his bedroom cupboard; and
    2. he had ingested up to 40 tablets of the Oxycodone since the time of the robbery.
  5. [13]
    The QPS located the following at his home:
    1. 140 Oxycodone tablets;
    2. nine empty packets of 5mg Oxycodone tablets;
    3. the clothing worn by the respondent when entering the Premises earlier that day;
    4. several different handwritten notes similar to the note referred to in paragraph 8 above; and
    5. a spoon, razor blade and citric acid which had been used by the respondent to consume Oxycodone.
  6. [14]
    On 1 November 2020, the respondent was charged with:
    1. one count of entering a premises with intent to commit an indictable offence pursuant to section 421(1) of the Criminal Code Act 1899 (Qld) (‘Criminal Code’); and
    2. one count of armed robbery pursuant to sections 409(1) and 411(2) of the Criminal Code.
  7. [15]
    On 12 August 2021, before the District Court of Queensland in Brisbane, the respondent was arraigned and convicted on his own plea of guilty to those two offences. 
  8. [16]
    In respect of the entering a premise charge, the respondent was ordered to perform 2 years probation. 
  9. [17]
    In respect of the armed robbery charge, sentenced to 3 years imprisonment, wholly suspended, with an operational period of 4 years. 
  10. [18]
    The applicant submits, and the respondent accepts, that this conduct was conduct which:
    1. is likely to a material degree to bring the profession into disrepute; and
    2. demonstrates that the respondent is not a fit and proper person to remain on the roll of persons admitted to the legal profession.
  11. [19]
    The Tribunal accepts that submission and therefore finds that the conduct amounts to professional misconduct. 

Charge 2 – Magistrates Court convictions

3 May 2021

  1. [20]
    On 3 May 2021, at approximately 2:50pm, the respondent:
    1. attended a chemist located at Cannon Hill in Brisbane;
    2. provided a pharmacist working at the chemist with a prescription for medication; and
    3. having received the medication, he hid it up the cuff of his shirt, and then left the chemist without paying for it. 

14 May 2021

  1. [21]
    On 14 May 2021, the respondent attended a Medical Centre at Everton Hills for a medical appointment.
  2. [22]
    During the medical appointment, the respondent presented a medical referral letter dated 8 May 2021 purporting to be from a doctor at Canberra Hospital, which stated that:
    1. the respondent had a medical condition for which he attended Accident and Emergency on 8 May 2021;
    2. the medical issue was likely to resolve;
    3. the respondent had been prescribed Doxycycline for potential infection and Oxycodone for pain relief; and
    4. the respondent had been advised to present before a general practitioner if additional analgesia was required during his recovery.
  3. [23]
    After the respondent left his appointment at the Medical Centre, the practice manager of the Medical Centre contacted the acting operations manager at the emergency department of Canberra Hospital. The practice manager was advised that the letter was a forgery.
  4. [24]
    Additional enquiries conducted with Queensland Health’s Medicines Compliance and Human Tissue Unit, indicated that between 2 March 2021 and 20 July 2021 there had been 252 prescriptions issued to the respondent for Oxycodone, including 5 tablets which was dispensed on the same day as his visit to a Medical Centre located at Everton Hills from a chemist at Kedron.

21 August 2021

  1. [25]
    In late August 2021, the QPS attended the Kingaroy Hospital and were informed that on 21 August 2021, the respondent:
    1. had attended the Kingaroy Hospital and requested a prescription for Oxycodone, but was denied by the consulting doctor; and
    2. proceeded to steal a prescription book from the Kingaroy Hospital.
  2. [26]
    On 21 August 2021, the respondent attended a chemist in Kingaroy and presented a faxed script in a false name for 5mg Oxycodone tablets.
  3. [27]
    The dispensing pharmacist did not identify that the script was forged and provided the medication to the respondent.
  4. [28]
    Later that day on 21 August 2021, the respondent returned to the chemist with two forged scripts in his own name, issued by the Kingaroy Hospital for Oxycontin.

23 August 2021

  1. [29]
    On 23 August 2021, the manager of the chemist contacted the QPS to report that:
    1. the respondent had attended the chemist with a forged prescription from a family Medical Practice in Sunnybank Hills with a false name for 5mg Oxycodone tablets; and
    2. the dispensing pharmacist working at the chemist did not identify that the script was forged and provided the prescribed medication to the respondent.
  2. [30]
    That day, the QPS attended the chemist and observed the following two scripts purportedly issued by the Kingaroy Hospital:
    1. a script for Endone 5mg tablets (20 tablets in total); and
    2. a script for “Brufor” 400mg (30 tablets in total).
  3. [31]
    The unique record numbers for these scripts were false.
  4. [32]
    On 23 August 2021, the respondent attended a chemist  at Yarraman and presented a prescription in the same false name he had used in Kingaroy issued by the Kingaroy Hospital for a packet of Mayne Oxycodone 5mg.
  5. [33]
    The pharmacist working at a chemist in Yarraman, did not identify that the script was forged and dispensed the medication to the respondent.

24 August 2021

  1. [34]
    On 24 August 2021, the respondent attended a chemist at Murgon and presented a prescription in the same false name, issued by the Kingaroy Hospital for a packet of 20 Endone tablets.
  2. [35]
    The pharmacist at the chemist in Murgon did not dispense the script and the respondent left the premises.

30 August 2021

  1. [36]
    On 30 August 2021, the respondent attended a family Medical Centre located at Kenmore where he completed a new patient medical form in which he identified himself as the same false name as he had used previously. 
  2. [37]
    The respondent stated to the receptionist that he had forgotten his Medicare card. The receptionist provided the Medicare details of the person (that is, the person whose name the respondent was using) to the respondent.
  3. [38]
    The respondent presented the medical practitioner working at the Medical Centre with a Royal Brisbane Hospital discharge summary in his own name and requested Oxycodone for pain relief.
  4. [39]
    The medical practitioner working at the Medical Centre noticed the anomaly and asked the respondent to leave.

31 August 2021

  1. [40]
    On 31 August 2021, at approximately 6:00pm, the QPS received a complaint by a member of the public regarding a vehicle, registered to the respondent, driving erratically along the Centenary Motorway.
  2. [41]
    The QPS intercepted the vehicle. They confirmed the driver to be the respondent.
  3. [42]
    The QPS conducted a search of the respondent’s vehicle and observed a large quantity of drug paraphernalia on the front passenger seat of the vehicle.
  4. [43]
    The respondent advised the QPS that he had consumed heroin approximately three hours prior by intravenously injecting the drugs into his left wrist.
  5. [44]
    The QPS proceeded to arrest the respondent and transported him to the Princess Alexandra Hospital for a blood sample.

2 September 2021

  1. [45]
    On 2 September 2021, the respondent was being held at the Richlands Watch House after being remanded in custody.
  2. [46]
    At approximately 11:30am, the respondent was observed by CCTV to be hanging a long thin item from his cell door.
  3. [47]
    The arresting officer entered the respondent’s cell room and observed that the respondent had produced long strips of material torn from one of the blankets he was issued upon arrival at the watchhouse, thus wilfully damaging police property.

Charges

  1. [48]
    As a result of the matters referred to above, the respondent was charged with the following 17 offences:
    1. Two counts of stealing pursuant to section 398 of the Criminal Code;
    2. Seven counts of forgery pursuant to section 488(1) of the Criminal Code;
    3. Four counts of personation in general with intent to defraud pursuant to section 514(1) of the Criminal Code;
    4. One count of uttering a forged document pursuant to section 488(1)(b) of the Criminal Code;
    5. One count of fraudulently obtaining property from another pursuant to section 408C(1)(b);
    6. One count of driving while under the influence of liquor or a drug pursuant to section 79(1)(a); and
    7. One count of wilful damage of police property pursuant to section 469(1) of the Criminal Code.
  2. [49]
    The responded pleaded guilty to all of these offence on 3 December 2021 in the Magistrates Court at Richlands, and was ordered to perform 18 months probation.   A conviction was recorded.  In relation to the driving under the influence charge, he was also disqualified from holding or obtaining a drivers license for 6 months.  
  3. [50]
    The applicant alleges, and the respondent admits, that the offending conduct is conduct which: 
    1. is likely to a material degree to bring the profession into disrepute; and
    2. demonstrates that the respondent is not a fit and proper person to remain on the roll of persons admitted to the legal profession.
  4. [51]
    The Tribunal accepts that submission and therefore finds that the conduct amounts to professional misconduct. 

Charge 3 – Breach of District court orders of 12 August 2021

  1. [52]
    All bar three of the 17 offences were committed during the period of the probation order and suspended sentence which had been imposed in the District court on 12 August 2021.   Those 14 offences were committed within 3 weeks of the probation and suspended sentence being ordered.   
  2. [53]
    On 4 April 2022, the District Court found that the respondent had breached both orders.   In respect of the probation order, the Court admonished and discharged the respondent. In respect of the breach of suspended sentence, the District Court invoked 3 months of the suspended term of imprisonment, with immediate parole release. 
  3. [54]
    The applicant submits, and the respondent admits, that by breaching a probation order and a suspended sentence, the respondent engaged in conduct which:
    1. is likely to a material degree to bring the profession into disrepute; and/or
    2. demonstrates that the respondent is not a fit and proper person to remain on the roll of persons admitted to the legal profession.
  4. [55]
    The Tribunal accepts that submission and therefore finds that the conduct amounts to professional misconduct. 

Respondent’s submissions

  1. [56]
    The respondent has placed the following by way of submissions before the Tribunal:  

Prior to the Applicant filing Submissions on 19 March 2024, I was afforded the opportunity to compile a statement of my own to be included, which I declined, as I felt that my previous communications with the Applicant had covered causative factors of my past offending; namely, the addiction to opiates beginning with prescription medication in Canada, and the negative developments in my personal and professional life caused by the London COVID-19 pandemic in March 2020, which resulted in me having to flee London and return to rural Queensland. My mental state was severely compromised during this time, and the addiction that developed and worsened throughout is a painful subject for me, as the desperation of addiction caused me to behave in ways that are abhorrent to my pre-addicted self, as they are to me now. Reflecting on my desperate state of mind at the time of these offences, I am reminded that, at several instances, misunderstandings have occurred regarding my motivations for communicating certain offences. My initial crime of robbery was to obtain a quantity of oxycodone which would allow me to end my life via an overdose, as (despite numerous attempts) I could not obtain professional help due to COVID-19 restrictions, and I was ashamed of my addiction, which at that time was unknown to all my family and friends. It was the intervention of the Police which saved me from death in the hours after the robbery. My subsequent offences of fraudulent activity and theft of prescription medicines and materials was to obtain enough medicine to avoid the extreme withdrawal symptoms of opiate addiction.

My addiction to prescription opiates and, later, to heroin and illicitly-obtained prescription medication resulted in multiple earnest suicide attempts (including whilst incarcerated), as well as theft and various fraudulent activity; every instance of which constitutes a shameful memory for me. I have been working very hard on moving on from this since being released from my 94-day incarceration on 3 December 2021 (the same date that the Courier Mail online article was published about my hearing in Richlands Magistrate Court).

Reading through the Submissions of the Applicant, as well as the 373 pages of the Hearing Book, causes me to inevitably reflect and dwell upon the events of the time, which are traumatic. For nearly three years I have lived with considerable remorse and anxiety for those of my friends, family, and fellow citizens, who suffered harm as a result of my actions. I have learned to avoid the trap of feeling like a victim when reflecting on the lack of services available to me when I first tried to obtain help prior to my first offence, during the first wave of COVID when I lived in Taringa, Brisbane. I have lost respect, standing, and the trust of friends and family. However, in my recovery, I have received support from many friends, family, employers, and also the LSC (as I referred to above, the LSC staff I have dealt with have been nothing but polite and helpful to me).

I note that my recovery and rehabilitation, since my 31 August - 3 December 2021 incarceration, has so far been successful. I have received support from clinical psychologists, professional counselling, and I voluntarily entered a 6-week in-patient rehabilitation course through Lives Lived Well, which I completed in May 2022. Since February 2022 I have voluntarily engaged with the Qld Opiate Treatment Program. I currently receive subcutaneous Buprenorphine treatment…under the supervision of [a community health centre and a hospital].   Throughout 2022 and 2023, I was enrolled in the Dual Diploma of Mental Health and Alcohol & Other Drugs at QLD Tafe, (which I have since placed on hold as I await a QCAT ruling on my fitness to hold a Blue Card; a requirement for receiving practical training to complete the Dual Diploma and thus gain employment in the industry), where my experience can serve society by counselling those who require help in overcoming substance dependence and addiction.

I have, since March 2023, been employed by [a marketing and retail company] to whom I disclosed all my offending and criminal history prior to securing employment. In October 2023, I was offered a part-time role in Brisbane by my Manager, which I accepted and excelled in, being awarded Employee of the Month in December, 2023.

In January I was promoted to a full-time role within this business, working as an Area Sales Representative… and am proving successful in the role. I have a stable relationship with my partner, and I reside with her in [Brisbane].

I have worked very hard at re-establishing trust within my circle of friends and family, and am working effectively in my current employment…. The professional help I received following my incarceration helped me to develop strategies to avoid any relapse, by being as open and honest as possible about this situation.

I have fully accepted the measures sought by the Applicant since receiving my first correspondence from them in 2022. I have cooperated and aided their investigation and processes as best I can, as I have with all Police and Corrections Officers who have investigated or engaged with me regarding these matters. Though my offending was dishonest, I have never sought to mitigate my responsibility or to present falsehoods to the Police or Judiciary. I have accepted my behaviour, taken ownership of it rather than hiding behind the screen of addiction or COVID restrictions, and have tried to repair the damage done wherever possible.

I apologise to the Tribunal, as I have apologised to the Applicant (and many of the victims of my offending), for the unpleasant task of dealing with these issues. I do not oppose the measures sought by the Applicant in its submissions.

Discussion

  1. [57]
    The respondent has fully cooperated with the applicant, and has proceeded in the most expeditious way possible.   
  2. [58]
    At the earliest possible stage in this proceeding, the respondent:
    1. accepted and admitted to the conduct the subject of all three charges; and
    2. agreed that if the Tribunal is satisfied the respondent engaged in unsatisfactory professional conduct of professional misconduct, an order should be made pursuant to section 456(2)(a) of the Act, recommending that his name be removed from the local roll.
  3. [59]
    His submissions demonstrate insight and remorse.  
  4. [60]
    Since May 2015, the respondent has worked in the software industry and has expressed that he has no desire to work in the legal profession.
  5. [61]
    The respondent has indicated that in August 2022, he commenced a dual diploma of ‘Mental Health Counselling’ and ‘Alcohol and Other Drugs Counselling’ with a view to completing those studies in 2024.
  6. [62]
    The offending behaviour was serious, involving not only dishonesty, but also driving under the influence and armed robbery. The later offending including forging a referral letter, stealing a prescription book which he used to forge medical scripts and impersonating another person. The reason for these acts of dishonesty was, apparently, to feed his substance addiction issues.  This offending occurred in breach of a probation order and a suspended sentence for the serious offences of armed robbery and entering. Thirteen of the breaching offences were offences of dishonesty.  
  7. [63]
    Notwithstanding the respondent was suffering from serious mental health issues at the time of the offending which affected his decision-making process, much of his offending conduct can only be described as fundamentally dishonest.  
  8. [64]
    Honesty is an essential and fundamental trait for legal practitioners. As the court observed in Barristers’ Board v Darveniza [2000] QCA 253 at [33]:

Generally speaking the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practises. 

  1. [65]
    Where an order recommending that the name of the respondent be removed from the local roll is made, two considerations arise:
    1. whether the respondent is a fit and proper person at the time of the hearing;[1] and
    2. whether “the probability is that the practitioner is permanently unfit to practice”.[2]
  2. [66]
    In Legal Services Commissioner v Shand [2018] QCA 66 (‘Shand’), McMurdo JA stated at [53] to [55], with whom Morrison JA and Brown J agreed:

The protection of the public, of course, is a purpose also served by an order which affects an existing or future practising certificate. By an order affecting a practising certificate, the public is immediately protected from the risks to which those who would encounter an unfit person would be exposed.

The community needs to have confidence that only fit and proper persons are able to practise as lawyers and if that standing, and thereby that confidence, is diminished, the effectiveness of the legal profession, in the service of clients, the courts, and the public is prejudiced. The Court’s Roll of practitioners is an endorsement of the fitness of those who are enrolled.

  1. [67]
    The decision of Prothonotarv of the Supreme Court of New South Wales v P [2003]  NSWCA 320 provides guidance in cases in which a legal practitioner has engaged in criminal conduct and removal from the roll is contemplated. The applicant makes the following submissions in respect of a number of factors:
    1. Absence of prior disciplinary record or criminal record: the transcript of the hearing in relation to the 2020 offences identifies that the respondent did not have a criminal history prior to the 2020 offences. However, the respondent was subsequently charged and convicted of the 2021 offences and the breach of probation order in 2022.
    2. Absence of motive for personal enrichment: the conduct the subject of the charges did not involve an element of financial enrichment. However, many of the offences did involve the respondent taking prescription medications without paying for them. As a result, the respondent's offences had an element of personal enrichment, albeit not a direct financial one. Furthermore, the motive for the personal enrichment was to obtain prescription drugs to fuel the respondent’s substance addiction.
    3. Honesty and co-operation with the authorities after detection: at an early stage in this proceeding, the respondent accepted and agreed to the conduct the subject of the charges. The respondent assisted in the filing of a statement of agreed facts which included an agreed sanction. As to the criminal offences themselves, the respondent pleaded guilty to the 2020 offences and the 2021 offences.[3]
    4. The offences being unrelated to the practice of law: the offences were unrelated to the practice of law.
    5. The ignominy of having suffered a criminal conviction and the deterrent element: the respondent has been the subject of public chastisement[4] and otherwise expressed his shame and remorse, particularly in relation to the 2021 offences.[5]
    6. The absence of premeditation with respect to the commission of the crime: premeditation is apparent, particularly in relation to the Entering Offence and Armed Robbery Offence. This was made clear at the arraignment hearing of the respondent on 12 August 2021, where it was submitted that the offending was “deliberate, premeditated and rehearsed”.[6]
    7. Evidence of good character: there is no specific evidence of good character before the Tribunal (such as character references).
    8. Any voluntary self-imposed suspension or court-imposed temporary suspension from practice: the respondent does not hold a practising certificate[7] and he has expressed that he has no desire to work in the legal profession.[8]
    9. Delay in commencing disciplinary proceedings: the respondent was convicted of the 2020 offences on 12 August 2021,[9] the 2021 offences on 3 December 2021[10] and contravening the probation order on 4 April 2022.[11] These proceedings were filed on 10 January 2024.
    10. Most importantly, clear and convincing evidence of rehabilitation: there is limited evidence before the Tribunal of the current state of the respondent’s rehabilitation from his drug addiction and offending, particularly the convictions involving dishonesty. However, the following matters are relevant:
      1. (i)
        Part of the conditions of the probation order (which was ordered following the 2021 offences) were that the respondent submit to urinalysis testing and participate in therapeutic intervention to address his illicit drug use. There is no evidence before the Tribunal that the respondent breached that condition of the probation order.
      2. (ii)
        In an email from the respondent to the applicant dated 15 January 2024, he states that he has maintained his sobriety for over two years[12] and that he is studying a dual Diploma of Mental Health Counselling and Alcohol and Other Drugs.[13] He also states in an earlier email dated 12 December 2022, that he is receiving treatment via the Queensland Opiate Treatment program which includes regular administration of subcutaneous gel depot based Buprenorphine.[14]
      3. (iii)
        There is no medical evidence before the Tribunal which indicates or speaks to the probability of the respondent’s relapse or rehabilitation.
  2. [68]
    Overall, the applicant submits that the mitigating features outlined above do not support a conclusion that the respondent’s name should remain on the roll.
  3. [69]
    In relation to comparable cases, although not factually analogous to the present case, the decision in Legal Services Commissioner v Munt [2019] QCAT 160 (‘Munt’) considered the conviction of 21 drug-related offences by Mr Munt.
  4. [70]
    Mr Munt had been convicted of trafficking a dangerous drug methylamphetamine (one count), supplying a dangerous drug methylamphetamine (19 counts) and supplying a dangerous drug cannabis (one count). Mr Munt was sentenced to three years’ imprisonment wholly suspended for four years.[15]
  5. [71]
    The Tribunal characterised Mr Munt’s conduct as professional misconduct, noting that such a finding was not in issue and was both appropriate and necessary.[16] Whilst the Mr Munt was found guilty of professional misconduct, an order recommending that he be removed from the roll was not made.
  6. [72]
    Rather, the Tribunal made an order that the Mr Munt be restrained from obtaining a practising certificate for a period of five years. The circumstances in that case, however, did not involve offences of dishonesty or a breach of a probation order and suspended sentence:
  7. [73]
    In considering the respondent’s conduct as a whole, including the 2021 offences which involved dishonesty, the decision of Legal Practitioners’ Complaints Committee v Palumbo [2005] WASCA 129 (‘Palumbo’), has been referred to.
  8. [74]
    In Palumbo, the respondent had been convicted of a single count of possession of a dangerous drug, as well as a conviction of conspiracy to defeat the course of justice.[17] The drug offending concerned the respondent obtaining a small quantity of cocaine for his and another legal practitioner’s personal use.
  9. [75]
    The dishonesty offence concerned a traffic infringement received by Mr Palumbo and his attempt to have his nephew “take the fall” so Mr Palumbo would avoid losing his driver's licence.[18] The Court characterised Mr Palumbo’s conduct in that regard as follows:[19]

Even if it was short lived, as his counsel contended, it was engaged in by the practitioner after an opportunity for some hours of reflection, rather than on the spur of the moment.

  1. [76]
    In making an order striking Mr Palumbo off the roll, Steytler P stated:[20]

The dishonest way in which the practitioner has acted, and his disregard for the law, so severely undermine the confidence which can be placed in his conduct as a practitioner as in my opinion to render him unfit for practice, notwithstanding the mitigating circumstances raised on his behalf.

  1. [77]
    The applicant submits that:
    1. the offending in Palumbo is objectively less serious than in the present case. In Palumbo, the respondent was convicted of one count of possession of a prohibited drug and one count of conspiracy to defeat the course of justice. The respondent in the present case was convicted of 21 offences including armed robbery and fraud.
    2. the dishonesty offences, while different in form, have some similarities in substance. Like the respondent, Mr Palumbo did not seek a financial benefit through his dishonesty. Both sets of conduct were not “spur of the moment” decisions. However, the respondent’s conduct might be regarded as more serious because it involved 13 offences involving dishonesty.
    3. in Palumbo, it was submitted that the offending occurred at a time when the Mr Palumbo was under great stress and had substantial financial obligations. In contrast, the offending in the present matter occurred whilst the respondent was suffering from a substance addiction and serious mental health issues.
  2. [78]
    Care must be taken not to approach the exercise as one of comparison to the facts in other cases, but rather to ensure that the relevant test is squarely applied to the facts in hand nonetheless, some observation made in other cases as to offences committed by practitioners are of assistance.
  3. [79]
    In relation to the respondent’s personal circumstances, it is acknowledged that he is relatively young. In Legal Services Commissioner v McKenzie [2021] QCAT 377, the respondent faced two disciplinary charges related to the respondent’s conviction of extortion,[21] being a “serious offence” under the Act.
  4. [80]
    After first characterising Mr McKenzie’s conduct as professional misconduct,[22] the Tribunal ultimately recommended that Mr McKenzie’s name be removed from the local roll, stating:[23]

We are acutely conscious that a decision here ending a career of a young man for at least the foreseeable future is a serious step. We have determined nonetheless that there is no evidence to justify the view that Mr McKenzie is or is likely to become a person fit to practise. There is no alternative available that will sufficiently protect the public and the reputation of the profession other than to recommend that Mr McKenzie’s name be removed from the local roll.

  1. [81]
    In McKenzie, the Tribunal recommended that the respondent's name be removed from the local roll, despite producing 25-character references and three affidavits from fellow professionals, all of which spoke highly of Mr McKenzie and that his criminal conduct was out of character.[24]
  2. [82]
    In Legal Services Commissioner v Yarwood [2015] QCAT 208, the respondent was charged with engaging in criminal conduct for which he was convicted of three serious offences, Mr Yarwood was convicted, in the District Court in Brisbane of two counts of fraud and one count of uttering. The Tribunal characterised Mr Yarwood’s conduct as professional misconduct.[25]
  3. [83]
    Having regard to the conduct of Mr Yarwood, the Tribunal ultimately recommended that Mr Yarwood’s name be removed from the local roll, stating:[26]

The conduct which lead to the conviction was not conduct which arose through professional negligence, incompetence, lack of concentration, lack of energy, irritability, distractibility disorganisation, mismanagement or having a shambles of a legal practice.

Rather, the conduct involved deliberate acts of dishonesty including fraud with some element of sophistication, over a period of three years.

  1. [84]
    In Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145, Basten JA, with whom Mason P and Santow JA agreed, cited with approval an observation which had been made by the disciplinary Tribunal in that case that “deceitfulness is a character flaw which is thought by most legal practitioners as well as others not to be confined in separate compartments of one's life”.
  2. [85]
    Basten JA’s reference to the Tribunal’s reasons continued at [59], where it was observed:

It is commonly thought that people who have indulged in deceit for their own advantage are likely to be deceitful again when it suits them, whatever they are involved in and whether it be in the course of legal practice or otherwise. Trust is one of the cornerstones of legal practice. Honest dealing is fundamental to fitness to practice law.

  1. [86]
    The applicant submits that the above rationale should be applied in this case given the nature and extent of the dishonesty by the respondent. The Tribunal agrees.
  2. [87]
    While the applicant accepts that the respondent did not procure a financial benefit from the offences, the respondent engaged in conduct which was fundamentally dishonest. There is also no evidence before the Tribunal that the respondent’s dishonesty will not surface again if placed in a precarious position.
  3. [88]
    The roll of practitioners is “an endorsement of the fitness of those who are enrolled”.[27] By leaving the name of the respondent on the local roll, the Tribunal would in effect be endorsing the respondent’s fitness to remain on the roll.
  4. [89]
    Having regard to the evidence, the Tribunal is satisfied that at the time of hearing, the probability is that the respondent is permanently unfit to practice.

Sanction

  1. [90]
    The applicant submits that an order be made pursuant to section 456(2)(a) of the Act, recommending that the name of the respondent be removed from the local roll. The respondent agrees with that submission. The Tribunal accepts that submission.   

Costs

  1. [91]
    The applicant seeks a costs order in the matter pursuant to section 462(1) of the Act, which provides that the Tribunal must make an order requiring a person whom it has found to engage in unsatisfactory professional conduct or professional misconduct to pay costs, including the costs of the Commissioner and the complainant, unless the Tribunal is satisfied that exceptional circumstances exist.
  2. [92]
    The applicant submits that there is no evidence that exceptional circumstances exist and seek an order that the respondent pay the costs of and incidental to the discipline application, such costs to be agreed or assessed on the standard basis in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland. 
  3. [93]
    The respondent has not sought to submit otherwise.

Orders

  1. [94]
    The Tribunal makes the following orders:
  1. The respondent is proved to have engaged in professional misconduct in respect of each of the three charges in the applicant’s disciplinary referral to the Tribunal.
  2. The Tribunal recommends pursuant to section 456(2)(a) of the Legal Profession Act 2007 (Qld), that the name of the respondent be removed from the local roll.
  3. The respondent is to pay the applicant’s costs of and incidental to the Disciplinary Application filed 11 January 2024. The amount shall be as agreed between the applicant and respondent and if not agreed, to be assessed on the standard basis as if the matter were in the Supreme Court of Queensland.

Footnotes

[1]Legal Services Commissioner v Madden (No 2) [2008] QCA 301, at [132].

[2]Watts v Legal Services Commissioner [2016] QCA 224, at [46] citing Prothonotary of Supreme Court of NSW v P  [2003] NSWCA 320.

[3] Johnson Affidavit, exhibit TMJ-1, pages 49-53.

[4] Johnson Affidavit, exhibit TMJ-1, pages 1-5.

[5] Johnson Affidavit, exhibit TMJ-1, page 34.

[6] Johnson Affidavit, exhibit TMJ-1, page 34.

[7] SOAF, [3],

[8] Johnson Affidavit, exhibit TMJ-1, page 81.

[9] Johnson Affidavit, exhibit TMJ-1, page 64.

[10] Johnson Affidavit, exhibit TMJ-1, pages 49-51.

[11] Johnson Affidavit, exhibit TMJ-1, page 62.

[12] Johnson Affidavit, exhibit TMJ-1, page 81.

[13]  Johnson Affidavit, exhibit TMJ-1, page 81.

[14]  Johnson Affidavit, exhibit TMJ-1, page 58.

[15]Legal Services Commissioner v Munt [2019] QCAT 160, [1 ].

[16]Legal Services Commissioner v Munt [2019] QCAT 160, [3] and [42].

[17]Legal Practitioners' Complaints Committee v Palumbo [2005] WASCA 129, [3] and [11].

[18]Legal Practitioners' Complaints Committee v Palumbo [2005] WASCA 129, [8].

[19]Legal Practitioners' Complaints Committee v Palumbo [2005] WASCA 129, [26].

[20] Legal Practitioners’ Complaints Committee v Palumbo [2005] WASCA 129, [26].

[21]Legal Services Commissioner v McKenzie [2021] QCAT 377, [4] and [5].

[22] Legal Services Commissioner v McKenzie [2021] QCAT 377, [13] and [16].

[23]Legal Services Commissioner v McKenzie [2021] QCAT 377, [43].

[24] Legal Services Commissioner v McKenzie [2021] QCAT 377, [21].

[25]Legal Services Commissioner v Yarwood [2015] QCAT 208, [73].

[26]Legal Services Commissioner v Yarwood [2015] QCAT 208, [87] and [88].

[27]Legal Services Commissioner v Shand [2018] QCA 66, [55]

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Hunter

  • Shortened Case Name:

    Legal Services Commissioner v Hunter

  • MNC:

    [2024] QCAT 220

  • Court:

    QCAT

  • Judge(s):

    Justice Mellifont, President

  • Date:

    04 Jul 2024

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
Attorney-General v Legal Services Commissioner [2018] QCA 66
2 citations
Jump To
Cite 1 - [2018] QCA 66
Cite 2 - [2018] QCA 66
Barristers' Board v Darveniza [2000] QCA 253
2 citations
Jump To
Cite 1 - [2000] QCA 253
Cite 2 - [2000] QCA 253
Legal Practitioners' Complaints Committee v Palumbo [2005] WASCA 129
5 citations
Jump To
Cite 1 - [2005] WASCA 129
Cite 2 - [2005] WASCA 129
Cite 3 - [2005] WASCA 129
Cite 4 - [2005] WASCA 129
Cite 5 - [2005] WASCA 129
Legal Practitioners' Complaints Committee v Palumbo [2001] WASCA 129
1 citation
Jump To
Cite 1 - [2001] WASCA 129
Legal Services Commissioner v Madden (No 2)[2009] 1 Qd R 149; [2008] QCA 301
2 citations
Jump To
Cite 1 - [2008] QCA 301
Cite 2 - [2008] QCA 301
Legal Services Commissioner v McKenzie [2021] QCAT 377
6 citations
Jump To
Cite 1 - [2021] QCAT 377
Cite 2 - [2021] QCAT 377
Cite 3 - [2021] QCAT 377
Cite 4 - [2021] QCAT 377
Cite 5 - [2021] QCAT 377
Cite 6 - [2021] QCAT 377
Legal Services Commissioner v Munt [2019] QCAT 160
4 citations
Jump To
Cite 1 - [2019] QCAT 160
Cite 2 - [2019] QCAT 160
Cite 3 - [2019] QCAT 160
Cite 4 - [2019] QCAT 160
Legal Services Commissioner v Yarwood [2015] QCAT 208
4 citations
Jump To
Cite 1 - [2015] QCAT 208
Cite 2 - [2015] QCAT 208
Cite 3 - [2015] QCAT 208
Cite 4 - [2015] QCAT 208
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
3 citations
Jump To
Cite 1 - [2003] NSWCA 320
Cite 2 - [2003] NSWCA 320
Cite 3 - [2003] NSWCA 320
The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145
3 citations
Jump To
Cite 1 - [2007] NSWCA 145
Cite 2 - [2007] NSWCA 145
Cite 3 - [2007] NSWCA 145
Watts v Legal Services Commissioner [2016] QCA 224
2 citations
Jump To
Cite 1 - [2016] QCA 224
Cite 2 - [2016] QCA 224

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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