Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2024
  4. Legal Services Commissioner v XFZ (No 1) - [2024] QCAT 353

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Legal Services Commissioner v XFZ (No 1)[2024] QCAT 353

Legal Services Commissioner v XFZ (No 1)[2024] QCAT 353

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v XFZ (No 1) [2024] QCAT 353

PARTIES:

Legal services commissioner

(applicant)

v

XFZ

(respondent)

APPLICATION NO/S:

OCRXXX-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 May 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons KC, Judicial Member

ORDERS:

  1. 1. The respondent’s application for miscellaneous matters, seeking an order that the Discipline Application be struck out or dismissed, is itself dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS –  where the respondent has filed an application to strike out or dismiss the disciplinary proceedings against her – where the respondent has raised multiple grounds to strike out or dismiss the disciplinary proceeding  whether the disciplinary application is misconceived – whether the respondent was accorded procedural fairness – whether the applicant breached the respondent’s human rights – whether the proceedings amount to an abuse of process – whether the proceedings were brought for an improper purpose, namely to punish the respondent – whether the respondent was an unnecessarily disadvantaged party to the proceedings – whether the disciplinary proceedings are to be struck out or dismissed 

Human Rights Act 2019 (Qld) s 21

Legal Profession Act 2007 (Qld)  s 53 s 58 s 705

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 s 47 s 48

Annetts v McCann (1990) 170 CLR 596

Barac v DPP; Barac v Stirling [2007] QCA 112

Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256

Broadbent v Medical Board of Australia [2022] QCA 46

Commissioner of Police v Tanos (1958) 98 CLR 383

Culverwell v Ginbey [2016] WASC 3

Eddington v Board of Trustees of the State Public Sector Grant v Russell [2022] QCAT 68

Superannuation Scheme [2012] QSC 211

Legal Services Commissioner v Baker (No 1) [2005] QCA 482

Minister for Immigration and Border Protection v WZARH [2015] HCA 40

Palmer Leisure Coolum Pty Ltd & Anor v Magistrates Court of Queensland & Ors [2019] QSC 8

Palmer v Magistrates Court of Queensland & Ors; Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland & Ors [2020] QCA 47

R v Grey (2000) 111 A Crim R 314

Rogers v The Queen (1994) 181 CLR 251

Spencer v Commonwealth (2010) 241 CLR 118

Te Waiti v Western Australia [2019] WADC 159

Walton v Gardiner (1993) 177 CLR 378

White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298

Whitty v Moller [2022] QCAT 258

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

  1. [1]
    At relevant times, the respondent held a Restricted Volunteer Practising Certificate.  It authorised her to engage in legal practice subject to conditions that she only do so as a volunteer at a community legal service or a pro bono project approved by the Australian Pro Bono Centre; and that she must engage only in supervised legal practice and was required to complete a period of supervised legal practice before being eligible to apply for an unrestricted practising certificate.
  2. [2]
    The applicant has commenced a Discipline Application in this Tribunal.  The application refers to a number of occasions when, it is alleged, the respondent contravened a condition of her practising certificate.  The respondent has applied to have the Discipline Application dismissed or struck out (in advance of the final hearing). 

The Discipline Application

  1. [3]
    The application contains one charge. It makes allegations in relation to the respondent’s conduct, the effect of which is as follows:
    1. On 11 August 2022, an interlocutory hearing was held in the Administrative Appeals Tribunal (“AAT”) in a matter which it is sufficient to refer to as “the ABC matter”.  In reasons published on 6 October 2022, the respondent is identified as the solicitor for the applicant;
    2. On 10 October 2022 the respondent appeared on behalf of the applicant at a directions hearing in the AAT in the ABC matter.  She made submissions about the Brisbane registry of that Tribunal, and about the future conduct of that matter, and identified herself as part of the legal representation for the applicant in two matters;
    3. On 9 November 2022 the respondent sent an email to the Sydney registry of the AAT in which she referred to complaints she had previously made, apparently about the conduct of the Tribunal or its registry; and referred to an investigation into improper interference “into both of my AAT cases”. She referred to submissions she had made as to why a particular member should not be hearing the ABC matter.  She referred to the matter having been raised by the applicant as a complaint, rather than an application for recusal;
    4. On 17 November 2022 the respondent sent an email to lawyers appearing for the respondent in the ABC matter, calling on them to withdraw allegations against her.  Her name appears at the end of the email, followed by the words, “Solicitor for the Applicant”;
    5. On 18 November 2022 the respondent appeared by telephone at a hearing, described as a hearing of the recusal application.[1]  The respondent stated that she would be one of two people who would be speaking on behalf of the applicant in the proceeding, and that she would do so “as solicitor”.  She made submissions in the course of the hearing.
  2. [4]
    There was also an allegation in the Discipline Application that, whilst, “engaging in the conduct of the matters referred to” in a number of the particulars of the application, (rather surprisingly) “there is no evidence that the respondent did so” in stated circumstances, being circumstances which would demonstrate her conduct was not in breach of the conditions of the practising certificate.  The respondent’s response to this allegation was that a community legal service was aware of her NDIS advocacy; and when the respondent became aware of a problem with her practising certificate, she, amongst other things, ceased acting in the ABC matter.
  3. [5]
    It is apparent from the Discipline Application (though not clearly articulated) that it is alleged that the respondent engaged in legal practice on the stated dates mentioned earlier; and that she did so in breach of the conditions of her practising certificate.  It is also apparent from her response to that application, and her submissions, that she understood that these were the allegations made against her.

The respondent’s application

  1. [6]
    The respondent has applied for an order dismissing or striking out the Discipline Application.  The respondent’s application itself identified the grounds as being that the Discipline Application is inappropriate, and lacks merit.  The application also sought a non-publication order, but that is not the subject of this hearing on the papers.
  2. [7]
    The application incorporates submissions,[2] apparently filed separately.

The respondent’s contentions

  1. [8]
    The respondent’s contentions are found in her five submissions.[3]  The respondent has attempted to collate her contentions in Submission 5.  The applicant has attempted to summarise the respondent’s contentions, but the summary does not fully reflect them. 
  2. [9]
    Before attempting to summarise the respondent’s contentions, it should be noted that the statutory provisions on which she has relied are s 47 and s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).[4]  She relied on these provisions as warranting the striking out of proceedings as an abuse of process; or because the applicant has acted in a way that unnecessarily disadvantages another party to the proceedings.[5]
  3. [10]
    The respondent’s contentions may be summarised as follows:-
    1. the application is misconceived;
    2. the respondent has not been accorded procedural fairness;
    3. the applicant has failed to give effect to the respondent’s human right identified in s 21 of the Human Rights Act 2019 (Qld) (“HR Act”);
    4. pursuit of the application is not in the public interest;
    5. the proceedings amount to an abuse of process, being brought in breach of the applicant’s own guidelines;
    6. the proceedings were brought for an improper purpose, namely with the intention of punishing the respondent;
    7. the applicant has caused disadvantage to the respondent by bringing and continuing the proceedings; and
    8. the proceedings are unnecessary, have caused delay, and are prejudicial.
  4. [11]
    There was also a contention that the applicant had engaged in deceptive conduct in relation to the proceedings, but this appears to have been abandoned.[6]
  5. [12]
    It is convenient to commence with some observations about s 47.

Relief sought under s 47 of the QCAT Act

  1. [13]
    This section confers on the Tribunal the power to strike out or dismiss an application, in circumstances to which the section applies.[7]  Those circumstances are identified in s 47 as follows:-
  1. 47Dismissing, striking out or deciding if unjustified proceeding or part
  1. (1)
    This section applies if the tribunal considers a proceeding or a part of a proceeding is—
  1. (a)
    frivolous, vexatious or misconceived; or
  2. (b)
    lacking in substance; or
  3. (c)
    otherwise an abuse of process.
  1. [14]
    The section uses a number of expressions which are sometimes found in statutory provisions relating to the summary striking out or dismissal of a proceeding, or which are used in relation to the exercise of the inherent power of a court or tribunal to take such a course.  However, the section also includes a reference to a proceeding which is “lacking in substance”. 
  2. [15]
    In Spencer v Commonwealth[8] the High Court was considering s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”), which conferred on that court a power to give judgment in favour of a party defending a proceeding, where satisfied that “the other party (the applicant) has no reasonable prospect of successfully prosecuting the proceeding”.  Four members of the court emphasised the need to give “full weight … to the (statutory) expression as a whole” when exercising this power.[9]  In my view, that approach is to be adopted in relation to s 47(1), particularly in relation to the description of a proceeding as “lacking in substance”.
  3. [16]
    Rule 293 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) authorises a court to give judgment for a defendant against a plaintiff if the court is satisfied that the plaintiff has “no real prospect of succeeding on all or part of the plaintiff’s claim”; and there is no need for a trial of the claim or part of the claim.  In Eddington v Board of Trustees of the State Public Sector Superannuation Scheme, Mullins J (as her Honour then was) appeared to recognise some analogy between this test and that found in s 31A(2) of the FCA Act.[10]  Her Honour said that statements in that case as to the exercise of caution in dismissing an action summarily were intended to apply generally in respect of the procedure of summary judgment.[11] 
  4. [17]
    In Spencer, French CJ and Gummow J stated that the exercise of powers to summarily terminate proceedings must always be attended with caution.[12]  Four members of the Court in Spencer, however, stated that it may be readily accepted that a power to dismiss an action summarily is not to be exercised lightly, but emphasised the need to attend to the statutory expression, and where it differs from that found in earlier legislation, not to confine the power by reference to cases based on the earlier legislation.[13]  This Tribunal, therefore, should not lightly conclude that a proceeding is lacking in substance; but in determining that question should pay attention to the language of the statutory provision rather than to cases reflecting the language of other and different provisions.
  5. [18]
    It might also be noted that when considering the question whether the applicant in the Federal Court had no reasonable prospect of successfully prosecuting the proceeding, French CJ and Gummow J referred to the decision of Lindgren J in White Industries Australia Ltd v Federal Commissioner of Taxation, where his Honour pointed out that while a party’s pleading might not disclose a reasonable cause of action, or that the applicant has a reasonable prospects of success, that would not be sufficient for the court to give judgment for a respondent under s 31A(2).[14]  The question is ultimately whether the applicant has a reasonable cause of action, or reasonable prospects of success; and any insufficiency in a pleading may well be capable of remedy to reflect such prospects.  As their Honours observed, the section:

… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable.  It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment.[15]

  1. [19]
    In my respectful opinion, these observations are of assistance in determining whether a proceeding is lacking in substance, for the purposes of s 47(1).
  2. [20]
    The other grounds set out in s 47(1) are generally well known.  It is unnecessary to comment on them further, save to observe that, in Broadbent v Medical Board of Australia proceedings were appropriately determined to be an abuse of process where their predominant purpose was one which might be characterised as improper.[16]

Misconceived Discipline Application

  1. [21]
    The contention that the Discipline Application is misconceived appeared in Submission 2, apparently on the basis that the respondent’s work as an advocate was of benefit to the public.[17]  Something similar appeared in Submission 4,[18] and the matter was again raised in Submission 5.[19]
  2. [22]
    In a document provided with Submission 4, and identified as an “APPLICATION TO STRIKE OUT/DISMISS”,[20] the respondent contended that the application should be dismissed because new information contained in emails from a community legal centre demonstrated that there was knowledge and general approval for the respondent’s appearing as a solicitor in the AAT.   This was in compliance with the conditions of her practising certificate. 
  3. [23]
    In Submission 5, the respondent contended that the applicant’s decision to prosecute her was wrong in law and unsustainable in law.[21]  A proceeding may be struck out where a respondent can show a good defence sufficient to warrant the termination of a proceeding.  She contended that, in appearing in the ABC matter, she was a “Disability Advocate”, and as such did not require a practising certificate.  She also contended that the relevant community legal service was “well aware of my NDIS activities”. Her role was secondary to the advocate who had written extensive submissions.[22]
  4. [24]
    The applicant did not substantively engage with these submissions save to say that she has raised a case for the respondent to answer, and that the respondent’s contentions do not engage the principles relating to striking out an application identified in Grant v Russell[23] and Whitty v Moller.[24]
  5. [25]
    A significant part of the respondent’s case is that it is sufficiently clearly established that she did not engage in legal practice in breach of the conditions of practising certificate. To deal with this, it is necessary to say something about the certificate and its conditions.
  6. [26]
    The power to impose a condition limiting the certificate holder to supervised legal practice is expressly conferred on the regulatory authority by s 53 of the Legal Profession Act 2007 (“LP Act”).  A starting point for understanding the condition is the statutory definition of supervised legal practice.  The expression is defined in the Schedule to the LP Act in the following terms:

supervised legal practice means legal practice by a person who is an Australian legal practitioner—

  1. (a)
    as an employee of a law practice if—
  1. (i)
    at least 1 partner, legal practitioner director or other employee of the law practice is an Australian legal practitioner who holds an unrestricted practising certificate; and
  2. (ii)
    the person engages in legal practice under the supervision of an Australian legal practitioner mentioned in subparagraph (i); or
  1. (b)
    as a partner in a law firm if—
  1. (i)
    at least 1 other partner is an Australian legal practitioner who holds an unrestricted practising certificate; and
  2. (ii)
    the person engages in legal practice under the supervision of an Australian legal practitioner mentioned in subparagraph (i); or
  1. (c)
    in a capacity approved under administration rules.
  1. [27]
    The Discipline Application is founded on s 58 of the LP Act, which provides that the holder of a current legal practising certificate must not contravene a condition to which the certificate is subject.  As it happens, the example provided in the Act is based on a condition that the certificate holder may only engage in supervised legal practice.
  2. [28]
    The Tribunal has not had assistance as to the effect of the condition requiring the respondent to engage only in supervised legal practice.  The practising certificate was plainly intended to authorise the respondent to engage in legal practice as a volunteer at a community legal service, or for a pro bono project approved by the Australian Pro Bono Centre. Without the benefit of submissions as to the relationship between the condition relating to practice of this kind, and the condition limiting her to supervised legal practice, for the present application it seems appropriate to assume that the respondent would not be in breach of the conditions of her practising certificate if she was engaged as a volunteer at such a service, or was providing legal services on a relevant pro bono project, even if that was not supervised legal practice.  At least for the purposes of this application, the requirement of the condition imposed on the respondent’s practising certificate that she only engage in supervised legal practice may be understood as a requirement that she otherwise only engage in legal practice in the capacities, and subject to the restrictions, stated in the definition.[25]  Thus it will be assumed that if the respondent was engaged in supervised legal practice, or if she was acting within the condition relating to volunteer work, then she was not in breach of the conditions of her practising certificate.
  3. [29]
    It is convenient to describe an allegation that a proceeding is so lacking in merit, or the defence to it is so well established, that the proceeding should be struck out, as an “absence of merits” allegation.  The same description may be used for an allegation that a proceeding is lacking in substance, for the purposes of s 47(1)(b) of the QCAT Act.  The latter may be easier to establish.  It is therefore proposed to consider whether the case against the respondent is “lacking in substance” for the purposes of s 47(1)(b).  It is inappropriate for the Tribunal to comment, in the present application, on whether the material before it establishes the allegations in the Discipline Application.  The Tribunal is only required to determine whether this is a case where the application is so lacking in substance as to warrant its summary dismissal.
  4. [30]
    Section 24 of the LP Act prohibits a person from engaging in legal practice in Queensland unless the person is an Australian legal practitioner.  To be an Australian legal practitioner, a person must hold a relevant practising certificate.[26] The expression “engage in legal practice” is defined to include “practise law”.[27] 
  5. [31]
    The allegations made in paragraphs 1.3 to 1.15 of the Discipline Application appear to be substantially admitted.  It has not been suggested there is no, or insufficient, evidence to support them.  It is apparent that, on their face, they provide a substantial basis for finding that, on a number of occasions, the respondent represented herself, and acted, as a solicitor, and was thus practising law, or engaging in legal practice. 
  6. [32]
    The respondent contended that she was acting as a disability advocate, and that her role was secondary to the advocate who represented Mr ABC.[28]  She also contended that the LSC does not seem to understand the role played by a disability advocate.[29]  This appears to amount to a submission that the respondent was not engaged in legal practice on the occasions alleged.  To accept that submission, the Tribunal would have to be satisfied that the respondent was not acting as a solicitor, or practising law, on those occasions.  That has not been established.  There is an adequate basis for a finding (at a final hearing of the Discipline Application) that, on the occasions identified in paragraphs 1.5 to 1.15 of the Discipline Application, the respondent engaged in legal practice. To the extent that the Discipline Application is based on an allegation that the respondent engaged in legal practice, it cannot be said that the allegation lacks substance.
  7. [33]
    The occasions which have just been referred to all relate to the ABC matter.  In Submission 5, the applicant pointed out that Mr ABC was not a client of the community legal service.[30]  That would provide an adequate basis for a finding that, in this matter, the respondent was not engaging in legal practice “at” a community legal service. 
  8. [34]
    The respondent’s case appears to be that, because the service was aware of her “NDIS activities”, that was sufficient to satisfy the condition.  The premise itself is not clearly established, at least so far as it extends to her representation of Mr ABC, and may be contentious.[31]  In any event, it is not sufficient to show that, in acting in the ABC matter, she did so as a volunteer at a community legal centre. 
  9. [35]
    There has been no suggestion that the respondent was engaged in the ABC matter, as a pro bono project approved by the Australian Pro Bono Centre.  The circumstances in which she became involved, as she described them,[32] do not indicate that the ABC matter was such a project. 
  10. [36]
    Accordingly, to the extent that the applicant’s case is based on the proposition that the respondent was not acting within the condition relating to volunteer work, it is not shown to be lacking in substance.
  11. [37]
    The remaining basis on which the respondent might contend that she complied with the conditions is that, when acting in the ABC matter, she was engaged in supervised legal practice. The only matter which might support this contention is the respondent’s relationship with the community legal centre. Whatever other difficulties there might be with this contention, the respondent’s statement that Mr ABC was not a client of the centre would provide a sufficient basis for finding that the respondent was not engaged in supervised legal practice when acting in the ABC matter.  Nor is there any evidence to suggest supervision. 
  12. [38]
    The reference in the definition of “supervised legal practice” to a capacity approved under administration rules was not the subject of submissions.  It would therefore be inappropriate to strike out the Discipline Application on the basis that the respondent was, or might have been, acting in such a capacity.
  13. [39]
    The respondent has not demonstrated that the Discipline Application lacks substance on the basis that she was engaged in supervised legal practice, or was engaged in practice “at” a community legal service, or on a relevant pro bono project.
  14. [40]
    The respondent also contended, when dealing with this topic, that her work was in the public interest.[33]  The respondent has not explained the relevance of this contention to her allegation that the discipline application is misconceived, and its relevance is not apparent.
  15. [41]
    It is not clear in what other sense the respondent contended that the Discipline Application is misconceived. However, it cannot be said that it is misconceived because it lacks foundation, sufficient to result in a determination adverse to the respondent.  For similar reasons, and bearing in mind the prohibition in s 58 of the LP Act, it cannot be said that the application is wrong in law, or unsustainable in law.
  16. [42]
    Accordingly the respondent’s application does not succeed on this ground.

Denial of procedural fairness

  1. [43]
    When required by the application form to identify the reasons for her application to strike out the discipline application, the respondent wrote “See submission with attachments”.[34]  It is not clear what this refers to. However, Submission 1 made reference to a lack of procedural fairness.[35]  The same is true of Submission 2, where reference is made to the fact that the applicant had not answered questions in important correspondence, had not acknowledged the receipt of requested submissions, and had denied the respondent her right to speak (also said to be a breach of the HR Act).[36]  Submission 3 is devoted entirely to the allegation of a lack of procedural fairness.  The topic is also raised in Submission 4, which contains some reference to the respondent’s contention that she was prevented from communicating orally with the LSC.[37] Although in reply, Submission 5 again returns to this topic, where a number of matters were raised[38].  The allegations seem ultimately to relate to the applicant’s decision to bring, and maintain, the discipline application.
  2. [44]
    The matters relied upon by the respondent in Submission 2 have already been mentioned.  In Submission 3, the respondent alleged that she had been denied the opportunity to speak with an investigator about important issues concerning the investigation; and she was advised in correspondence that she could only communicate in writing. The respondent complained of inappropriate communications, including criticism of her choice of barrister; alleged inappropriate and somewhat threatening remarks relating to s 705 of the LP Act; and the conduct of the investigator, said to be dismissive when the respondent spoke of her pro bono work.  Reference was also made to important emails which included warnings about her health and were said not to have been answered or acknowledged. 
  3. [45]
    In Submission 5, the respondent identified her grounds as being that she was instructed not to communicate orally with the LSC; that there were inappropriate communications (apparently a reference to matters raised in Submission 3); the making of threatening remarks based on s 705 of the LP Act (again a reference to Submission 3); the dismissive remarks said to have been made about the respondent’s pro bono work (again a reference to Submission 3); unanswered correspondence (again a reference to Submission 3); the fact that the complaint about the investigator was not heeded (a reference to Submission 3); and the alleged failure by the applicant to adhere to model litigant obligations (again a reference to Submission 3).[39]
  4. [46]
    Submission 5 also referred to alleged deceptive conduct on the part of the LSC, said to have been in support of a request that the respondent discontinue a complaint about the conduct of the investigator, and her right to information request; but these seem to have been abandoned.[40]
  5. [47]
    The only submissions from the applicant on these matters appear to be that the respondent’s contentions do not engage with the principles expressed in the authorities regarding summary dismissal and strike out pursuant to s 47 of the QCAT Act; and that no instructions were given by the applicant or the LSC to the respondent not to communicate orally; rather a preference was expressed for communications to be in writing.
  6. [48]
    In support of her contention that she had a right to procedural fairness, the respondent referred to the following passage from Commissioner of Police v Tanos:

… it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person of property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard.[41]

  1. [49]
    Neither party addressed the question whether a decision to commence and continue a Discipline Application is itself a judicial or quasi-judicial proceeding; nor whether such a decision might be said to be one by which the respondent was punished or prejudiced in her person or property.
  2. [50]
    A more recent formulation of the requirement to accord procedural fairness in a context like the present one is to be found in Minister for Immigration and Border Protection v WZARH, where the following was stated by Kiefel, Bell and Keane JJ:

… in the absence of a clear, contrary legislative intention, administrative decision‑makers must accord procedural fairness to those affected by their decisions.[42]

  1. [51]
    Again, whether the decision of the applicant to bring and continue a Discipline Application is one to which this principle applies has not been the subject of any submission.  In those circumstances, it seems appropriate to proceed on the basis that the respondent was entitled to be accorded procedural fairness. Indeed, as will be seen, there is a requirement that some form of procedural fairness be provided in the LP Act.
  2. [52]
    The LP Act envisages that the applicant may act if she believes that an investigation about a matter (called an “investigation matter”) should be started into the conduct of an Australian legal practitioner.[43]  Her conduct is then regulated by s 436 of the LP Act which includes the following:
  1. 436Commissioner investigating a complaint or investigation matter
  1. (1)
    The commissioner must investigate a complaint or an investigation matter if the commissioner is satisfied –
  1. (a)
    it is inconsistent with the public interest for the relevant regulatory authority to investigate the complaint or investigation matter, or
  2. (b)
    it is in the public interest for the commissioner to investigate the complaint or investigation matter.
  1. (2)
    Also, the commissioner must investigate a complaint or investigation matter that is not mentioned in subsection (1) but is not referred to a regulatory authority under section 435(2).
  1. [53]
    The further conduct of the matter is then the subject of s 437 which includes the following:
  1. 437Respondent to be notified of complaint or investigation matter
  1. (1)
    The entity carrying out an investigation as mentioned in section 435 or 436 must ensure that written notice of the following is given to the respondent—
  1. (a)
    the making of the complaint or the investigation into an investigation matter;
  2. (b)
    the nature of the complaint or investigation matter;
  3. (c)
    for a complaint, the identity of the complainant;
  4. (d)
    action taken by the entity in relation to the complaint or investigation matter before giving the notice.
  1. (2)
    Also, the notice must advise the respondent that he or she may make submissions to the entity by a stated date that is reasonable.
  1. [54]
    Section 438 then provides as follows:
  1. 438Submissions by respondent
  1. (1)
    A respondent given a notice under section 437 may, by the date stated in that notice, make written submissions to the commissioner or the stated relevant regulatory authority about the complaint or investigation matter.
  2. (2)
    At the request of the respondent or the regulatory authority, the commissioner may substitute a later date by which submissions may be made.
  3. (3)
    The commissioner or regulatory authority must consider the submissions made before the stated date or any later date before deciding whether to make a discipline application relating to the complaint or investigation matter.
  1. [55]
    The applicant’s power to start a proceeding is then set out in s 447, as follows:
  1. 447Decision of commissioner to start proceeding under ch 4

As the commissioner considers appropriate in relation to a complaint or investigation matter that has been or continues to be investigated, other than a complaint or investigation matter about the conduct of an unlawful operator, the commissioner may start a proceeding under this chapter before a disciplinary body.

  1. [56]
    The applicant may nevertheless dismiss a complaint under s 448, which provides:
  1. 448Dismissal of complaint
  1. (1)
    The commissioner may dismiss the complaint or investigation matter if satisfied that—
  1. (a)
    there is no reasonable likelihood of a finding by a disciplinary body of —
  1. (i)
    for an Australian legal practitioner—either unsatisfactory professional conduct or professional misconduct; or
  2. (ii)
    for a law practice employee—misconduct in relation to the relevant practice; or
  1. (b)
    it is in the public interest to do so.
  1. [57]
    This power to commence proceedings is more specifically identified in s 452 as follows:
  1. 452Starting proceeding before a disciplinary body
  1. (1)
    The commissioner may apply—
  1. (a)
    to the tribunal for an order against an Australian legal practitioner in relation to a complaint against the legal practitioner or an investigation matter; or
  2. (b)
    to the committee for an order—
  1. (i)
    against an Australian legal practitioner in relation to a complaint against the legal practitioner or an investigation matter; or
  2. (ii)
    against a law practice employee in relation to a complaint against the employee or an investigation matter Involving the employee.
  1. (2)
    An application under subsection (1) is a discipline application.
  1. [58]
    It can be seen that the statute itself requires that a person in the position of a respondent be given written notice of the investigation; including the nature of the investigation matter.[44]  It also confers on such a person the right to make submissions to the applicant about such a matter.[45]  The respondent has not suggested that she was not given the opportunity to exercise the right conferred on her by s 438 of the LP Act.[46] 
  2. [59]
    The conferral of a specified right to make submissions relevant to a decision is not in itself sufficient to restrict or limit the operation of the rules of natural justice.  In Annetts v McCann, Mason CJ, Deane and McHugh JJ said:

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: Commissioner of Police v. Tanos; Twist v. Randwick Municipal Council; Heatley v. Tasmanian Racing and Gaming Commission; J. v. Lieschke; Haoucher v. Minister for Immigration and Ethnic Affairs.  In Tanos, Dixon C.J. and Webb J. said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from ‘indirect references, uncertain inferences or equivocal considerations’.  Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v. Parole Board of New South Wales.  In Kioa v. West, Mason J. said that the law in relation to administrative decisions:

has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

In Haoucher, Deane J. said that the law seemed to him:

to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making.[47]

  1. [60]
    If the applicant was required to provide procedural fairness to the respondent, this is not necessarily limited to what is required by ss 437 and 438 of the LP Act. 
  2. [61]
    One of the matters raised by the respondent is that she was limited to written communications in relation to the investigation.[48]  In WZARH Kiefel, Bell and Keane JJ said:

… there is no general rule that procedural fairness requires an administrative decision-maker to afford a person affected by the decision an oral hearing in every case.  Whether an oral hearing is required in order to accord procedural fairness to a person affected by an administrative decision depends on the practical requirements of procedural fairness in the circumstances of the case.[49](citations omitted)

  1. [62]
    Since it is the respondent who seeks relief in the present application, it is for her to demonstrate that she was entitled to an oral hearing by reference to the practical requirements of procedural fairness in the circumstances of the case.   
  2. [63]
    The respondent made a broad submission that not being able to communicate orally hindered the progress of the case and disadvantaged her.[50] The respondent has not identified any specific disadvantage, so that the Tribunal can determine whether some form of oral hearing was required, by reference to the practical requirements of procedural fairness in the circumstances of this case. A broad allegation of disadvantage is not sufficient for this purpose. 
  3. [64]
    In any event, the respondent made an oral communication to the LSC on 13 January 2023, and was invited to provide additional submissions as a consequence.[51]  The respondent’s material indicates that she provided submissions and correspondence on seven separate occasions.[52]  In these circumstances, it cannot be concluded on the material before the Tribunal that the practical requirements of procedural fairness in the circumstances of this case made it necessary that she be granted some further oral hearing.
  4. [65]
    Indeed, the respondent’s allegation that she was limited to written communications is debatable.  In Submission 3, the respondent contended that she was advised in correspondence that she could only communicate with the LSC in writing.[53]  However, she subsequently stated that in addition to an email stating that communication from the respondent should preferably be in writing,[54] there were other emails “discouraging” her from communicating orally, and that attempts to contact LSC staff by telephone were unsuccessful.[55]  The respondent has not identified the emails to which she refers, and they do not appear to be in the material before the Tribunal.  The applicant’s submission has already been mentioned.
  5. [66]
    In the email of 13 January 2023, the LSC stated a preference that the respondent engage with its officers in writing, rather than by telephone.[56] An email to the respondent of 18 July 2023 expressed a similar preference.[57] An email of 24 July 2023 to the respondent referred to the LSC’s “request” that all communications be in writing, but this appears to be a reference to the preference expressed in the earlier emails.  On the material before the Tribunal, it can be seen that the LSC expressed a preference for any communication in the nature of a submission to be in writing; but did not limit the respondent to written communications.  She has not established that the applicant would not permit her to communicate orally.
  6. [67]
    The respondent also contended that her submissions and correspondence appeared not to have been duly considered.[58]  This seems to have been a conclusion reached by the respondent, but she has not presented any argument to support it.  There is no evidence to show that her submissions were not considered.  That cannot be inferred from an absence of a response.  Moreover, in emails from the LSC to the respondent dated 17 July 2023, 18 July 2023 (on two occasions, at 2.13 pm, and at 5.27 pm), and 24 July 2023, there are communications which assert or imply that communications from the respondent had been considered by the LSC.[59]  The respondent did not take issue with these emails.  The respondent’s contention should not be accepted.
  7. [68]
    None of the other matters raised by the respondent is sufficient to demonstrate that the respondent has been denied procedural fairness in relation to the applicant’s decision to bring (and maintain) the Discipline Application.  While the respondent has complained about what she described as inappropriate communications, they do not indicate any restriction on her ability to make submissions on these questions.  Thus, comments about her choice of a barrister for the substantive hearing are irrelevant.  Nor does a reference by an officer of the LSC to s 705 of the LP Act (which prohibits disclosure of information obtained in the administration of the Act, with some expressed exceptions) amount to a denial of procedural fairness.  If it is true that an officer of the LSC was dismissive in speaking of the respondent’s pro bono work for vulnerable people, that may have been inappropriate; but it does not demonstrate that the respondent was not given a fair opportunity to present any matter she wished to present, on the question whether the applicant should commence and maintain these proceedings.  The same may be said in relation to the fact that emails were not answered or acknowledged,[60] and the fact (if true) that a complaint about the conduct of an officer of the LSC has not been dealt with.  It is difficult to see how model litigant obligations are relevant to the question whether the respondent has been given a proper opportunity to be heard on the question whether the proceedings should have been brought and maintained.
  8. [69]
    The respondent has not established that she has been denied procedural fairness; and accordingly that the application should be struck out under s 47 of the QCAT Act for that reason.

Breach of Human Rights Act

  1. [70]
    The respondent has submitted that she has been instructed not to communicate orally with the LSC, and this is in breach of s 21(2)(a) of the HR Act.[61]  The applicant does not appear to have engaged with this submission.
  2. [71]
    Section 21 deals with freedom of expression, and states that every person has the right to this freedom, which includes the freedom to impart information and ideas orally, or in other ways.  However, it is unnecessary to consider this provision, or provisions which attach consequences to it.
  3. [72]
    The respondent’s submission is premised on an allegation that she has been instructed not to communicate orally with the LSC.  For reasons already expressed, that premise has not been established.

Abuse of power/breach of LSC’s guidelines

  1. [73]
    In Submissions 2 and 5, the respondent contended that the applicant had abused her power, because she had not followed guidelines published by the LSC. Those guidelines state that the applicant does not believe that the public interest requires that a Discipline Application be brought, whenever the reasonable likelihood test is met, that is, whenever there is a reasonable likelihood that the application will succeed.  She will only bring a Discipline Application where the reasonable likelihood test is met, and she is satisfied that it is in the public interest to do so. 
  2. [74]
    The respondent contended that the Discipline Application was not in the public interest.  It was not necessary to protect the interests of the public, and failed to recognise the public benefit of the work she did.  The respondent submitted that (consistent with the guidelines) there was a more cost effective way to deal with the matter.  The respondent contended that the applicant had acted unfairly, by engaging one of His Majesty’s Counsel early in these proceeding, the respondent has no financial capacity to pay costs, and there is no capacity to argue that the applicant’s costs are unreasonable.[62] 
  3. [75]
    The respondent associated some of her contentions with an allegation that the proceeding was an abuse of process.  She did not otherwise relate them to the statutory provisions on which her application is based.  However, they appear to be directed to s 47(1)(a) and (c) of the QCAT Act, and that is how the applicant has dealt with them.[63]  In principle it is likely that where proceedings are instituted in abuse of a statutory power to bring them, the proceedings would be regarded as an abuse of process, because the curial process is being used in circumstances where the use exceeds what is authorised by statute.
  4. [76]
    With respect to the respondent’s contentions that the applicant has not acted in accordance with the guidelines, it was submitted for the applicant that they did not engage with the principles relating to summary dismissal and strike out under s 47 of the QCAT Act, identified in Grant v Russell and Whitty v Moller.  The issues raised by the respondent were said to be matters to be argued at the final hearing.  The material put forward by the applicant in the present application shows that the respondent has a case to answer in respect of the charge in the Discipline Application. 
  5. [77]
    The applicant’s submission that the issues raised by the respondent were matters to be argued at a final hearing is misconceived. The respondent has challenged the propriety of the Discipline Application.  That is a matter appropriately considered in advance of the final hearing.
  6. [78]
    The applicant’s submissions do not come to grips with the issue raised by the respondent.  It is apparent from the guidelines that the public interest test assumes that the reasonable likelihood test is satisfied; and identifies matters to be considered in determining whether nevertheless a Discipline Application should or should not be brought.  The submission that the respondent has a case to answer[64] is relevant only to the reasonable likelihood test, and not the public interest test.  It is not an adequate response to the allegation that the application has been brought in breach of the guidelines.
  7. [79]
    The authorities on which the applicant relied[65] are cases which were concerned with applications to strike out proceedings on the ground that they were unlikely to succeed.  However the power to summarily dismiss or strike out proceedings is by no means limited to such cases.
  8. [80]
    As previously noted, the statute has adopted the expression “abuse of process” which has been used in a variety of contexts.  There is no reason to think that the established approach to the use of this expression is not to be adopted in relation to s 47 of the QCAT Act.
  9. [81]
    Walton v Gardiner[66] was a case concerned with the supervisory jurisdiction of the New South Wales Court of Appeal to stay proceedings before the Medical Tribunal constituted under the Medical Practitioners Act 1938 (NSW).  As was pointed out in that decision, the New South Wales Court of Appeal had in an earlier case determined that it had supervisory jurisdiction to stay such proceedings on the ground of abuse of process, and an application for special leave from its decision was refused.[67] In dealing with that ground, the majority (Mason CJ, Deane and Dawson JJ) said:

In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective - i.e. protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000, there is plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings. In that regard, it is relevant to mention that we do not read any of the provisions of the Act as expressly or impliedly cutting down the scope of the general supervisory jurisdiction of the Court of Appeal to stay proceedings in the Tribunal on abuse of process grounds. As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.[68]

  1. [82]
    There is no reason to think that similar considerations do not apply to the notion of abuse of process in s 47 of the QCAT Act, particularly where the alleged abuse relates to proceedings which are disciplinary in nature.  It will be apparent from the passage just quoted that a number of factors and considerations are to be taken into account.
  2. [83]
    Earlier, their Honours had discussed the concept of abuse of process in the following passage:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.[69]

  1. [84]
    More recently, in Batistatos v Roads and Traffic Authority of New South Wales[70] Gleeson CJ, Gummow, Hayne and Crennan JJ said:

What amounts to abuse of court process is insusceptible of a formulation comprising closed categories.  Development continues …[71]

  1. [85]
    Their Honours also said:
  1. 14.In Ridgeway v The Queen, Gaudron J explained:

The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are 'frivolous, vexatious or oppressive'. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process.  Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard.  That is necessarily so.  Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.  That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning.  As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'.’

  1. 15.Earlier, in Rogers v The Queen, McHugh J observed:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:  (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.

His Honour added:

Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings.  But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.

To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious.  Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.[72]

  1. [86]
    It is abundantly clear from these passages that the concept of abuse of process, at least in relation to proceedings in a court, is not limited to cases which might be described as “groundless”[73] or lacking in substance.  It is not restricted to closed categories, although, as stated in Rogers v The Queen, there are three more common categories.[74]  There has been no submission on behalf of the applicant to suggest, and it is not apparent, that the context provided by the nature of a disciplinary application, or the QCAT Act, affects the scope of this concept.  Accordingly, this judgment will proceed on the bases identified in Walton and Batistatos.
  2. [87]
    The respondent’s contentions are based upon the LSC’s Discipline Application guidelines, available on the Commission’s website.[75]  While the applicant has (erroneously) submitted that the respondent can only succeed if she establishes that the application should be struck out in accordance with the principles stated in Grant and Whitty, she has not specifically submitted that the guidelines are irrelevant to her decision to bring the Discipline Application against the respondent.  They bear some analogy to policies, generally considered relevant to the exercise of a statutory discretion.[76]  It is appropriate to proceed on the basis that the policy (assuming it to be valid) was a relevant consideration for the applicant in deciding to bring the Discipline Application.
  3. [88]
    The essence of the guidelines appears in paragraph 15, as follows:

The Commission will not make a Discipline Application to a disciplinary body unless it is satisfied that the evidence after investigation establishes that:

  • There is a reasonable likelihood of a finding by the disciplinary body of unsatisfactory provisional conduct or professional misconduct (or in the case of law practice employees, misconduct) – the reasonable likelihood test.
  • It is in the public interest to make a Discipline Application – the public interest test.
  1. [89]
    Taken literally (and assuming the reference to the Commission is to be read as a reference to the applicant), paragraph 15 appears to be inflexible.  A guideline needs to be expressed in such a way that it is flexible enough to deal with individual cases.[77]  However, it has not been suggested that the guidelines are invalid. 
  2. [90]
    At an early point, the guidelines make the observation that the applicant has a “wide discretion” in the exercise of her authority to investigate the conduct of legal practitioners, and as to what action is to be taken thereafter.[78]  While they also state that the guidelines “describe how the Commissioner will exercise that discretion”,[79] that is qualified by the statement that the guidelines “have the status only of guidelines, not prescriptive rules.  They do not have the force of law”.[80]
  3. [91]
    The guidelines are concerned with the discretion which arises under ss 447 and 452 of the LP Act.  That discretion falls to be exercised in each matter which is investigated.  While paragraph 15 of the guidelines, read in isolation, could be seen as mandating a decision not to bring a discipline application unless the applicant considers it is in the public interest to do so, other passages in the guidelines indicate that it is not prescriptive. The paragraph should not be seen as pre-determining the exercise of the discretion to bring a discipline application.[81]
  4. [92]
    Lawyers then acting for the respondent provided a detailed submission directed to the public interest test, as described in the guidelines.[82]  The submission assumed that the reasonable likelihood test had been satisfied.[83]  They concluded with a submission that the applicant could be satisfied that a Disciplinary Application was no longer required.  The respondent has relied on this submission.
  5. [93]
    Taken literally, paragraph 15 turns on the satisfaction of the applicant that it is in the public interest to bring the Discipline Application, a matter peculiarly within the applicant’s knowledge.  She has not led evidence to show that she was satisfied that is in the public interest to bring the Discipline Application.  Nor has she contended that the decision to do so is consistent with the guidelines.  Given the manner in which the applicant’s case has been conducted, it is appropriate to assume that the decision to bring the Discipline Application is not consistent with the applicant’s guidelines, because the applicant was not satisfied that it was in the public interest to bring the Discipline Application.
  6. [94]
    An analogy may be drawn between the LSC’s Guidelines, and guidelines adopted by prosecuting authorities.  In R v Grey, Simpson J (in dissent) stated that such guidelines are precisely that, and that they do not create any enforceable right in any individual.[84]  However, her Honour referred to the guidelines under consideration as consistent with ordinary notions of fairness, relevant to the question whether a miscarriage of justice occurred in criminal trial when they were breached.  The breach was a failure (without any fault on the part of the prosecutor) to disclose information relevant to the credit of the principal prosecution witness.  The guidelines appear to have been relied upon by her Honour to support the conclusion, based on ordinary notions of fairness, that the appellant had not been given a fair trial.  No further significance was attributed to them by her Honour.
  7. [95]
    The appellant in Culverwell v Ginbey had been convicted of an offence of cruelty to an animal.[85]  On her appeal, she contended that the prosecution against her had been brought in breach of a prosecution policy.  It included tests somewhat analogous to the reasonable likelihood test and the public interest test found in the LSC’s Guidelines.
  8. [96]
    Corboy J noted that the decision to prosecute is a discretion vested in the relevant prosecuting authority.  It is not to be reviewed by a court except on the ground of abuse of process.[86]  His Honour considered that a failure to adhere to the policy could not, in itself, constitute an abuse of process.[87]  He also stated:

It follows from the authorities to which reference has been made that the policies of a prosecuting authority and the decision to prosecute and the conduct of a prosecution; the question of whether there has been compliance with any policy; and the decision to prosecute, are not subject to judicial review.  That is regardless of whether the review is sought under the guise of an appeal from conviction or through an application under s 36 of the Magistrates Court Act 2004 (WA).[88]

  1. [97]
    His Honour’s reference to s 36 of the Magistrates Court Act 2004 (WA) is of some present significance.  It provides statutory authority for a review by the Supreme Court of Western Australia of the actions of an officer of the Magistrates Court on a number of grounds, including abuse of process.
  2. [98]
    In Te Waiti v Western Australia an accused person made an application for a permanent stay of a count on an indictment, on the ground that the count was brought in breach of DPP Guidelines.[89]  One provision of the guidelines was that charges should not be instigated or continued in order to provide scope for plea negotiation.  In the course of negotiations, counsel for the accused person was informed that a further charge would be brought against the accused, if he did not enter pleas to existing charges.  Sleight CJDC reviewed a number of authorities, and concluded that a permanent stay based upon an abuse of process will only be ordered in exceptional circumstances.[90]  He noted that the guidelines had no legal force, but provided recognition of what is common and appropriate practice for the conduct of negotiations concerning criminal charges.[91]  The application for a stay of the charge was refused.
  3. [99]
    The authorities which have been discussed would suggest that the application of guidelines such as the LSC’s Guidelines may be relevant to determining whether proceedings amount to an abuse of process; but the mere fact that the proceedings are inconsistent with the guidelines does not itself establish abuse.
  4. [100]
    Because the applicant is required to exercise the discretion to commence proceedings by reference to the circumstances of each case, and no doubt, the objects and provisions of the LP Act, the fact that the decision to commence proceedings is not in accordance with the Guidelines does not of itself mean the proceedings are an abuse of process.
  5. [101]
    As mentioned, the respondent contended that the Discipline Application was an abuse of process because the applicant acted unfairly in relation to it.  The applicant engaged one of his Majesty’s counsel at an early stage, the respondent does not have the capacity to pay costs, and she will not be able to argue that an order for costs would be unreasonable.  In this context, the respondent alleged that the applicant has acted in breach of the Model Litigant principles, taking advantage of her financial situation.[92]
  6. [102]
    It is apparent from the passages in Walton quoted earlier in these reasons, questions of fairness may be relevant in deciding whether a proceeding is an abuse of process.[93]  However, not all instances of unfairness in relation to a proceeding have the consequence that it is an abuse of process.
  7. [103]
    It is first worth noting that the exercise of a power to stay permanently or to strike out a proceeding is exceptional.[94]
  8. [104]
    In Palmer Leisure Coolum Pty Ltd & Anor v Magistrates Court of Queensland & Ors the applicants sought the stay of criminal proceedings, on the ground of delay said to cause unfairness or oppression.[95]  At first instance, Ryan J said:

The prejudice or unfairness which enlivens the discretion to stay criminal proceedings is the prejudice which detracts from a fair trial: a real and incurable adverse effect (cf Barac; R v Derby Crown Court, referred to in Clayton v Ralphs) – not unfairness in a more general sense.[96]

  1. [105]
    Her Honour’s approach was upheld on appeal.[97]  Fraser JA (with whom the other members of the court agreed) said:

The primary judge observed that the kind of prejudice or unfairness which enlivens the discretion to stay a criminal proceeding is that which detracts from a fair trial; there must be delay producing an adverse effect which is incapable of being cured in the criminal proceedings, such as by directions of the trial judge.  The primary judge considered that those allegations in the appellants’ pleadings do not satisfy that test.  I agree.  The allegations are manifestly incapable of contributing to a conclusion that the committal proceedings would or might amount to an abuse of process upon the basis of prejudice or unfairness detracting from a fair trial.[98]

  1. [106]
    The passages from both of these judgments are based on a statement by Keane JA (as he then was), supported by the other members of the court, in Barac v DPP; Barac v Stirling.[99]  His Honour said:

The kind of prejudice which has been regarded as enlivening the discretion to stay a prosecution is that prejudice which detracts from the prospects of a fair trial.  A person accused of crime is put to expense and is made to undergo stress in every prosecution.  Sometimes that expense is increased and the stress is exacerbated by inefficiency, and even on occasion incompetence, on the part of those charged with the responsibility of presenting the case for the Crown.  It has never been said that these circumstances, alone and without more, justify a stay of proceedings.  

  1. [107]
    The respondent has not sought to demonstrate that the unfairness which she alleges will affect the fairness of the hearing of the Discipline Application.  The matters alleged, if unfair, do not provide a basis for terminating the proceedings.
  2. [108]
    There is nothing which may be regarded as exceptional in the present case, in relation to the possible effect of a costs order against the respondent, so as to warrant summary termination of the proceedings.  The costs regime which applies under the LP Act will affect all respondents.  Many of them are in a position of financial difficulty by the time they face a discipline application.  It may have been less expensive to retain junior counsel to represent the applicant, but the extra expense which may ultimately fall on the applicant does not appear to be exceptional, sufficient to warrant a conclusion that the proceedings are an abuse of process.
  3. [109]
    Indeed, the matters which are relied upon by the respondent do not (with the possible exception of the engagement of senior counsel) seem to me to amount to unfairness on the part of the applicant.  They are a consequence of the statutory regime relating to costs imposed by the LP Act.
  4. [110]
    The respondent has not established that the applicant has engaged in unfair conduct which would warrant the termination of the Discipline Application. 
  5. [111]
    The respondent has failed to establish that the proceedings be stayed as an abuse of process because they are in breach of the applicant’s Guidelines, or they are unfair.

Alleged abuse of power/ acting for improper purpose

  1. [112]
    In Submission 4, the respondent contended that the applicant has engaged in an abuse of power, because she has acted with the intention of punishing the respondent.[100]  The respondent has also contended that the applicant has abused her power because the proceedings have been brought to exact retribution.[101]  The respondent does not intend to resume legal practice, and it is not necessary to punish her. The respondent also contended that the applicant may have an agenda of targeting “Disability Advocates”.  She supported these contentions by submitting that either she had not breached the conditions of her practising certificate, or alternatively any breach was of a very minor nature and was rectified.[102]   
  2. [113]
    The applicant has not engaged with these submissions.
  3. [114]
    In support of her submission that the applicant has acted punitively, the respondent made reference to a statement by Finn J in Robb v Law Society of the Australian Capital Territory,[103] considered in Legal Services Commissioner v Baker (No 1).[104]  Finn J stated that it was not open to argument that the “object of disciplinary action against legal practitioners is not to exact retribution; it is to protect the public and the reputation of the profession.”
  4. [115]
    It appears that the respondent is contending that, because the applicant has acted with the intention of punishing her, the applicant is acting for an improper purpose, and the proceedings are therefore an abuse of process.  However, the making of an order which has a punitive effect may well fall within the purpose of protecting the public, because the order will deter similar conduct.[105]  Conditions imposed on a practising certificate are generally intended to secure the protection of the public. The respondent has not explained why bringing proceedings which seek an order punishing a person for breaching a condition of a practising certificate amounts to acting for an improper purpose, so as to constitute an abuse of power.  The bringing of such proceedings would not, without more, demonstrate that the applicant has acted for an improper purpose.
  5. [116]
    The respondent has not sought to demonstrate that the applicant has brought the proceedings to exact retribution. Accordingly it is not possible to make such a finding.
  6. [117]
    Moreover, the respondent has not identified evidence which would demonstrate the purpose for which the applicant has acted, in bringing this Discipline Application.  She appears to rely on her contention that she had not breached the conditions of her practising certificate, as demonstrating that the applicant has acted for an improper purpose.  As has been discussed, there is a basis in the material before the Tribunal which is capable of supporting a finding that the respondent was in breach of those conditions.  While any misconduct, if established, would not appear to be particularly serious, that is ultimately a matter to be determined at the final hearing of the Discipline Application.  For present purposes it can be said the apparent low level of seriousness does not support a finding that the applicant has brought the proceedings for some improper purpose. 
  7. [118]
    The respondent has not attempted to demonstrate that the applicant is targeting “Disability Advocates”.  It is not established by the material before the Tribunal.
  8. [119]
    The respondent has not established that the applicant is acting for any purpose other than the performance of her statutory obligations and function under the LP Act.  This ground is not made out.

Relief sought under s 48 of the QCAT Act

  1. [120]
    In Submission 2, the respondent contended that there had been a long investigation process, which was very stressful for her.[106] The Discipline Application was unnecessary, causing delay and prejudice. She contended that it had caused her serious harm.[107]
  2. [121]
    In Submission 3, the respondent contended that the period which had elapsed since the applicant commenced her investigation had had a serious adverse impact on her health.[108]  She advanced a similar contention in Submission 4.[109]
  3. [122]
    In Submission 4, the applicant also referred to her contentions in Submission 2, relying on both s 47 and s 48 of the QCAT Act.  She contended that medical evidence showed that the actions of the applicant had caused her psychological injury.  She was also disadvantaged because the applicant had engaged one of His Majesty’s counsel early in the proceeding, thus blowing out the cost.  She contended that the applicant’s failure to negotiate had adversely impacted her mental condition. 
  4. [123]
    In Submission 5, the respondent contended that the decision to proceed with the application was causing her serious harm, referring to what she had said in Submission 2.[110]  She also contended that s 48 applied because the applicant was taking advantage of the respondent’s financial position, she had caused a significant power imbalance by engaging one of his Majesty’s counsel early in the proceeding, reasonable offers to settle had been rejected, the actions of the applicant had been the direct cause of the respondent’s significant psychological injury, and the respondent’s poor mental health has hindered her ability to deal with this stressful litigation.  She also referred to the prospect of a substantive hearing at a time when she will be 70 years of age, with deteriorating mental health.[111]  She referred to delay caused by the applicant’s refusal to settle.[112]
  5. [124]
    The applicant has not addressed these contentions, and in particular has not addressed them in relation to s 48 of the QCAT Act.
  6. [125]
    Section 48 of the QCAT Act includes the following:
  1. 48Dismissing, striking out or deciding if party causing disadvantage
  1. (1)
    This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
  1. (a)
    not complying with a tribunal order or direction without reasonable excuse; or
  2. (b)
    not complying with this Act, an enabling Act or the rules; or
  3. (c)
    asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
  4. (d)
    causing an adjournment; or
  5. (e)
    attempting to deceive another party or the tribunal; or
  6. (f)
    vexatiously conducting the proceeding; or
  7. (g)
    failing to attend conciliation, mediation or the hearing of the proceeding without reasonable excuse.
  1. (2)
    The tribunal may—
  1. (a)
    if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out; or
  2. (b)
    if the party causing the disadvantage is not the applicant for the proceeding—
  1. (i)
    make its final decision in the proceeding in the applicant’s favour; or
  2. (ii)
    order that the party causing the disadvantage be removed from the proceeding; or
  1. (c)
    make an order under section 102, against the party causing the disadvantage, to compensate another party for any reasonable costs incurred unnecessarily.

Note—

See section 108 for the tribunal’s power to order that the costs be paid before it continues with the proceeding.

  1. (3)
    In acting under subsection (2), the tribunal must have regard to the following—
  1. (a)
    the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures;
  2. (b)
    the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions;
  3. (c)
    whether the party causing the disadvantage is acting deliberately.
  1. [126]
    In her submissions, the respondent made specific reference to the matters raised in s 48(3).
  2. [127]
    An examination of the language of s 48 indicates the following (at least for the purposes of the present application):-
    1. A party seeking relief under s 48 must demonstrate that the party against whom the relief is sought is acting in a way that unnecessarily disadvantages the first party;
    2. The conduct of the party against whom the relief is sought must be such as to warrant the relatively exceptional step of ordering the proceedings be struck out or dismissed.
  3. [128]
    In this context, the respondent has relied upon a report from Dr Laurel Morris, a Forensic Clinical and Health Psychologist, as establishing that harm had been caused to her by the applicant’s conduct in relation to the proceedings.  Dr Morris assessed the respondent’s condition by reference to what are apparently accepted methods of testing, one being the Depression Anxiety Stress Scales (“DASS”).  She reported that the scores resulting from the DASS assessment indicated a severe level of depression, moderate anxiety and severe stress.  Dr Morris diagnosed the respondent as suffering from an adjustment disorder with mixed anxiety and depressed mood.  She expressed the opinion that the respondent’s condition was due to the actions of the applicant in bringing a complaint about the respondent’s conduct, followed by the lack of discussion and negotiation with her with a view to resolving it. 
  4. [129]
    Dr Morris also expressed the view that an adverse finding against the respondent would cause intense distress and further aggravate her symptoms of anxiety, depression and hopelessness. However she went on to state that a major factor in the distress would be the loss of reputation she would suffer, a reputation which has been earned over many years.  Dr Morris stated that she understood that the respondent would be seeking to have a pseudonym used to refer to her, and stated that without this protection, the respondent would be placed under an extreme risk for her mental health, especially given her recent suicidal ideation.[113]
  5. [130]
    The applicant has not challenged or otherwise contested the material contained in Dr Morris’ report.  The conclusions expressed by Dr Morris are accordingly accepted.  The conclusion expressed by Dr Morris about the extreme risk to the respondent’s mental health is, naturally, very troubling.  However, that concern appears to be linked to the effect of the publication of adverse findings, resulting in a loss of reputation for the respondent.  Thus far, this concern has been addressed by non-publication orders.  It seems appropriate to assume that some form of non-publication order would be made, if there are ultimately adverse findings against the respondent.  Nevertheless, as indicated, it is accepted that the bringing of the proceedings, together with the lack of discussion and negotiation on the part of the applicant with a view to resolving them, has resulted in the respondent’s adjustment disorder with mixed anxiety and depressed mood.  It is also accepted that the investigation, and subsequent bringing of the application, have been stressful for the respondent. 
  6. [131]
    One of the matters of which the respondent complained in this context is the length of time for which the matter has been current, said to have been eight months in September 2023.[114]  The time appears to be calculated by reference to the applicant’s letter of 11 January 2023 giving notice of the commencement of the applicant’s investigation.[115]  Given her reliance on s 48, the respondent’s contention appears to be that the period of time which the investigation took, including the initial period after the Discipline Application was filed, unnecessarily disadvantaged her. The disadvantage she relies on appears to be the adverse impact on her health.
  7. [132]
    There is reason to think that the disadvantage contemplated by s 48 is disadvantage in relation to the proceeding. The language suggests that the disadvantage is that suffered by a party in his or her role as a party.  Although by no means decisive, the examples in s 48(1) support that view. So do the matters referred to in s 48(3)(a) and (b).  However the applicant has not contended that the harm the respondent relies on is not relevant to s 48.  It is therefore proposed to proceed on the basis that the harm relied on by the respondent is, at least potentially, relevant.
  8. [133]
    Much of the period which is relied upon by the respondent was before the proceedings were commenced.   The language of s 48 may support a submission that the conduct which is relevant is that of a person acting as a party to a proceeding. However the applicant has not suggested that delay in the investigation prior to the commencement of the proceedings is irrelevant.  In those circumstances, it is proposed to proceed on the basis that delay in the investigation period may be relevant to s 48 (without necessarily accepting the correctness of that view).
  9. [134]
    The respondent has not provided information about what occurred between 8 December 2022 when the applicant commenced an “own motion” investigation into the conduct of the respondent,[116] and the date of the respondent’s application.  Nor has the applicant provided the Tribunal with any assistance on this matter.
  10. [135]
    There were communications between the applicant and the respondent over the first several weeks of this period.[117]  The respondent sent submissions and correspondence to the LSC on 7 occasions between 11 January 2023 and 13 March 2023.[118]  It would appear that there were at least some replies. 
  11. [136]
    The LSC wrote to the respondent on 7 February 2023.  The material suggests that the respondent did not reply to this letter until 8 February 2023.[119] 
  12. [137]
    The respondent engaged solicitors around the end of May 2023.  It would appear that the respondent then sought further time to make submissions.[120]  Her solicitors did so by letter on 12 June 2023.[121] No doubt these required consideration, though neither party has included the LSC’s response.  There were communications between the LSC and the respondent in July 2023, including two occasions when the applicant confirmed her decision to proceed with the Discipline Application.[122]  There were other communications between the respondent, her lawyer, and the LSC, the dates of which are not identified.[123]
  13. [138]
    The respondent filed her application, which included an application for a non-publication order, on 7 August 2023.[124] A non-publication order was made on that date, the product of a hearing on the papers. It is difficult to think that this occurred without some communications between the parties and the Tribunal. 
  14. [139]
    A directions hearing was conducted on 5 September 2023.  The parties appeared.[125]  Again a non-publication order was made.  Directions were made for the conduct of the respondent’s application, up to November 2023, with a view to the present hearing on the papers.  They appear to have been complied with.  The order also records that the respondent had filed applications on 21 and 28 August 2023 and 4 September 2023 (all of which were then dismissed).
  15. [140]
    The material before the Tribunal relating to the conduct of the investigation, and the early phase of the Discipline Application, is incomplete.  So far as it goes, it suggests a reasonably active, and indeed at times busy, period prior to the commencement of the proceedings. The same appears to be true for the period after the Discipline Application was filed.  It does not provide a basis for finding that there was any undue delay on the part of the applicant, such as to warrant a finding that the applicant has unnecessarily disadvantaged the respondent.
  16. [141]
    The respondent relied on the evidence of Dr Morris in support of her contention that the bringing of the proceedings itself caused damage to her health,[126] no doubt thus unnecessarily causing her disadvantage. Assuming the applicant to be carrying out her functions under the LP Act, it cannot be said that she is unnecessarily disadvantaging the respondent by bringing the proceedings.
  17. [142]
    Dr Morris has expressed the view that the applicant’s lack of communication and negotiation has played a role in the development of the respondent’s mental condition.  So far as it goes, the material does not demonstrate a lack of communication on the part of the applicant; if anything, it shows that the applicant has communicated relatively frequently with her. The material relating to the applicant’s attitude to negotiation is far from clear. The applicant reconsidered her decision to bring proceedings, presumably in response to some communication from the respondent; but the nature of those communications is not apparent.  The applicant did not accept the respondent’s proposal for resolving the matter, and has not been prepared to enter into further negotiations. The respondent has not attempted to show that this has damaged her unnecessarily. Nor has the respondent attempted to show why the applicant’s refusal to negotiate would warrant the exceptional step of summarily ending the proceedings.
  18. [143]
    The respondent contended that the applicant is taking advantage of her financial circumstances.  Although there is no formal evidence of those circumstances, the applicant has not taken issue with the respondent’s assertion.  This Tribunal is not bound by the laws of evidence.  In this case, it is appropriate to act on the respondent’s assertions as to her lack of financial resources.  
  19. [144]
    The respondent has not explained what she means by her contention that the applicant is taking advantage of her financial position.  It seems to be an inevitable consequence of her circumstances, that she would be required to incur some expense in relation to the proceedings.  She is also placed at some risk ultimately of an order for costs against her, particularly by reference to the provisions of the LP Act.  Nevertheless, these consequences follow simply from the bringing of the proceedings, and from the legislative provisions.  The contention that the applicant is taking advantage of those matters is not made out.  It might also be noted that the respondent’s contention does not reflect the language of s 48.  To take advantage of the situation (if that is what has occurred) is not the same as unnecessarily disadvantaging another party to litigation. 
  20. [145]
    The respondent has contended that the applicant has created a significant power imbalance by engaging one of Her Majesty’s counsel early in the proceedings.  That may reflect a view that such counsel would present the case for the applicant with greater skill, than a junior counsel.  Even if true, the parties are generally free to engage such legal representatives as they see fit.  It would be surprising if that provided a basis for the exercise of the discretion found in s 48 to dismiss or strike out proceedings.
  21. [146]
    The respondent has contended that reasonable offers to settle have been rejected.  She has only identified one offer in her material.  It was open only for a period of about a day.[127]  The offer made by the respondent was that if the applicant did not proceed with the application, the respondent would surrender her practising certificate immediately.  There are obvious reasons why the applicant may have considered that such a course did not represent a proper performance of her functions under the LP Act.  For example, she may have considered that such a course would not adequately mark the seriousness of the respondent’s conduct; or that more was required for the purpose of general deterrence.  It is not clear that the offer was reasonable.  Even if it was, it does not follow that the failure to accept it has the consequence that the respondent was unnecessarily disadvantaged by the conduct of the applicant in refusing it.
  22. [147]
    The respondent has contended that her poor mental health has hindered her ability to deal with the Discipline Application.  She has not identified any evidence in support of that contention.  In particular, she has not pointed to anything in Dr Morris’s report to that effect.  Nevertheless, it may be accepted that her mental condition would have some impact on her ability to conduct her case.  It has not been suggested, and there is no reason to think, that the respondent lacks the capacity to participate in the proceedings.  She has provided five sets of submissions in relation to the present application.  They appear to be congruent with the respondent’s level of qualifications and experience in legal matters. They do not indicate any significant loss of capacity to participate in the proceedings. Any difficulty resulting from her mental health is not sufficient to warrant an order striking out the application. 

Conclusion

  1. [148]
    The respondent has failed to demonstrate that the Discipline Application should be struck out or dismissed.  Her application for such relief should be itself dismissed. 
  2. [149]
    Questions of costs, and the form in which the reasons should be published, have been the subject of separate reasons, to be published.
  3. [150]
    The following order should be made:
  1. 1. The respondent’s application for miscellaneous matters, seeking an order that the Discipline Application be struck out or dismissed, is itself dismissed.

Footnotes

[1] See Hearing Book p 187.

[2] See Hearing Book p 112.

[3] For convenience, these will be referred to as Submission 1, at Hearing Book p 1; Submission 2, at Hearing Book p 9; Submission 3, at Hearing Book p 45; Submission 4, at Hearing Book p 53; and Submission 5, at Hearing Book p 77.  Dates for these submissions appear in the index to the hearing book.

[4] See Hearing Book p 55; see also p 9.

[5] See Hearing Book pp 80-81.

[6] Hearing Book pp 46, 54 and 80.

[7] See s 47(2)(a) of the QCAT Act.

[8] (2010) 241 CLR 118 (“Spencer”).

[9] See at [60] per Hayne, Crennan, Kiefel and Bell JJ.

[10] [2012] QSC 211 at [54].

[11] By reference to paras [24] and [60].

[12] Spencer at [24].

[13] Spencer at [60].

[14] (2007) 160 FCR 298 at 309 [47].

[15] Spencer at [22].

[16] [2009] QCA 139 at [39].

[17] Hearing Book p 10.

[18] Hearing Book p 56.

[19] Hearing Book p 81

[20] Hearing Book p 63.

[21] Hearing Book p 80.

[22] Hearing Book p 81.

[23] [2022] QCAT 68 (“Grant v Russell”).

[24] [2022] QCAT 258 (“Whitty v Moller”).

[25] It may well be the case that it is possible to engage in supervised legal practice at a community legal service, or on a relevant pro bono project, which may have the consequence that the respondent was required to engage only in supervised legal practice, and was only permitted to do so when at community legal service or engaged on a relevant pro bono project. 

[26] See s 6 of the LP Act.

[27] See Schedule 2 of the LP Act.

[28] Hearing Book p 81.

[29] Hearing Book p 10.

[30] Hearing Book p 81.

[31] See Hearing Book pp 193 and 194, where there is material indicating that the service did not engage in litigation.

[32] See Submission 5 at Hearing Book p 81.

[33] Hearing Book p 10.

[34] Hearing Book p 112.

[35] Hearing Book p 1.

[36] Hearing Book p 9.

[37] Hearing Book p 53.

[38] Hearing Book p 79.

[39] Hearing Book p 79.

[40] Hearing Book pp 46, 54 and 80.

[41] (1958) 98 CLR 383, 395.

[42] [2015] HCA 40 at [30] (“WZARH”).

[43] See s 435(1)(c).

[44] See s 437.

[45] See s 438.

[46] As to which see Hearing Book p 139.

[47] (1990) 170 CLR 596, 598 (citations omitted).

[48] See, for example, Submission 3 at Hearing Book p 45.

[49] At [33].

[50] Hearing Book pp 53-54.

[51] Hearing Book p 198.

[52] Hearing Book p 50.

[53] Hearing Book p 45; see also p 53.

[54] Hearing Book p 198.

[55] Hearing Book p 53.

[56] Hearing Book p 198.

[57] Hearing Book p 199.

[58] Hearing Book p 50.

[59] Hearing Book pp 199-202.

[60] If true; but see the emails at Hearing Book pp 199-202.

[61] See Submission 1, Hearing Book p 1; Submission 2, Hearing Book p 9; Submission 3, Hearing Book p 45.

[62] See Hearing Book p 79; see also pp 9, 47.

[63] See Hearing Book p 75.

[64] Which may in fact adopt a lower threshold than the reasonable likelihood test.

[65] Grant v Russell; Whitty v Moller.

[66] (1993) 177 CLR 378 (“Walton”).

[67] Walton at 389-392.

[68] Walton at 395-396 (citations omitted).

[69] Walton at 392-393 (citations omitted).

[70] [2006] 226 CLR 256 (“Batistatos”).

[71] At [9].

[72] At [14]-[15] (citations omitted).

[73] Batistatos at [21], which are the types of cases discussed in the authority relied upon by the applicant.

[74] (1994) 181 CLR 251.

[75] Hearing Book p 15.

[76] Compare Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 640-641 per Brennan J (as he then was); Plaintiff M64/2015 v Minister for Immigration and Border Protection [52]-[54], [68].

[77] See the helpful discussion by Dalton J as her Honour then was in Morgan v Chief Executive of Parole & Anor [2014] QSC 253 at [20]-[23].

[78] See paras 3 and 4 of the Guidelines.

[79] Para 5.

[80] Guidelines para 5.

[81] See Waratah Coal Pty Ltd v Coordinator-General, Dept of State Development, Infrastructure and Planning [2014] QSC 036 at [61], where relevant principles are stated by Applegarth J.

[82] See Hearing Book pp 15-18.

[83] Hearing Book p 15.

[84] [2000] NSW CCA 46, (2000) 111 A Crim R 314.

[85] [2016] WASC 3 (“Culverwell”).

[86] Culverwell at [25].

[87] Culverwell at [42].

[88] Culverwell at [34].

[89] [2019] WADC 159 (“Tai Waiti”).

[90] Tai Waiti at [28].

[91] Tai Waiti at [42].

[92] Hearing Book p 81.

[93] Walton at 392-393, 395-396

[94] In Walton Mason CJ Deane and Dawson JJ endorsed the approach of the New South Wales Court of Appeal, which considered intervention as exceptional: Walton at 392.

[95] [2019] QSC 8.

[96] At [207].

[97] Palmer v Magistrates Court of Queensland & Ors; Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland & Ors [2020] QCA 47.

[98] At [53].

[99] [2007] QCA 112 at [24].

[100] Hearing Book pp 79 and 80; a similar contention appears in Submission 5.

[101] Hearing Book p 79.

[102] See Hearing Book pp 54-55.

[103] Unreported; Federal Court; No. ACT G34 of 1996, 21 June 1996.

[104] [2006] 2 Qd R 107, 115-116.

[105] See the discussion in Dal Pont Lawyers’ Professional Responsibility (digital copy) 7(e) at [23.25].

[106] See Hearing Book p 9.

[107] See Hearing Book p 11.

[108] See Hearing Book p 45.

[109] See Hearing Book p 55.

[110] See Hearing Book p 78.

[111] See Hearing Book pp 80-81.

[112] See Hearing Book at p 82.

[113] See Hearing Book pp 2-5.

[114] See Hearing Book p 55; see also Hearing Book p 11.

[115] See Hearing Book p 139.

[116] Hearing Book p 129.

[117] Hearing Book pp 130-131; 139-147; 196-198; submissions from the respondent are referred to at pp 48 and (by implication) 198.

[118] Hearing Book p 50; see also pp 48, 69.

[119] Hearing Book p 48.

[120] Hearing Book p 12.

[121] Hearing Book p 12.

[122] Hearing Book pp 199-201; see also pp 37, 38.

[123] Hearing Book pp 45-46

[124] Hearing Book pp 110, 116.

[125] Hearing Book pp 53-54.

[126] See Hearing Book p 78.

[127] See Hearing Book p 69.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v XFZ (No 1)

  • Shortened Case Name:

    Legal Services Commissioner v XFZ (No 1)

  • MNC:

    [2024] QCAT 353

  • Court:

    QCAT

  • Judge(s):

    Hon Peter Lyons KC, Judicial Member

  • Date:

    24 May 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
Annetts v McCann (1990) 170 CLR 596
2 citations
Jump To
Cite 1 - (1990) 170 CLR 596
Cite 2 - (1990) 170 CLR 596
Barac v Director of Public Prosecutions[2009] 1 Qd R 104; [2007] QCA 112
2 citations
Jump To
Cite 1 - [2007] QCA 112
Cite 2 - [2007] QCA 112
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
2 citations
Jump To
Cite 1 - (2006) 226 CLR 256
Cite 2 - (2006) 226 CLR 256
Broadbent v Medical Board of Australia [2022] QCA 46
1 citation
Jump To
Cite 1 - [2022] QCA 46
Commissioner of Police v Tanos (1958) 98 CLR 383
2 citations
Jump To
Cite 1 - (1958) 98 CLR 383
Cite 2 - (1958) 98 CLR 383
Culverwell v Ginbey [2016] WASC 3
2 citations
Jump To
Cite 1 - [2016] WASC 3
Cite 2 - [2016] WASC 3
Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
1 citation
Jump To
Cite 1 - (1979) 2 ALD 634
Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211
2 citations
Jump To
Cite 1 - [2012] QSC 211
Cite 2 - [2012] QSC 211
Grant v Russell [2022] QCAT 68
2 citations
Jump To
Cite 1 - [2022] QCAT 68
Cite 2 - [2022] QCAT 68
Legal Services Commissioner v Baker (No 1)[2006] 2 Qd R 107; [2005] QCA 482
2 citations
Jump To
Cite 1 - [2005] QCA 482
Cite 2 - [2006] 2 Qd R 107
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
2 citations
Jump To
Cite 1 - [2015] HCA 40
Cite 2 - [2015] HCA 40
Morgan v Chief Executive of Parole [2014] QSC 253
1 citation
Jump To
Cite 1 - [2014] QSC 253
Palmer Leisure Coolum Pty Ltd v Magistrates Court [2019] QSC 8
2 citations
Jump To
Cite 1 - [2019] QSC 8
Cite 2 - [2019] QSC 8
Palmer v Magistrates Court(2020) 3 QR 546; [2020] QCA 47
2 citations
Jump To
Cite 1 - [2020] QCA 47
Cite 2 - [2020] QCA 47
R v Grey (2000) 111 A Crim R 314
2 citations
Jump To
Cite 1 - (2000) 111 A Crim R 314
Cite 2 - (2000) 111 A Crim R 314
R v Martens[2010] 1 Qd R 564; [2009] QCA 139
1 citation
Jump To
Cite 1 - [2009] QCA 139
Rogers v The Queen (1994) 181 CLR 251
2 citations
Jump To
Cite 1 - (1994) 181 CLR 251
Cite 2 - (1994) 181 CLR 251
Spencer v The Commonwealth (2010) 241 CLR 118
2 citations
Jump To
Cite 1 - (2010) 241 CLR 118
Cite 2 - (2010) 241 CLR 118
Te Waiti v Western Australia [2019] WADC 159
2 citations
Jump To
Cite 1 - [2019] WADC 159
Cite 2 - [2019] WADC 159
Walton v Gardiner (1993) 177 CLR 378
2 citations
Jump To
Cite 1 - (1993) 177 CLR 378
Cite 2 - (1993) 177 CLR 378
Waratah Coal Pty Ltd v Coordinator-General, Department of State Development, Infrastructure and Planning [2014] QSC 36
1 citation
Jump To
Cite 1 - [2014] QSC 36
White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298
2 citations
Jump To
Cite 1 - (2007) 160 FCR 298
Cite 2 - (2007) 160 FCR 298
Whitty v Moller [2022] QCAT 258
2 citations
Jump To
Cite 1 - [2022] QCAT 258
Cite 2 - [2022] QCAT 258

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.