Legal Services Commissioner v Peters
[2025] QCAT 206
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- Unreported Judgment
- Legal Services Commissioner v Peters[2025] QCAT 206
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Legal Services Commissioner v Peters[2025] QCAT 206
Legal Services Commissioner v Peters[2025] QCAT 206
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Legal Services Commissioner v Peters [2025] QCAT 206 |
PARTIES: | legal services commissioner (applicant) v bruce james peters (respondent) |
APPLICATION NO/S: | OCR106-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 5 June 2025 |
HEARING DATE: | 28 May 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Freeburn J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the Legal Services Commissioner has brought an application against the respondent solicitor on three charges – where the respondent solicitor seeks to strike out the third charge – where third charge alleges the respondent solicitor ‘falsely’ denied supervising a law clerk during her work experience placement – where the applicant must show the charge has no reasonable prospect of success – whether charge 3 should be struck out Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1)(a) Law Society of NSW v Foreman (1991) 24 NSWLR 238, applied Re a Solicitor [1960] VR 617, cited Re Miles (1966) 84 WN (Pt 1) (NSW) 163, cited Connop v Law Society Northern Territory [2016] NTSC 38, cited |
APPEARANCES & REPRESENTATION: | |
Applicant: | M Donovan, instructed by Brisbane Criminal Lawyers |
Respondent: | P O'Connor, instructed by Legal Services Commissioner |
REASONS FOR DECISION
- [1]The Legal Services Commissioner has brought an application against the respondent solicitor, Bruce James Peters, concerning three charges alleged to constitute professional misconduct or unsatisfactory professional conduct.
- [2]The LSC has discontinued charge 1. Mr Peters has applied to strike-out charge 2 and 3. However, the application to strike out charge 2 is now not pressed. That means that it is only necessary to deal with Mr Peters’ application to strike-out charge 3.
- [3]Mr Peters’ alleged strike-out application was argued on the basis that charge 3 was misconceived and therefore susceptible to strike-out pursuant to s 47(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009.
- [4]Charge 3 is in these terms (without the particulars):
Between about 27 October 2021 and 8 December 2021 [Mr Peters] falsely denied supervising a law clerk during her work experience placement at the Law Practice [ie. Mr Peters’ practice].
- [5]The allegation of a ‘false denial’ presumably means that the LSC alleges that:
- Mr Peters supervised the law clerk (Ms Josey);
- between October and December 2021, Mr Peters denied carrying out that supervision; and
- that denial was false.
- [6]A party seeking to strike-out a charge on the basis that it is misconceived bears the onus of showing that the charge has no reasonable prospect of success.
- [7]It is necessary to examine the evidence tendered in the proceedings to see if charge 3 has no reasonable prospect of success. The evidence was within the ‘hearing book’, which was relied on by both sides.
- [8]From 2010 to 2021, Mr Peters was the sole practitioner of a legal practice known as Brisbane Criminal Lawyers. From June 2021, that practice became an incorporated practice called Brisbane Lawyers Pty Ltd.[1]
- [9]In 2018 Mr Peters, as the principal of the firm, offered Mr Nicholas Schoenmaker the position of ‘law clerk’ with his firm.[2] The job title ‘law clerk’ seemed to assume some importance in the oral arguments, but little turns on it.
- [10]Mr Schoenmaker subsequently became a solicitor with the practice.
- [11]On 31 August 2020 Ms Sarah Josey joined the practice as a ‘level 1 law clerk’. Mr Peters’ letter of appointment of Ms Josey concludes:
“We look forward to your start on Monday and your training commences on that day for your chosen profession.” [emphasis added]
- [12]Ms Josey gives evidence that her work at the practice involved assisting both Mr Peters and Mr Schoenmaker. Ms Josey also attended to general tasks for the office. Ms Josey’s evidence is that her duties included the following:
- answering calls, including new enquiries;
- arranging meetings with clients;
- attending court for mentions, telephone appearances and trial reviews in the Supreme, District and Magistrates Courts;
- instructing counsel at sentences and trials;
- taking notes when meeting with clients;
- drafting correspondence; and
- collecting evidence from Police Prosecution and the State Law building.
- [13]During her interview with Mr Peters in August 2020 Ms Josey provided Mr Peters with her personal 3-year career plan. That plan included Ms Josey enrolling in Practical Legal Training through the College of Law in November 2021. That was a requirement for admission as a solicitor.
- [14]In June 2021 both Mr Schoenmaker and Ms Josey resigned. Ms Josey asked Mr Peters to sign a College of Law ‘placement declaration and annexure’. Mr Peters signed the document.
- [15]The declaration certifies that Ms Josey was employed by the practice from 31 August 2020 to 9 June 2021. The form identifies the most recent 60 days as work experience although, of course, Ms Josey’s work experience with the practice was for longer than that.
- [16]
- [17]Some four months later, on 25 October 2021, Ms Josey emailed Mr Peters’ practice requesting that a final form be signed for the purposes of meeting the placement requirements of the College of Law.
- [18]On 27 October 2021 Mr Peters responded by email in this way:
“I have a dilemma with your request and a concern about the previous paper which you asked me to sign at the time you resigned. I was unaware at the time I hired you that you would be seeking certification for work experience. As such, I had very limited involvement with you on a day to day basis with regards to your supervision.
Your role in my office was to assist my associate Mr Schoenmaker and as such you did not receive supervision from me. Mr Schoenmaker unfortunately was not qualified to supervise you with respect to your College of Law work experience requirements as he is neither an unrestricted practitioner and at the time had less than two years’ experience.
I remember you asking me to sign off on what I believed was some form for work experience the day you left my employ, and I am uncertain as to what that was and that may have been signed in error on my part.
I have sought advice from both the Queensland Law Society and the College of Law through a Ms Moffat who I have ‘cc” into this email. As such, I am unable to sign off on supervising you during your time in my employee, which is regrettable.” [emphasis added]
- [19]First, there is something quite extraordinary about Mr Peters’ assertion that “…you did not receive supervision from me”. The assertion conflicts with Mr Peters’ own certification in June 2021 that Ms Josey had undertaken the 60 days of work experience under his supervision.
- [20]Second, the assertion would mean that Mr Peters was in breach of his duty as a lawyer and as the principal of the practice. Omissions by a lawyer to properly supervise his or her employees may amount to professional misconduct or unsatisfactory professional conduct.[5] The cases highlight the importance of supervision and vigilance – which sometimes even applies to other partners in the practice.[6] And a court or disciplinary tribunal will be inclined towards a more severe disciplinary order where a principal attempts to shift the blame for his or her own failures onto his or her staff.[7]
- [21]It is worth mentioning Law Society of NSW v Foreman.[8] That case involved a principal of a sole practice who failed to supervise the activities of an unqualified clerk in his employ. Mahoney JA (with whom Samuels JA and Meagher JA agreed) said:
“It is not in question but that the responsibilities of a solicitor for the proper conduct of the practice of which he is a part extend beyond his own actions and the work he does. The obligations placed upon a solicitor by the regulatory legislation to which he is subject involve that he, to a proper extent, take steps to ensure that the statutory obligations in respect, to take one example, of the maintenance of a trust account, are complied with. Reference was made to the obligations of a solicitor in respect of those practising with him in partnership in Bridges v Law Society of New South Wales [1983] 2 NSWLR 361. And a solicitor has also responsibilities in respect of staff employed by him or his practice in the conduct of legal matters.” [emphasis added]
- [22]Other analogous cases summarised in Halsbury’s Laws of Australia[9] are:
- Re a Solicitor[10] where the solicitor deliberately failed to exercise any control or supervision of the clerk who handled his clients’ money and thereby made the misappropriation possible;
- Re Miles[11] where there was also a deliberate failure by the solicitor to exercise any control or supervision of the clerk who handled his clients’ money; and
- Connop v Law Society Northern Territory[12] where a solicitor had in effect delegated responsibility for the management of his firm’s and clients’ accounts to his bookkeeper, and exercised little or no oversight over the bookkeeper's actions in relation to the billing of clients and the recording of transactions. The solicitor was held to have acted unprofessionally, and to be responsible for irregularities in billing and accounting.
- [23]And so, if Mr Peters’ case is that he did not supervise Ms Josey at all, or even carefully and properly, that case conflicts with the form he signed in June 2021 and with his professional obligations.
- [24]Third, it can be seen that Mr Peters’ email of 27 October 2021 was not entirely internally consistent. He says that:
“I had very limited involvement with you on a day-to-day basis with regards to your supervision.” [emphasis added]
But, in the very next paragraph Mr Peters says:
“Your role in my office was to assist my associate Mr Schoenmaker and as such you did not receive supervision from me.” [emphasis added]
- [25]I do not think those two propositions can be easily reconciled. One asserts limited involvement/supervision and the other asserts no supervision at all.
- [26]Fourth, if one looks at Mr Peters’ email of 27 October 2021 there is another extraordinary element to it. Mr Peters, an experienced solicitor, says that he was asked to sign a form by an employee, and he signed as requested, but (in October 2021) he was uncertain as to what he signed, what he did sign may have been signed by him ‘in error’. One can appreciate that memories fade over time. But the idea that Mr Peters seems to promote is that he took little care in signing the form and that it all now may be a mistake, possibly because he did not read or understand what he signed.
- [27]It is unlikely that an experienced solicitor such as Mr Peters did not read or understand what he signed. However, at the hearing, the tribunal will have the advantage of hearing Mr Peters’ and Ms Josey cross-examined on this and other topics.
- [28]Of course, Ms Josey’s evidence is that she assisted both Ms Schoenmaker and Mr Peters in the legal practice. Indeed, Mr Peters’ letter appointing Ms Josey speaks of a three-month period to ensure Ms Josey was the right person for the job. Presumably it was Mr Peters who assessed whether, by reason of her work performance, she was the right person. That letter also speaks of ‘training’. It is difficult to imagine that Mr Peters was here referring to training that was to be given by only Mr Schoenmaker. He certainly does not make that clear in the letter. And, according to Ms Josey, she performed tasks for the assistance of both Mr Schoenmaker and Mr Peters.
- [29]In any event, there is a contest on the evidence. Ms Josey says, in effect, she was supervised by Mr Peters. From this distance that seems to be a strong case. Mr Peters himself has certified it. On the other hand, Mr Peters now says that he did not supervise Ms Josey. That case, again from a distance, appears rather weak. Mr Peters certified the opposite and his duty as principal of the firm required him to supervise his employees.
- [30]That contest on the evidence is not a contest that should be resolved on a strike-out application. There is nothing misconceived about the proceeding on charge 3.
- [31]It is necessary to deal with Mr Peters’ arguments made during oral argument.
- [32]First, Mr Peters argued that he did not know that Ms Josey was seeking certification for her work experience placement. That was said to be fatal to the charge. I am unable to see why that is so. All that the form required was a certification that the work experience had been undertaken, and that it had occurred under supervision, and that the work experience complies with the rules. There is no requirement that the supervisor have any particular knowledge of the process at any specific time.
- [33]Second, a related argument was that there was some significance to the College of Laws requirement that the supervisor certify that the employee carried out “work experience placement”, and that you could not so certify without knowing that you were certifying “work experience placement”. I do not think there is any particular significance in the term “work experience placement”. Certainly, the form does not give the expression any special meaning. The likelihood is that the expression has its natural and ordinary meaning.
- [34]For that reason, the likelihood is that the supervision required by the form is no different to the supervision required in properly running a legal practice. I am not persuaded that the College of Law’s requirements for supervision of work experience student are more onerous than the requirements of the law discussed above. Of course, supervision can take a variety of forms and will depend on the student, the type of work and the nature of the practice.
- [35]Third, Mr Peters argued that Ms Josey did not enrol in the PLT course with the College of Law until July 2021. That was said to be decisive. Again, I am unable to see why it matters. Even Mr Peters’ counsel conceded that work experience that takes place prior to enrolment in PLT may be taken into account.
- [36]Finally, by signing the College of Law form in June 2021 Mr Peters himself certified that Ms Josey had undertaken the work experience, and that she had done it under his supervision, and that the work experience complies with the College’s work experience rules. Oddly, Mr Peters’ counsel did not refer me to the work experience rules although he did tender both a blank version of the form (exhibit 1) and a College of Law document entitled ‘Work Experience Guide for Supervisors’ (exhibit 2).
- [37]I am unable to determine the status of that guide. It reads as a guide rather than rules. In any event, the form says that legal practitioners who hold a full practising certificate can supervise and that work experience is designed to provide an opportunity for the student or graduate to:
- experience the delivery of legal services in a real-world context;
- apply knowledge and skills to real-life problems;
- understand the importance of clear communication, identification of clients’ problems and effective and efficient advice; and
- understands how legal practice professional operate.
- [38]Nothing suggests Mr Peters was unable to provide those opportunities. He does not swear that he could not. And he has certified that he supplied work experience which complied with the rules.
- [39]There is no proper basis for striking out charge 3. The application will be dismissed. I will hear the parties on costs.
- [40]This tribunal is a ‘no costs’ jurisdiction in the sense that each party usually bears their own costs.[13] And so the most expedient order to make on costs in that the costs be reserved subject to either party’s right to make submissions.
Footnotes
[1] Affidavit of Ms Grainger of 17 September 2024 at [4].
[2] Affidavit of Mr Schoenmaker of 16 September 2024 at ex NSI.
[3] Ms Josey’s affidavit at [11].
[4] Mr Peters subsequently made serious allegations against Mr Schoenmaker which the later contests. The making of the serious allegations became the subject of charge 1 – which is no longer pressed by the LSC.
[5] Law Society of NSW v Foreman (1991) 24 NSWLR 238; Halsbury’s Laws of Australia at [250-7655]. See also rule 37 of the Australian Solicitors’ Conduct Rules 2023. That rule has not changed from the version applying in 2021.
[6] Halsbury (supra); see, for example, Bridges v Law Society of New South Wales [1983] 2 NSWLR 361.
[7] Council of Queensland Law Society Inc v Tunn [2004] QCA 412 at [21]; Halsbury (supra).
[8] (1991) 24 NSWLR 238.
[9] Halsbury’s Laws of Australia at [250-7655].
[10] [1960] VR 617.
[11] (1966) 84 WN (Pt 1) (NSW) 163.
[12] [2016] NTSC 38 at [110] – [114].
[13] See Queensland Civil and Administrative Tribunal Act 2009 (Qld), div 6.