Bradshaw v Bar Association of Queensland
[2010] QSC 306
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- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
- Bradshaw v Bar Association of Queensland[2010] QSC 306
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Bradshaw v Bar Association of Queensland[2010] QSC 306
Bradshaw v Bar Association of Queensland[2010] QSC 306
SUPREME COURT OF QUEENSLAND
CITATION: | Bradshaw v Bar Association of Queensland [2010] QSC 306 |
PARTIES: | JAMES TODD BRADSHAW (Appellant) v BAR ASSOCIATION OF QUEENSLAND (Respondent) |
FILE NO/S: | 642/2009 |
DIVISION: | Trial Division |
PROCEEDING: | Appeal of administrative decision |
ORIGINATING COURT: | Cairns |
DELIVERED ON: | 20 August 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 August 2010 |
JUDGE: | Byrne SJA |
ORDER: | Appeal dismissed |
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – MISCONDUCT, UNFITNESS AND DISCIPLINE – OTHER MATTERS – where Bar Association of Queensland refused application for practising certificate – where appellant appealed against that decision – where appellant had been a barrister for 42 years – where appellant convicted of seven offences under the Taxation Administration Act 1953 (Cth) – where appellant had not been forthcoming in disclosure – where appellant had been given numerous opportunities to furnish information – where appellant had history of adverse findings in disciplinary proceedings – whether the appellant’s misunderstanding of court proceedings could call into question his fitness to practise – whether the Bar Association was correct in deciding that the appellant was not a fit and proper person to be granted a practising certificate Legal Profession Act 2007 (Qld) Taxation Administration Act 1953 (Cth) Uniform Civil Procedure Rules 1999 (Qld) Bradshaw v Bar Association of Queensland [2009] QSC 226 Bradshaw v Bar Association of Queensland, unreported, Fryberg J, SC No 10774 of 2008, 9 December 2008 Legal Services Commissioner v Bradshaw [2008] LPT 9 Legal Services Commissioner v Bradshaw [2008] LPT 21 Legal Services Commissioner v Bradshaw [2009] QCA 126 |
COUNSEL: | J T Bradshaw in person D Clothier for the respondent |
SOLICITORS: | Brian Bartley & Associates for the respondent |
Appeal against Refusal of Practising Certificate
- By his application dated 10 December 2008, Mr Bradshaw applied to the Bar Association of Queensland (“BAQ”) for the grant of a practising certificate for a period expiring on 30 June 2009.
- On 19 October 2009, BAQ’s governing Council resolved to refuse Mr Bradshaw’s application. That decision was communicated to him by letter dated 11 November 2009.
- As that letter revealed, the application was refused for reasons stated in an enclosed information notice given pursuant to s 51(8) of the Legal Profession Act 2007 (“the Act”), which recorded that:
“4.The Bar Council on behalf of the Association refused the application of Mr Bradshaw to be granted a local practising certificate on the ground that it is not satisfied that Mr Bradshaw is a fit and proper person to hold a local practising certificate.
- The reasons the Association is not satisfied that Mr Bradshaw is a fit and proper person to hold a local practising certificate are:
- Mr Bradshaw failed to lodge personal income tax returns in a timely way for each of the 1999, 2000, 2001, 2002, 2003, 2004 and 2005 tax years (“the returns”);
- Mr Bradshaw failed to provide the Association with an adequate explanation for his failure to lodge the returns in a timely way as requested by the Association by its letters of 20 February 2009 and 2 April 2009;
- Mr Bradshaw failed to provide the Association with documentation relevant to his explanation for his failure to lodge the returns as requested by the Association by its letters of 22 May 2009 and 2 April 2009;
- Mr Bradshaw failed, in his application for a local practising certificate, to disclose details of five complaints made against him as a legal practitioner as listed in the schedule (“the complaints”);
- Mr Bradshaw failed to provide proper details of the complaints when requested to do so by the Association by its letter of 20 February 2009 and 2 April 2009;
- By sending a letter of 19 July 2009 to solicitors Miller Harris Mr Bradshaw engaged in conduct which fell short of that expected of a reasonably competent legal practitioner;
- Mr Bradshaw failed, without reasonable excuse, to comply with a written notice from the Legal Services Commission dated 24 November 2008;
- On 3 May 2006 by letter to Mr Williams, a litigant, and client of solicitors Miller Harris, Mr Bradshaw communicated directly with an opponent’s client;
- By Mr Bradshaw’s letter of 3 March 2009 to the Association he asserted that in proceedings before Fryberg J. on 9 December 2008 (being proceedings 10774 of 2008) his Honour had expressed the view that Mr Bradshaw should be entitled to recommence practice, when no such opinion or view had been expressed by Fryberg J in the proceedings;
- In an application to the Court of appeal for an extension of time to appeal a decision of the Legal Practice Tribunal, where Mr Bradshaw acted on his own behalf both before the Tribunal and in the Court of Appeal, Mr Bradshaw demonstrated incompetence in that:
- He contended that orders made against him in the Tribunal of 10 July 2008 were not “final orders” when no reasonably competent barrister could fail to appreciate that the orders were in fact, and in law final orders;
- He did not prepare and cause to be put before the Court of Appeal a proper record of the proceedings before the Tribunal when any reasonably competent barrister would appreciate that the Court of Appeal could not proceed without a proper record;
- He made submissions inconsistent with his filed application for an extension of time to appeal and his draft notice of appeal in support when any reasonably competent barrister would appreciate that only submissions properly in support of the application before the Court could be of assistance to the Court.
...
Schedule
- He engaged in legal practice when he was not the holder of a local Practising Certificate in that he forwarded to Dean Morzone of Counsel a letter dated 13 October 2008 by which he purported to negotiate and reach agreement on the future conduct of litigation between a Ms Coronis and JILT Pty Ltd.
- He engaged in conduct which was scandalous and likely to bring the profession into disrepute in that the abovementioned letter dated 13 December 2008 made certain comments about his Honour Judge Everson and about a Mr Williams.
- He made no response to a notice given to him by the Legal Services Commissioner pursuant to s.443(1)(a) of the Legal Services Act 2007 dated 24 November 2008.
- He failed to maintain the reasonable standards of competence and diligence expected by a member of the public in that, by a letter dated 19 July 2008 forwarded to Miller Harris Lawyers, he foreshadowed that unless he received a payment of $385,000 he would issue proceedings for abuse of process claiming exemplary damages when any reasonable competent practitioner would have known that s.487 of the Legal Profession Act 2007 would have afforded a complete defence to such claim.
- By sending the letter of 19 July 2008, he engaged in conduct which was scandalous and likely to bring the profession into disrepute in that the correspondence made claims against Mr Williams and Miller Harris Lawyers when he had no admissible evidence to support such claims and where his purpose in forwarding the letter was to intimidate Mr Williams and the solicitors.”
- On 27 November 2009, Mr Bradshaw appealed to this Court, pursuant to s 51(9) of the Act.[1] The relief sought is that “the decision” not to grant him a practising certificate “be set aside”, BAQ be “ordered to issue a Practising Certificate…for the 2009/10 year”,[2] and costs.
- The Notice of Appeal sets out three grounds:
“a)[BAQ] adopted an adversarial role instead of an administrative function under the Legal Practitioners Act.
b)The reason for decision did not warrant the harsh penalty of effectively striking off the Appellant and preventing him from practising as a barrister after 42 years.
c)[BAQ] failed to give any or any sufficient weight to the penalties imposed by Supreme Court Judges in the Legal Practitioners Tribunal.”
Material Facts
- Mr Bradshaw made wide-ranging submissions, in writing as well as orally, mostly without reference to those grounds. Much of his argument consisted of assertions about matters of fact beyond the information that was before BAQ when the decision was made not to grant a practising certificate. Whether the appeal is by way of re-hearing[3] or else is an appeal stricto sensu,[4] it is not a hearing de novo. And during the hearing, leave to adduce fresh evidence was refused.
- The primary facts that matter are, therefore, those established by the information that was before BAQ when Mr Bradshaw was refused a practising certificate.
Historical Setting
- Mr Bradshaw had earlier applied to BAQ to renew his practising certificate for the 2008/2009 year. That application was refused in October 2008. Mr Bradshaw appealed to the Supreme Court. On 9 December 2008, during argument about the nature of such an appeal, counsel for BAQ accepted that, were the appeal dismissed, Mr Bradshaw could re-apply for a practising certificate. That day, Fryberg J struck out the appeal. The next day, Mr Bradshaw applied for the grant of a practising certificate.
Tax Returns
- On 4 April 2008, Mr Bradshaw had been convicted of seven offences under s 8C(1) of the Taxation Administration Act 1953 (Cth) for failing to lodge income tax returns for the 1999 to 2005 financial years. He was fined $5,000.00 and ordered to lodge his 1999 tax return within three months, and his 2000 to 2005 tax returns within six weeks.
- Douglas J later summarised the income tax position:[5]
“Mr Bradshaw’s 1999 tax return had been prepared by accountants but, without his knowledge, had not been lodged. The reasons for this were unclear;
Mr Bradshaw was well aware that he did not lodge tax returns for the 2000 to 2005 financial years. He deliberately decided not to lodge returns for those years because he considered that he would not be liable to pay tax and, in those circumstances, did not regard it as important to lodge returns;
Mr Bradshaw received a notice from the Australian Taxation Office dated 26 June 2006 requiring him to attend to lodging his 1999 to 2005 tax returns by 21 August 2006. He did not comply with this notice;
By complaint and summons dated 6 December 2006, the Australian Taxation Office prosecuted Mr Bradshaw for failing to lodge his 1999 to 2005 returns;
By the time of Mr Bradshaw’s conviction on 4 April 2008, he had not attended to lodging his 1999 to 2005 returns…”
- The December 2008 application had been accompanied by a letter from Mr Bradshaw which revealed that, in contravention of the 4 April 2008 order, he had still not lodged his 1999 tax return. This letter asserted that Mr Bradshaw had submitted a completed 1999 return in or about November 2006 but that “[t]he tax department says they did not receive it.” His letter also said that he had submitted returns for the other six years. He mentioned that he had received either refunds or nil assessments for all those years. He also furnished his explanation for not lodging the tax returns. He expected, he wrote, to have a nil tax liability. And his low income did not “enthuse [him] to complete tax returns as it reminded [him] that [he] was most unsuccessful in [his] profession and…did not want to complete a form acknowledging it.” He emphasised that there was no “dishonesty” in his decisions not to lodge tax returns.
Other Concerns
- Mr Bradshaw was less forthcoming when it came to other disclosures.
- The application form enquired:
“Have you had, or is there currently, any complaint lodged against you as a legal practitioner whether in Queensland or any other jurisdiction?”
- The form went on to provide that “If yes, attach full details including outcome, if known.” Mr Bradshaw put a mark in the box against “yes” and wrote in the words: “Bar Association action”. He did not supply information about the complaints in or with his form.
- On 20 February 2009, Mr O'Connor, BAQ’s Chief Executive, wrote to Mr Bradshaw. The letter recorded that his application had been considered at a meeting of that Association’s Council four days earlier. It went on to state that the Council required further information, including:
“Details of any finalised complaint previously made against you, and your compliance with orders made against you or agreements made with you. You will need to provide all requisite documents, including any final orders or agreements made.
Details of any known current unresolved complaints made against you, the stage they have reached by way of disposition and details of your defence thereto. Again, you will need to provide all requisite documents, including copies of complaints and particulars, and Practice Direction responses, in relation thereto.
…
A response from you to this request to the effect that the Bar Council should already know about these matters, or can secure the information from the Legal Services Commissioner, is unlikely to be considered satisfactory.
The Council needs to be satisfied, pursuant to the 2007 Act, that you are a fit and proper person to hold a practising certificate. You will need to satisfy the Council to this effect…”
- Mr Bradshaw responded by letter dated 3 March 2009 in which he expressed himself:
“appalled…that you require information in relation to complaints where there have been no charges to date as our system still provides for presumption of innocence and there was no basis in which you could use that against me.”
- The only information he provided in respect to outstanding complaints was this:
“I have about 4 where from memory 2 have already been dismissed and they all come from the same source, namely Miller Harris on behalf of Les Williams who is being sued by my wife. He was the complainant in the matter before the tribunal for which I was convicted and the appeal was heard on 26 February before McMurdo P, Holmes and Chesterman JA. I believe that the appealer against the conviction will not succeed on the indications of the bench but are hopeful that the penalties will be revisited. I do not appeal against the reprimand and am going back to school where I have already completed that at Palm Cove in July 2008.”
- His letter also asserted that Fryberg J “clearly recommends” that Mr Bradshaw should be entitled to recommence practice. This was a reference to the proceeding in which his appeal against BAQ’s refusal to renew his practising certificate was dismissed. The notion – quite false – that Fryberg J had made such a recommendation was to become a recurring contention.
- Two days after writing that letter, Mr Bradshaw instituted judicial review proceedings[6] against BAQ in connection with his application for a practising certificate. One of the challenges was to the Council’s not having made a decision on the application at its 16 February meeting.
- The BAQ Council met again in March. Then, on 2 April 2009, Mr O'Connor wrote to Mr Bradshaw saying that the Council had:
“resolved to postpone the final consideration of your application until you are given another opportunity to provide detailed and informative responses to the requests for information made of you by my letter of 20 February 2009.”
- The letter went on:
“The response made in your letter of 3 March 2009 is unsatisfactory. The Council does not intend to coach you on how to provide a proper response to my requests for information and you should answer each completely but one example of the way in which your response falls short of what is required is found in the sixth paragraph of your letter. This contains your response to my request for information about unresolved complaints that have been made against you. The sixth paragraph provides your response that “… I have about 4 where from memory 2 have already been dismissed…”. The process by which the Bar Council is responding to your application should not be viewed by you as an adversarial one where the appropriate approach is one in which you are selective in the information with which you provide it. Rather, your response should be designed to fully inform the Bar Council of the issues raised by the requests made in my letter to you.
I urge you to use the opportunity the Bar Council has given you to provide it with all of the information requested. Should you feel you require assistance in doing this, I remind you that Mr Baulch SC has kindly offered to provide help. As a member of the Bar Council, Mr Baulch has ensured that he has been absent whenever the Council has discussed your application and so he is free to provide you with assistance.
I ask that you provide me with a complete response to the requests for information made in my letter of 20 February 2009 by no later than 5.00pm on 16 April 2009.”
- Mr Bradshaw’s response dated 13 April 2009 said:
“I refer to your letter and note that I have a judicial review currently before the court. It was transferred to Brisbane on the 20th March 2009 and I am now concerned about the unreasonable delay which happens to coincide with your request for it to be adjourned until after the 20th April 2009. I am making enquiries and if not satisfied will refer it to the Chief Justice for obvious reasons.
I am convinced that you are determined to find an excuse to get rid of me and you encourage delays to build up a case. Sadly The Bar Association will never give me a practicing certificate and I am resigned to seeking redress in court. It is clear that Miller Harris continue to subject me to a White Industries [1998] FCA 806] style attack that you encourage and condone.
I will therefore see you in court and please advise my solicitors Daniel Towne that the only material required for the judicial review is your file and previous tax offence rulings. This has gone too far, you’ve ruined my practice, destroyed my reputation and confidence and most importantly my memories where I have nothing left.
I enclose your letter advising of your action on a complaint, which answers your query about complaints. You receive all complaints so your demand is unnecessary. However your action in suddenly preparing a report on further complaints from Miller Harris confirms that you will not be satisfied until you hound me out of the profession. The Tribunal ruled that the fact I mentioned Irene Coronis v Jilt Pty Ltd identified my letter with that action. Here Miller Harris are not entitled to act ethically and their correspondence is headed “Our client Jilt Pty Ltd : Matter Irene Coronis v Jilt Pty ltd” (They charged $13,000) for the original complaint on which I was convicted. [see Williams Affidavit]…
Fryberg J at appeal required the respondent (you) to address first and adjourned the court shortly after so your counsel could seek instructions from you to confirm that I could immediately reapply, which was given after the adjournment.
On my return to Cairns on the 10 December 2008 I reapplied accepting Fryberg J’s clear suggestion that I look to the future and not attempt to justify the past. He clearly adopted the role of a mediator and was more concerned about me returning to practice than to possible create further ill will between the parties by being forced into a decision.
When I reapplied you had all the material referred to above, which was before Fryberg J.
Despite the obvious urgency where my livelihood had been taken away and my reputation was increasing being damaged you waited ten weeks until the 16th February to consider my application and then introduced inquiries about;
- the costs order;
- my share portfolio;
- outstanding complaints.
I then applied for judicial review, which was mentioned by Jones J within ten days of filing and transferred to Brisbane. You have requested further time to again consider my application on the 20th April 2009 but for the aforesaid reasons I am anxious to have the court intervene. Your actions on the 16th February leave me no choice where frankly I was totally devastated by your determination in that change of direction.
…”
- Subsequent investigations by BAQ revealed unresolved complaints, details of which Mr Bradshaw had not notified. These are the five recited in the schedule to the information notice.
- The Council met on 20 April 2009 and resolved to give Mr Bradshaw yet another opportunity to furnish information.
- Two days later, Mr O'Connor wrote a long letter inviting Mr Bradshaw to provide information about a range of issues, including explanations for failing to lodge tax returns for the 1999 – 2005 years as well as about complaints concerning his practice and Mr Bradshaw’s knowledge of them.
- Mr Bradshaw replied by letter dated 8 May 2009.[7] In it, Mr Bradshaw says he thought that his 1999 return had been completed by his accountant and forwarded to the ATO in October 2006. He repeated the substance of information previously conveyed about his tax returns for six other years. He drew attention to what he said were findings made by the Magistrate who convicted him: that he had not attempted to avoid liability to pay income tax.
- As to the five complaints recited in the schedule to the information notice, Mr Bradshaw wrote that:
“When applying for the Practicing Certificate I made only a general reference to matters being actioned by the Bar Association because I was then under the impression that the Bar Association learned of all these matters at the same time that I did.”
- His letter also responded to the content of the five complaints.
- On 15 May 2009, the Court of Appeal refused Mr Bradshaw’s application for an extension of time within which to appeal against orders of the Legal Practice Tribunal[8] finding him guilty of unsatisfactory professional conduct, publicly reprimanding him and ordering that he undertake not less than 10 hours of compulsory professional development in ethics and practice management areas. Mr Bradshaw had argued that appeal himself. The reasons for judgment raised concerns about his competence.[9]
- The Legal Practice Tribunal had made orders against Mr Bradshaw on 10 July 2008. Further orders were made on 8 September 2008. Mr Bradshaw did not appeal against the July orders within the prescribed 28 days.
- Chesterman JA, with whom Holmes JA agreed, characterised Mr Bradshaw’s explanation for not appealing within time as displaying “gross ineptitude”.[10] His Honour also said:[11]
“The applicant’s tale is one of confusion, inefficiency and incompetence.”
- Mr Bradshaw’s proposed grounds of appeal were variously described by the judges who constituted the Court as “completely unmeritorious”,[12] “unpromising”,[13] and “without any prospects of success”.[14]
- The Court of Appeal’s decision was noted by BAQ’s Council on 18 May 2009. Because the reasons raised concerns about Mr Bradshaw’s professional competence, it was decided to ask senior counsel to prepare a report for the Council’s consideration in connection with the application for a practising certificate. Mr Bradshaw was notified of this by letter dated 22 May 2009.
- Mr Bradshaw’s response – a letter dated 27 May – said:
“…
You know that at the end of June I will be required to attend a CPD course and in view of your intransigent attitude I do not propose do to so without the courts intervention. You are a determined opponent which of course is not your duty or responsibility under the Legal Profession Act 2007. Clearly your tactics on the 9th December, 20 February, 26 April and 22 May confirms that you are building a case rather than investigating one. This is in the context that each member of your committee is in competition with me in the practice of law. Your adversarial manner breaches your duty under the Act, which clearly includes the promotion and protection of each member.
I note you rejected the clear inference of Fryberg J’s conduct and that again confirms that you are determined to crush me and I reluctantly conclude that egos and arrogance have blinded you to your responsibilities.
You have chosen on subsequent occasions to change the goal posts but you have never advised whether you abandon for example your demands of 20th February. You notified me of a complaint on the 4 August 2008 giving me 14 days to respond which means that you had all the material in August suddenly on 18th March 2009 you recommended that I be prosecuted on the August complaint [2 days before judicial review].
You now suggest that a court of appeal judgment should be referred to an “independent silk” for an opinion. It is an extraordinary admission by you but with respect I have never experienced such an absurd proposition. I suggest you consider how a reasonable bystander would view this suggestion when it is clear from your action on the 18th March as to the opinion you want and that is a matter for a court not your colleague. I am under no illusions as to my standing and reputation in the corridors.
I am a keen follower or though not admirer of Sir Humphrey Appleby and am concerned because of our relative status about the independence silk particularly when you have a number of silks on your committee. This is not intended to be insulting but simply an extension of the difficulties your status induces of perceived bias that has already caused Jones J to disqualifying himself.
Without doubt you cannot delegate such a duty and now it clearly now needs to be added to the judicial review.
The review was listed for 20th March for a directions hearing and was transferred to Brisbane. Nothing was done to list the matter despite our numerous letters and phone calls and it was not until the registry received a copy of a letter from me on Monday the 25th where I now seek and independent investigation into the delays which happens to coincide with you building a case against me. At that time they had not received our documents faxed on the 1st May but now the file has been located and after I informed them we had a fax transmission record the documents have been found. The tax department, the Court of Appeal, the Supreme Court Registry, Morzone and Hayward say they did not receive the documents I sent to them. I have fax transmission records to prove I sent documents to two of them. Similar fact?
…
I confirm that I consider that you should make the decision and its absurd to say the least to suggest that “an independent silk” influence you where your resolution was moved by Stewart SC and seconded by Trave SC. I suggest that you step back and consider how an ordinary member of the public would view your relentless conduct…”
- On 9 July 2009, Mr Bradshaw argued his application for judicial review before Douglas J.
- His application had initially challenged two decisions by BAQ. One was not to renew his practising certificate – the decision challenged by an appeal to the Supreme Court which Fryberg J had dismissed on 9 December 2008. The other was the decision on 16 February 2009 not to grant Mr Bradshaw a practising certificate. On learning of the proposal to seek a report from senior counsel on his conduct in connection with his application to the Court of Appeal, Mr Bradshaw wanted to use judicial review to have that decision set aside too.
- Douglas J reserved his decision. In the meantime, BAQ’s Council met on 20 July 2009. In view of the course of events before both the Court of Appeal and Fryberg J, the Council remained interested in Mr Bradshaw’s professional competence. It was decided to invite him to make a submission on a number of matters, including concerns about competence raised by the Court of Appeal and by Mr Bradshaw’s repeated, though baseless, contention that Fryberg J had recommended that he be granted a practising certificate.
- On 29 July, Mr O'Connor wrote to Mr Bradshaw enclosing a copy of a report from Mr Flanagan SC on Mr Bradshaw’s competence, mainly in connection with his conduct of his application to the Court of Appeal, adding:
“Your application for a Practising Certificate was given further consideration at the Bar Council meeting on 20 July 2009. On that occasion it was resolved that I write to you in these terms and give you an opportunity to make further submissions before the matter is dealt with finally.
In the course of your application for an extension of time within which to commence appeal number 9702 of 2008 in respect of orders made on 10 July 2008 by the Legal Practice Tribunal (“LPT”) in proceedings 11653 of 2007:
- you failed to put before the Court of Appeal all of the material that was before the LPT, including the transcript of the proceedings before it;
- you submitted that an extension of time within which to appeal was unnecessary as the 28 day period within which you could appeal the decision of the LPT of 10 July 2008 did not commence to run until 8 September 2008 when the orders made on 10 July 2008 were clearly decisions within the meaning of s.468 of the Legal Profession Act 2007;
- you informed the Court of Appeal during the hearing of the application that you did not challenge the only substantive orders made on 10 July 2008 thereby rendering the application pointless;
- you made submissions in support of six grounds of appeal from the decision of the LPT when none had any prospects of success.
Especially when taken in combination, these matters have the potential to raise doubts about your competence to practise as a barrister which issue is relevant to whether the Association can be satisfied that you are a fit and proper person to hold a Practising Certificate. The Bar Council invites you to make submissions or provide it with further information concerning these matters. In order to assist you in this process, I enclose a copy of the transcript of proceedings before the Court of Appeal.
The Bar Council invites you to inform it of your reaction to the criticisms made of you in the reasons of the Court of Appeal ([2009] QCA 126) and to provide it with details of any steps you have taken or which you propose to take to address the causes of those criticisms.
You have asserted to the Court that the Honourable Justice Fryberg “recommended” that the Association should grant you a Practising Certificate if you reapplied for one after the hearing before his Honour on 9 December 2008, when you had no basis for doing so. That you had no basis for doing this is borne out by the following passages in the transcript of the proceedings before his Honour on 9 December 2008: page 23 lines 20-40, page 25 line 15 to page 26 line 25, page 70 line 40 to page 71 line 21. This transcript comprised exhibit A to my affidavit filed on 22 June 2009 in proceedings 107 of 2009 which you should have a copy of. The Bar Council invites you to make submissions about this matter and why you contend it does not pose a hurdle to the Association being satisfied that you are a fit and proper person. Details of the occasions on which you have made this claim explicitly or by implication are set out in Attachment “A” to this letter.
You have contended to the Court that the Association is “expanding and enlarging their enquiry into irrelevant matters confirming that the decision in October based on a tax conviction was simply an excuse” (see: ground 3(c) of your amended application in proceedings 107 of 2009). The Bar Council invites you to provide details of the basis you have for this claim and any submission you care to make as to the impact the claim should have on your application for a Practising Certificate. In that regard, I would draw your attention to the limitations imposed on the Association by s 51(4)(b) of the Legal Profession Act and the definition of the “suitability matters” in s 9.
Any submissions or further information should be provided to me by no later than 5.00pm on Friday, 14 August 2009…”
- Mr Bradshaw did not respond.
Judicial Commendation
- On 13 August, Douglas J dismissed Mr Bradshaw’s judicial review proceeding.[15] Among the issues addressed in his Honour’s reasons,[16] mention was made of Mr Bradshaw’s recurring claim that, in dismissing the appeal from BAQ’s earlier refusal to renew a practising certificate, Fryberg J had recommended that Mr Bradshaw be granted one:
“[21]Mr Bradshaw appealed against the Bar Association’s decision not to renew his practising certificate pursuant to s 69(3)(b) of the LPA. The appeal was heard before Fryberg J on 9 December 2008. Mr Bradshaw represented himself.
[22]In this proceeding Mr Bradshaw has expressed views, apparently based on his understanding of the proceedings, that Fryberg J indicated that he should withdraw his appeal, that he should apply for a new practising certificate and that his application should be granted. The transcript makes it clear that he misunderstood the course of those proceedings.
[23]At the commencement of proceedings, Mr Clothier for the Bar Association objected to Mr Bradshaw’s attempt to introduce further evidence on the ground that the appeal was an appeal in the strict sense and not a hearing de novo. Because the Bar Association made the objection, it addressed first on the nature of the appeal. In the course of legal argument on the point it became relevant to consider whether the LPA contained any restriction on a person in Mr Bradshaw’s position making a fresh application for a practising certificate. Mr Clothier submitted that there was no such restriction and stood the matter down for a short period to confirm that was the Bar Association’s position. Those instructions were obtained and the position was conveyed to Fryberg J. It was expressly stated that no representation was made that any further application would be successful and Fryberg J acknowledged this.
[24]Fryberg J ruled in favour of the Bar Association on the nature of the appeal. As Mr Bradshaw was not prepared to deal with his appeal on this basis, counsel for the Bar Association addressed first in order to give Mr Bradshaw time to prepare.
[25]At the conclusion of submissions, Fryberg J offered Mr Bradshaw the opportunity to withdraw his appeal. Mr Bradshaw decided to withdraw the appeal. It was struck out and an adverse costs order was made against Mr Bradshaw. At no point did Fryberg J express a view about whether any further application Mr Bradshaw might make was likely to be granted.”
- On 8 September 2009, Fryberg J, sitting in the Legal Practice Tribunal, found disciplinary charges established against Mr Bradshaw.[17] The charges related to the failure to lodge tax returns, the contents of a letter he wrote dated 19 July 2008 to Miller Harris, a firm of solicitors in Cairns, and a failure, without reasonable excuse, to comply with a notice issued by the Legal Services Commissioner.
- Speaking of the non-lodgement of tax returns over many years, Fryberg J said:
“Mr Bradshaw has given evidence that in the relevant years he did not earn any assessable income and I infer that with a somewhat insouciant and perhaps arrogant attitude, he simply decided that he did not need to bother with futile paperwork. Despite the promptings, which were considerable and repeated by the Tax Office, he did not rectify the situation and the end result was a prosecution…
Conduct like that brings the legal profession into disrepute. It also demonstrates that the practitioner involved has a lack of respect for duties imposed on citizens under the law. It is conduct, which in respect of the period after 2004, was made statutorily capable of constituting misconduct but which I have no doubt in the years prior to that year was in the sense in which misconduct has been defined at common law…
…the conduct of Mr Bradshaw, in respect of the tax returns and the fact that he allowed the matter to proceed to the stage of a conviction, does constitute unprofessional conduct.”
Adversarial approach?
- The first ground of appeal concerns the way in which BAQ approached its assessment of the application. Mr Bradshaw contends that BAQ adopted an adversarial role.
- Mr Bradshaw was pressed for material pertinent to his application: in particular, about whether he was a fit and proper person to be granted a certificate. Such inquiries about matters pertaining to fitness were, however, appropriate.
- By s 51(4)(b) of the Act, as the regulatory authority, BAQ was obliged not to grant Mr Bradshaw a practising certificate unless “satisfied” that he was “a fit and proper person to hold the certificate”. And as Douglas J held in the judicial review proceeding, BAQ “is entitled to seek information with respect to all matters of potential relevance to the issue [of fitness] in order to advance its consideration of the application” for a practising certificate.[18]
- Mr Bradshaw’s responses to the requests for information were often unhelpful. A number of requests were ignored or responded to incompletely. And there was no satisfactory explanation for such unwillingness to assist BAQ in performing its statutory function.[19]
- Mr Bradshaw did not seek a stay of any of BAQ’s decisions. Nor did he ask BAQ for an extension of time within which to provide the information sought. He now contends, in effect, however, that once he had started the judicial review proceeding, it became unnecessary to furnish the requested information. Things had become “sub judice”, he says. By this, it seems, Mr Bradshaw intends to convey that he took it that any obligation to respond was put into suspension merely because he had instituted the judicial review proceedings. If so, that was an unjustifiably optimistic perspective.
- Mr Bradshaw resented the requests for information. The correspondence also shows that he was afforded proper opportunities to respond to matters potentially adverse to his application: in particular, to address issues that could well matter to whether BAQ could be satisfied that he was a fit and proper person to hold a certificate.
- The extent of BAQ’s enquiries of Mr Bradshaw was not due to the assumption of an inappropriate role. Rather, the number and nature of requests largely resulted from Mr Bradshaw’s failure to supply complete information with his application and to respond sensibly to subsequent requests for additional material.
- BAQ’s conduct in connection with Mr Bradshaw’s application was proper.
- The first ground of appeal fails.
Impact of the Refusal
- The second ground contends that the reasons in the information notice did not warrant “effectively striking” Mr Bradshaw “off” and so preventing him from practising after 42 years as a barrister.
- Mr Clothier’s correct submission in respect of this ground was:
“This ground of appeal misconceives the nature of the Bar Association’s function. It was not engaged in disciplinary action against Mr Bradshaw. It exercised its statutory function to decide whether to grant him a practising certificate. It was prohibited from doing so unless it was satisfied that he was a fit and proper person to hold a practising certificate. It was not satisfied of that matter and so had no power to grant him a practising certificate.”
- It is not a ground of appeal that BAQ’s decision to refuse the practising certificate was so unreasonable that no regulatory authority, acting reasonably, could have made that decision.
- In any event, the course of events reveals that it was well open to BAQ to conclude, fairly and reasonably, that it was not satisfied that Mr Bradshaw was a fit and proper person to hold a practising certificate.
- Mr Bradshaw failed to lodge tax returns for several years. His attitude to his legal obligations in that respect was identified by Fryberg J. Things got to the point where Mr Bradshaw had to be prosecuted. Even by the time of his convictions, tax returns remained outstanding.
- Mr Bradshaw has never suggested that there was any physical, financial or other impediment to lodging tax returns in a timely way. Apparently, he chose not to do so for reasons that seemed to him sufficient to justify repeated contraventions of the revenue laws over more than five years.
- Mr Bradshaw has no adequate explanation for his failures to lodge returns. No less importantly, he regards the breaches as inconsequential because, as it happens, there was little or no tax to pay. Such an approach to an important civic obligation and statutory duty is not consistent with the standards to be expected of a barrister.
- BAQ was amply justified in regarding Mr Bradshaw’s explanations for not lodging tax returns year after year as unsatisfactory and as reflecting adversely on his suitability to hold a practising certificate: cf s 46(2)(c) of the Act.
- Other factors mentioned in the information notice also call Mr Bradshaw’s suitability into question. It is only necessary to canvass some.
- Mr Bradshaw’s responses to BAQ’s initiatives seeking information lacked candour. He did not provide information. He did provide some documentation bearing on his failure to lodge tax returns, but his co-operation was less than full in that respect. He failed to disclosure details of five complaints made against him. And he failed, without reasonable excuse, to comply with a written notice of the Legal Services Commissioner.[20]
- Then there is the competence issue.
- In deciding whether Mr Bradshaw was a fit and proper person to hold a practising certificate, BAQ was entitled to take into account “matters the authority thinks are appropriate.”[21]
- Professional incompetence matters to fitness to practice as a barrister.
- The factors germane to Mr Bradshaw’s conduct in connection with his application to the Court of Appeal have already been mentioned.
- Mr Bradshaw’s claim that Fryberg J had recommended that he should be entitled to recommence practice also had potential to call his competence into question.
- Mr Bradshaw characterised his false claim that Fryberg J had made such a recommendation as, at worst for him, an “exaggeration”. His conduct is not, he submits, capable of sustaining an adverse view of his professional competence.
- Misunderstandings that conform with an observer’s preferred outcome are common enough: people often hear what they want to hear. Due allowance must be made for that tendency. Moreover, Mr Bradshaw was arguing his own case in litigation vital to his professional future. In such circumstances, he might not have brought to his self-representation the detachment and judgment to be expected of a barrister. Even so, the claim[22] that Fryberg J had recommended that he be granted a certificate could fairly be regarded as raising a serious question about his capacity to grasp what happens in court. Coupled with events before the Court of Appeal, it was open to the BAQ Council to entertain substantial reservations about Mr Bradshaw’s professional competence, after allowing for the inevitable stresses and difficulties of self-representation.
Sanctions in Disciplinary Proceedings
- The third ground of appeal concerns a failure to give sufficient weight to penalties imposed by the Legal Practice Tribunal.
- Sanctions were imposed in two hearings by the Legal Practice Tribunal. But, again, BAQ had no discretion to grant a practising certificate unless satisfied that Mr Bradshaw was a fit and proper person to hold a certificate.
- By this ground of appeal, Mr Bradshaw may be suggesting that the orders of the Legal Practice Tribunal indicated that his conduct was not so serious as to call into question his suitability to practise. If that is his point, it is not correct.[23]
- Moreover, there is no inconsistency between the outcome of those Tribunal proceedings and the refusal to grant a practising certificate.
- The decision to refuse the practising certificate rests on a broader range of matters than those which were before the Tribunal on the occasions when Mr Bradshaw was dealt with.
- The third ground of appeal fails.
Disposition
- The appeal is dismissed.
Footnotes
[1] As it stood at material times.
[2] In view of the result of this appeal, it is unnecessary to consider the fact that the relief sought would, if granted, require a practising certificate to be issued for a period (i) that has expired; and (ii) was not the period that was sought in the application.
[3] Uniform Civil Procedure Rules 1999, r 785, incorporating rr 765 and 766.
[4] Bradshaw v Bar Association of Queensland, unreported, Fryberg J, SC No 10774 of 2008, 9 December 2008.
[5] Bradshaw v Bar Association of Queensland [2009] QSC 226, [5]-[6].
[6] See Bradshaw v Bar Association of Queensland [2009] QSC 226.
[7] Mr Bradshaw did not suggest that information included in this letter affords a reason for not attaching significance to his failure to supply all the information sought by the 20 February and 2 April 2009 letters.
[8] Legal Services Commissioner v Bradshaw [2008] LPT 9 (White J).
[9] Legal Services Commissioner v Bradshaw [2009] QCA 126.
[10] Legal Services Commissioner v Bradshaw [2009] QCA 126, [92].
[11] Ibid, [98].
[12] Ibid, [37].
[13] Ibid, [52], [57] and [60].
[14] Ibid, [54].
[15] Bradshaw v Bar Association of Queensland [2009] QSC 226.
[16] Omitting footnotes.
[17] Legal Services Commissioner v Bradshaw [2009] LPT 21.
[18] Bradshaw v Bar Association of Queensland [2009] QSC 226, [45].
[19] It is not shown that the application form BAQ invited Mr Bradshaw to complete was the “approved form” (see s 50(2) of the Act). Nonetheless, BAQ was, as Mr Bradshaw must surely have appreciated, performing a statutory function in which relevant matters would be considered.
[20] Which resulted in a charge Fryberg J found proved: Legal Services Commissioner v Bradshaw [2009] LPT 21.
[21] s 46(2)(g) of the Act.
[22] Persisted in despite Mr Bradshaw’s acquaintance with overwhelming evidence to the contrary.
[23] The reasons and orders may be found through the citations in footnotes [8] and [17].