Murphy v Legal Services Commissioner
[2013] QSC 70
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- Unreported Judgment
- Murphy v Legal Services Commissioner[2013] QSC 70
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Murphy v Legal Services Commissioner[2013] QSC 70
Murphy v Legal Services Commissioner[2013] QSC 70
SUPREME COURT OF QUEENSLAND
CITATION: | Murphy v Legal Services Commissioner [2013] QSC 70 |
PARTIES: | JOHN PAUL MURPHY |
FILE NO: | BS7724 of 2011 |
DIVISION: | Trial Division |
PROCEEDING: | Application for statutory orders of review |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 22 March 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 July 2012 |
JUDGE: | Daubney J |
ORDERS: | 1.The respondent’s decision of 8 March 2011, confirmed by the respondent’s reasons of 2 August 2011, is set aside; 2.The applicant’s complaints made on 10 November 2009 are referred to the respondent for further consideration according to law; 3.The respondent shall pay the applicant’s costs of and incidental to this application. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant made a complaint to the respondent pursuant to Chapter 4 Part 4.4 of the Legal Profession Act concerning a solicitor and former solicitor – where the applicant is applying for statutory orders of review of the respondent’s decision not to take further action with respect to the complaint, pursuant to the Judicial Review Act (“JRA”) – where the respondent alleged that the applicant was not a “person aggrieved” for the purposes of the JRA – where the respondent erred in respect of the standard of proof which applies in disciplinary proceedings – where this misunderstanding informed the respondent’s decision-making process – where the respondent erred in respect of the nature of evidence which may be considered by a disciplinary tribunal when determining whether the standard of proof has been satisfied – where the respondent failed to consider the circumstantial case which may be mounted by a prosecution of any of the matters complained of by the applicant – whether the respondent’s decision should be set aside. Judicial Review Act 1991 (Qld), ss 3, 4, 20, 416 Legal Profession Act 2007 (Qld) Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, distinguished Briginshaw v Briginshaw (1938) 60 CLR 336, cited Griffith University v Tang (2005) 221 CLR 99, considered Inglewood Olive Processors Ltd v Chief Executive Officer of Customs [2005] FCAFC 101, considered Kawicki v The Legal Services Commissions & Anor [2005] NSWCA 333, considered Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered Purcell v Vernardos [1996] 1 Qd R 310, considered Re ARM Constructions Pty Ltd v Deputy Commissioner of Taxation [1986] FCA 97, considered Rondel v Worsley [1969] 1 AC 191, considered Tooheys Lt d v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79, considered |
COUNSEL: | J P Murphy appears in person M Plunkett with RW Haddrick for the respondent |
SOLICITORS: | Applicant appears in person Crown Law for the respondent |
- On 10 November 2009, the applicant made a complaint to the respondent pursuant to Chapter 4 Part 4.4 of the Legal Profession Act 2007 (“LPA”) concerning a solicitor, W, and a former solicitor, R.
- On 8 March 2011, the respondent wrote informing the applicant of investigations which had been undertaken with respect to the complaint, and advised that the respondent had decided not to take any further action in respect of the applicant’s complaints.
- The applicant then asked the respondent to reconsider that decision, and made submissions in support of that request.
- On 2 August 2011, the respondent wrote to the applicant advising that the respondent proposed taking no further action on the complaints and confirmed the decision of 8 March 2011.
- The applicant, who is a barrister by profession and who represented himself in this application, now applies for statutory orders of review of the respondent’s decision, pursuant to the Judicial Review Act 1991 (“JRA”).
The complaint
- On 10 November 2009, the applicant made a number of complaints about R and W in the approved form to the respondent, pursuant to s 429 of the LPA. Attached to the complaint form was a lengthy (28 pages) statement by the applicant in which he detailed the background to his complaints and gave details of the particular matters about which he complained in respect of each of W and R. The statement had 23 annexures, comprising copies of court documents, letters, emails and other documents to which the applicant referred in his statement.
- From 2003, companies associated with the applicant, Milglade Pty Ltd and Dalrymple Holdings Pty Ltd, were engaged in litigation with entities associated with one Kenneth Oscar Harrison (“Harrison”). The applicant and his wife owned and controlled Milglade Pty Ltd; the applicant and Harrison owned and controlled Dalrymple Holdings Pty Ltd. Through these entities, the applicant and Harrison engaged in the business of property development. In the early 2000s, issues arose between the applicant and Harrison with respect to financial dealings. Attempts to settle the disputes were unsuccessful, and in late 2003 proceedings were issued by entities controlled by the applicant against Harrison and entities associated with him.
- The Harrison interests in that litigation were represented by R, who was at that time a partner in a large law firm. W was a senior associate in the firm, and had day to day carriage of the litigation on behalf of the Harrison interests.
- R continued to practice as a solicitor in the firm until he resigned in about April 2008. R did not renew his practising certificate from 1 July 2008.
- W left the firm in about April 2008 and went to work for another law firm. He maintained his practising certificate.
- In the applicant’s complaint form, the impugned conduct was reported as having occurred “at various times between June 2006 and November 2008”. It summarised the details of the complaints as follows:
“Unsubstantiated and unfounded allegations of fraud.
Perjury.
Deliberate misleading of the Supreme Court.
Engaging in practice without a practicing certificate.”
- As already noted, the complaint form was supplemented by a lengthy statement in which the applicant particularised his complaints.
- The complaints span conduct of both R and W in connection with the conduct of the principal proceeding on behalf of Harrison and also in respect of two applications brought before the Court; an application made by Harrison’s side for the removal of caveats which the applicant had lodged over certain properties owned by entities associated with Harrison, and an application by Harrison’s side for the payment out of certain monies which were being held in escrow pending the outcome of the principal proceeding. It is convenient to set out the respondent’s summary of the detailed complaints[1]:
“In essence, your complaint is that legal practitioners, [R and W] whilst representing your opponent Kenneth Harrison in the matter of Milgrade Pty Ltd and Dalrymple Holdings Pty Ltd v Harrison and Ors in the Supreme Court, committed professional misconduct by:
- Alleging that you ‘materially altered the First Loan Mortgage, the Second Loan Mortgage and/or the Third Loan Mortgage by adding terms which were purportedly to be part of those mortgages ...’ in a statement of defence filed in the Supreme Court on behalf of their client, Mr Harrison.
- Misleading the Court as to the balance of convenience by using a ‘sham they had themselves designed’ in relation to the Dalby caveat application.
- Assisting their client, Mr Harrison in drafting false affidavits, namely the affidavits dated 14 March 2008, 30 October 2008.
- [R] swearing a false affidavit filed on 14 March 2008 in relation to the Escrow Application.
- [W] drafting the false affidavit for [R] filed on 14 March 2008 in relation to the Escrow Application.
- [W] misleading the Court by deposing in paragraph 8 of his affidavit filed on 15 April 2008 that ‘the plaintiffs have had 7 separate attempts at pleading their case’.
- [R] assisting and/or allowing Harrison to allege in his affidavit filed on 19 May 2008 that you had ‘caused Dalrymple Holdings to avoid income tax by causing it to understate its income by $130,688.18’.
- [R] practicing as a legal practitioner without a practicing certificate.”
- I should record that the applicant disputes the accuracy of this summary, and appended his own summary of the complaints to his written submissions to this Court. That summary alone ran to four pages. The respondent’s summary is, however, sufficient for present purposes.
Investigation of the complaint
- On 8 December 2009, the respondent wrote to the applicant acknowledging receipt of the complaint.
- On 22 December 2009, the respondent wrote to the applicant advising that the respondent had decided to refer the complaints to the Queensland Law Society (QLS”) for investigation. On that same day, the respondent referred the file to the Director, Professional Standards at the QLS for investigation and report.
- From early 2010, the QLS started investigating the complaints. It identified, at an early stage, the desirability of interviewing Harrison with respect to some of the particular allegations made by the applicant. It appears, however, that in early May 2010, the applicant informed the QLS investigator that the applicant had reported Harrison to the police and the applicant did not want the QLS to contact Harrison until after the police had conducted their investigation.[2]
- On 13 July 2010, the QLS wrote to each of W and R advising of the complaint, and informing them of their right to make submissions.
- On 10 August 2010, the QLS returned the files to the respondent, suggesting that they be placed “in abeyance” until such time as Harrison could be interviewed. The QLS advised the respondent:
“It is the Society’s view that the investigation of this complaint cannot be progressed without the cooperation of Mr Harrison. The statement by Mr Murphy makes it clear that he is drawing a number of inferences concerning the instructions and knowledge of the matter held by the solicitors on the basis of what he believes Mr Harrison did.
Harrison is under investigation by the police for his activities in relation to the matters between he and Mr Murphy. You will see from the current files, in particular 7180, that the police are actively investigating these allegations. This is well known to Harrison. Search warrants have been executed upon him.
In those circumstances, it is extremely unlikely that Harrison would be willing to speak to the Society concerning these matters. Indeed, given that the Society is aware of the police investigations in relation to these matters, it would be foolhardy to tread upon the police’s territory.
It is submitted that this complaint should be dismissed, or at least placed in abeyance, until the police investigation in relation to the conduct of Harrison has been completed. Then, the way will be clear for full enquiries into the conduct of the solicitors, which must by necessity require some reference to Harrison in the materials that has been seized.”
- In September and October 2010, there were correspondence and phone calls between the applicant and an officer of the respondent in which the applicant confirmed that his complaints to the police about Harrison concerned different matters to those which were the subject of the complaints to the respondent.
- In any event, on 4 November 2010, the respondent advised the applicant that the respondent had returned the complaints to the QLS for further investigation. The files were returned to the QLS on that same day.
- On 6 December 2010, the QLS Manager-Investigations returned the files to the respondent under cover of a letter which stated:
“The Society returns these files.
Attempts have been made to have Mr Harrison interviewed. As can be seen from Mr Inch’s memorandum on file 7179 and his investigation diary also on that file, Mr Harrison refuses to cooperate.
Contrary to what is recorded in your file note of 20 October 2010 on file 7180, Craig Smiley has considerable doubt as to whether Mr Murphy’s conclusions are correct. Mr Smiley is of the view that if his conclusions could be proven to be correct, then there would be a reasonable prospect of success upon prosecution.
However, as has been pointed out previously, particularly in the Society’s letter of 10 August 2010, which is contained on file 71007179, unless Mr Harrison is willing to give evidence, those allegations are impossible to prove.
Mr Harrison has refused to give evidence.
In view of that, it is the Society’s submission that the greater balance of the complaint ought to be dismissed, pursuant to Section 448(1)(a) of the Legal Profession Act 2007. There does remain the aspect of the complaint concerning practice by [R] contrary to the terms of any practicing certificate. It is not the Society’s role to make any submission concerning that aspect of the complaint.”
- On 13 December 2010, the applicant, who had been informed that the files had been returned by the QLS to the respondent, wrote a three page submission to the respondent to seek to persuade the respondent that “Harrison’s input is not actually required for any of the complaints because there is more than sufficient admissible evidence on the face of the material, and there is therefore no obstacle in the solicitors’ being prosecuted”.
The respondent’s letter of 8 March 2011
- In response to the applicant’s letter of 13 December 2010, the respondent wrote to the applicant on 8 March 2011 advising that the respondent would not be taking any further action on the complaint and would be closing the file.
- It is appropriate to set out the following, albeit lengthy, extract from that letter:
“To recap, your complaint relates to the legal practitioners acting for Mr Harrison ([R] and [W]) in that they committed perjury and misled the Supreme Court. You indicate that they baselessly pleaded that you forged mortgages and caused a company to avoid income tax. You also complained that [R] practised as a legal practitioner without a practising certificate.
One difficulty in this investigation is that your complaint is against another party’s legal practitioners. As you are aware, there are issues in obtaining relevant information in this situation due to solicitor-client confidentiality. In order to obtain first-hand information about the issues raised in your complaint, the Queensland Law Society attempted to have Mr Harrison interviewed. Mr Harrison was unwilling to provide the appropriate information and the QLS were of the view that the matter could not be appropriately investigated until the police investigation in relation to Mr Harrison had been completed. They referred the matter back to the Commission with a recommendation that I take no further action on your complaint against both practitioners pursuant to section 448 of the Act. In terms of your complaint in respect of [R] practicing without a practising certificate, QLS did not consider it their role to make any submissions.
As you are no doubt aware, the regulatory scheme under the Legal Profession Act 2007 (the Act) enables my office to investigate complaints about legal practitioners. The Act allows me to dismiss a complaint if I am satisfied that there is no reasonable likelihood of a finding by a disciplinary body of unsatisfactory professional conduct or professional misconduct as defined in the Act, or it is in the public interest to do so.
In respect of the QLS recommendations, however, the Act provides that the final decision rests with me. I note your letter dated 13 December 2010 wherein you state that Mr Harrison’s input is not required and I have considered these submissions. I agree with the QLS recommendation that I take no further action in investigating your complaint against both practitioners for the following reasons:
- The complex factual issues are not based on clear evidentiary material, but on many assumptions of what you consider to be apparent from the circumstances. The process required to test these assumptions is by detailed factual investigation of the sort normally undertaken by court process. I do not have the jurisdiction to make determinations or findings of fact about the basis of your allegations and there is considerable material on that point. The Commission is not an alternative Court or forum to determine such complex factual issues.
- The lack of firm written corroborating evidence form Mr Harrison. There may also be issues of Mr Harrison’s credit given the claims of dishonesty against him by you and also the fact he is being investigated for fraud by QPS.
- The risk of our investigation conflicting with any QPS investigation of Mr Harrison.
In respect of your complaint about [R] practising without a practising certificate, I note as follows.
You state that [R] witnessed Harrison’s depositions after 30 June 2008 declaring he was a solicitor (when it appears he did not possess a practising certificate). The only instance on the material provided is one Supreme Court affidavit executed by Harrison on 30 October 2008. In the sense of witnessing documents only, [R] is a Solicitor of the Supreme Court of Queensland and feasibly possesses the power of witnessing Supreme Court documents (in the same way a qualified Justice of the Peace or Commissioner for Declarations might be.) No specific legal knowledge or expertise is required to witness such documents. There is some argument that a solicitor without a practising certificate does not have this power in other jurisdictions, but at this stage this is a view rather than established precedent.
In the latter stages of the matter, there are copies of emails from [R] (not on letterhead) sent to your lawyers (Hopgood and Ganim) up to the period 30 September 2008. [R] does not sign the emails as a representative of the firm but does refer to ‘our clients’ in 5 instances in emails dated 14 July 2008, 17 July 2008, 25 July 2008, 12 August 2008 and 8 September 2008. He does not sign as a solicitor but it is clear he is representing Mr Harrison in some capacity, as an agent or otherwise, in what appears to be the negotiation of settlement of the matter. This may constitute a technical breach for a period covering approximately 2 months. In respect of this allegation, the possible technical breach indicates it is more than likely not of sufficient substance to commence an investigation and there would be no public interest in so doing, in my opinion.
You have alleged [R] appeared in court and passed himself off as a practising solicitor at a Directions Hearing on 30 September 2008. You state that Mr Peter Schmidt, partner of Deacons, represented the clients, announcing his appearance and [R] instructed him. However, there is nothing to indicate a conduct issue. It was not a situation of [R] appearing or having to seek the court’s permission to so appear.
I will not for these reasons be taking any further action on your complaint and I have closed the file accordingly.”
- On 25 March 2011, the applicant attended a meeting with one of the respondent’s senior officers, and provided a nine page memorandum of the applicant’s “notes” on the respondent’s letter of 8 March 2011. The “notes” were critical of the respondent’s process of reasoning and assessment of evidence as set out in the letter of 8 March 2011. The applicant followed this meeting with a letter to the respondent dated 8 April 2011 in which he effectively made further submissions about the respondent’s discretion to dismiss complaints, and asked the respondent to reconsider the decision of 8 March 2011.
The respondent’s letter of 2 August 2011
- On 2 August 2011, the respondent responded to the applicant’s request for a reconsideration of the decision.
- The respondent set out the summary of the complaints (as quoted above) and advised:
“Upon careful consideration of your complaint and my decision of 8 March 2011, I am of the view that based on the material before me there is no reasonable likelihood a disciplinary body will find the practitioners’ conduct amounted to either unsatisfactory professional conduct or professional misconduct. I propose accordingly to take no further action on your complaint pursuant to s 448(1)(a) of the Legal Profession Act 2007 and confirm my decision of 8 March 2011.”
- The respondent set out the material which he had considered in coming to that decision, and then set out his reasons. Those reasons commenced with the following:
“As you are aware, the regulatory scheme under the Legal Profession Act 2007 (the Act) enables the Legal Services Commission to investigate allegations of conduct against legal practitioners falling within the statutory definitions of ‘unsatisfactory professional conduct’ or ‘professional misconduct’. The Act provides for me to institute disciplinary proceedings against legal practitioners if evidence obtained during the investigation is sufficient to support a finding by a disciplinary body of the unsatisfactory professional conduct or professional misconduct and it is in the public interest to do so.
The Act also allows me to dismiss a complaint if I am satisfied that there is no reasonable likelihood of a finding by a disciplinary body of unsatisfactory professional conduct or professional misconduct as defined in the Act, or it is in the public interest to do so.
In essence, your complaint is that the practitioners whilst representing Mr Harrison committed perjury and misled the Supreme Court through their actions as summarised above.
Your complaint is that the practitioners lied in their pleadings and affidavits filed on behalf of their client in the proceedings instituted by you in the Supreme Court.
Rule 23 of the 2007 Barristers Rule provides that “a barrister must not knowingly make a misleading statement to a court on any matter”.
In my view, the allegations against the practitioners cannot be made out on the material before me or on the many assumptions that you consider to be apparent from the circumstances. In the absence of clear, independent evidence and sworn statements and/or evidence from the practitioners’ client, Mr Harrison in relation to his instructions and the practitioners’ knowledge of events, the allegations that the practitioners ‘knowingly misled the Court’ by assisting their client to draft false affidavits or deposing to false affidavits simply cannot be proven.”
- The respondent then, in response to a submission which had been made by the applicant, discussed s 447 of the LPA, saying:
“The initial consideration when deciding whether to take disciplinary action is that of the sufficiency of evidence. The Commission will not institute proceedings unless there is reliable evidence, duly admissible in the Tribunal that a practitioner’s conduct amounts to unprofessional conduct or practice or professional misconduct. This consideration is not confined to a technical appraisal of whether the evidence is sufficient to constitute a prima facie case. The evidence must provide reasonable prospects of a successful prosecution. If it is not of sufficient strength, any prosecution will be unfair and a waste of financial resources.
The assessment of the prospects of successfully bringing charges before the Queensland Civil and Administrative Tribunal involves an analysis of many factors, including the totality of the evidence, whether there is any independent evidence to corroborate the allegations, any admissions on the part of the practitioners and the general strength of the case against the practitioners.”
- The respondent referred to the allegations of misconduct against R and W and said:
“These allegations are not only serious but capable of amounting to criminal conduct. As you would be aware, in order to prove criminal conduct in the courts of relevant jurisdiction it is the obligation of the prosecuting authority to adduce evidence which proves the allegation beyond a reasonable doubt.
The relevant prosecutorial body in this matter is the Legal Services Commission. The relevant jurisdiction is the Queensland Civil and Administrative Tribunal which sits as the relevant tribunal in respect of disciplinary proceedings against legal practitioners. The standard of proof required is that of the civil standard ‘on the balance of probabilities’ and the standard of proof is governed by what is known as the Briginshaw test. The allegations against the practitioners must be made out to the reasonable satisfaction of the Tribunal.”
- The respondent then cited part of the well-known passage of the judgment of Dixon J in Briginshaw v Briginshaw[3], and purported to summarise it by saying:
“Put simply, the more serious the allegation, the higher the burden of proof. Given the nature of the allegations made by you, the allegations would have to be proved to a standard analogous to that of beyond reasonable doubt.”
- The respondent then referred to what he described as the “limits” of his jurisdiction, and asserted:
“As the practitioners acted for your opponent, Mr Harrison, Mr Harrison has the right to ‘legal professional privilege’. You will appreciate that legal professional privilege applies to confidential communication between a practitioner and their client, which communication was dominantly for the purpose of providing or obtaining legal advice or for use in litigation. Although I can seek an explanation of the conduct subject to the complaint from the practitioners, I cannot compel a person to waive their legal professional privilege to enable disclosure by a practitioner about a matter which may relate to the subject of a complaint. The practitioners were given notice of your complaint pursuant to section 437 of the Act by the Queensland Law Society, however I have not sought and do not intend to seek any version of events from them, given that they did not act for you.”
- The respondent then noted that he would address “the most salient issues raised by [the applicant] in light of their potential to be proved in a disciplinary tribunal”, and observed again:
“As stated, in order to prove your allegations of the practitioners misleading the Court through their false affidavits and pleadings in particular, there must effectively be proof of the allegations beyond reasonable doubt.”
- The respondent continued:
“The information provided by you does not of itself constitute evidence of the allegations you have made against the practitioners. You have alleged that the practitioners misled the Court and support this contention with your views and interpretation of what occurred and the documents submitted. This is not sufficient to ground the launch of disciplinary action against [R] and [W]. You have not provided any independent, cogent evidence of their knowledge of the instructions provided to them by their client or version of events which could prove that they ‘knowingly’ misled the Court or that they used a ‘sham they had themselves designed’ in relation to the Dalby caveat application. I accept that this would be difficult to provide, and certainly in the absence of any admissions and particularly evidence from Mr Harrison, will not be forthcoming in this case. I also accept that you may be sincere in your beliefs that the practitioners “were covering up Harrison’s sham dealings”. However, in the absence of independent cogent evidence, no potential charge could be proved.
As you were not the practitioners’ client and they were acting under your opponent, Mr Harrison’s instructions, you will appreciate that the manner within which the proceedings were conducted by the practitioners cannot be controlled by you. Having said that however, it would have been certainly prudent of you and/or your legal representative to object to or bring to the attention of the Court any material which you believed was false and/or misleading.”
- The respondent then referred to the nature of adversarial litigation, and said:
“Under the powers given to me by the Act, I do not have jurisdiction to direct a lawyer as to how a matter should proceed or be presented before a court. It is the duty of the lawyer concerned to receive their client’s instructions and to then apply their professional judgment in accordance with what they believe will advance their client’s case. As the practitioners did not act for you, they were under no obligation to advance your case. How your case was conducted was the responsibility of you or your legal representative. It was the duty of your legal representative to present and conduct your case in accordance with your instructions and in your best interests.
Although certain statements made by practitioners may amount to conduct that is misleading or dishonest, I am not satisfied that the above allegations made by you against the practitioners can be proven on the material before me and thus requiring a disciplinary response.
There is a clear distinction between statements made by a practitioner which have come to their knowledge from certain information or source and statements made that are intended to deliberately mislead the court to further one’s own interest in a proceeding.”
- The respondent then set out, in some detail, the facts and findings made in Law Society of New South Wales v Foreman[4]. That case concerned a legal practitioner who had falsified timesheets which were produced to a court on a costs argument.
- The respondent concluded this part of the letter by saying that the respondent was “satisfied that the practitioners’ conduct of preparing and filing pleadings and affidavit material in accordance with their client’s instructions is unlikely to be held by a disciplinary body as ‘knowingly making misleading statements’ to a court, amounting to either unsatisfactory professional conduct or professional misconduct”. (Emphasis added)
- With respect to the complaint about R practising without a practising certificate, the respondent confirmed his decision “that it is not in the public interest to take any further action on your complaint”. The respondent said:
“I note your submissions of 25 March 2011 in this respect and that the practitioner described himself as a ‘solicitor’ when witnessing affidavits of Mr Harrison, in particular, the affidavits dated 8 September 2008 and 30 October 2008 when he ceased to hold a practicing certificate as of 30 June 2008.
Although the above conduct may constitute a breach of 24 and/or section 25 of the Act, I am of the view that it is not in the public interest to commence disciplinary proceedings in this respect.
I propose accordingly to take no further action on your complaint pursuant to section 448(1)(b) of the Legal Profession Act 2007.”
Legal Profession Act 2007
- Complaints and discipline are covered by the provisions of Chapter 4 of the LPA. The main purposes of that chapter[5] are:
- to provide for the discipline of the legal profession;
- to promote and enforce the professional standards, competence and honesty of the legal profession;
- to provide a means of redress for complaints about lawyers;
- to otherwise protect members of the public from unlawful operators.
- The term “unlawful operator” is defined[6] as follows:
“unlawful operator means –
(a)a person who engages in legal practice in this jurisdiction even though the person must not do so under section 24; or
(b)a person who represents or advertises that the person is entitled to engage in legal practice even though the person must not do so under section 25.”
- Section 24 imposes a prohibition on persons from engaging in legal practice in Queensland unless the person is an “Australian legal practitioner”. Section 25 imposes a cognate prohibition on a person representing or advertising that they are entitled to engage in legal practice unless they are an Australian legal practitioner. An “Australian legal practitioner” is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate.[7]
- Chapter 4 Part 4.2 contains provisions which explain “key concepts” within the chapter. Within that Part, s 418 and s 419 provide:
“418Meaning of unsatisfactory professional conduct
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
419Meaning of professional misconduct
(1)Professional misconduct includes –
(a)unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach of keep a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.”
- Part 4.3 of Chapter 4 details the persons and conduct to which Chapter 4 applies, including unlawful operators. It is not contentious that both W and R are persons to whom Chapter 4 applies.
- Chapter 4 Part 4.4 then deals with complaints. Section 428(1) relevantly provides that a complaint may be made under Chapter 4 about:
- an Australian legal practitioner’s conduct to which Chapter 4 applies; or
- the conduct of an unlawful operator in relation to conduct that constitutes a contravention of s 24 or s 25 of the LPA.
- Section 429 deals with the mechanics of making a complaint, and s 430 deals with complaints which are made more than three years after the conduct in question.
- Section 431 enables the respondent Commissioner to give a written notice to a complainant requiring that the complainant:
(a)give further information about the complaint; or
(b)verify the complaint, or any further information, by statutory declaration; or
(c)sign an approved form that acknowledges the waiver of legal professional privilege, or the benefit of a duty of confidentiality, as mentioned in s 492.
- Section 432 deals with summary dismissal of complaints by the respondent Commissioner. Importantly, for the purposes of that section, the term “complaint” does not include a complaint about the conduct of an unlawful operator.[8] Section 432(1) provides:
“432Summary dismissal of complaints
(1)The commissioner may dismiss a complaint for 1 or more of the following reasons –
(a)the commissioner has given the complainant a notice under section 431 and, within the time stated in the notice or under an extension under that section, the complainant has not complied with the notice;
(b)the complaint does not disclose conduct that the commissioner considers may be –
(i)conduct to which this chapter applies; or
(ii)unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner or misconduct of a law practice employee in relation to the relevant practice;
(c)the commissioner considers the complaint is vexatious, misconceived, frivolous or lacking in substance;
(d)the conduct complained about has been the subject of a previous complaint that has been dismissed or dealt with, and the commissioner considers that the complaint discloses no reason to reconsider the matter;
(e)it is not in the public interest to deal with the complaint having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed form any Australian roll in which he or she was enrolled.”
- By s 435, if the respondent Commissioner believes that an investigation about a matter (called an “investigation matter”) should be started into, inter alia, the conduct of an Australian legal practitioner or unlawful operator, the Commissioner may refer the complaint or the investigation matter to the “relevant regulatory authority”.[9] In the present case, the relevant regulatory authority was the Queensland Law Society.
- By s 437, the entity carrying out an investigation is required to give notice of certain matters to the person about whom complaint is made. That notice must also advise the person that he or she may make submissions to the investigating entity by a state date that is reasonable.
- Section 439 sets out, relevantly, the role of the Queensland Law Society in the investigation. It provides, inter alia, as follows:
“439Role of law society or bar association
(1)If a complaint or investigation matter is referred to a regulatory authority, it must investigate the complaint or investigation matter and report to the commissioner about the complaint or matter by the stated date or a later date stated in an extension by the commissioner.
(2)For subsection (1), the regulatory authority may investigate a complaint or investigation matter by an investigator investigating the complaint or matter and presenting evidence to the authority for its consideration and report.
(3)The report to the commissioner by the regulatory authority must –
(a)be in an approved form approved by the commissioner; and
(b)include a recommendation about whether a proceeding before a disciplinary body in relation to the complaint or investigation matter should be started.”
- The powers of an investigating entity are set out in s 443, within Chapter 4 Part 4.6. It is provided, for example, that the entity carrying out an investigation may require an Australian legal practitioner who is the subject of the investigation to give a written explanation, to appear before the investigating entity, and to produce documents.[10]
- Section 446 sets out the powers of the respondent Commissioner relating to a complaint or an investigation matter relating to an unlawful operator:
“446Powers of commissioner relating to complaint or investigation matter relating to unlawful operator
(1)This section applies after a complaint or investigation matter about an unlawful operator has been investigated.
(2)As the commissioner considers it appropriate, the commissioner may –
(a)start proceedings to prosecute the unlawful operator under this Act; or
(b)give to the commissioner of police the results of the investigation; or
(c)refer the complaint or investigation matter to the law society for further investigation; or
(d)decide to no longer deal with the matter the subject of the complaint or investigation matter.
(3)Subsection (2)(a) does not limit the Acts Interpretation Act 1954, section 42.
(4)For subsection (2)(b), the commissioner may enter into arrangements with the commissioner of police.”
- Chapter 4 Part 4.7 deals with decisions of the respondent Commissioner. Relevant for present purposes are s 447 and s 448:
“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.
448Dismissal of complaint
(1)The commissioner may dismiss the complaint or investigation matter is satisfied that –
(a)there is no reasonable likelihood of a finding by a disciplinary body of –
(i)for an Australian legal practitioner – either unsatisfactory professional conduct or professional misconduct; or
(ii)for a law practice employee – misconduct in relation to the relevant practice; or
(b)it is in the public interest to do so.
(2)The commissioner must give the respondent and any complainant written notice about the commissioner’s decision to dismiss the complaint or investigation matter.”
The applicant’s standing
- The respondent challenged the applicant’s standing to bring this application.
- By s 20 of the JRA, an application for a statutory order of review may be made by a “person who is aggrieved by a decision to which [the JRA] applies”.[11]
- It was not suggested that the respondent’s decisions in this matter were not decisions of an administrative character made under an enactment,[12] and accordingly it was not suggested that these were not decisions to which the JRA applies.
- Rather, the respondent’s contention was that the applicant was not a “person aggrieved”. The respondent:
(a)submitted that the source of the respondent’s power to make the decisions lay in ss 448(1)(a) and (b) of the LPA;
(b)referred to the main regulatory purpose of the LPA[13] and the purposes of Chapter 4[14];
(c)submitted that the disciplinary jurisdiction is not punitive but protective of the public;
(d)submitted that the applicant as a complainant had no greater interest than that of any other member of the public;
(e)contended that the decision did not “itself confer, alter or otherwise affect legal rights or obligations”[15];
(f)submitted that the applicant did not seek compensation orders in his complaint and has never asserted any “pecuniary loss because of the conduct concerned”, but rather the complaint referred to the applicant seeking to have the practitioners disciplined, the applicant seeking an apology, and the applicant otherwise making the complaints “in the public interest”;
(g)argued that, because the litigation in question had been settled on a “walk away” basis, the “right or interest of the plaintiff was insufficient to support a justiciable controversy or should be stayed as otherwise oppressive, vexatious or an abuse of process”.[16]
- None of these arguments can be accepted.
- It has long been the case that the courts have adopted a relatively generous approach when deciding whether an applicant is a “person aggrieved” for the purposes of the JRA and cognate legislation in other jurisdictions. It is sufficient in that regard to refer to the following, oft-cited observations by Ellicott J in Tooheys Ltd v Minister for Business and Consumer Affairs[17]:
“The words ‘a person who is aggrieved’ should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing of future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties (cf Robinson v Western Australian Museum (1977) 16 ALR 623; 138 CLR 283).”
- It is instructive for present purposes to refer to Purcell v Venardos[18]. The applicants in that case were alleged to be victims of offences committed by the respondents. At the conclusion of the committal hearing, the magistrate decided that the respondents had no case to answer and refused to commit them for trial. The Director of Public Prosecutions refused to commence proceedings against the respondents by ex officio indictment. The applicants then sought judicial review, under the JRA, of the magistrate’s decision. Derrington J rejected an argument that the applicants did not have standing to bring an application under the JRA. When referring to a number of authorities on the question of standing (including the observations of Ellicott J which I have quoted above) his Honour noted the distinction between cases in which the interest claimed is shared by each member of the public with every other member of the public and the case before his Honour in which the “interest of the alleged victims cannot reasonably be said to be confined to one which is shared by each member of the public with every other member”.[19]
- Derrington J said further[20]:
“A victim of crime has an interest in the result of committal proceedings, for they might lead on to a conviction for the offence leading to punishment; and it also qualifies the victim to receive statutory criminal compensation. It is not a sufficient answer to this to say that victims still have their civil remedies for any justifiable claim. A person with two separate and distinct remedies has an interest in retaining both and avoiding the loss of one of them, particularly when that one has procedural advantages and possibly a greater assurance of recovery of any sum awarded.
This is not the type of case where there is a true alternative remedy. There is no other means of appeal or review of the magistrate’s refusal to commit; and, apart from being a possibly inferior remedy, the applicants’ right to pursue civil action does not meet their full interest in the committal. There is still their interest as alleged victims in seeing justice done in the punishment of the alleged offenders.”
- In light of these authorities, it is clear that the present applicant has standing as a “person aggrieved” by the respondent’s decisions. The matters of which the applicant complained to the respondent concerned, in significant part, conduct which had the potential to impact personally on the applicant – for example, the alleged conduct of the practitioners in pleading fraudulent conduct by the applicant personally clearly went to the applicant’s personal reputation, and indeed his professional reputation as a barrister. Further, to the extent that the applicant, in his conduct of the litigation, was adversely affected by the practitioners being parties to false or misleading information being put to the Court (if those allegations be established), the applicant, as a “victim” of that conduct, clearly has an interest in seeing the persons who misconducted themselves in that way punished.
- The arguments stemming from the fact that the applicant did not flag the prospect of seeking monetary compensation when making the complaint are also not maintainable. The applicant was required, by s 429 of the LPA, to make his complaint “in the approved form”.[21] That approved form makes no provision for an indication of an intention to claim compensation. In any event, the statutory entitlement for the applicant to seek a “compensation order” is governed by Chapter 4 Part 4.10 of the LPA. In s 464, “compensation order” is relevantly defined to mean:
“An order that a law practice pay to the complainant an amount by way of compensation for pecuniary loss that has been found to be:
(i)unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner involved in the relevant practice; or
(ii)misconduct of a law practice employee in relation to the relevant practice.”
(Underling added)
- In short, to adapt the words of Derrington J, the present applicant’s interest in the result of the respondent’s decision is that it might lead to punishment of the practitioners by having engaged in the impugned conduct, and would qualify the applicant to receive the benefit of a compensation order.
- Finally, the respondent’s invocation of the judgment of the High Court in the Bateman’s Bay case was completely misconceived. The passage on which the respondent placed reliance had nothing to do with standing under judicial review legislation, but was concerned with common law principles applicable in cases where a party seeks injunctive or other equitable relief in cases of alleged ultra vires action of statutory bodies in circumstances where the moving party has not sought or has been refused the Attorney-General’s fiat.
- Accordingly, I find that the applicant has standing to bring the present application.
Applicant’s contentions
- That the applicant was expansive in his criticisms of the respondent is evident from the grounds stated in the amended application:
“The Respondent committed the following errors of law in making the decision:
(a)In holding that where (as the Respondent described them) the complaints were effectively complaints of criminal conduct, the standard of proof required for a finding of guilt in the Queensland Civil and Administrative Tribunal (‘the Tribunal’) was the criminal standard, namely, beyond reasonable doubt, when the true standard is the civil standard, namely, on the balance of probabilities;
(b)Alternatively, in holding that the standard of proof was higher than the civil standard;
(c)In holding, if he did, that section 447 of the Act conferred an unfettered discretion on the Respondent as to whether to prosecute a complaint or to dismiss it, when on their true construction, section 447 confers on the Respondent exclusive jurisdiction as to whether or not to start a proceeding in the Tribunal, and section 448 governs the discretionary exercise of that power in so far as it relates to the dismissal of a complaint;
(d)In holding that the phrase ‘no reasonable likelihood’ in section 448(1) of the Act meant that the Respondent could dismiss a complaint if, in the Respondent’s opinion, the complaint did not show a high probability, or, alternatively, a near certainty, of a successful prosecution, when on its true construction, the phrase means that the discretion to dismiss a complaint may not be exercised:
(i)if the likelihood of a successful prosecution if more than merely speculative, fanciful or remote; or
(ii)alternatively, if the evidence gives rise to a rational hypothesis consistent with guilt, regardless of whether there is also an hypothesis consistent with innocence; or
(iii)alternatively, if the Tribunal properly advised could make a finding of guilt.
- The Respondent committed the following further errors of law in making the decision:
(a)He usurped the jurisdiction of the Tribunal as the tribunal of fact in holding that he was obliged to dismiss the complaints if he, personally, could not be satisfied on the criminal standard that the complaints were made out;
(b)In holding that it was not professional misconduct or unprofessional conduct for the Solicitors to make
un-particularised and unsubstantiated allegations of dishonesty in a pleading if their client gave them instructions to do so (Complaint 1 in the Reasons for Decision);
(c)In holding that it was not professional misconduct or unprofessional conduct for the Solicitors to allow their client to make un-particularised and unsubstantiated allegations of fraud on the Commonwealth revenue in an affidavit (Complaint 7 in the Reasons for Decision) if their client gave them instructions to do so;
(d)Alternatively, in holding that in such a case evidence from the client of his instructions was necessary before a proceeding could be commenced in the Tribunal;
(e)In holding that legal professional privilege is an absolute privilege, when, as a matter of law, the privilege does not attach to a communication made for the purposes of initiating or perpetrating a crime or fraud;
(f)In holding, if he did, that a solicitor is entitled to conduct litigation in any manner he pleases without being in danger of a finding of unprofessional conduct or professional misconduct;
(g)In holding that the Applicant’s solicitors’ conduct of the underlying litigation was relevant to the decision.
- Improper exercise of power occurred when the Respondent failed to take account of the following relevant considerations:
(a)That the complaint of un-particularised pleading of dishonesty (Complaints 1 and 7 in the Reasons for Decision) is not a complaint of conduct that can amount to criminal conduct;
(b)That sworn evidence from Harrison was available that he and the Solicitors had concocted a sham sale of certain land and misled the Supreme Court by concealing that sham when they filed an application and supporting affidavits for orders that caveats on that land be removed (Complaint 2 in the Reasons for Decision);
(c)That sworn evidence from Harrison bearing on that issue amounted to a waiver of any privilege that attached to communications between him and the Solicitors for that purpose;
(d)That in any event, such communications were for the purpose of perpetrating a crime or fraud and were therefore not privileged as a matter of law;
(e)That the allegations concerned with Complaints 3, 4 and 5 in the Reasons for Decision, in so far as those complaints referred to an affidavit dated 14 March 2008, had nothing to do with instructions or evidence from Harrison but were concerned only with a comparison between two Statements of Claim in the underlying litigation, which documents were in the possession of the solicitors.
- A breach of the rules of natural justice happened in relation to the making of the decisions in that the Respondent used and relief upon a report (or reports) from the Queensland Law Society which he did not give to the Applicant to allow the Applicant to comment upon.
- The Respondent committed the following errors of law when he dismissed the complaints of breaches of sections 24 and 25 by [R]:
(a)He purported to rely on the public interest test under section 448(1)(b), when section 448 has no application to complaints of breaches of section 24 or section 25;
(b)He failed to consider the alternative course of action stipulated by section 446(2) in respect of those complaints;
(c)The decision to dismiss the complaints was without justification in that the Respondent purported to rely upon certain emails being for the purpose of negotiating a settlement of certain litigation when there was no evidence to justify that characterisation;
(d)In holding that the alleged breaches were ‘merely technical’ and relying upon that holding as justification for dismissing the complaints, the Respondent failed to take into account certain relevant considerations.
- A breach of the rules of natural justice happened in relation to the making of the decisions in that the Respondent relied upon the existence and content of assumptions on which, so he alleged, the Applicant had based the complaints when, in fact, the Applicant made no assumptions.
- Alternatively to 6, in making the decisions, the Respondent purported to base the decision upon the fact, so he alleged, that the Applicant had based his complaints on assumptions, when, in fact, the Applicant made no such assumptions.
- Having a duty, and a reasonable time, to do so, the Respondent has failed, since 13 December 2009, to make decisions as to the following allegations and complaints (whether to prosecute, dismiss or investigate):
(a)To the knowledge of the solicitors, Harrison was not indebted to Deacons Lawyers in the sum of $188,000 in about January 2008;
(b)Alternatively, in continuing to act after the expiration of his practising certificate, [R] had a personal financial interest in the litigation, that is, to recover money withheld from money owing to him by the partners of Deacons Lawyers consequent upon his retiring from the partnership;
(c)That the solicitors drafted, settled and filed an affidavit by Annie Abra when they knew its contents were false in that she deposed that the presence of 2 caveats on each of 16 titles (which Harrison could not guarantee to remove) would not affect the value of the land.
- Having a duty, and a reasonable time, to do so, the Respondent failed to conduct a proper investigation into all the Applicant’s complaints in that:
(a)He failed to require the solicitors to supply documents and information as he is empowered to do by sections 443, 543 and 544 of the Legal Profession Act 2007;
(b)He failed to require Harrison and those relevantly associated with him to supply documents and information as he is empowered to do by sections 443, 543 and 544 of the Legal Profession Act 2007;
(c)He failed to require the firm, Deacons Lawyers, to supply documents and information as he is empowered to do by sections 443, 543 and 544 of the Legal Profession Act 2007.”
- The applicant filed extensive submissions (nearly 50 pages in all), plus written submissions in reply which ran to some 18 pages. These were supplemented by oral argument.
- I will refer to the applicant’s arguments, as necessary, in the discussion below.
Respondent’s contentions
- As to Grounds 1(a), 1(b) and 2(a), the respondent disputed that there had been a misstatement, let alone a misapplication, of the law relating to the standard of proof. It was submitted that, even if the respondent’s reasoning in this regard might be criticised for his statement that “the allegations would have to be proved to a standard analogous to that of beyond reasonable doubt”, his use of the word “analogous” was no more than a sort of “verbal slip” or “unhappy phrasing” from which the applicant now seeks the Court to draw an inference of law.[22]
- The respondent argued that the applicant was reading the respondent’s reasons too finely, too zealously, and with an eye attuned to error. Reliance was placed on the proposition that a court should not readily infer legal error as a consequence of infelicitous or loose language[23], and that it should not be forgotten that these “are the reasons of an administrator not of the drafter of an Act”.[24]
- It was further argued that, by these grounds, the applicant seeks to reargue the merits.
- As to the other grounds, the respondent argued:
(a)With respect to Ground 1(c), the respondent did not make any finding of unfettered discretion in s 447;
(b)With respect to Ground 1(d), the respondent did not interpret s 448(1) as requiring “a high probability, a near certainty, of a successful prosecution”;
(c)With respect to Grounds 2(b) – (g), the respondent did not make the findings of fact referred to in those grounds;
(d)With respect to Grounds 3(b) – (d), the sworn evidence of Harrison did not show Harrison and the solicitors concocted a sham and misled the Court;
(e)With respect to Ground 4, the rules of natural justice did not require the QLS report to be provided, but in any event the gravamen was given to the applicant;
(f)With respect to Ground 5, the respondent did not state that the breaches of
s 24 and s 45 were “merely technical”, but rather “the technical breach indicates it is more likely than not of sufficient substance to commence an investigation”;
(g)Grounds 6 and 7 disclose no error by the respondent in circumstances where the respondent referred to “the many assumptions you consider to be apparent from the circumstances”;
(h)With respect to Ground 8, the respondent was not required to make any of these findings;
(i)With respect to Ground 9, the respondent was not required to exercise powers under s 443, s 543 or s 544 to make the decision.
- Despite the breadth of the applicant’s attack on the respondent’s decisions, this matter can, I think, be properly determined under several headings.
The respondent’s approach to the evidence
- Much of the applicant’s argument turned effectively on contentions that the respondent’s decisions were fatally infected by:
(a)a misunderstanding of the standard of proof which applies in disciplinary proceedings, and
(b)a misunderstanding of the nature of the evidence which may be considered by a disciplinary tribunal when assessing whether the standard of proof has been satisfied.
- As to the standard of proof, in Cross on Evidence (Australian edition), under the heading “Professional Disciplinary and Other Proceedings”[25], one finds the following succinct statement (omitting references):
“The civil, not the criminal, standard of proof applies in disciplinary proceedings, but the degree of satisfaction for which the civil standard calls may vary according to the gravity of the fact to be proved. The same principle applies in conventional civil proceedings where a finding might put the reputation or earning capacity of a professional at risk.”
- In the reasons given on 2 August 2011, the respondent twice misstated the relevant standard. These misstatements are set out in [31] and [33] above. These misstatements were not mere glosses, or inapt articulations. Nor are they discerned only by a zealous or microscopic exegesis of the reasons. They are plain statements which reflect the basis on which the respondent proceeded when considering the evidence which might be put before the disciplinary tribunal. And they were simply wrong.
- It is also clear that this misunderstanding of the law concerning the standard of proof before the disciplinary tribunal informed the respondent’s entire decision-making process. The respondent’s reasons make clear that his decision not to prosecute the various issues raised by the applicant was made “in light of their potential to be proved in a disciplinary tribunal”. The respondent, however, applied the wrong test for assessing that potential.
- Secondly, and just as fundamentally, the respondent clearly undertook the assessment of the evidence on the basis that the only evidence sufficient to satisfy the necessary standard of proof is direct evidence. So much is apparent from the paragraph in the respondent’s reasons quoted above at [34], which the respondent concluded saying:
“However, in the absence of independent cogent evidence, no potential charge could be proved.”
- The error in this approach can be demonstrated again by reference to Cross on Evidence, in the following passage at [1100]:
“If the only classes of evidence that could be given of facts in issue were testimony, admissible hearsay, documents and things, many claims would fail from want of adequate proof. The limited scope of the evidence provided by documents and things is obvious enough, and it is not often that every fact in issue was perceived, either by a witness, or else by the maker of a statement which is admissible under an exception to the law against hearsay. At some stage, resort almost always has to be had to ‘circumstantial evidence’ which may be defined as any fact (sometimes called an ‘evidentiary fact’, factum probans or ‘fact relevant to the issue’) from the existence of which the judge or jury may infer the existence of a fact in issue (sometimes called a ‘principal fact’ or ‘factum probandum’).”
- This is not the occasion to expand on the nature, use and probative value of circumstantial evidence. What is clear is that the respondent made no assessment of the strength or weakness of a circumstantial case that might be mounted on a prosecution of any of the matters complained of by the applicant.
- I will mention here only one of the topics of complaint, not just in the context of discussing the respondent’s erroneous approach to assessment of evidence, but also to correct what seems to me to be a patent lack of appreciation by the respondent of a serious ethical obligation which rests on lawyers.
- The demonstrable basic facts of the applicant’s first complaint are that:
- in Harrison’s defence to the fifth amended statement of claim, it was pleaded that the applicant personally had materially altered certain mortgages by adding terms which were not in the documents when executed;
- this defence was not marked as settled by counsel, but was, on its face, filed by Harrison’s solicitors in circumstances where R was the partner responsible and W was the solicitor with carriage of the matter;
- the allegations (effectively of fraudulent conduct by the applicant) were not particularised;
- on 16 March 2007, the applicant’s solicitors wrote to Harrison’s solicitors pointing out the seriousness of the allegations and asking for particulars;
- no such particulars were provided;
- some time later, Harrison’s solicitors filed and served the next version of the defence (a defence to the sixth amended statement of claim). This pleading was settled by counsel, and omitted the allegations of fraudulent conduct by the applicant with respect to the mortgage documents;
- Harrison’s copies of those mortgage documents were subsequently disclosed. Harrison’s copies of the mortgages were no different from the applicant’s, and showed no sign of the forgeries which had been alleged in the defence.
- On the face of those facts, which in my view clearly raise a case to be answered as to the basis on which the allegations of fraud were levelled against the applicant, the respondent’s assessment was premised on the following bases:
- The applicant was engaged in an adversarial process with Harrison;
- If Harrison’s side said something which was false or misleading, it behoved the applicant to bring this to the attention of the Court;
- The duty of Harrison’s lawyers was no more than a duty “to receive their client’s instructions and then to apply their professional judgment in accordance with what they believe will advance their client’s case”. (See [36] above).
- This statement of a lawyer’s “duty” betrays a lack of appreciation of the ambit of a legal practitioner’s duty to the administration of justice. As an officer of the Court, a legal practitioner must not, inter alia, lend himself or herself “to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his [or her] possession”.[26] The reasons for this duty being regarded so seriously are explained in Professor Dal Pont’s well known work “Lawyers’ Professional Responsibility” (5th edition) at [17.220] (omitting references):
“Courts have often cautioned that allegations of fraud should not be lightly made. These may be widely recounted and, in the process, cause great harm to a person’s reputation before any evidence has been offered and submitted to the scrutiny of cross-examination or rebuttal. Loose allegations of fraud are, in the words of one judge, ‘a blot on the adversarial system’.”
- The respondent’s lack of appreciation of this long-established integer of a legal practitioner’s duty to the administration of justice is also reflected in the conclusion quoted above in [38], in which the respondent referred only to the conduct of the solicitors in “preparing and filing pleadings and affidavit material in accordance with their client’s instructions”.
- The errors to which I have referred in this part of the judgment had the effect, in my view, of fundamentally and fatally infecting the respondent’s assessment of the applicant’s complaints for the purpose of deciding whether to institute disciplinary proceedings.
The respondent’s discretion
- As noted above at [29], the respondent’s reasons commenced with, relevantly, an assertion that the LPA “provides for [the respondent] to institute disciplinary proceedings against legal practitioners if evidence obtained during the investigation is sufficient to support a finding by a disciplinary body of the unsatisfactory professional conduct or professional misconduct and it is in the public interest to do so.”
- In fact, the LPA contains no such provision. Legislative provisions to that effect are found in some other States and Territories.[27] But there is simply no provision in the terms asserted by the respondent in the Queensland legislation. Decisions to which I was referred in other jurisdictions concerning those other provisions, such as Kawicki v The Legal Services Commissioner & Anor[28], are of no assistance in the present case.
- It will be recalled that one of the complaints against R was of him acting as a solicitor without a practising certificate, i.e. a complaint of him acting as an “unlawful operator” (see [24] and [25] above).
- The LPA draws a distinction between complaints concerning Australian legal practitioners and complaints against unlawful operators. Unfortunately, the respondent did not advert to that distinction at all.
- In respect of complaints which are not in respect of conduct of an unlawful operator, s 432 confers on the respondent a discretion to dismiss a complaint summarily in any of the circumstances specified in s 432(1). It is clear, however, that this decision by the respondent was not, and did not purport to be, made under s 432.
- Further in respect of complaints which are not in relation to the conduct of an unlawful operator, the respondent’s prosecutorial discretion is governed by s 447 and s 448 (set out above at [54]). Section 447 confers the discretion to commence disciplinary proceedings. Section 448 confers on the respondent the discretion to dismiss the complaint if:
(a)there is no reasonable likelihood of a finding by the disciplinary body of, relevantly, unsatisfactory professional conduct or professional misconduct, or
(b)it is in the public interest to do so.
- There is a palpable distinction between a discretion to dismiss a complaint if the respondent assesses that there is “no reasonable likelihood” of the prosecution succeeding, which is the discretion conferred by s 448, and a decision not to prosecute unless the respondent himself is satisfied that the evidence before him proves unsatisfactory professional conduct or professional misconduct. Yet the latter is precisely the test which the respondent applied. As noted above at [30], the respondent’s express approach to the exercise of the prosecutorial discretion was:
“The Commission will not institute proceedings unless there is reliable evidence, duly admissible in the Tribunal that a practitioner’s conduct amounts to unprofessional conduct or practice or professional misconduct.”
- That approach is clearly not an exercise of the discretion to dismiss conferred by s 448(1)(a).
- In respect of the complaint against R as an alleged “unlawful operator”, the respondent purported to dismiss that complaint pursuant to s 448(1)(b) – see [39] above. The respondent’s prosecutorial discretion in respect of “unlawful operators” is, however, governed by s 446. The respondent patently erred by failing to exercise his discretion under that provision.
Conclusion
- It will be apparent from the foregoing that I consider that the respondent’s decisions not to commence disciplinary proceedings either R or W were so erroneous in law as to require the decisions to be set aside.
- The applicant, in addition to seeking orders quashing the decisions, sought that I make declarations and orders which would, in effect, require the respondent to commence disciplinary proceedings in respect of all of the applicant’s complaints. I was referred, in that regard, to numerous cases in which courts had quashed decisions but were in a position to effectively substitute other decisions. The present, however, is not a case in which such a decision could be made by the Court. This is not a case in which it can be said that there is only one possible way in which the relevant discretion can be exercised in respect of each complaint. What is required is for the respondent to consider and decide whether or not to commence disciplinary proceedings in accordance with the proper discretions conferred on him and having proper regard to the evidence (both direct and circumstantial) referred to him by the applicant. In that regard, I note finally that neither the respondent nor the QLS obtained statements from either of the practitioners concerned – indeed, the respondent confirmed in his reasons that he “did not intend to seek any version of events from them, given that they did not act for [the applicant]”. It is not immediately clear to me how the respondent can make a proper assessment of the direct and circumstantial evidence proffered by the applicant without at least asking for such statements, but that, no doubt, is a matter of investigation which the respondent will also have cause to consider as a consequence of this judgment.
- The applicant represented himself in this matter, but may nevertheless have some recoverable costs and outlays. It is clearly appropriate that a costs order lie in his favour.
- There will be the following orders:
- The respondent’s decision of 8 March 2011, confirmed by the respondent’s reasons of 2 August 2011, is set aside;
- The applicant’s complaints made on 10 November 2009 are referred to the respondent for further consideration according to law;
- The respondent shall pay the applicant’s costs of and incidental to this application.
Footnotes
[1] As appears in the respondent’s letter of 2 August 2011.
[2] See QLS letter to applicant dated 11 May 2010.
[3] (1938) 60 CLR 336 at 362-3.
[4] (1994) 34 NSWLR 408.
[5] Legal Profession Act 2007 (Qld), Section 416.
[6] Legal Profession Act 2007 (Qld), Schedule 2 dictionary.
[7] Legal Profession Act 2007 (Qld), Section 6(1).
[8] Legal Profession Act 2007 (Qld), s 432(4).
[9] Legal Profession Act 2007 (Qld), s 435(2).
[10] Legal Profession Act 2007 (Qld), s 443(1).
[11] Judicial Review Act 1991 (Cth), s 20(1).
[12] For the purposes of s 4 of the JRA.
[13] As set out in s 3.
[14] As set out in s 416.
[15] Citing in that regard Griffith University v Tang (2005) 221 CLR 99 at [89].
[16] Citing Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 39.
[17] (1981) 36 ALR 64 at 79.
[18] [1996] 1 Qd R 310.
[19] At 312.
[20] At 313.
[21] Legal Profession Act 2007 (Qld), s 429(1).
[22] Citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] – [31].
[23] Inglewood Olive Processors Ltd v Chief Executive Officer of Customs [2005] FCAFC 101 at [26].
[24] Re ARM Constructions Pty Ltd v Deputy Commissioner of Taxation [1986] FCA 97 at [17].
[25]At [9075].
[26] Rondel v Worsley [1969] 1 AC 191, per Lord Reid at 227.
[27] In New South Wales, see s 537(2) of the Legal Profession Act 2004 (NSW); in Victoria see s 4.4.13(3) of the Legal Profession Act 2004 (Vic); in the Northern Territory see s 496 of the Legal Profession Act (NT).
[28] [2003] NSWCA 333.