Bax v Legal Practitioners Admission Board

In this recent appeal, an interesting issue arose: whether the Legal Practitioners Admissions Board had erred, on an application for early consideration of a suitability matter under s 32 Legal Profession Act 2007, in refusing to make a declaration in the appellant’s favour. The appellant had been removed from the roll some 20 years ago. A primary issue arising for consideration was whether applying for early consideration of suitability was procedurally appropriate for a person seeking re-admission after being struck off as a legal practitioner.

Morrison and McMurdo JJA and Mullins AJA (as her Honour then was)

15 April 2020

The statutory scheme for early consideration as to suitability for admission to the legal profession enables a person who considers that a matter may adversely affect an assessment as to their fitness for admission to apply to the Legal Practitioners Admissions Board (“the Board”) for a declaration clarifying that issue. In this instance, the Board’s determination was influenced by:

1 the nature of the acts and conduct that led to the finding of professional misconduct and removal of the appellant’s name from the roll;

2 the persistent dishonesty inherent in the appellant’s conduct and behaviour, which the Board deemed “contrary to the high standards of integrity, honesty and candour expected of a member of the legal profession and demonstrat[ing] fundamental character flaws”;

3 the absence of any material persuading the Board that the appellant’s character had changed over the intervening years. [10], [45]. 

Did the Board err in refusing to make the s 32 declaration?

In addressing this issue, the Court made the important distinction between the Board’s decision-making pursuant to s 32 of the Act, and the role it plays in making routine recommendations to the court on admission applications. The scope of s 32 is considerable – it has, for example, been used by prospective law students prior to commencing legal studies; and by a prospective applicant for admission with prior convictions of unlawful sodomy and indecent treatment of a child under 16 years: see KMB v Legal Practitioners Admissions Board (No 1) [2018] 1 Qd R 94. [48].

The court stressed that in circumstances where a practitioner has been struck off due to a finding that their conduct deemed them “probably permanently unfit to practise law”, it follows that the question for re-admission will be a matter of serious scrutiny by the court under s 35 of the Act: see Ex parte Lenehan (1948) 77 CLR 403, 422. [49].

The Court clarified that it is inappropriate for an applicant for re-admission to seek to deal with the effect of the misconduct that resulted in the striking off via a s 32 application, noting “[i]t would be an exceptional case for the misconduct that resulted in a striking off not to remain relevant on an application for re-admission”. In its view, it was less than ideal that the Board had not promptly indicated that it was inappropriate for the procedure under s 32 of the Act to be used in the appellant’s situation, instead keeping that possibility open. It confirmed that the gravity of the appellant’s misconduct that resulted in his striking off would remain relevant to any prospective application for re-admission, “even if the court before which the application for re-admission were made could be satisfied that, notwithstanding that misconduct, the applicant for re-admission were now a fit and proper person for admission”. [50].

The Court formed the view that there was no error in the Board’s refusal to make the declaration sought by the appellant. In disposing of the matter and dismissing the appeal it pertinently observed that the appellant would be able to apply for re-admission and make a full and frank disclosure concerning all matters regarding his suitability. It also commented that the appellant’s lack of success in the appeal would not adversely affect any re-admission application. [52].

A de Jersey