Court of Appeal

Quinn v Legal Services Commissioner [2016] QCA 354 (16/6984) Fraser and Philip McMurdo JJA and Henry J 23 December 2016

Full-text: QCA16-354.pdf

Catchwords

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – OTHER MATTERS – where the respondent filed a disciplinary application against the applicant, alleging guilt of 64 separate charges of professional misconduct and or unsatisfactory professional conduct for trust accounting offences – where the applicant was found guilty of each charge of professional misconduct by the Tribunal, his name removed from the roll of legal practitioners and ordered to pay $2,500 in costs – where the applicant, over a year out of time, applied for an extension of time within which to appeal against the Tribunal’s orders, submitting that the Tribunal failed to hear and decide the discipline application in accordance with the requirements of the Legal Profession Act – where the Tribunal proceeded on the basis that the assertions made in the disciplinary application were correct because they were not denied by the applicant – whether that mode of proceeding is reconcilable with the Legal Profession Act

Summary Notes

Application for Extension of Time; Appeal Queensland Civil and Administrative Tribunal Act – where the respondent filed a disciplinary application against the applicant, alleging guilt of 64 separate charges of professional misconduct and or unsatisfactory professional conduct for trust accounting offences – where the applicant did not file any affidavit and indicated to the tribunal that he did not intend to make any submission in opposition to the application – where the tribunal decided to hear the application on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the applicant was found guilty of each charge of professional misconduct by the Tribunal, his name removed from the roll of legal practitioners and ordered to pay $2,500 in costs – where the applicant, over a year out of time, applied for an extension of time within which to appeal against the tribunal’s orders, submitting that the tribunal failed to hear and decide the discipline application in accordance with the requirements of the Legal Profession Act 2007 (Qld) (LPA) – where it is not in issue that there is a satisfactory explanation for the delay – where earlier this year the tribunal accepted that the applicant had shown sufficient reasons for his delay in applying for a reopening of the tribunal’s original decision, but dismissed that application upon a ground that is not relevant in this application – where the respondent concedes that the explanation for the delay accepted by the tribunal adequately explains the applicant’s delay in appealing to this Court – where the tribunal proceeded on the basis that the assertions made in the disciplinary application were correct because they were not denied by the applicant – whether that mode of proceeding is reconcilable with the LPA – where s 456(1) LPA makes it clear that the disciplinary body’s power to make such orders, or any disciplinary order, arises only after it has completed a hearing of a discipline application and is satisfied that the practitioner has engaged in unsatisfactory professional or professional misconduct – where the nature of the required hearing is elucidated by s 453 LPA, which obliges the disciplinary body to “hear and decide each allegation stated in the disciplinary application” – where in the context of this legislation, ss 453 and 456(1) LPA required the tribunal to hear the evidence (which, in this case, the tribunal decided it could do by reading the affidavits) and decide whether that evidence proved the allegations made by the respondent against the applicant – where the tribunal’s approach of proceeding upon the assumption that the allegations made in the disciplinary application were correct was a fundamental departure from the statutory obligation imposed upon the tribunal to hear and decide each allegation stated in the discipline application – where it follows that the jurisdiction of the tribunal to make orders against the applicant under s 456(1) LPA did not arise. Application for extension of time granted. Appeal allowed. Set aside the orders of the Queensland Civil and Administrative Tribunal. Direct that the Registrar or other proper officer of the Supreme Court cause the name of the applicant to be restored to the Roll of Legal Practitioners from which that name was removed pursuant to the order made on 24 March 2015. Order the respondent to pay the costs of the appeal (not the costs of the applicant’s application to extend time for appealing). Grant the respondent an indemnity certificate in respect of the appeal.

Uniform Civil Procedure Rules considered

Rule 745 - Application of pt 1Rule 770 - New trial