Attorney-General v Legal Services Commissioner; Legal Services Commissioner v Shand [2018] QCA 66

SUPREME COURT OF QUEENSLAND

CITATION: Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66

PARTIES: In Appeal No 5758 of 2017: / ATTORNEY-GENERAL OF THE STATE OF QUEENSLAND (appellant) v LEGAL SERVICES COMMISSIONER (first respondent) HAROLD WARNER SHAND (second respondent) / In Appeal No 5760 of 2017: / LEGAL SERVICES COMMISSIONER (appellant) v HAROLD WARNER SHAND (respondent)

FILE NO/S: Appeal No 5758 of 2017 / Appeal No 5760 of 2017 / QCAT No 163 of 2013

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2017] QCAT 159

DELIVERED ON: 13 April 2018

DELIVERED AT: Brisbane

HEARING DATE: 3 November 2017

JUDGES: Morrison and McMurdo JJA and Brown J

ORDERS: In Appeal No 5758 of 2017 and Appeal No 5760 of 2017: / In Appeal No 5760 of 2017: / The respondent pay the costs of the appellant of this appeal, to be assessed.

CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS – where the solicitor respondent has been admitted to practise as a solicitor in Queensland since 1975 – where the respondent committed an offence against s 442BA of the Criminal Code (Qld) of making a corrupt payment to a Minister of the Crown in 2002 – where the respondent was convicted of that offence in 2011 and sentenced to a period of imprisonment – where the Legal Services Commissioner applied to the Queensland Civil and Administrative Tribunal for a disciplinary order against the respondent – where the Tribunal recorded a finding that the respondent had engaged in professional misconduct and ordered that a local practising certificate not be granted to him before the expiry of five years from the date of the order – where the appellants contend that the Tribunal erred in not recommending that the respondent’s name be removed from the Roll – whether the probability is that the respondent is permanently unfit to practice so that his name should be removed from the Roll / PROFESSIONS AND TRADES – LAWYERS – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the Queensland Civil and Administrative Tribunal made disciplinary orders against the respondent on the application of the Legal Services Commissioner – where the Commissioner originally sought an order for costs fixed in the amount of $2,500, but ultimately sought that the respondent pay costs to be assessed on the standard basis – where the Tribunal ordered that the respondent pay the Commissioner’s costs fixed in the sum of $2,500, on the basis that the matter ostensibly involved light preparation, minimal investigation and no undue complication – whether the Tribunal erred in the exercise of the relevant discretion by failing to consider relevant matters / Criminal Code (Qld), s 442BA / Legal Profession Act 2007 (Qld), s 419, s 452, s 453, s 456, s 468 / A Solicitor v Council Law Society (NSW) (2004) 216 CLR 253; [2004] HCA 1, cited / Attorney-General v Bax [1999] 2 Qd R 9; [1998] QCA 89, considered / Attorney-General v Kehoe [2001] 2 Qd R 350; [2000] QCA 222, cited / Attorney-General & Minister for Justice (Qld) v Priddle [2002] QCA 297, cited / Burgess v McGarvie [2013] VSCA 142, cited / Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40, cited / De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; (2000) 170 ALR 709; [2000] FCA 335, cited / Jensen v Legal Services Commissioner [2017] QCA 189, cited / Legal Services Commissioner v CBD [2012] QCA 69, cited / Mellifont v Queensland Law Society Incorporated [1981] Qd R 17, cited / New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20, cited / Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320, cited / Puryer v Legal Services Commissioner [2012] QCA 300, cited / Queensland Law Society Inc v Carberry [2000] QCA 450, cited / The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145, applied / Watts v Legal Services Commissioner [2016] QCA 224, cited / Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279; [1957] HCA 46, cited

COUNSEL: In Appeal No 5758 of 2017: / P Dunning QC SG, with F Nagorcka, for the appellant / W Abraham QC, with M Nicolson, for the first respondent / T P Pincus for the second respondent / In Appeal No 5760 of 2017: / W Abraham QC, with M Nicolson, for the appellant

SOLICITORS: In Appeal No 5758 of 2017: / Crown Law for the appellant / Motteram Lawyers for the second respondent / In Appeal No 5760 of 2017: / Motteram Lawyers for the respondent

MORRISON JA: I agree with the reasons of McMurdo JA and the orders his Honour proposes.

McMURDO JA: In 1975, the respondent was admitted to practise as a solicitor in Queensland and he has been on the Roll of this Court since then. He practised continuously and full time as a solicitor from 1975 until 1997, when he became the chief executive officer of a company called Jellinbah Resources Pty Ltd. It was in that capacity that, in 2002, he committed an offence against s 442BA of the Criminal Code (Qld) of making a corrupt payment to a Minister of the Crown. In the interests of that company, and at the direction of its apparent controller, a man called Gorman, he caused an amount of $60,000 to be paid to Mr Gordon Nuttall, the then Minister for Mines in the Queensland Government. In April 2011, after a trial in the District Court, he was convicted and sentenced to a term of 15 months’ imprisonment, suspended after four months.

On the basis of that conduct, the Legal Services Commissioner applied to the Queensland Civil and Administrative Tribunal (“Tribunal”), under s 452 of the Legal Profession Act 2007 (Qld) (“the Act”), for a disciplinary order against him. The Commissioner contended that he had been guilty of professional misconduct of the kind described in s 419(1)(b) of the Act, namely conduct “happening otherwise than in connection with the practice of law that would … justify a finding that the practitioner is not a fit and proper person to engage in legal practice”.

Before the Tribunal, the respondent, who was then without legal representation, conceded that his criminal conduct constituted professional misconduct. The issue for the Tribunal, which was constituted by a former judge of this Court, the Honourable JB Thomas AM QC, was whether the Tribunal should recommend that the respondent’s name be removed from the Roll of legal practitioners of this Court.

In the decision under appeal, the Tribunal declined to make that recommendation. It recorded a finding that the respondent had engaged in professional misconduct and ordered that a local practising certificate not be granted to him before the expiry of five years from the date of the order. It further ordered the respondent to pay the Commissioner’s costs, fixed in the sum of $2,500.¹

The Commissioner and the Attorney-General of the State of Queensland appeal against that decision, each contending that the Tribunal erred in not recommending that the respondent’s name be removed from the Roll. The Attorney-General is the Minister for the purposes of the Act and may appeal against a decision of the Tribunal, pursuant to s 468(1)(b) of the Act. Each of these appeals is by way of a re-hearing on the evidence given before the Tribunal.²

For the reasons that follow, the appeals should be allowed and the respondent’s name should be removed from the Roll.

The offence

The Tribunal did not have extensive evidence of the facts and circumstances of the offence. It had to rely upon the trial judge’s sentencing remarks and a short affidavit by the respondent.

The respondent said that having been involved as a solicitor in a number of large-scale mining transactions, he was approached in 1998 to assist in a start-up company which became Jellinbah Resources Pty Ltd. He became a director of the company in that year and subsequently its chairman of directors. From 1997 to 2003, he was its chief executive officer. It would appear from the sentencing remarks that the respondent did not have a personal investment in the company and that the principal shareholder was Gorman.

The sentencing judge found that the respondent had acted on Gorman’s instructions. He found that the respondent had not been involved in discussions and negotiations between Gorman and Nuttall, which he inferred must have taken place before Gorman instructed the respondent to make the payment. He found that “clearly Nuttall made the initial approaches to Gorman”, which to the judge’s mind, demonstrated that “Nuttall was already deeply corrupted”. The payment was not sought by Nuttall in exchange for some specific advantage which he, as the then Minister for Mines in the State Government, was to confer. Rather, the judge concluded, “Nuttall’s behaviour suggested that should his requests not be accommodated he had the ministerial wherewithal to show palpable disfavour to those commercial interests”, which the judge had identified as the “commercial interests of Gorman”. The judge found that “the primary intention of making the payment … was to protect Gorman’s commercial interest against Nuttall’s possible displeasure at refusal” and that the payment was made “in the face of Nuttall’s relentless importuning”.

The sentencing judge referred to a number of mitigating circumstances, namely:

the respondent was a person of otherwise very good character who had rendered considerable public service to the community;

there were several references tendered which were “of the highest quality”, speaking uniformly of his “extremely good character”;

since the commission of the offence, the respondent had suffered depression;

there had been a delay in the proceedings which could not be attributed to the respondent, but instead was due to proceedings against Nuttall;

although the respondent had pleaded not guilty, he had still given substantial co-operation with the authorities, by making admissions which avoided the necessity for a number of witnesses to be called;

the commission of the offence was an isolated act of aberrant behaviour and the respondent was unlikely to re-offend;

the offence was the result of the respondent’s poor judgment and not greed.

The respondent’s career and circumstances

The respondent was born in 1951. Having been admitted in 1975, he became a partner in a law firm in 1977 and practised as a principal in three firms over the next 20 years. Initially his practice was in banking and finance, before extending to what the Tribunal described as “wide-ranging work for large corporate and government bodies in large scale commercial transactions and over many other areas including property, rural matters, hotels and mining”.³ He also performed what the Tribunal described as a good deal of honorary legal work.⁴

During his period in legal practice, the respondent was never the subject of any complaint of misconduct. The Tribunal said that “[w]ith the exception of the serious aberration in 2002, his conduct has been unimpeachable.”⁵

The Tribunal found, on the basis of uncontradicted evidence, that the respondent had contributed in substantial ways to the benefit of the community, which was confirmed by “an impressive list of personal references”.⁶

In his uncontradicted affidavit, the respondent said that he had learnt an extremely painful and publicly humiliating lesson, which had taken a heavy toll on him and his family. He said that he was very remorseful and there was no prospect that he would ever engage in similar conduct again. In that affidavit, which was sworn in 2014, the respondent said that he was then approaching 63 years old and had no intention of ever seeking to practise again as a lawyer or of re-applying for a practising certificate. That remained his position when, in February 2017, the application was heard by the Tribunal.⁷

Relevant statutory provisions

By s 452 of the Act, the Commissioner may apply to the Tribunal for an order against an Australian legal practitioner. By s 453, the Tribunal must hear and decide each allegation stated in the application.⁸

Section 456 confers the disciplinary powers which are exercisable by the Tribunal in hearing such an application. Section 456 relevantly provides as follows:

“456 Decisions of tribunal about an Australian legal practitioner

(1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.

The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—

an order recommending that the name of the Australian legal practitioner be removed from the local roll;

an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;

an order that a local practising certificate not be granted to the practitioner before the end of a stated period[.]”

The section confers several other powers, including the imposition of conditions upon a practitioner’s practising certificate and an order that no law practice, for a stated period of no more than five years, should employ or continue to employ the practitioner at all or without certain conditions.

By s 456(1), the Tribunal’s power to make any disciplinary order is dependent upon it being established to its satisfaction that the practitioner has engaged in “unsatisfactory professional conduct” or “professional misconduct”. The first of those terms is defined by s 418, and is confined to conduct happening in connection with the practice of law. The second of them is relevantly defined, within s 419, as follows:

“419 Meaning of professional conduct

Professional misconduct includes –

…

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.

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.”

Under s 419(1)(b), the conduct must be so serious as to justify a certain finding, namely that the practitioner is not a fit and proper person to engage in legal practice. In The Council of the New South Wales Bar Association v Sahade,⁹ it was held that an equivalent provision of s 419¹⁰ required an assessment of whether, at the time at which the conduct occurred, it could have justified a finding that the practitioner was not a fit and proper person to engage in legal practice. The relevant inquiry, in order to determine whether certain conduct constituted professional misconduct, was not to ask whether the conduct could justify a finding that a practitioner was not a fit and proper person at the time at which that determination by a tribunal or court was to be made. The reasoning, which is in the judgment of Basten JA at paragraphs [60] to [75], is equally applicable to the Queensland statute and I respectfully agree with it. Basten JA said that a finding of professional misconduct under the equivalent of s 419 of the Act needs to be made by assessing the seriousness of the conduct, judged without reference to subsequent events and, in particular, the practitioner’s subsequent rehabilitation or reformation of character. Subsequent events such as those are relevant in deciding upon the appropriate disciplinary order, once a finding of professional misconduct is made. Each of the parties to these appeals accepts the correctness of that interpretation. It accords with the reasoning in the judgment of this Court in Legal Services Commissioner v CBD¹¹ and Watts v Legal Services Commissioner.¹²

The Tribunal’s Reasons

After referring to the facts and circumstances of the offence, the Tribunal Member referred to a report, written by Dr Curtis, a psychiatrist, on the respondent’s condition. The Member said that the report contained relevant material, particularly that which confirmed that the respondent had undergone a period of “relatively significant depression”, although the Member was not persuaded by the doctor’s opinion that the respondent may have been suffering a milder form of this depression when the offence was committed and the Member concluded that there was no psychiatric mitigation for the conduct in question.¹³ But he accepted that “the report confirms that the respondent’s behaviour was an isolated event in the life of a person of otherwise outstanding good character and that it was aberrant and uncharacteristic”.¹⁴

The Member recorded events which had preceded the application being filed in QCAT: there had been no misconduct investigation by the Commissioner until seven months after the respondent’s conviction, when the respondent was invited to make submissions on the matter and promptly responded with written submissions and an undertaking not to practise again.¹⁵ The respondent then admitted that his conduct amounted to professional misconduct and he took issue only on the question of whether his name should be removed from the Roll.¹⁶ Importantly, those submissions contained no concession that the respondent was then unfit to practise.

The Member noted the absence of any complaint of misconduct in the respondent’s lengthy period of actual legal practice. He noted the “inevitable disgrace that follows such a conviction” and that the respondent had not returned to active legal or commercial activity.¹⁷ He noted the respondent’s substantial contribution to community affairs, including in rugby union with the respondent’s particular involvement in the disciplinary administration of that game.¹⁸

The Member then turned to the question of whether the respondent was guilty of professional misconduct. He noted that the issue was not contested, but that it was necessary for the Tribunal to be independently satisfied about the allegation.¹⁹ The Member noted that the terms of s 420 of the Act specified some categories of conduct that are capable of constituting unsatisfactory professional conduct or professional misconduct, one being “conduct for which there is a conviction for a serious offence”, and that the term “serious offence” is defined to include an indictable offence against the law of any jurisdiction.²⁰

The Member then reasoned as follows:

“[41] There is no doubt that the evidence here is capable of establishing professional misconduct. Whether it in fact does so depends on evaluation of the evidence by the Tribunal.

[42] In order to make such a finding it is necessary that the conduct would "justify a finding that the practitioner is not a fit and proper person to engage in legal practice."

[43] For the reasons stated hereunder, I have concluded that at the present time the respondent is not a fit and proper person to engage in legal practice. The question whether his name should be removed from the roll is of course a separate one.

[44] Accordingly, and with the advice of members of the panel, I find that the respondent was guilty of professional misconduct as alleged in the application.” (Footnote omitted, emphasis added.)

In my respectful view, by that reasoning, the Member appeared to regard the question of whether there had been professional misconduct as one which called for an assessment, as at the date of the Tribunal’s decision, of whether the respondent was then a fit and proper person to engage in legal practice. If so, that view was contrary to the correct interpretation of s 419, according to The Council of the New South Wales Bar Association v Sahade, which, it would appear, was not referred to the Tribunal.

As I have discussed, the first question for the Tribunal was whether the conduct, assessed as at the time when it happened and without reference to subsequent events and circumstances, could have justified a finding that the respondent was not a fit and proper person to practise. Having regard to the serious nature of this offence, a finding that this was professional misconduct was inevitable. The Member seems to have gone further and found, adversely to the respondent, that, as at the date of the Tribunal’s decision the respondent was not a fit and proper person.

A little further on, the Member appears to have confirmed this finding when he said:²¹

“In finding the respondent guilty of professional misconduct above, it was necessary to find that he is not currently fit to practise, and the practitioner himself did not suggest that he was.” (Emphasis added.)

However, the Member there misstated the respondent’s case. He conceded that his conduct was professional misconduct, not that he was, in 2017, unfit to practise.

The Member noted the breadth of the discretionary power which is conferred by s 456(1), under which the Tribunal “may make any order as it thinks fit”. He noted also that the Act did not “specify the circumstances that might be appropriate for the making of orders that section 456(2) exemplifies”.²² He said that the necessary principles and criteria were therefore to be found in the cases that show how the courts have traditionally regulated the profession.²³ Citing New South Wales Bar Association v Evatt²⁴ and Clyne v NSW Bar Association,²⁵ he noted that it was recognised that the subject power of the courts, and here of the Tribunal, was protective and not punitive.²⁶

The Member noted that the misconduct in this case had occurred otherwise than in the course of legal practice. He said that prior to conduct of this category being brought within the description of professional misconduct, within the current National Model Laws regulating the legal profession, such conduct had been termed “personal misconduct” in the leading case of Ziems v Prothonotary of Supreme Court (NSW).²⁷ He said that although the body of decisions prior to the engagement of the National Model Laws remained relevant, one significant change was to be kept in mind, namely that “there is now a clear distinction between admission to the roll and the admission to practice.”²⁸ The Member described the relevance of that distinction as follows:

“[57] Until the latter part of the 20th-century, entry on the roll conferred the right to practise, and that right was only lost by removal or suspension of the practitioner's name from the roll. But now admission to the roll no longer confers a right to practise. Practising certificates are necessary in order to engage in legal practice.

[58] This means that separate consideration is now necessary in disciplinary proceedings as to whether a practitioner is unfit to engage in practice and whether he or she is unfit to remain on the roll. The former question now needs to be answered in making the initial determination of professional misconduct, while the second question arises on the issue of sanction when the Tribunal considers whether an order recommending removal of the practitioner's name from the roll should be made as distinct from suspension or postponement of the right to practise, or no suspension or postponement at all.

[59] A determination of professional misconduct under the Act requires a present tense determination that the practitioner is not a fit and proper person to engage in legal practice.

[60] A finding that a person at a particular time is not fit and proper to engage in legal practice does not necessarily mean that he or she is not fit to remain on the roll. It is necessary to recognise that different purposes and considerations apply to the maintenance of the roll than to the granting, withdrawing, suspending and imposing of conditions concerning practising certificates. This was emphatically noted in the recent Court of Appeal decision of Legal Practitioners Admissions Board v Doolan.

[61] In finding the respondent guilty of professional misconduct above, it was necessary to find that he is not currently fit to practise, and the practitioner himself did not suggest that he was. The relevant criteria for deciding whether his name should now be struck from the roll can only be distilled from decided cases with an awareness of the different purposes for which admission rolls and practising certificates now exist.” (Footnotes omitted.)

Notwithstanding this distinction between rights to enrolment and rights to practise, the Member said, the decided cases still provided “benchmarks for the type of conduct that will justify a striking from the roll, and that which will justify a suspension from practice.”²⁹

The Member then adopted the summary of the approach of courts in cases of this kind (personal misconduct by the commission of a crime), which was given in Prothonotary of the Supreme Court of New South Wales v P,³⁰ where Young CJ in Eq (with whom Meagher and Tobias JJA agreed) said:

“A series of propositions as to the law clearly have appeared from the cases and I will briefly summarise them.

The onus is on the claimant to show that the opponent is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236. However Briginshaw v Briginshaw (1938) 60 CLR 336, 362 shows the particular standard that must be applied when working out the civil onus of proof.

An order striking off the Roll should only be made when the probability is that the solicitor is permanently unfit to practice: Prothonotary v Richard (NSWCA 31.7.1987 per McHugh JA) and see NSW Bar Association v Maddocks (NSWCA 23.8.1988).

The fact that the opponent has a conviction for a serious offence is not necessarily sufficient reason for an order striking that person off the Roll; see Ziems v Prothonotary (1957) 97 CLR 279, 283.

The fact of conviction and imprisonment is, however, far from irrelevant and may be regarded as carrying a degree of disgrace itself. See Ziems case at 288.

The Court needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the opponent should not remain a Member of an honourable profession: Re Weare [1893] 2 QB 439, 446; Barristers’ Board v Darveniza (2000) 112 A Crim R 438 (QCA).

The fact that the opponent pleaded guilty to the charge will usually be counted in her favour: NSW Bar Association v Maddocks. Though we do not assume that all pleas of guilty necessarily show remorse, it is significant that in the instant case Keleman DCJ said that it did.

Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civic obligations: NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 289; NSW Bar Association v Somosi (2001) 48 ATR 562.

The concept of good fame and character has a twofold aspect. Fame refers to a person’s reputation in the relevant community, character refers to the person’s actual nature: McBride v Walton (NSWCA 15.7.1994 per Kirby P); Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455, 459.

The attitude of the professional association is that the application is of considerable significance.

The question is present fitness, not fitness as at the time of the crime: Prothonotary v Del Castillo [2001] NSWCA 75 at para 71.”

As the Member noted, that summary has been extensively followed in other cases. In this Court it has been most recently followed in Jensen v Legal Services Commissioner.³¹

The Member then discussed, in particular, the second of those propositions, namely that an order striking off the Roll should only be made “when the probability is that the solicitor is permanently unfit to practice.” (Emphasis added.) The Member noted that:

“The need for a perception of permanent unfitness to practise has recently been emphasised by the Queensland Court of Appeal in Watts,³² where the court concluded that the conduct of the solicitor in question, when it was committed, "would have rendered him unfit to practise at that point. However that is not determinative on whether he is now permanently unfit to practise."”³³

He said that a similar observation could be made about the respondent’s conduct in the present case.³⁴ He continued:³⁵

“It also seems clear that suspension from the roll has been regarded as a more appropriate course than striking off whenever the Court or Tribunal perceives that after a stated period of suspension the practitioner is likely to be of appropriate character to resume practice. This is sometimes achieved by the imposition of conditions or undertakings limiting the nature of the practice in which the practitioner may re-engage.”

The Member then turned to the circumstances of the present case. He recognised that that the respondent’s crime was a serious one, which involved playing a part in an act of public corruption.³⁶ He recognised also that “[t]here are cases where the nature of the offence and its circumstances are themselves enough to permanently stigmatise the offender as unfit to be a Member of an honourable profession.”³⁷ The Member recorded the submission for the Commissioner that any participation in the making of a corrupt payment to a Minister of the Crown would be a case of that kind, but rejected it, saying that it was necessary to look at all of the circumstances, including those of the offence itself.³⁸

The Member then returned to the question of whether the respondent was permanently unfit to practise and said that he was unable to find that there was a permanent unfitness or that the circumstances required that the respondent be struck off for the protection of the public. It is necessary to set out in full this reasoning:

“[77] The respondent's misconduct was very serious and ultimately inimical to the maintenance of law and order, and it is open to think that had an application been considered immediately after the offending conduct, or even around the time of his conviction and imprisonment, it could have been appropriately determined that he was then unfit to practise. But, as the court observed in Watts, "this is not determinative of whether he is now permanently unfit to practise". That is a test which I am bound to apply in determining whether his name should be removed from the roll. As the High Court observed in A Solicitor v Council of the Law Society of New South Wales (above):

"Thus not all cases of professional misconduct justify or require a conclusion that the name of a practitioner should be removed from the Roll. Where an order for removal from the Roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court, upon whose Roll the practitioner's name presently appears.”

[78] Counsel for the Commissioner submitted, that it is necessary that not only clients, but also fellow lawyers, the judiciary, and the public be able to repose confidence in a practising lawyer. That submission addresses fitness for current practice, and is a valuable observation. But the question here is whether he is now not a fit and proper person to remain on the roll, and, more specifically, whether he should now be seen as permanently unfit to practise.

[79] Notwithstanding the seriousness of the transgression, on the facts of this case I cannot say that this man is permanently unfit to practise, or that the circumstances of this case give rise to any apprehension that the community, the profession or the judiciary needs to be protected from him. There is no necessary incongruity about a person's name remaining on the roll notwithstanding that he or she is currently unable or temporarily disqualified from obtaining a practising certificate.

[80] Short of striking from the roll, options are available by which a sufficient general deterrent effect may be achieved, and by which public disapproval of his misconduct will be sufficiently recognised. This is achievable by precluding him from practice for a further substantial period on top of the period for which he has already voluntarily desisted from practice.” (Footnotes omitted.)

The Member noted that the respondent had indicated that he had no desire to practise again and offered an undertaking to the Tribunal never to re-apply for a practising certificate.³⁹ The Member concluded that the better course, rather than accepting the undertaking, was to order that he not be granted a practising certificate for period of five years.⁴⁰

The balance of the Reasons dealt with a question of a non-publication order (the refusal of which is not challenged by the respondent here) and a question of costs, for which the Commissioner still seeks an order for costs to be independently assessed on the standard basis, rather than fixed in the sum of $2,500.

The submissions for the Commissioner in this Court

For the Commissioner, it is accepted that an order for the removal of a practitioner’s name from the Roll should be made only when the probability is that the practitioner is permanently unfit to practise, according to the second proposition in Prothonotary v P. But it is argued that the Member misapplied that proposition, by his statements that it was necessary that the respondent was permanently unfit to practise. It is said that the Member’s reasoning suggested that a permanent unfitness had to be established as a matter of certainty, rather than probability. That submission cannot be accepted. That is not how the Member expressed the requirement, as the passages which I have quoted should demonstrate.

The Commissioner argues that the Member erred by adopting what is said to have been a two-stage test, which is said to be evident from paragraph [58] of the Reasons. It is argued that, instead, there is but one question, namely whether the probability is that the practitioner is permanently unfit to practise. In my respectful view, the reasoning in paragraph [58] may be fairly criticised, but not in the way which is made in the Commissioner’s argument. Where the reasoning can be criticised is in the Member’s statement that a determination of whether conduct is professional misconduct involved the assessment of whether, at the time of the Tribunal’s decision, the practitioner was unfit to practise. But it is the Member’s conclusion on the question of the appropriate order that is criticised by the Commissioner. In paragraph [58] of the Reasons, the Member was distinguishing between the questions of whether there had been professional misconduct and whether an order should be made for removal of the practitioner’s name from the Roll. On the second question, the Member did not misstate the relevant test.

It is argued for the Commissioner that the Member failed to recognise relevant considerations, such as that the legal profession requires the highest standards of integrity, and that it is necessary that “clients, fellow practitioners, the judiciary and the community must have confidence in the legal profession.” But as the written submissions acknowledged, those interests were identified by the Member at paragraph [78] of the Reasons. It cannot be said that there was a failure to have regard to these matters and the Commissioner’s real complaint is that they were given insufficient weight.

The more persuasive argument for the Commissioner is, in effect, that it was not open to the Member to avoid a finding that the respondent was permanently unfit to practise, when the conduct occurred in 2002 and the Member had found that in 2017 the respondent remained unfit to engage in legal practice.

The submissions for the Attorney-General

The argument for the Attorney-General substantially differs from that for the Commissioner. For the Attorney-General, it is argued that the test of whether probably the respondent was permanently unfit to practise was inapt in the circumstances and led the Tribunal into error.

The Attorney-General submits that, in considering whether an order under s 456(2)(a) should be made, the Tribunal was to consider whether, at the time of the hearing and having regard to the professional misconduct of the respondent, “the Supreme Court [would] be justified in continuing to hold out the practitioner as a fit and proper person to be entrusted with the duties and responsibilities of a lawyer.” That submission is made in reliance upon the joint judgment of the High Court in A Solicitor v Council Law Society (NSW),⁴¹ where it was said that:⁴²

“Where an order for removal from the Roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner’s name presently appears.” (Footnote omitted.)

It is submitted that if a practitioner is shown not to be fit and proper, it will usually be appropriate for the Tribunal to make an order recommending that the practitioner’s name be removed from the Roll.

Nevertheless, the Attorney-General’s submissions allow for the possibility that a test of probable permanent unfitness could be applied consistently with that statement by the High Court. It is submitted that such a test could be employed as an emphatic way of identifying the character of a practitioner as being so indelibly marked by the misconduct that he or she could not be regarded as a fit and proper person. Thus, it is conceded that a test of probable permanent unfitness may be particularly relevant in cases such as Watts v Legal Services Commissioner,⁴³ where the evidence may indicate that the professional misconduct can be attributed to some condition or circumstance which does not mark the practitioner’s character.

The Attorney-General submits that where a practitioner is shown to be unfit to practise, a removal of the practitioner’s name from the Roll should follow except where the Tribunal is satisfied that after a period of suspension the practitioner will no longer be unfit. The argument cites what was said by Moynihan SJA and Atkinson J (with whom Pincus JA agreed) in Queensland Law Society Inc v Carberry⁴⁴ that:

“Once it has been determined that a solicitor is unfit to practice, a suspension, even coupled with an order to satisfactorily complete a practice management course, could only apply in exceptional circumstances … An order for suspension should be based on a view that, at the termination of a period of suspension, the practitioner will no longer be unfit to practice[.]”

The argument cites several cases in this Court in which that approach to suspension has been employed.⁴⁵

Ultimately, it is submitted that the only order which was open to the Tribunal was one recommending removal of the respondent’s name from the local Roll, irrespective of the way in which the relevant test is framed. Therefore it is said that the Tribunal should have found that there was a “probability of permanent unfitness”, and that it should have found that the respondent was not a fit and proper person to remain on the Roll. Having made a finding of present unfitness, there was no basis upon which it was open to the Tribunal not to make the order which was sought by the Commissioner.

The submissions for the respondent

The submissions for the respondent recognise the difficulty for his case in the Tribunal’s finding that he was not a fit and proper person to engage in legal practice at the date of its decision. The submissions address this in two ways. First it is submitted that upon a closer analysis, this was not the finding of the Tribunal. The second is an argument that such a finding ought not to have been made. Further, it is argued that even upon the premise of that finding, it was still open to the Tribunal not to order that the respondent’s name be removed from the Roll, and that this Court should not interfere with the exercise of the Tribunal’s discretion in reaching that conclusion.

As the respondent argues, the apparent finding by the Tribunal of a present unfitness to practise was in the context of its consideration of whether the offence had constituted professional misconduct. Citing The Council of the New South Wales Bar Association v Sahade, Legal Services Commissioner v CBD and Watts v Legal Services Commissioner, the argument points out that what had to be considered was the significance of the offence to the respondent’s fitness to practise as at the time that the conduct occurred. It is submitted that therefore the Tribunal’s finding should be understood as a reference to the respondent’s fitness to practise at the relevant time. The argument points out, at paragraph [43] of the Tribunal’s Reasons, that the finding was preceded by the words “for the reasons stated hereunder”, yet no reasons (or further reasons) were so stated.

Consideration

I have set out above paragraphs [43] and [61] of the Tribunal’s Reasons, where there were statements that the respondent was not “at the present time” or “currently” fit to practise. I am unable to interpret those findings as referrable to the respondent’s fitness not in 2017, but at an earlier time. I accept that the same finding was not restated in [77] of the Tribunal’s Reasons. There is a tension between what was there said and the findings in [43] and [61]. That tension can be resolved by understanding the Tribunal’s reasoning to have been that although currently unfit to practise, the respondent was not then permanently unfit to practise. Read in that way, the Tribunal has reasoned that the respondent was then unfit, but it was not probable that he would remain so. The evidentiary basis for such a finding is not immediately apparent.

The discretion conferred by s 456 is a broad one and, as noted by the Tribunal, not subject to any express constraint. It is to be exercised for the purposes which are established by the authorities. It is well established that the purpose is not to punish the respondent, but to protect the public.

The protection of the public, of course, is a purpose also served by an order which affects an existing or future practising certificate. By an order affecting a practising certificate, the public is immediately protected from the risks to which those who would encounter an unfit person would be exposed.

However the removal of the name of an unfit practitioner from the Roll serves the interests of the public in more extensive ways. In Attorney-General v Bax,⁴⁶ Pincus JA said that the remedies of suspension or striking off are for the protection of the public and of the profession’s standing and that further, there is also a deterrent element. And in De Pardo v Legal Practitioners Complaints Committee,⁴⁷ French J (as he then was and with whom the other Members of the Full Federal Court agreed) said that:

“[The protection of the public] extends beyond protection against further default by the particular practitioner to protection against similar defaults by other practitioners.”

The reference by Pincus JA in Bax to the protection of the profession’s standing is important. The community needs to have confidence that only fit and proper persons are able to practise as lawyers and if that standing, and thereby that confidence, is diminished, the effectiveness of the legal profession, in the service of clients, the courts, and the public is prejudiced. The Court’s Roll of practitioners is an endorsement of the fitness of those who are enrolled.

Consequently, the respondent’s disavowal of any intention to engage in legal practice was not the end of the matter. If he was not a fit and proper person to engage in legal practice, all of the purposes which I have described required that his name be removed from the Roll, absent something which indicated that he was likely to become a person who was fit to be a legal practitioner.

In this way, the test of probable permanent unfitness is, as the Attorney-General submits, a way of identifying that the character of the practitioner is so indelibly marked by the misconduct that he cannot be regarded as a fit and proper person to be upon the Roll.

In my respectful view, the Tribunal erred in not considering all of the purposes which are to be served by orders made under s 456. At paragraph [79], the Member said that he was unable to say “that the circumstances of this case give rise to any apprehension that the community, the profession or the judiciary needs to be protected from him.” I do not disagree with that observation. But in my view, it was necessary to have regard to the wider purposes for these powers, namely the preservation of the good standing of the legal profession and of the Roll as the Court’s endorsement of the fitness of those enrolled.

I also find myself unable to agree with the Member that the respondent, if then unfit to practise in 2017, was not permanently so. The offence was committed in 2002. The respondent was tried, convicted, sentenced and incarcerated in 2011. The hearing in the Tribunal was conducted in February 2017 and its decision was given in May 2017. On the Tribunal’s findings, the respondent was a person who was unfit to practise throughout that period of 15 years. When the offence was committed, the respondent was aged 51 years, and he had been a prominent and experienced lawyer, working in commercial law before becoming a director and then the CEO of the company whose funds he used to make a corrupt payment to a Minister. His case was not that of an inexperienced young person who had become wiser and more responsible with the passage of time and further business or professional experience. Nor was this a case where he was suffering from any illness which contributed to his offending. After the passage of 15 years, if he remained unfit for practice, there was nothing in the evidence or which was identified by the Tribunal to suggest any likelihood that he would become a fit and proper person to be on the Roll.

I do not accept the respondent’s argument which challenges the finding of a present unfitness to practise. I accept that the respondent’s offending should be understood as having occurred in the circumstances described by the sentencing judge. However, this was a very serious offence, the nature of which undermined the integrity of executive government at a Ministerial level. It is difficult to imagine that a mature person, having studied and practised the law, could have failed to underestimate the seriousness of an offence of corruption involving a Minister of the Crown. It was an isolated offence, but nevertheless an unfitness to practise law was plainly demonstrated by this offence, when it was committed in 2002. The Tribunal had the substantial character references in the respondent’s favour, which had been provided to the sentencing judge. But it must be said that the character of the respondent was also revealed by the offence, and that there had to be some persuasive evidence which showed that the position was now different.

For these reasons, I have concluded that the exercise of the relevant discretion miscarried and that it is for this Court to consider what order should be made. Having regard to the purposes to be served by orders for striking off or suspension, in my opinion the respondent, having been shown not to be a fit and proper person to be a legal practitioner of this Court, should have his name removed from the Roll.

Costs

In the Commissioner’s written submissions, dated in 2014, the Commissioner sought from the Tribunal an order for costs fixed in the amount of $2,500, pursuant to s 462(5) of the Act. By that provision, the Tribunal as a disciplinary body, was able to make an order for costs for a stated amount, or for an unstated amount but with a specification of the basis upon which the amount was to be decided. There was no written submission by the respondent against that order.

However, during and after the hearing, the Commissioner sought an order that the respondent pay costs to be assessed on the standard basis. The Tribunal received further submissions on that question, which noted that the proceeding in the Tribunal was to have involved, so far as the Tribunal had indicated, a hearing “on the papers” which was to take place in 2015.

The Tribunal declined to make the order for costs which was ultimately sought. Instead it ordered the payment of costs in the amount of $2,500, as had been sought originally. It was noted that the respondent had conceded the issue of professional misconduct at the outset and that there had been no factual contest.⁴⁸ The Member said that the respondent’s conduct enabled the Commissioner to deal with the matter “upon the basis of what would seem to have been light preparation, with minimal investigation and without undue complication.”⁴⁹ The Member said that he saw no sufficient basis for the order ultimately sought and added that:⁵⁰

“Indeed, having regard to the litigation as a whole, I would have been inclined in any event to make an order under s 462(5)(a) for the payment of a limited amount.”

By that, the Member obviously referred to the outcome upon the only issue on which the parties were joined.

The Commissioner submits that there was an error in the exercise of the relevant discretion, in that the Tribunal failed to consider that the Commissioner had been required to respond to allegations that he had delayed the progress of the proceeding and to the respondent’s application for a non-publication order. In my view they were not matters which the Member had to consider, although they may have been of some relevance.

In my view, there was no error in the Commissioner’s reasoning as to costs. The outcome, of course, would be different according to my judgment. Nevertheless, there is the fact that the Commissioner was influenced by what he saw as the light preparation and minimal investigation which was involved in the Commissioner’s case. The Member was well placed to make that assessment. I would not disturb the order for costs.

Orders

I would order in each appeal as follows:that the appeal be allowed;that Order 2 of the decision of the Queensland Civil and Administrative Tribunal dated 12 May 2017 be set aside;that it be ordered that the name of the respondent solicitor be removed from the Roll of Solicitors in Queensland;in appeal no. 5760/17, that the respondent pay the costs of the appellant of this appeal, to be assessed.

BROWN J: I respectfully agree with McMurdo JA and the orders proposed by his Honour.

Footnotes

1. Legal Services Commissioner v Shand [2017] QCAT 159 (“Tribunal’s Reasons”). ↩

2. s 468(2) of the Act. ↩

3. Tribunal’s Reasons at [7]. ↩

4. Ibid. ↩

5. Ibid at [30]. ↩

6. Ibid at [33]. ↩

7. The application to the Tribunal was filed in June 2013. The reason for a delay of more than three and half years until the hearing is not explained by the material which this Court has, but there is nothing to indicate that it was the fault of either party or of the judicial member who ultimately conducted the hearing. ↩

8. Sections 452 and 453 also provide for an application to be made to the Legal Practice Committee. ↩

9. [2007] NSWCA 145. ↩

10. Legal Profession Act 1987 (NSW), s 127. ↩

11. [2012] QCA 69 at [3]-[11]. ↩

12. [2016] QCA 224 at [38], [47]. ↩

13. Tribunal’s Reasons [20]. ↩