Legal Practitioners Admissions Board v Doolan [2016] QCA 331

SUPREME COURT OF QUEENSLAND

CITATION: Legal Practitioners Admissions Board v Doolan [2016] QCA 331

PARTIES: LEGAL PRACTITIONERS ADMISSIONS BOARD (appellant) v RICHARD FRANCIS JOHN DOOLAN (respondent)

FILE NO/S: Appeal No 5477 of 2016 / QCATA No 101 of 2013

DIVISION: Court of Appeal

PROCEEDING: Appeal Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2016] QCAT 98

DELIVERED ON: 9 December 2016

DELIVERED AT: Brisbane

HEARING DATE: 28 October 2016

JUDGES: Gotterson and Philippides and Philip McMurdo JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Appeal allowed.Set aside the decision of the Tribunal made on 28 April 2016.Order, in lieu, that the appellant, Legal Practitioners Admissions Board, ought properly refuse the declaration sought by the respondent.There be no order as to costs.

CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – OTHER MATTERS – where the appellant refused the respondent’s application for early consideration of suitability as a result of conflicting medical opinions as to his mental health, relevant to suitability matter (m) – where the respondent’s appeal against the refusal was allowed and referred to QCAT to determine whether, in light of his mental health, he is currently able to satisfactorily carry out the inherent requirements of practice, and whether the declaratory relief sought by the application should be given – where the Tribunal made a factual finding that the respondent is not currently able to satisfactorily carry out the inherent requirements of practice – where, despite this finding, the Tribunal made the declaration sought by the respondent – where it is alleged the Tribunal erred in law by: (1) making orders inconsistent with its factual finding; (2) venturing beyond the matters for direction which the Tribunal had been referred to; and (3) misapprehending that suitability matter (m) could and ought be dealt with at the stage of issue of a practising certificate – whether the Admissions Board ought properly refuse the declaration sought by the respondent / Legal Profession Act 2007 (Qld), s 9(1)(m), s 31, s 32, s 33

COUNSEL: K N Wilson QC, with P Mylne, for the appellant / No appearance for the respondent

SOLICITORS: Legal Practitioners Admissions Board for the appellant / No appearance for the respondent

GOTTERSON JA: Mr Richard Francis John Doolan has satisfied both academic and practical training requirements for admission as a legal practitioner in Queensland. Unfortunately, he has a history of mental illness. Notwithstanding this, he desires to be admitted as a legal practitioner.

In order to explain the position in which Mr Doolan now finds himself, I propose first to outline the statutory provisions relevant to his situation. I will then set out the history of applications he has made under those provisions.

Suitability provisions

Section 31(1) of the Legal Profession Act 2007 (Qld) (“LPA”) provides that a person is suitable for admission to the legal profession under the Act only if the person is a fit and proper person to be admitted. The Supreme Court of Queensland, as the admitting authority under the LPA, must decide if an applicant for admission is a fit and proper person to be admitted and may admit the applicant only if it is so satisfied.¹

By virtue of s 31(2) LPA, the Supreme Court, in making that decision, “must consider –each of the suitability matters in relation to the person to the extent a suitability matter is appropriate; andother matters that the Supreme Court considers relevant.”²

Section 9 LPA is concerned with suitability matters. Section 9(1) contains a list of matters, each of which is defined to be a suitability matter in relation to a natural person. One of these matters is:

“(m)whether the person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.”

The Legal Practitioners Admissions Board (“the Board”) has a statutory role to help the Supreme Court by making a recommendation about each application for admission.³ In fulfilling this role, s 39(2) LPA requires that the Board must consider each application and, in particular, whether or not, (amongst other things):

“(c)the applicant is a fit and proper person for admission to the legal profession under this Act, including having regard to all suitability matters in relation to the applicant to the extent appropriate”.

Early consideration of suitability by the Board

Section 32 LPA⁴ enacts a process for early consideration of suitability for admission as a legal practitioner. Section 32(1) provides that the section applies if a person considers a matter may adversely affect an assessment as to whether he or she is a fit and proper person to be admitted to the legal profession under the LPA. Section 32(2) permits such a person to apply to the Board for a declaration that a matter, including a suitability matter, will not, without more, adversely affect the Board’s assessment as to whether the person is a fit and proper person to be admitted.

Section 32(3) requires that the Board must consider the application and do one of the following –

“(a)make the declaration;

refer to the application to the tribunal for a direction if the board considers a direction would be appropriate;

refuse to make the declaration.”

(The tribunal to which paragraph (b) is referenced is the Queensland Civil and Administrative Tribunal.)

Significantly, pursuant to s 32(4), a declaration made under subsection (3)(a), or under a direction mentioned in subsection (3)(b), is binding on the Board unless the applicant failed to make a full and fair disclosure of all matters relevant to the declaration sought.

If the Board decides to refuse to make the declaration sought, it must give the applicant an information notice. The applicant may appeal to the Supreme Court against the refusal within 28 days of the notice being given.⁵

It remains to mention s 33 LPA which complements the provisions in s 32 in relation to the involvement of QCAT and the Supreme Court. Section 33 provides as follows:

“(1)If an application under section 32(2) is referred to the tribunal as mentioned in section 32(3)(b), the tribunal may give a direction to the board as the tribunal considers appropriate.

If the applicant appeals to the Supreme Court against the decision of the board to refuse to make the declaration, the appeal is to be by way of rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the board may be given on the appeal.

On an appeal under this section, the Supreme Court may make an order as it considers appropriate.”

Mr Doolan’s applications for early consideration of suitability

Conscious that his history of mental illness is a matter of relevance to the Board’s consideration of the suitability matter which I have set out, Mr Doolan has applied to the Court on a number of occasions for a suitability declaration.

The first application was made in April 2006 under s 36 of the Legal Profession Act 2004 (Qld).⁶ It was, in effect, refused by the Board in November 2006.⁷

After repeal of that legislation and enactment of the LPA, Mr Doolan made a second application in August 2009.⁸ This application was made under s 32(2) LPA. In April 2010, the Board refused to make the declaration sought.⁹

A third application, also made under s 32 LPA, was intimated to the Board in July 2010¹⁰ and formalised by letter dated 19 September 2011.¹¹ This application was refused by the Board in December 2011.¹² The refusal was principally because the Board had before it conflicting medical opinions as to Mr Doolan’s mental health. The Board considered that it was impossible and even potentially inappropriate for it to make a determination as to which body of opinion was correct.¹³

Mr Doolan appealed under s 32(5)(b) LPA to this Court against that refusal. On 12 March 2013, orders were made allowing the appeal and setting aside the Board’s refusal to make the declaration sought. The following additional orders were also made:

“3.The appellant's application is referred to QCAT under s 32(3)(b) for a direction as to:

a.(i)whether, in light of the appellant's mental health, he is currently able to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner, with or without conditions attached to his admission as a legal practitioner; and

if with conditions, their nature; and

b.whether the declaration sought by the appellant under s 32 should be made.

No order as to costs.”¹⁴

The referral was made consequent upon this Court’s conclusion that the Board should have exercised its power under s 32(3)(b) LPA to refer the application to QCAT to resolve the evidential conflict.¹⁵

The decision of QCAT

The matter referred to QCAT was heard by a judicial member thereof on 24 February 2016. Both Mr Doolan and the Board were represented by counsel at the hearing. The Tribunal had before it medical reports of Dr William Wilkie, psychiatrist, dated 8 April 2011,¹⁶ 26 August 2011¹⁷ and 19 June 2013,¹⁸ and of Dr Ben Steinberg, psychiatrist, dated 3 February 2014¹⁹ and 4 May 2015.²⁰ As well, there was a report of a conclave in which Drs Wilkie and Steinberg participated in July 2014.²¹ It is evident from this brief document that the psychiatrists were unable to agree as to whether Mr Doolan has a psychiatric disorder.

On 28 April 2016, the Tribunal decided that:

“The Legal Practitioners Admissions Board is to make a declaration under s 32(3)(a) of the Legal Profession Act 2007 (Qld), to the effect that Richard Doolan’s mental health (in its current state) will not, without more, adversely affect its assessment as to whether he is a fit and proper person to be admitted to the legal profession under the Legal Profession Act 2007 (Qld).”²²

Reasons for the decision²³ were published on the same day.

The Tribunal’s reasoning

In his reasons, the judicial member essayed the admission process, the “fit and proper” criterion and the inherent requirements of legal practice to which suitability matter (m) is referenced.

Turning to the medical evidence, his Honour explained the difference in the medical opinions in the following way:

“[52]In Dr Wilkie’s opinion, the applicant shows no signs and does not have any symptoms of schizophrenia. The closest DSM-IV diagnosis for his condition is mild Asperger syndrome adversely affecting the applicant’s ability to practise only in certain areas. Dr Wilkie is definite that the applicant does not suffer from any mental illness that would interfere with his limited ability to practise law safely and responsibly or warranted any medication or treatment.

[53]Dr Steinberg paints a much more pessimistic picture set against historical facts including two hospitalisations of four months in 1993 and again for three months in 1994 with differential diagnoses. He assesses the applicant as suffering from chronic moderately severe paranoid type schizophrenia.”²⁴

The judicial member elaborated Dr Steinberg’s opinion with the following observations:

“[55]Dr Steinberg describes the applicant as ‘obviously an intellectually bright young man’. However, he has ongoing positive symptoms of schizophrenia with paranoid ideation about the police and grandiose ideation or delusions. He feels very angry about his situation.

[56]The applicant holds some ‘very firm’ paranoid beliefs that would be under control with treatment (if the applicant sought and maintained it) but not eliminated. However, his lack of insight into the nature and extent of his psychiatric condition makes it very difficult to comply with anti-psychotic medication and makes him prone to impulsive and inappropriate behaviours.

[57]Notably, the applicant’s impulsivity and irrational thinking has brought him into conflict with the law in the past and will possibly do so in the future. In 2012, he was convicted of refusing a roadside breath test and resisting arrest. Six months later, he pleaded guilty to behaving offensively in a playground at Byron Bay. In May 2013, he pleaded guilty to creating a public nuisance by swearing and yelling at police one night at Surfers Paradise.

[58]A month later, he was dealt with in the Maroochydore Magistrates Court again for public nuisance, this time involving verbal and physical attacks on a young woman who he insulted, brought to tears and pushed to the ground.

[59]In the last two months of 2013, the applicant was again fined and placed on probation until July 2015 for committing a public nuisance at Southport and acts of indecency towards two 15 year old girls in a café by giving them his Facebook address on a piece paper together with a picture of an ejaculating penis.

[60]He reportedly regrets acting indecently to the girls in December 2013 but in Dr Steinberg’s opinion is not truly remorseful.

[61]In Dr Steinberg’s assessment, the applicant’s ongoing paranoid ideation in relation to the police and other perceptual disturbances means that … working in the legal profession would be problematic²⁵ for him in terms of his duties to the court, clients and other members of the profession.

[62]In the conclave report and follow up facsimile to the board in mid-2014, Dr Steinberg confirmed the applicant would be able to work in limited areas as a lawyer, such as giving contractual advice or preparing straightforward property work under some form of management regime. Dr Steinberg added, however, that there should be a condition that he does not work in an area involving any professional contact with clients or their agents.”²⁶

His Honour noted that the Board submitted that Dr Steinberg’s reports were “the most probative of the applicant’s current ability to satisfactorily practise law”.²⁷ In its submissions to the Tribunal, the Board emphasised the view consistently expressed by Dr Steinberg that Mr Doolan ought not have any direct contact with clients.²⁸ His Honour noted that the Board submitted “that, even with conditions and restricting his practice area to a discrete area of law where he has no contact with clients in an effort to overcome the ‘inherent requirements’ hurdle, they would, by their very nature, prove his incapacity.”²⁹

His Honour regarded the symptoms exhibited by Mr Doolan rather than diagnosis itself of any condition that he had, as a key determinant of substantive suitability. As to that, he preferred the opinion of Dr Steinberg, stating:

“[105]On this aspect, Dr Steinberg’s assessments really have to be preferred over Dr Wilkie’s. Not only are they more recent but they have the added weight of being tested at length by cross-examination at the hearing, albeit by telephone. The most significant psychiatric related risk factors Dr Steinberg identifies are:

the schizophrenia diagnosis;

the applicant’s lack of insight into his condition and record of non-compliance with adequate treatment or medication regimes resulting in impulsive and inappropriate behaviour even though the last such episode was in 2013; and

his inability to live at home unsupervised and to form close, consistent and durable personal relationships.”³⁰

Having expressed that evidential preference, his Honour then summarised his conclusions with respect to Mr Doolan’s suitability for performing the role and functions of a legal practitioner. He said:

“[110]Overall, however, I think it would be overly optimistic to expect the applicant to be able to sufficiently and effectively compartmentalise his personal and professional lives at this point in time. Without effective medication and treatment he is unable to satisfactorily carry out the inherent requirement of practice identified by the Board.

[111]The delusional thinking characterising the applicant’s illness is unpredictable and poses a significant risk to proper judgment, effective communication and interpersonal relationships.

[112]His persecutory delusions make him vulnerable to misinterpreting day-to-day events, which in turn could adversely and unpredictably affect his professional judgment and conduct. A fixed prejudice against police, for example, may be inconsistent with the due performance of the role and functions of a legal practitioner. This applies not just to depriving him of the ability to ‘adjudicate rationally and skilfully between alternative courses of action’ but also an inability to assemble all relevant information, understand its true objective significance and effectively convey that understanding to others.

[113]His lack of insight into the nature, extent and effect of his illness and the chronicity of his symptoms makes his personal outlook poor and his apparent suitability for legal practice, at least in the short term, a highly hazardous proposition.”³¹ (Footnotes omitted.)

Those conclusions led the judicial member to make the following critical finding:

“[114]Regrettably, for those reasons, I find that the applicant is probably unable to satisfactorily carry out the inherent requirements of legal practice because the current state of his mental health makes direct client contact and communication too problematic.”³²

His Honour then stated that this conclusion did “not necessarily mean, of course, that the Board should not be directed to make a suitability for admission declaration under s 32”.³³ Why that was so was explained by him in terms which drew a distinction between admission to the legal profession by the Supreme Court under Chapter 2 Part 2.3 LPA, and the grant of a practising certificate by a regulatory authority under Chapter 2 Part 2.4 LPA.

Admission, the judicial member said, of itself “does not entitle the applicant to engage with clients in legal practice without a practising certificate”.³⁴ His Honour continued:

“[120]To my mind, however, whether a person is able to satisfactorily carry out the inherent legal practice requirement of direct client contact is of less concern to the Board (and the Court) in deciding the ‘fit and proper’ issue for the admission purposes than it is for the regulatory authority considering whether to grant a practising certificate to a new legal practitioner under s 51 LPA.

[121]I find that, given the weight I think the suitability matter in s 9(1)(m) LPA appropriately has in the circumstances, despite his current inability to satisfactorily carry out the direct client contact and communication requirements of legal practice due to his mental health the applicant is nonetheless a fit and proper person for unconditional admission as an Australian lawyer. In other words, his partial incapacity for practice should not be used to bar his admission.”³⁵

It was on the basis of the reasoning in these two paragraphs that his Honour made the decision he did, notwithstanding the critical finding that he had already made with respect to inability to carry out satisfactorily the inherent requirements of legal practice. In the concluding paragraph of his reasons, his Honour summarised the position as follows:

“•The applicant is not currently able to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner in light of his mental health.

•Despite this finding, the Board is directed to make a declaration of suitability in the terms of [122] of these reasons.

•Whether the applicant is able to comply with s 9(1)(m) LPA on conditions is a question best left to the relevant regulatory authority to decide, if and when the applicant applies for a practising certificate.”³⁶

The appeal

On 1 June 2016, the Board filed a notice of appeal to this Court against the Tribunal’s decision.³⁷ The appeal is pursuant to s 149(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”). The orders thereby sought are that the appeal be allowed; the Tribunal’s decision of 28 April 2016 be set aside; and that, in lieu thereof, this Court direct that the Board ought properly refuse to make the declaration sought by Mr Doolan.

Mr Doolan was duly served with the Notice of Appeal. Prior to the hearing, his solicitors advised the Court registry that their client would neither defend nor participate in the appeal proceedings. The appeal was heard on 28 October 2016. The Board was represented by senior and junior counsel at the hearing. There was no appearance by or for Mr Doolan.

The grounds of appeal

The Board relies on the following grounds of appeal:

“(a)Having found, (at Reasons [114]) that the respondent is unable to satisfactorily carry out the inherent requirements of legal practice because of the current state of his mental health, the Tribunal erred as a matter of law in making the orders that it did.

The Tribunal erred in law in considering whether the suitability factor in s 9(1)(m) Legal Profession Act 2007 was of less concern to the appellant, and to the Court, in assessing whether the respondent is a fit and proper person to be admitted to the legal profession under the LPA than it is for the regulatory authority considering whether to grant a Practising Certificate under s 51 LPA (Reasons [120]).

The Tribunal erred in law in considering whether the suitability matter should bar the admission of the respondent as a legal practitioner when that issue was not for determination by the Tribunal.

Having regard to the findings at paragraphs [105], [110], [111], [112], [113] and [114] of the Reasons, the Tribunal erred in law in failing to make a direction that the respondent was not currently able to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner, with or without conditions attached to his admission as a legal practitioner, and that accordingly the Board ought properly refuse to make the declaration sought by the respondent in his application to the Board pursuant to s 32(2) LPA.

Having regard to the findings of fact made by the Tribunal identified in ground (d), the Tribunal ought to have directed that the declaration sought by the respondent under s 32(2) LPA should not be made.”³⁸

The Board’s submissions

The Board’s written Outline of Argument supported these grounds of appeal. In oral submissions, senior counsel for the Board proposed that the critical finding at paragraph 114 of the reasons having been made, the judicial member ought to have given a direction to the Board which was consistent with it, namely, a direction which resolved in the negative each of the issues raised in Orders 3.a and 3.b made by this Court.³⁹

It was submitted for the Board that his Honour was not required to proceed beyond the critical finding in order to give the directions required by the orders. He did so proceed, and in so doing, he erred “in two fundamental respects”.⁴⁰

Firstly, the judicial member ventured beyond the matters for direction which had been referred to the Tribunal by this Court. At paragraphs 120, 121 and 138 of the reasons, he “effectively sought to usurp the role of the admitting court” by acting upon his view of the weight that he thought should be given to the “inherent requirements” suitability matter at the admission stage.⁴¹

Secondly, his Honour misapprehended that this suitability matter could, and ought, be dealt with at the stage of issue of a practising certificate. This misapprehension led him to an apparent view that it was not a suitability matter that “would weigh at the admission stage”.⁴²

This summation by senior counsel drew together the various errors of law referred to in the grounds of appeal.

Discussion

The reference made by this Court on 12 March 2013 was made pursuant to s 33(3) LPA. It referred Mr Doolan’s application to the Tribunal for direction as to two matters, namely, those set out in paragraphs 3.a and 3.b of the order. The decision by the Tribunal ordered that the Board make the declaration sought by Mr Doolan. In this way, the Tribunal did make a direction with respect to the 3.b matter in the Court’s order. The Tribunal’s decision did not, however, make any direction with respect to the 3.a matter.

The Tribunal’s decision therefore may be validly criticised for failing to give a direction with respect to a matter referred to it for direction. However, the Tribunal did not exceed the reference by giving a direction with respect to a matter not referred to it.

In my view, the failure to give a direction with respect to the 3.a matter was not a mere failure in form. It was a manifestation of underlying errors made by the judicial member and identified by the Board in its submissions to this Court.

Firstly, it is clear that the critical finding made at paragraph 114 of the reasons justified a direction which dealt with the 3.a matter. I accept the Board’s submission that the judicial member erred in not giving a direction in terms which conformed with that finding.

Secondly, the judicial member erred in giving the direction that was given with respect to the 3.b matter. The error is reflected in the content of the direction given which is irreconcilable with the direction that clearly should have been given, but was not given, with respect to the 3.a matter.

I also accept the Board’s submission that the course taken by the judicial member was taken upon several legally erroneous footings.

His Honour apparently thought that the subject suitability matter was of less concern to the Supreme Court in its consideration of whether an applicant is a fit and proper person for admission (and to the Board in making a recommendation to the Supreme Court about it) than it would be to the regulatory authority that issues practising certificates.

It was wrong for his Honour to have acted on that footing. It is for the Supreme Court as admitting authority to be satisfied that an applicant is a fit and proper person for admission. As noted, in deciding whether the applicant is a fit and proper person, the Supreme Court is required by statute to consider each of the suitability matters in relation to the applicant. The Supreme Court therefore must consider each of them in making its decision. It may not ignore, or diminish its consideration of, any of them by regarding it as more appropriate for consideration by the regulatory authority.

It was also wrong for his Honour to have acted on the footing that it is necessary for an admitted legal practitioner to hold a practising certificate in order to perform legal work that involves interactions with the courts, clients and legal practitioners and that, therefore, the suitability matter would fall for consideration by a regulatory authority in respect of every admitted legal practitioner. That is not so. An admitted legal practitioner does not require a practising certificate in order to work as an employee of a legal practice. Also, a government legal officer is entitled to engage in legal practice even though he or she does not hold a practising certificate.⁴³

Further, the judicial member acted on the footing that the scope of action available to the regulatory authority enables it to deal with the suitability matter comprehensively. That is not so for the following reasons.

Section 46 LPA has effect for the purposes of s 51 LPA which regulates the grant or renewal of a practising certificate by a regulatory authority. Under s 46(4), if a matter has been disclosed for admission purposes and has been decided by the Supreme Court or the Board as not to be sufficient for refusing admission to legal practice, then the matter cannot be taken into account as a ground for refusing to grant or renew a practising certificate. Arguably, it may be taken into account when considering whether a condition to address it should be imposed on a practising certificate.⁴⁴

Here, if the Board were to make the declaration required by the Tribunal’s order, it would be binding on the Board in its consideration of whether Mr Doolan is a fit and proper person for admission. The Board could not qualify its recommendation to the Supreme Court on that account. If the Supreme Court were then to admit Mr Doolan as a legal practitioner, s 46(4) would preclude the regulatory authority from refusing to issue a practising certificate to him on the basis that he is, by reason of his mental illness, unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.

In view of the critical finding made, I would regard that as an unsatisfactory outcome. The potentiality for that eventuality serves to reinforce the appropriateness of a due consideration by both the Supreme Court and the Board of this suitability matter in deciding whether an applicant is a fit and proper person for admission.

Disposition

For these reasons, I consider that the Tribunal’s decision was infected by legal error and must be set aside. Having regard to the critical finding made by the Tribunal at paragraph 114 of the reasons, which has in no way been impugned in this appeal, it is appropriate for this Court acting under s 153(2)(d) of the QCAT Act, to make the orders sought by the Board.

Orders

I would propose the following orders:Appeal allowed.Set aside the decision of the Tribunal made on 28 April 2016.Order, in lieu, that the appellant, Legal Practitioners Admissions Board, ought properly refuse the declaration sought by the respondent.There be no order as to costs.

PHILIPPIDES JA: I agree with the reasons of Gotterson JA and the orders proposed.

PHILIP McMURDO JA: I agree with Gotterson JA.

Footnotes

1. Section 35(2)(a)(ii) LPA. ↩

2. The Supreme Court may consider an applicant to be a fit and proper person for admission despite a suitability matter because of the circumstances relating to the matter: s 31(3) LPA. ↩

3. Section 39(1). ↩

4. This provision is enacted in terms similar to its antecedent, s 36 of the Legal Profession Act 2004 (Qld). ↩

5. Section 32(5). ↩

6. AB30. ↩

7. AB36. ↩

8. AB31-32. ↩

9. AB37. ↩

10. AB33. ↩

11. AB34-35. ↩

12. AB38-39. ↩

13. Ibid. ↩

14. AB151. ↩