Legal Services Commissioner v Bradshaw [2009] QCA 126

SUPREME COURT OF QUEENSLAND

CITATION: Legal Services Commissioner v Bradshaw [2009] QCA 126

PARTIES: LEGAL SERVICES COMMISSIONER (applicant/respondent) v JAMES TODD BRADSHAW (respondent/applicant)

FILE NO/S: Appeal No 9702 of 2008 / LPT No 11653 of 2007

DIVISION: Court of Appeal

PROCEEDING: Application for Extension of Time

ORIGINATING COURT: Legal Practice Tribunal at Brisbane

DELIVERED ON: 15 May 2009

DELIVERED AT: Brisbane

HEARING DATE: 26 February 2009

JUDGE: McMurdo P, Holmes and Chesterman JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1. The application to adduce further evidence is refused / 2. The application for an extension of time to appeal is refused with costs to be assessed

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF THE COURT – FURTHER EVIDENCE – applicant applied to adduce further evidence – further evidence related to relationship between applicant and complainant – evidence was available at the time of tribunal hearing – evidence has no relevance to tribunal's findings – whether application to adduce further evidence should be allowed / APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION PRINCIPLES AS TO GRANT OR REFUSAL – Legal Practice Tribunal heard four charges against the applicant – tribunal found applicant guilty of one of the charges on 10 July 2008 – tribunal made further ancillary orders on 8 September 2008 – applicant filed an application for extension of time to appeal on 1 October 2008 – applicant believed that orders on 8 September 2008 were "final orders" and therefore appeal was not out of time – whether it is in the interests of justice to allow an appeal – whether an extension of time to appeal should be allowed / PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – TRIBUNAL – applicant argued that the tribunal judge should have disqualified herself from the proceeding – during trial the judge suggested the wording of parties' submissions should be amended – applicant contended the judge "entered the arena" by usurping the function of the Legal Services Commission – whether judge should have disqualified herself – whether the proposed ground of appeal has any reasonable prospects of success / PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – TRIBUNAL – applicant argued that tribunal erred in its lack of findings about the bona fides of the complainant – applicant contended that complainant used tribunal proceedings as an abuse of process and to improperly influence pending District Court proceedings – whether tribunal erred in not considering bona fides of complainant – whether complainant's secondary motivation was relevant – whether the proposed ground of appeal has any reasonable prospects of success / PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – applicant found guilty of unsatisfactory professional conduct – definition of unsatisfactory professional conduct includes conduct 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" – applicant argued he should not have been found guilty because there was no evidence of what a member of the public expects of a reasonably competent legal practitioner – whether the tribunal correctly approached the finding of unsatisfactory professional conduct – whether the proposed ground of appeal has any reasonable prospects of success / PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – TRIBUNAL – tribunal referred to applicant as "disingenuous" – applicant argues he is entitled to an appeal to re-establish his good name – whether comment was by tribunal was appropriate – whether applicant's desire to re-establish his good name has any bearing on charge of which he was found guilty – whether the proposed ground of appeal has any reasonable prospects of success / PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – TRIBUNAL – basis of tribunal's finding of applicant's guilt was a letter which he wrote to the complainant – letter was regarding complainant's interaction with applicant's wife – applicant argued that he wrote the letter in his personal capacity as a husband not as a barrister – whether tribunal erred in finding that the letter was not written in a personal capacity – whether the proposed ground of appeal has any reasonable prospects of success / Legal Profession (Barristers Rules) 2004 (Qld), r 55 / Legal Profession Act 2007 (Qld), s 14, s 15, s 420, s 455, s 456, s 462, s 468 / Supreme Court of Queensland Act 1991 (Qld), s 16, s 29, s 43 / Uniform Civil Procedure Rules 1999 (Qld), r 745, r 748 / Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, cited / Chadwick v Commissioner of Stamp Duties [1977] 1 NSWLR 151, cited / Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40, cited / Coulter v Ryan [2007] 2 Qd R 302; [2006] QCA 567, considered / Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554; [1956] HCA 22, considered / Kerridge v Lamdin [1950] 2 All ER 1110 / Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249; [2006] QCA 145 / Legal Services Commissioner v Bradshaw [2008] LPT 9, approved / Legal Services Commissioner v James Todd Bradshaw No. 2 [2008] LPT 11, approved / National Telephone Co Ltd (in liq) v HM Postmaster-General [1913] AC 546, considered / Queensland Law Society Incorporated v A Solicitor [1989] 2 Qd R 331, cited

COUNSEL: The applicant appeared on his own behalf / G P Long SC and, B I McMillan, for the respondent

SOLICITORS: The applicant appeared on his own behalf / Legal Services Commission for the respondent

McMURDO P: I would refuse this application. These are my reasons.

The background to this application for an extension of time to appeal

On 16 June 2008, following a lengthy directions hearing on 25 March 2008,¹ the Legal Practice Tribunal heard four charges against the applicant, James Todd Bradshaw, then a Queensland barrister, alleging that he was guilty of professional misconduct or unsatisfactory professional conduct. Charge 1 was that he failed to maintain reasonable standards of competence and diligence. Charge 2 was that he communicated directly with an opponent's client in breach of r 55 Legal Profession (Barristers Rules) 2004 (Qld). Charge 3 was that he had a material financial or property interest in the outcome of a case in breach of r 91(f) Legal Profession (Barristers Rules). The final charge was that he retained a brief in a matter in which he might be a witness in breach of r 91(c) Legal Profession (Barristers Rules).

On 10 July 2008, the tribunal published its reasons for finding Mr Bradshaw guilty of unsatisfactory professional conduct in respect of charge 2 and for finding that the remaining charges were not made out. The tribunal ordered that he be publicly reprimanded and that he undertake in the next 12 months not less than 10 hours of compulsory professional development approved by the Bar Association of Queensland in the areas of ethics and practice management, in addition to the compulsory professional development requirements of the Bar Association. The tribunal also directed that the respondent, the Legal Services Commissioner, file and serve further submissions regarding a compensation order and costs within 14 days and that Mr Bradshaw file and serve his response within 14 days of receipt of those submissions.²

The parties made written submissions to the tribunal consistent with those orders. On 8 September 2008 the tribunal delivered its reasons for further orders, namely, that there be no order for compensation; that Mr Bradshaw pay the commissioner's costs of the application to the tribunal as agreed or to be assessed on the standard basis; and that Mr Bradshaw pay the complainant's, Mr Leslie Williams, costs fixed in the sum of $1,155.³

Mr Bradshaw did not file an appeal from any of the orders of 10 July 2008 within the 28 days specified in s 468 Legal Profession Act 2007 (Qld). He attempted to file a notice of appeal from the orders of 10 July 2008 sometime after 8 September 2008. Court of Appeal registry staff refused to accept his notice of appeal from those orders because, in their view, it was out of time. As a result, on 1 October 2008 he filed an application for an extension of time to appeal from the orders of 10 July 2008. In support of that application, he attached to it a draft notice of appeal setting out the following grounds:

"(a)Justice White erred in not disqualifying herself after entering the arena.

(b)The tribunal erred in its lack of findings about the bona fides of the complaint.

(c)The tribunal erred in its application of the evidence required to establish the expectations of a reasonable person.

(d)The tribunal erred in finding the Appellant's argument disingenuous, in particular relating to the contents of the letter dated 3 May 2006.

(e)The tribunal erred in not giving adequate consideration to the letter [sic] statement "I am prepared to recommend that Irene and I settle for $124,626.00."

He has not filed any appeal or application for an extension of time to appeal from the orders of 8 September 2008.⁴

Mr Bradshaw, who appears for himself in this application as he did before the tribunal, contends as follows. The orders of 10 July 2008 were not final orders. The time allowed for an appeal from those orders under s 468 ran from when what he calls "the final orders" were made on 8 September 2008. His appeal was not out of time and he does not need an extension. Alternatively, he contends that he did not apprehend the orders of 10 July 2008 were final orders. As this was an understandable mistake, he should be granted an extension of time so that he can argue his appeal on its merits.

Mr Bradshaw's filed material and his written and oral submissions are not easy to fully apprehend. This is in part because he has not given this Court a record of everything which was before the tribunal, even though this material was available. He has provided the tribunal's reasons of 10 July 2008⁵ and 8 September 2008.⁶ Fortunately, the respondent has helpfully provided us with a bundle of relevant material, including the transcript of the proceedings in this matter before the tribunal on 25 March, 4 June and 16 June 2008. Mr Bradshaw in his oral submissions asked the Court to consider two unsigned letters on his letterhead dated 14 October 2004 and 6 August (no year specified) which were before the tribunal. The Court obtained copies of those letters. Mr Bradshaw also asked the Court to receive some additional affidavit material from Irene Coronis, his wife, which was not before the tribunal.

Another difficulty in apprehending Mr Bradshaw's contentions is their lack of clarity. In his oral submissions in this Court, Mr Bradshaw stated that he did not wish to appeal from any of the tribunal's orders of 10 July 2008 but rather the cost and compensation orders delivered on 8 September 2008 and the decision finding him guilty of unsatisfactory professional conduct. That submission was inconsistent with his application for an extension of time to appeal and his draft notice of appeal in support of it. He has not filed any appeal or application for an extension of time to appeal from the orders of 8 September 2008. In his written outline of argument, Mr Bradshaw made submissions in support of all five grounds in the draft notice of appeal attached to his application for an extension of time. He made oral submissions in support of all but the first of those proposed grounds. He also orally submitted that the tribunal ought not to have ordered him to pay all the commissioner's costs when the tribunal found three of the four contested issues in his favour. He argued that he should not have been liable to pay Mr Williams' costs as Mr Williams' conduct in making the complaint to the commissioner was reprehensible and effectively an abuse of process.

Mr Long SC, who appears with Mr B I McMillan, for the commissioner, contends that this Court has no power to grant an extension of time for leave to appeal. In any case, Mr Long contends, Mr Bradshaw's proposed grounds of appeal from the orders of 10 July 2008 are so lacking in substance that any application for an extension of time should be refused as any appeal would be futile. Mr Long rightly pointed out that Mr Bradshaw has not filed an appeal from the costs orders made on 8 September 2008. Mr Long further argues that the costs orders were entirely consistent with s 462(1) Legal Profession Act and this Court's approach in Baker v Legal Services Commissioner.⁷ The basis of the calculation of the costs ordered in favour of Mr Williams is set out in the tribunal's reasons⁸ and Mr Bradshaw has not challenged this reasoning. Mr Long also contends that Mr Bradshaw's application to adduce further evidence should be refused as the evidence is irrelevant to the tribunal's findings and this appeal.

The relevant provisions of the Legal Profession Act

Before dealing with these competing contentions, it is helpful to refer to the scheme of the Legal Profession Act and some of its relevant provisions.

Chapter 1, "Introduction", sets out the main purposes of the Act, one of which relevantly include:

"to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally."⁹

Part 1.2 Ch, 1 is headed "Interpretation". Its Div 3 deals with the "Jurisdiction of Supreme Court and related matters". The inherent jurisdiction and power of the Supreme Court in relation to the control and discipline of local lawyers and local legal practitioners are preserved.¹⁰ Sections 14 and 15 provide:

"14 Jurisdiction of Supreme Court

(1)The Supreme Court must hear and decide each application and appeal made to it under this Act and may make the order it considers appropriate for the application or appeal.

(2)Subsection (1) is subject to a provision that states the orders that may be made by the court on an application or appeal.

(3)This section does not limit section 13.

(4)An Australian lawyer is entitled to appear before and be heard by the Supreme Court at a hearing about an application or appeal as mentioned in subsection (1) that is made in relation to the lawyer under this Act.

15 Appeal period for appeal to Supreme Court or tribunal

(1)This section applies if a provision of this Act provides that a person has a stated number of days to appeal to the Supreme Court or the tribunal (the appeal period).

(2)The court or tribunal may allow a person who may appeal within the appeal period to appeal after that appeal period if the court or tribunal considers it appropriate having regard to the extent of, and reasons for, the delay."

Chapter 2 is headed "General requirements for engaging in legal practice". Part 2.3 of Ch 2 is headed "Admission of local lawyers". In the "Definitions for pt 2.3", "Supreme Court" is defined:

"In this part–

…

Supreme Court, in relation to an exercise of power of the court, means–

(a)if the admission rules provide that the power may be exercised by a single Supreme Court judge – a single Supreme Court judge; or

(b)otherwise – the Court of Appeal."¹¹

Chapter 4 is headed "Complaints and discipline". Its main purposes 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; and to otherwise protect members of the public from unlawful operators.¹² Part 4.2 is headed "Key concepts" and inclusively defines the concepts, "Unsatisfactory professional conduct"¹³ and the more serious "Professional misconduct".¹⁴ Only the former is relevant in this case. Unsatisfactory professional conduct is defined in s 418 as including:

"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."

Section 420 refers to conduct capable of constituting unsatisfactory professional conduct and relevantly states:

"The following conduct is capable of constituting unsatisfactory professional conduct … —

(a)conduct consisting of a contravention of a relevant law, whether the conduct happened before or after the commencement of this section;

Note—

Under the Acts Interpretation Act 1954, section 7, and the Statutory Instruments Act 1992, section 7, a contravention in relation to this Act would include a contravention of a regulation or legal profession rules and a contravention in relation to a previous Act would include a contravention of a legal profession rule under the Legal Profession Act 2004.

…

(3) This section does not limit section 418 … ."

Part 4.4 of Ch 4 is headed "Complaints about Australian legal practitioners". It sets out conduct about which such a complaint may be made¹⁵ and how such a complaint may be made,¹⁶ summarily dismissed¹⁷ and withdrawn.¹⁸ The commissioner is empowered to refer the complaint to the Queensland Law Society ("QLS") or Bar Association of Queensland ("BAQ")¹⁹ and the lawyer is to be notified of the complaint or investigation matter²⁰ and may make submissions about it.²¹ If the matter is referred to the QLS or the BAQ, that organisation must investigate the matter and report to the commissioner about it.²²

Under Part 4.7 of Ch 4, the commissioner may either decide to start a proceeding before a disciplinary body²³ or may dismiss the complaint if it is in the public interest and there is no reasonable likelihood of a finding by a disciplinary body of, relevantly, either unsatisfactory professional conduct or professional misconduct.²⁴

Part 4.9 of Ch 4 is headed "Proceedings in disciplinary body". The commissioner may apply to the tribunal for an order against a legal practitioner in relation to a complaint²⁵ in a discipline application.²⁶ Section 456 relevantly provides:

"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 is guilty of 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.

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

…

(e)an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner;

…

(4) The tribunal may, under this subsection, make 1 or more of the following—

…

(b)a compensation order;

(c)an order that the practitioner undertake and complete a stated course of further legal education;

…

(5) To remove any doubt, it is declared that the tribunal may make any number of orders mentioned in any or all of subsections (2), (3) and (4).

(6) Also, the tribunal may make ancillary orders, including an order for payment by the Australian legal practitioner of expenses associated with orders under subsection (4), as assessed in or under the order or as agreed.

(7)The tribunal may find a person guilty of unsatisfactory professional conduct even though the discipline application alleged professional misconduct."

The Act provides for the tribunal to make costs orders:

"462 Costs

(1) A disciplinary body must make an order requiring a person whom it has found guilty to pay costs, including costs of the commissioner and the complainant, unless the disciplinary body is satisfied exceptional circumstances exist.

…

(4) A disciplinary body may make an order requiring the commissioner to pay costs, but may do so only if it is satisfied that—

(a) the Australian legal practitioner … is not guilty; and

(b) the body considers that special circumstances warrant the making of the order.

(5) An order for costs—

(a) may be for a stated amount; or

(b) may be for an unstated amount but must state the basis on which the amount must be decided.

(6) An order for costs may state the terms on which costs must be paid.

(7) In this section—

guilty means guilty of unsatisfactory professional conduct or professional misconduct, .. as mentioned in section 456(1) … ."

Part 4.10A of Ch 4²⁷ is headed "Appeals from decisions of disciplinary bodies" and relevantly includes:

"468 Appeal may be made to Court of Appeal from tribunal’s decision

(1) The following may appeal a decision of the tribunal to the Court of Appeal—

(a) a party dissatisfied with the tribunal’s decision;

…

(2) The appeal is by way of a rehearing on the evidence given in the matter before the tribunal.

(3) However, subsection (2) does not prevent the Court of Appeal from giving leave to introduce further evidence, whether fresh, additional or substituted, if the court considers the further evidence may be material to the appeal.

(4) The appeal must be made—

…

(b) otherwise—within 28 days after the tribunal’s order is made."

Does this Court have power to extend time to appeal under the Legal Profession Act?

The first question is whether this Court has power to grant an extension of time to appeal from the orders of 10 July 2008.

Mr Long argues that the Court of Appeal does not have power to extend the 28 day time period to appeal under s 468(4)(b). His contentions are in essence as follows. The Supreme Court of Queensland Act 1991 (Qld), s 16, states that the Court of Appeal is a division of the Supreme Court of Queensland and limits the Court of Appeal's jurisdiction to that which is specifically conferred on it or on its predecessor, the Full Court and the Court of Criminal Appeal. The Supreme Court of Queensland Act 1991 does not confer on the Court of Appeal the full panoply of jurisdictional powers of the Supreme Court of Queensland. It follows that the Court of Appeal can only exercise power specifically conferred on it by statute. Section 15 of the Legal Profession Act gives the Supreme Court or the tribunal power to extend an appeal period under s 468 but it does not specifically give the Court of Appeal such power. The terms of s 468(4)(b) are mandatory and it is not an absurd result for parliament to require strict compliance with the 28 day time limit under s 468 for an appeal from a decision of the tribunal to the Court of Appeal. Mr Long contends that this is the correct construction of s 15 Legal Profession Act in view of the Supreme Court of Queensland Act 1991.

Mr Long's argument misunderstands the provisions of the Act and the wide powers of the Court of Appeal in proceedings before it. I agree with Mr Long that the definition of "Supreme Court" in s 29 of the Act²⁸ relates only to Pt 2.3 of Ch 2 of the Act which deals with "Admission of local lawyers".²⁹ It clearly states this in its terms. The s 29 definition of "Supreme Court" is probably aimed at ensuring that, in this most decentralised of Australian states, legal practitioners can be admitted in regional areas in uncontested cases by the resident Supreme Court judge. This saves those seeking admission from travelling to Brisbane to be admitted by the Court of Appeal. The term "Supreme Court" is not otherwise defined in the Act, although the dictionary in Sch 2 notes: "Supreme Court, for part 2.3, see section 29". The fact that the definition of "Supreme Court" in s 29 (which clearly encompasses the Court of Appeal) is limited to Ch 2, Pt 2.3 does not stop the term "Supreme Court" in Div 3 of Ch 1 Pt 1.2, s 15(2), from also encompassing the Court of Appeal.

Under the Supreme Court of Queensland Act 1991, the Supreme Court is divided into the office of the Chief Justice³⁰ and two divisions, the Court of Appeal and the Trial Division.³¹ The Court of Appeal's jurisdiction and powers are set out in s 29 Supreme Court of Queensland Act 1991. These include "jurisdiction to hear and determine all matters that, immediately before the commencement of this section, the Full Court had jurisdiction to hear and determine";³² "additional jurisdiction as is conferred on it by … another Act";³³ and "[t]he Court of Appeal may, in proceedings before it, exercise every jurisdiction or power of the court, whether at law or in equity or under any Act."³⁴ The term "court" is relevantly defined as "the Supreme Court of Queensland".³⁵ It follows that, irrespective of the two divisions of the Supreme Court under s 29 Supreme Court of Queensland Act 1991, the Court of Appeal may in proceedings before it exercise every jurisdiction or power of the Supreme Court of Queensland under any Act, including the Legal Profession Act.

The Legal Profession Act s 15(2) provides that a "court … may allow a person who may appeal within the appeal period to appeal if the court … considers it appropriate having regard to the extent of, and reasons for, the delay." Section 15 is in Ch 1 Pt 1.2 "Interpretation", Div 3 which is headed "Jurisdiction of Supreme Court and related matters". The Legal Profession Act specifically preserves the inherent jurisdiction and power of the Supreme Court in relation to the control and discipline of local lawyers and local legal practitioners.³⁶ This inherent jurisdiction is regularly exercised by the Court of Appeal as it was by the Full Court of the Supreme Court of Queensland prior to the establishment of the Court of Appeal under the Supreme Court of Queensland Act 1991. In my view, the term "court" and the use of the term "Supreme Court" in s 15(2) and throughout Div 3 of Ch 1 Pt 1.2 of the Legal Profession Act includes "Court of Appeal". In the unlikely event that this is not so and s 15(2) has application only to trial division judges, s 29(3) Supreme Court of Queensland Act 1991 confers the power granted to the Supreme Court under s 15(2) Legal Profession Act on the Court of Appeal in proceedings before it.

In case it be argued that s 29(3) is not invoked until an appeal is properly instituted, under s 43(2) Supreme Court of Queensland Act 1991 a judge of appeal may exercise powers of the Court of Appeal to make an order concerning the institution of an appeal or other proceeding in the Court of Appeal. The Uniform Civil Procedure Rules 1999 (Qld) Ch 18 Pt 1 relate to appeals to the Court of Appeal. Rule 745(1)(c) applies this part of the UCPR to an appeal to the Court of Appeal from a decision of "another body from which an appeal lies to the Court of Appeal". Rule 745(1)(c) plainly has application to an appeal from a decision of the tribunal under s 468. Under UCPR r 748:

"A notice of appeal must, unless the Court of Appeal orders otherwise –

(a)be filed within 28 days after the date of the decision appealed from;" (my emphasis).

The italicised introductory words to r 748 reflect the Court of Appeal's power to extend the time within which to appeal from a decision of the tribunal.

It is unnecessary to consider the inherent powers of the Court of Appeal to control its own processes and to extend time for the institution of an appeal. For the multiplicity of reasons already given, there is no doubt that this Court (under s 29(3) Supreme Court of Queensland Act 1991) or a judge of appeal (under s 43(2) Supreme Court of Queensland Act 1991), has power to grant the extension of time sought by Mr Bradshaw either under s 15(2) Legal Profession Act or UCPR r 748, where this is in the interests of justice.

Is an extension of time to appeal required?

Mr Bradshaw's primary contention is that he was entitled to file his notice of appeal when he attempted to do so on 1 October 2008 because this was well within 28 days of what he calls "the final decision and orders of the tribunal", that is, those of 8 September 2008. The orders of 10 July 2008, Mr Bradshaw contends, were not final orders. In support of that contention, he cites this Court's decision in Coulter v Ryan³⁷ in which Mr Bradshaw was counsel for the unsuccessful applicant.

Under s 468³⁸ Legal Profession Act a party dissatisfied with the tribunal's decision may appeal to the Court of Appeal. The tribunal found three of the four charges brought against Mr Bradshaw were not proved.³⁹ It found charge 2 was proved and that, as a result, Mr Bradshaw was guilty of unsatisfactory professional conduct.⁴⁰ Under s 456(1), the tribunal was then empowered to make "any order as it thinks fit", including one or more of the orders set out in s 456(2) to (6). The tribunal made four orders under s 456.⁴¹ The first was made under s 456(2)(e) and publicly reprimanded Mr Bradshaw. The second was made under s 456(4)(c) and required him to undertake compulsory professional development approved by the BAQ. The last two orders of 10 July 2008 were ancillary orders.⁴² Mr Bradshaw is right to contend that the last two orders were not final orders but he does not challenge these orders. The first two orders, which Mr Bradshaw does seek to challenge on appeal if granted an extension of time, were both final orders. Each was "a decision of the tribunal" from which an appeal lies to this Court under s 468(1)(a). Under s 468(4)(b), any appeal had to be brought "within 28 days after the tribunal's order is made", that is, within 28 days from 10 July 2008. Mr Bradshaw's right of appeal from those orders had long expired by 1 October 2008 when he attempted to file the appeal from them in this Court.

Coulter v Ryan⁴³ was an application to this Court for leave to appeal from a District Court judge's decision concerning an appeal from an acting magistrate's refusal to award costs thrown away following the adjournment of a charge under s 79(10)(a) Transport Operations (Road Use Management) Act 1995 (Qld). This Court took the view that the acting magistrate's decision was not a final order upon a complaint for an offence, relying on well-settled authority that in an appeal against a final judgment, an appellant may properly raise the issue of the correctness of an interlocutory order which affected the final result.⁴⁴ By contrast with the position in Coulter v Ryan, Mr Bradshaw seeks to appeal the tribunal's substantive and final orders imposed on him after the tribunal found him guilty of unsatisfactory professional conduct.

There is no doubt that the tribunal's orders from which Mr Bradshaw seeks to appeal were final orders. As he did not file his appeal "within 28 days after the tribunal's order [was] made", he has no right of appeal to this Court unless he is granted an extension of time by this Court either under s 15(2) Legal Profession Act or UCPR r 748.

Should Mr Bradshaw be given an extension of time to appeal from the tribunal's orders of 10 July 2008?

Mr Bradshaw's explanation for his delay of about seven weeks in seeking to file an appeal is that he did not apprehend that the 28 day time limit applied as he thought the tribunal's orders of 10 July 2008 were not final orders. This is a completely unsatisfactory explanation from Mr Bradshaw who was, at the time of the tribunal's orders of 10 July 2008, an experienced Queensland barrister with considerable experience in conducting appeals, both civil⁴⁵ and criminal,⁴⁶ in this Court. Section 15(2) in its terms⁴⁷ grants this Court a broad discretion in determining whether to extend the appeal period. This Court would not let Mr Bradshaw's unimpressive explanation for the delay stand in the way of granting an extension of time to appeal if to do so was in the interests of justice. A determination of the extension of time application requires some consideration of the merits of his proposed grounds of appeal.⁴⁸

Should the judge constituting the tribunal have been disqualified from doing so?

Mr Bradshaw's first proposed ground of appeal is that the judge constituting the tribunal "erred in not disqualifying herself after entering the arena". It seems that this is a contention that the judge's pre-trial conduct amounted to apprehended or actual bias against him.

On 4 June 2008, Mr Bradshaw made an interlocutory application to have the judge constituting the tribunal disqualify herself from hearing the matter. He also contended at the directions hearing on 25 March 2008 that the judge had "entered the arena" by effectively usurping the function of the commissioner and directing the commissioner to amend the application against Mr Bradshaw. Mr Bradshaw argued that under s 455(1) only the commissioner could vary an application; the tribunal could not. Mr Bradshaw’s complaint was that, on 25 March 2008 the judge, in the course of hearing the parties' submissions suggested that the word "retain" be replaced with the words "acted as a barrister for and on behalf of". The commissioner's counsel took up the judge's suggestion and amended the charge.

After referring to leading authority relating to the issue of when a decision-maker should be disqualified for perceived or actual bias,⁴⁹ the judge determined that nothing that took place at the directions hearing of 25 March 2008 could be construed as bias, either apprehended or actual, or as the judge "entering the arena". The judge rightly refused the application.

Mr Bradshaw has not identified any demonstrated error on the part of her Honour's reasoned decision-making in this respect. This proposed ground of appeal is completely unmeritorious.

The proceedings before the tribunal and the tribunal’s decision

Before returning to Mr Bradshaw’s remaining proposed grounds of appeal, it is helpful to set out some details of the successful charge against him and the tribunal's reasons for the orders from which he wishes to appeal.

As I have previously recorded, the commissioner brought four charges against Mr Bradshaw alleging that each charge constituted under the Act either professional misconduct or the less serious unsatisfactory professional conduct. Mr Leslie Williams, with the assistance of his solicitors Miller Harris Lawyers, made the original complaint to the commissioner in respect of all four charges. Mr Williams was the director and the guiding mind and hand of the company, Jilt Pty Ltd, which had previously become embroiled in an acrimonious dispute with Mr Bradshaw's wife, Irene Coronis.

Ms Coronis was the registered proprietor of premises in Cairns where she operated a beauty salon and school and where a real estate agency also had a tenancy. In December 2002, Ms Coronis sold the property to Jilt Pty Ltd. Ms Coronis and Jilt Pty Ltd orally agreed that she would continue to occupy her shop and conduct her business for 12 months rent free. They disagreed as to the terms of that agreement. In June 2004, Jilt Pty Ltd served a notice on Ms Coronis requiring her to deliver up possession of the shop for unpaid rent. In August 2004, Jilt Pty Ltd purported to terminate the tenancy agreement and commenced proceedings in the Magistrates Court. Ms Coronis continued to use and occupy the shop. In September 2004, she commenced proceedings in the District Court against Jilt Pty Ltd seeking both specific performance of the tenancy agreement which she claimed existed, and damages. Jilt Pty Ltd discontinued its proceedings for possession of the property. Ms Coronis vacated the shop in November 2004 and removed property which Jilt Pty Ltd claimed was not hers. Some of this disputed property was stored in Mr Bradshaw's garage. Mr Williams, on behalf of Jilt Pty Ltd, complained to the police about matters including the removal of the property. As a result, Ms Coronis was charged with stealing and was committed to stand trial in the District Court. The prosecution ultimately withdrew the charge. The civil dispute between Ms Coronis and Jilt Pty Ltd remains ongoing in the District Court in Cairns.⁵⁰

The tribunal, as I have earlier noted, acquitted Mr Bradshaw on all charges other than charge 2 which was in these terms:

"That on 3 May 2006 [Mr Bradshaw] breached Rule 55 of the Legal Profession (Barristers) Rules 2004 in that he dealt directly with his opponent's client where no special circumstances as set out in the Rule existed at the time."

Rule 55 of the Legal Profession (Barristers) Rules 2004 is contained under the heading "Duty to opponent". It provides:

"55. A barrister must not deal directly with the opponent’s client unless:

(a) the opponent has previously consented;

(b) the barrister believes on reasonable grounds that -

(i) the circumstances are so urgent as to require the barrister to do so; and

(ii) the dealing would not be unfair to the opponent’s client; or

(c) the substance of the dealing is solely to enquire whether the person is represented and, if so, by whom."

The particulars of charge 2 were that Jilt Pty Ltd, through its director, Mr Williams, was represented by a solicitor from the firm Miller Harris Lawyers. Mr Bradshaw knew this, at least by the time the notice of intention to defend was sent to Ms Coronis under cover of a letter from Miller Harris Lawyers.⁵¹ Despite knowing that Miller Harris Lawyers were the solicitors on the record for Jilt Pty Ltd, Mr Bradshaw dealt directly with Mr Williams. On 3 May 2006, Mr Bradshaw sent a letter to Mr Williams notifying him that Mr Bradshaw had a substantial financial interest in the shop the subject of Ms Coronis's claim. Mr Bradshaw also asserted in the letter that he had a personal claim against Jilt Pty Ltd arising out of circumstances which also gave rise to a claim by Ms Coronis against Jilt Pty Ltd. In the letter, Mr Bradshaw offered on Ms Coronis's behalf to settle her claim, and offered on his own behalf to settle his own claim, for a single payment for both claims. The commissioner contended that there were no reasonable grounds on which Mr Bradshaw could have believed that special circumstances existed to allow that communication by him with his opponent's client.⁵²

Two witnesses gave evidence at the tribunal hearing, Mr Michael Leo Roessler, a principal legal officer for the commissioner, and Mr Williams. Mr Bradshaw cross-examined both witnesses. He suggested to Mr Williams that his complaint to the commissioner was activated by malice and designed to interfere with Ms Coronis' District Court proceedings against Jilt Pty Ltd. Mr Williams denied this. The tribunal relevantly found that:

"Even if there was some desire on the part of Mr Williams to have [Mr Bradshaw] restrained from contacting him, that does not disentitle the [commissioner] from bringing this discipline action application as it is his discretion which animates the application."⁵³

Mr Williams gave evidence in cross-examination that Mr Bradshaw's letter of 3 May 2006 made him feel "sick", concerned and very intimidated because of the large sum of money Mr Bradshaw sought in it. Mr Bradshaw's letter was on his professional stationery which indicated he was a barrister. It was in these terms:

"Re: IRENE CORONIS -V- YOU

Dear Mr Williams,

I confirm that this action is still on foot but if you are not prepared to settle I propose to plead malicious prosecution.

You should appreciate of course that your ill advised action caused great difficulties for me because of where the goods are stored and I was at risk of being charged and stuck off.

I confirm that this matter will be heard before a jury and the circumstances of the sale of the shop fully canvassed where you went behind my back to a woman in an extremely stressed condition on medication and bought it grossly undervalued.

I put the house on the market and you and your mate 'Keith' sought to take advantage of again in an offer of $180,000. I had no intent of settling but merely to flush you out.

You were aware that I was in Townsville and that I substantially had the financial interest in the shop and Irene advises that you used your wife’s friendship with Rachel to influence her and overcome any resistance.

Having regard to my circumstances and the grubby use of the Police in a Civil dispute and the circumstances surrounding the sale I am prepared to recommend that Irene and I settle our claims for $124,626.00.

If I do not hear from you within 14 days I will amend the pleadings and require discovery.

Yours faithfully,

J T Bradshaw L.L.B. (A.N.U)

Barrister at Law"⁵⁴ (errors in the original)

Mr Bradshaw did not give or call any oral evidence before the tribunal. He colourfully addressed the tribunal, and at considerable length. His address was peppered with attempts to give evidence from the bar table. He submitted that he was not acting as a barrister for Ms Coronis but merely as her husband. He also contended that the commissioner was required to adduce evidence to prove what a member of the public expects of a reasonably competent legal practitioner; the commissioner had failed to do this and so had not made out any of the charges against him. He also strongly argued that the tribunal should reject the charges because Mr Williams, in bringing his complaint, was motivated by malice and was attempting to influence in his favour the court proceedings between Ms Coronis and Jilt Pty Ltd.

The tribunal gave the following reasons for rejecting Mr Bradshaw's contention that he was not acting as a barrister when he sent the letter of 3 May 2006. Mr Bradshaw frequently identified himself as a barrister on documents he sent to Jilt Pty Ltd's solicitors, Miller Harris Lawyers. He placed the initials "L.L.B." after his name on those documents.⁵⁵ In his letter of 14 October 2004, also written on his professional letterhead, he described himself as "Barrister at Law" and referred to "My Client Irene Coronis". Miller Harris Lawyers wrote to Mr Bradshaw on 12 November 2004, objecting to Ms Coronis contacting them directly and asking him to advise his "client" not to do so "as she has legal representation". They repeated this request in a letter of 30 November 2004.⁵⁶ On 4 January 2005, Mr Bradshaw responded by a letter, again on his professional letterhead, in which he made no objection to Miller Harris Lawyers' reference to him as Ms Coronis' legal advisor. His letter of 3 May 2006 was also on Mr Bradshaw's professional letterhead and he signed it as "Barrister-at-Law". In his letter of 19 October 2006 responding to the BAQ, which was investigating the complaint referred to them by the commissioner, Mr Bradshaw wrote, "At all times the communication has been directed to me as legal adviser to Irene and nothing has changed."⁵⁷ In his letter to the commissioner of 28 May 2007 responding to an aspect of the complaint against him, he stated: "In this regard, [Ms Coronis] was legally represented by a Barrister, her husband."⁵⁸ Mr Bradshaw was probably acting without charge or expectation of charge unless Ms Coronis was successful⁵⁹ but he was clearly acting for Ms Coronis in his capacity as a barrister.⁶⁰ The letter of 3 May 2006 was the most serious example of Mr Bradshaw's breach of r 55. Mr Bradshaw had not advanced and had no basis for advancing any special circumstances to justify his breach of the rule.⁶¹ His inconsistent explanations, and regular use of his professional stationery and expressions such as "my client", did not support a finding that he was unable to recognise that he was holding himself out as Ms Coronis' lawyer. His breach of r 55 might relate to the fact that his practice related primarily to criminal rather than civil litigation as well as to the closeness of his relationship with Ms Coronis. Mr Bradshaw's conduct was "nonetheless blatant and reprehensible" and he was guilty of the charge of unsatisfactory professional conduct.

The tribunal also rejected Mr Bradshaw's contention that the commissioner failed to establish the charges at the threshold because the commissioner had not adduced evidence as to what a member of the public expects of a reasonably competent legal practitioner. It did so for these reasons. The tribunal was not bound by the rules of evidence and could inform itself of anything it considered appropriate. The Act required that a lay member of the panel sit with the tribunal and help it in hearing and deciding a discipline application.⁶⁴ The tribunal could refer to common law considerations of what constitutes professional misconduct or unprofessional conduct, and specifically referred to Clyne v New South Wales Bar Association⁶⁵ and Adamson v Queensland Law Society.⁶⁶ The tribunal concluded that direct evidence of what a member of the public expects of a reasonably competent Australian legal practitioner was unnecessary to establish the charge.⁶⁷

In determining the penalty, the tribunal noted that the need to protect the public and the reputation of the profession was an important object of the Act. It referred to affidavits filed on behalf of Mr Bradshaw attesting to his endeavours to help, sometimes successfully, those who would not otherwise have had legal representation in criminal matters. The tribunal expressed its concern about Mr Bradshaw's "lengthy, digressive and, generally unfocussed … explanations to the Bar Association and the Legal Services Commission" which:

"together with the manner in which he conducted his own representation casts doubt upon his capacity to identify matters relevantly in issue and to address them as a competent Australian lawyer would. It is highly unlikely that [Mr Bradshaw] will venture into civil litigation of behalf of any member of the public. Accepting that [Mr Bradshaw] was attempting to assist a vulnerable close family member, by acting for her as a lawyer he has brought the profession into disrepute by his breach of r 55. [Mr Bradshaw] continues to fail to appreciate the seriousness of this conduct. He would almost certainly benefit from some compulsory professional development approved by the Bar Association of Queensland in the area of ethics. This should be in addition to the compulsory professional development requirements for the purpose of maintaining a current practicing certificate."⁶⁸

The tribunal determined that, as Mr Bradshaw had committed a public breach in corresponding with the client of an opposite party, there should be an order publicly reprimanding him.⁶⁹ The tribunal wished to receive further submissions about a compensation order sought by Jilt Pty Ltd for the costs associated with preparing its complaint against Mr Bradshaw with the assistance of its solicitor.⁷⁰ Whilst it considered that Mr Bradshaw should pay the commissioner's costs of the application to be assessed or agreed under s 462(1), because of the terms of s 462(5) the tribunal requested further submissions as to the costs order.

Did the tribunal err "in its lack of findings about the bona fides of the complainant"?

Mr Bradshaw's next proposed ground of appeal appears to be that the complainant, Mr Williams, used the tribunal proceedings effectively as an abuse of process to damage Mr Bradshaw and to improperly influence the pending District Court proceedings between Ms Coronis and Jilt Pty Ltd.

In his oral submissions, Mr Bradshaw seemed to argue that like Mr Keim SC's conduct in the infamous Haneef case, he (Mr Bradshaw) was acting in the public interest in writing the letter of 3 May 2006 to Mr Williams and the commissioner should not have brought the charges against him. Mr Bradshaw cross-examined Mr Williams and also addressed the tribunal on this issue. The tribunal found that Mr Bradshaw was guilty of charge 2. The tribunal rightly noted that, whether Mr Williams had a secondary motivation in making his complaint, as Mr Bradshaw alleged, this was irrelevant in determining whether Mr Bradshaw was guilty of charge 2. Under the Act, the commissioner has the sole discretion to bring a complaint.⁷¹ The Act is concerned to protect "the consumers of the services of the legal profession and the public generally".⁷² Mr Williams' bona fides in complaining to the commissioner were largely irrelevant to whether Mr Bradshaw was guilty of unsatisfactory professional conduct by communicating directly with his opponent's client. Mr Bradshaw did not demonstrate any public interest reason warranting the exercise of a discretion not to bring the charges. Indeed, the public interest warranted the bringing of charge 2: Mr Bradshaw's admitted conduct was blatantly unprofessional. This ground of appeal is decidedly unpromising.

Did the tribunal err in determining what in law was capable of being unsatisfactory professional conduct?

Mr Bradshaw's third proposed ground of appeal is that the tribunal should not have found him guilty of unsatisfactory professional conduct because there was no evidence before it as to what a member of the public expects of a reasonably competent legal practitioner.

The definition of "unsatisfactory professional conduct" in s 418 Legal Profession Act includes conduct "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". That inclusive definition does not purport to be comprehensive. In establishing whether conduct is unsatisfactory professional conduct, the commissioner is not required to prove what a member of the public expects of a reasonably competent Australian legal practitioner. This is not something easily capable of direct proof. But in any case, s 418 refers to what "a member of the public is entitled to expect of a reasonably competent Australian legal practitioner" (my emphasis). This is a standard to be determined by the tribunal after considering all the relevant circumstances pertaining in each case. In setting that standard, the tribunal will consider relevant common law decisions relating to legal professional standards. In time, the tribunal will also draw on the relevant jurisprudence that has developed under the Act and its counterparts in other jurisdictions. The tribunal correctly approached this question.⁷³ This proposed ground of appeal is without any prospects of success.

Did the tribunal err in referring to Mr Bradshaw as responding "disingenuously"?

This ground of appeal seems to concern the tribunal's use of the word "disingenuously" in the following context:

"… what [Mr Bradshaw] was prohibited from doing was communicating about Ms Coronis’ matter when he was aware that Jilt Pty Ltd was legally represented. Disingenuously, [Mr Bradshaw] said in his response

'The accused never anticipated nor intended that Williams would settle the claim on behalf of Jilt against Irene [Coronis] without consultation with his solicitor, Miller Harris. The amount was intended to arouse curiosity which could only be answered by Miller Harris. The cost and humiliation to Williams in the failed stealing tactics did not guarantee Williams’ loyalty to Miller Harris.'"⁷⁴

As I apprehend Mr Bradshaw's contention, it is that he is concerned at the tribunal's reference to him as responding "disingenuously" and that he should be entitled to appeal so that he can re-establish his good name.

The tribunal was understandably concerned about Mr Bradshaw's response to the commissioner set out above. The response was entirely inappropriate from a lawyer. If, contrary to the tribunal's findings, Mr Bradshaw was not disingenuous in his explanation to the commissioner, the response was equally concerning as it amounted to an admission that he put an unrealistic settlement offer to Mr Williams for an ulterior purpose. The real relevance of Mr Bradshaw's response to the allegation was that he admitted contacting Mr Williams directly instead of through his solicitors. This was the essence of the charge of unsatisfactory professional conduct on which the tribunal found him guilty. Mr Bradshaw's submissions to the tribunal and to this Court repeatedly confirmed that he did contact Mr Williams directly on behalf of Ms Coronis.

Mr Bradshaw has not demonstrated any reason why the tribunal was not entitled to be sceptical of the aspects of his response to the commissioner set out above. In any case, it has no significant bearing on the charge of which he was found guilty. This proposed ground of appeal is also completely unpromising.

Did the tribunal give adequate consideration to the statement in the letter of 3 May 2006, "I am prepared to recommend that Irene and I settle for $124,626.00"?

Mr Bradshaw's final proposed ground of appeal is difficult to understand either from its terms or from his written submissions. After hearing his oral submissions, I apprehend his contention is that the tribunal should not have found he was acting in his professional capacity in writing the letter of 3 May 2006 to Mr Williams. It should rather have concluded that he was acting in a personal capacity and as husband of Ms Coronis.

The tribunal well understood the particularised case against Mr Bradshaw on charge 2. Mr Bradshaw's competing contention was that he was acting as Ms Coronis' husband and not as her lawyer. The tribunal also understood this contention fully and give it careful consideration. It gave convincing reasons for rejecting it and instead finding that Mr Bradshaw was acting as a barrister and in contravention of r 55 in writing the letter of 3 May 2006 and that this amounted to conduct falling 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.⁷⁵

Mr Bradshaw has not demonstrated that the tribunal erred in its findings on this issue or that it failed to give adequate consideration to any relevant material before it. This proposed ground of appeal is as unpromising as his other four.

Conclusion

The further evidence which Mr Bradshaw wished this Court to receive relates to the relationship between Ms Coronis and Mr Williams. It was available at the time of the tribunal hearing. It has no relevance to the tribunal's crucial findings against Mr Bradshaw in respect of charge 2. This Court should not receive it. Mr Bradshaw's oral application to do so should be refused.

Mr Bradshaw has not demonstrated any acceptable explanation for his failure to lodge his appeal within time or that the interests of justice support the granting of the extension of time to appeal. The tribunal's findings of guilty of unsatisfactory professional conduct in breaching r 55 were inevitable on the evidence. The penalties imposed were measured, moderate and appropriate. His application for an extension of time within which to appeal should be refused with costs to be assessed.

Mr Bradshaw has in his bundle of documents in support of his application for an extension of time copies of unsigned and unfiled notices of appeal which purport to be from the costs orders made by the tribunal on 8 September 2008. In these documents Mr Bradshaw contends that the tribunal erred in awarding costs against him in favour of the complainant, Mr Williams, and the commissioner. These purported notices of appeal have not been filed in this Court and nor have applications for an extension of time in respect of them. It follows that no orders can be made concerning them. Even had Mr Bradshaw filed an appeal within time from the tribunal's costs orders, his prospects of success would have been decidedly unpromising. Section 462(1)⁷⁶ required the tribunal to make an order against Mr Bradshaw in favour of the commissioner and Mr Williams unless the tribunal was "satisfied exceptional circumstances exist". Mr Bradshaw has not provided any material to the tribunal or this Court to suggest that exceptional circumstances warranted orders different from the costs orders made and otherwise required to be made under s 462(1), or that the tribunal erred in exercising its broad discretion in framing those costs orders under s 462(5) and (6). Although Mr Bradshaw was successful on three of the four charges brought against him, the mandatory terms of s 462(1) applied to the costs of the whole proceedings: Baker v Legal Services Commissioner.⁷⁷ The tribunal calculated Mr Williams' costs in the apparently modest amount of $1,155.⁷⁸ Mr Bradshaw has not attempted to challenge in this Court the basis of that calculation. On the present material, had any appeal against the costs orders been filed regularly, it would fail.

ORDERS:

1.The application to adduce further evidence is refused.

2.The application for an extension of time to appeal is refused with costs to be assessed.

HOLMES JA: I agree that the application to adduce further evidence should be refused as groundless, and, for the reasons given by the President and Chesterman JA, that the application for an extension of time to appeal should also be refused.

CHESTERMAN JA: On 10 July 2008 the Legal Practice Tribunal (“the Tribunal”) ordered that the applicant, a barrister who practiced in Cairns, be publicly reprimanded and undertake, within 12 months, not less than an additional 10 hours of compulsory professional development approved by the Bar Association of Queensland in ethics and practice management. The respondent to the application in this Court, the applicant before the Tribunal, the Legal Services Commissioner (“Commissioner”), was directed to file and serve any submissions it wished to make regarding compensation orders and costs within 14 days. Submissions in response were to be filed within a further 14 days.

On 8 September 2008 the Tribunal ordered that no compensation be paid but that the applicant pay the Commissioner’s costs of the application to be agreed or assessed and pay to the complainant in the Tribunal, one Williams, his costs fixed in the sum of $1,155.

Section 468 of the Legal Profession Act 2007 (“LPA”) provides that a party to a proceeding before a Tribunal who is dissatisfied with its decision may appeal to the Court of Appeal. Section 468(4) provides that the appeal must be made “within 28 days after the Tribunal’s order is made.”

The applicant was dissatisfied with the decisions (and orders) of the Tribunal made on 10 July 2008, and with the orders made on 8 September 2008 that he pay costs, particularly the complainant’s costs. He did not, however, appeal against either set of orders. On 1 October 2008 he filed an application to the Court of Appeal seeking an extension of time “for lodging a notice of appeal of the order of the Legal Services Tribunal ... delivered on 10 July 2008”. Attached to the application was a notice of appeal signed by the applicant, but undated, which identifies a “judgment of 11 July 2008 in the matter of a disciplinary hearing before the Legal Practitioners’ Tribunal” as the subject of the appeal. The date is no doubt an error and 10 July was meant.

The applicant apparently wishes also to appeal against the Tribunal’s decision given on 8 September 2008 as to the complainant’s costs. He has prepared a notice of appeal against those orders, which is both unsigned and undated, and has not been filed. A notice of appeal against the September orders, filed when the application to extend time was filed, 1 October, would have been within time.

The application for extension of time does not refer to the orders of the Tribunal made in September. The applicant did not ask to amend his application to include those orders. The only application before the Court of Appeal therefore is one for the extension of time within which to appeal against the Tribunal’s orders of 10 July 2008.

The applicant’s explanation for these curiosities is that he believed the time for appeal did not commence to run until the Tribunal made what he described as its “final orders” on 8 September 2008 and he appealed, or tried to, within the time limited by the LPA, against those orders. As I mentioned, he did not, in fact, do so. He thought, relying on Coulter v Ryan [2006] QCA 567, that he could not appeal from “provisional”, or interlocutory orders and he regarded the Tribunal’s orders of 10 July as of that kind.

It should be pointed out that the unsigned, undated document which purports to be a notice of appeal against the September orders does not appeal against the earlier orders made in July. According to the applicant’s explanation it should have done so.

The Commissioner submits that the Court has no power to extend time. It submits, correctly, that where a statute confers a right, such as to appeal, and limits the time for exercising it, the right will be lost if not exercised within the statutory time. See Kerridge v Lamdin [1950] 2 All ER 1110 at 1113, 1114 and Chadwick v Commissioner of Stamp Duties [1977] 1 NSWLR 151. The Commissioner also relies on the principle that:

“... rights of appeal, which are always the creation of statute, are to be strictly construed”

per McPherson J in Queensland Law Society Incorporated v A Solicitor [1989] 2 Qd R 331 at 337.

Matters do not, however, rest there. The principle expressed in Kerridge allows for the obvious exception: cases in which the statute which fixes the time limit itself allows for its relaxation. The LPA is such a statute. Section 15 provides:

“(1)This section applies if a provision of this Act provides that a person has a stated number of days to appeal to the Supreme Court ... (the appeal period).

The court ... may allow a person who may appeal within the appeal period to appeal after that appeal period if the court ... considers it appropriate having regard to the extent of, and reasons for, the delay.”

On its face the provision expressly confers power to extend the time fixed by s 468. The Commissioner, however, submits that “the Supreme Court” in s 15 means only a judge of the Trial Division of the Supreme Court and not the Court of Appeal, or Judges of Appeal. It points out that there are many sections of the LPA which give practitioners a right of appeal from decisions of the Law Society, or the Legal Practice Committee, to the “Supreme Court” and that appellate jurisdiction is exercised by a single judge. Two examples may be given. Section 26 prohibits certain people from becoming lay associates of a law practice without the approval of the Law Society. An appeal lies from a refusal to give approval “to the Supreme Court against the refusal ...” pursuant to s 26(4)(b). Section 183 permits the Law Society to refuse to register a foreign lawyer. Section 183(4)(b) permits an “appeal to the Supreme Court” against a decision not to grant or renew such registration. From these and similar provisions it is submitted that one can discern a legislative intention that the term “Supreme Court” means a judge of the Trial Division of the Court.

The answer to the submission is that the appellate jurisdiction identified is conferred on both divisions of the Supreme Court, to be exercised initially by the Trial division but with a further right of appeal. Judgments in the Trial Division are subject to appeal to the Court of Appeal pursuant to s 69 of the Supreme Court of Queensland Act 1991 (“the 1991 Act”) which provides that:

“... an appeal lies to the Court of Appeal from:

any judgment or order of the court in the Trial Division”.

There is a principle that when the legislature confers jurisdiction on a court to hear and determine a matter the court in exercising the new jurisdiction has all the usual and ordinary powers and procedures of the court, including rights of appeal. The principle was explained by the High Court (Dixon CJ, McTiernan, Williams, Fullagar, Kitto and Taylor JJ) in Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554 at 559 – 60. Their Honours said:

“Section 3 of the Purchase Act takes the course of referring a particular matter for hearing and determination to an existing court established as part of the judicial system of the State, the proceedings of which are regulated by a statutory enactment and a body of rules ... . When such a course is adopted it is taken to mean, unless and except in so far as the contrary intention appears, that it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected.”

The Court then quoted from the judgments in National Telephone Co Ltd v Postmaster General [1913] AC 546. The Lord Chancellor (Haldane) said:

“When a question is stated to be referred to an established court without more, it ... imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches.” (at 552)

Lord Parker noted:

“Where by statute matters are referred to the determination of a court of record with no further provision, the necessary implication is ... that the court will determine the matters, as a court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same.” (at 562)

The High Court went on:

“The application of the rule is no doubt stronger in cases where the reference is not of a specific matter but is general and covers all matters of a given description. ... When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents ... it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality.”

There is nothing in the sections of the LPA which confer jurisdiction on the Supreme Court to cast doubt upon the applicability of this principle. There is no “contrary intention” appearing in the LPA which shows that the legislature did not intend the Supreme Court’s rules and procedures, including rights of appeal from a judgment of the Trial Division, to apply in the exercise of the new jurisdiction. A judgment of the “Supreme Court” exercising any of the appellate jurisdiction referred to in the Commissioner’s submission is itself subject to appeal to the Court of Appeal pursuant to s 69. The jurisdiction conferred on “the Supreme Court” is conferred on both divisions of the court. There is therefore no warrant for reading “Supreme Court” where the phrase occurs in s 15, as meaning only the Trial Division.

The Commissioner’s submission should be rejected on a wider ground. The 1991 Act provides, by s 11, that:

“The court consists of a Chief Justice, a President of the Court of Appeal, other judges of appeal, a Senior Judge Administrator, and such judges as are appointed by the Governor in Council.”

Section 16 provides that the Court is divided into the office of the Chief Justice and two divisions, the Court of Appeal and the Trial Division. There is no reason to read “Supreme Court” in s 15 as meaning anything other than the Court as constituted and defined by the 1991 Act, including the Court of Appeal, so that the power to extend time may be exercised by the judges in both divisions.

The Commissioner made a further submission with respect to s 15. It is that the power given by s 15(2) is constrained and that the only circumstances which may be considered when deciding whether or not to extend time is the length of the delay and the reasons for the delay. In particular it is submitted that the factors commonly considered relevant to such an application, prejudice to a respondent and the strength of the applicant’s complaint against a judgment sought to be appealed against, are excluded by the subsection.

I would reject this submission too. The provision allows the Court to extend time if it “considers it appropriate having regard to the extent of and reasons for the delay” in filing a notice of appeal. The subsection cannot be read as limiting the relevant factors to the duration of inactivity and the reasons for it. It confers a discretionary power which is to be exercised “having regard” to the delay, and why it occurred. One cannot have regard to the delay without considering its effect on the respondent to an appeal, and whether the judgment sought to be appealed from appears onerous and to have worked some unfairness or injustice on the putative appellant.

The Court is given power to extend time where it is “appropriate” to do so. The word imports a discretionary judgment of the usual kind where relevant factors are identified, assessed and a judgment made as to how the competition between them is to be accommodated. If the Commissioner’s submission were correct the Court in exercising this discretionary power would look only at the length of time between judgment and application to appeal, and the reasons why it was not shorter. A discretion exercised by reference only to those factors would be stunted and mechanistic. A month’s delay with a plausible explanation for it may lead to an extension of time, but a day’s unexplained delay may not. Such an exercise of power is more likely to lead to injustice than to cure it. If one is to “have regard to the extent of delay” one has to put the delay in context. The context includes what flows from the delay: whether any, and what prejudice one party or the other will suffer if time is, or is not, extended.

There is, I think, a further basis for the Court of Appeal’s power to extend time in addition to s 15. It is conferred by UCPR r 748 which provides that a notice of appeal must be filed within 28 days after the date of the decision appealed from “unless the Court of Appeal orders otherwise”.

UCPR r 748 is part of the established jurisdiction of the Court of Appeal and the power it confers is one of the incidents of that jurisdiction. The Electric Light principle is also applicable here. The ordinary jurisdiction of the court, including its power to extend time under the rule, will be available with respect to the appellate jurisdiction expressly conferred on the Court of Appeal by s 468 of the LPA unless the Act gives a contrary intention. There is nothing in s 468 of the LPA which expressly or by necessary implication precludes the operation of that part of the Court of Appeal’s powers.

The Commissioner points to the terms of s 17 of the Legal Profession (Tribunal and Committee) Rule 2007 which mutatis mutandis applies “the practice and procedure for an appeal ... under the provisions of the Uniform Civil Procedure Rules ... mentioned in subsection 2 ...” to appeals to the Tribunal and to the Committee. UCPR r 748 is not one of the provisions mentioned in subsection 2. Therefore it is said that r 748 does not apply to appeals provided for by the LPA.

One cannot from this omission with respect to the practice of appeals to the Tribunal discern any legislative intent that r 748 is not meant to apply to appeals to the Court of Appeal brought pursuant to s 468 of the LPA.

It might be objected that UCPR r 748 has no application to appeals from decisions of the Tribunal because the time limited for such an appeal is fixed by s 15 of the LPA and that, consequently, the rule has no scope for operation. However, by its terms the rule is applicable and the power it confers to extend time is, I think, deployable even where a right of appeal is conferred otherwise than by the UCPR. Chapter 18, Part 1 of the rules deals with “appeals to the Court of Appeal”. UCPR r 745 applies the Part to an appeal from a decision of:

“(1)(c)Another body from which an appeal lies to the Court of Appeal.”

UCPR 746(1) provides that an appeal is started by filing a notice of appeal with the Registrar. UCPR 748 then provides that the notice of appeal must be filed within 28 days from the decision appealed from unless the Court of Appeal lengthens or shortens the time.

These rules apply by their terms to all appeals and regulate the time for appealing. There is no obvious reason why they should not apply to an appeal conferred by a statute such as s 15 of the LPA, and substantial reasons of convenience and justice why they should.

One then turns to consider whether time should be extended.

The Tribunal’s orders made on 10 July 2008 followed its finding that the applicant had been guilty of unsatisfactory professional conduct. The applicant is, as I mentioned, a barrister. He wished to challenge that finding and have the orders, made consequentially upon it, set aside. It is incumbent upon any litigant to comply with the applicable rules of procedure. The expectation is greater in the case of a legal practitioner, especially one who challenges a finding of unsatisfactory conduct. The relevant delay is not great, of the order of six weeks, from mid-August to 1 October. Nor is there evidence of prejudice. The reason for the delay, however, displays gross ineptitude on the part of the applicant.

He claims that he understood the right of appeal conferred by the LPA to be similar to the right of appeal to the District Court found in s 222 of the Justices Act 1886, so that, referring to Coulter, he ‘should wait for final orders” to be made before appealing.

Why a barrister would assume that a section in one statute, with its own jurisprudence, was to the same effect as another section in a different statute, without looking at them both, is beyond comprehension. Why, if the applicant looked at the relevant provisions of the LPA, he did not understand that an appeal against the orders of the Tribunal made on 10 July 2008 had to be filed within 28 days is also beyond understanding. Section 468 confers a right of appeal on a party “dissatisfied with (a) tribunal’s decision” to appeal the “decision”. There is no doubt that the Tribunal made a decision on 10 July 2008. It decided, and ordered, that the applicant be reprimanded and undergo further professional training. There was nothing uncertain or provisional about the decision and orders.

The Tribunal also made provision for the later determination of other questions: compensation and costs. These were, obviously, matters additional and ancillary to the decision and orders made on 10 July. The orders made on 8 September were, certainly, “final orders” but they did not perfect or affect the orders made earlier on 10 July. They were separate to the 10 July orders which were themselves “final”.

These points are so obvious as scarcely to need expression: but the applicant professes not to have understood them, and perhaps did not do so.

But even if one accepts his professed reason for not appealing until the Tribunal had made its further orders on 8 September there remains the fact that the applicant did not do what he said he understood he should have done: file a notice of appeal within 28 days of 8 September seeking to overturn both sets of orders made by the Tribunal. There is a copy of a notice of appeal in the applicant’s bundle which takes issue with the 8 September orders, but it has not been filed. There is no satisfactory evidence that one has even been signed by the applicant. More significantly the undated, unsigned copy of the notice of appeal does not take issue with the orders made on 10 July. But, he said, he waited until after 8 September to appeal against the July orders. Even more extraordinarily the applicant said during the hearing that he does not challenge the orders that he be reprimanded and undergo professional training. These were the only substantive orders made by the Tribunal on 10 July. The only application for an extension of time within which to appeal relates to those orders. It appears to be the case that the applicant now wishes only to challenge the September orders for costs.

The applicant’s tale is one of confusion, inefficiency and incompetence. Given his professional status and the nature of the appeal he wishes to prosecute I would refuse leave to extend time within which to appeal against the Tribunal’s decisions. I note and concur with the President’s reasons which show that any appeal would have no prospect of success.

Footnotes

1. The transcript of this proceeding is 25 pages in length. ↩

2. Legal Services Commissioner v Bradshaw [2008] LPT 9. ↩

3. Legal Services Commissioner v James Todd Bradshaw No. 2 [2008] LPT 11. ↩

4. Attached to his affidavit in support of his application for leave to appeal from the orders of 10 July 2008 are copies of two unfiled notices of appeal, one of which appears to be a draft notice of appeal from the orders of both 10 July 2008 and 8 September 2008 (A7 to A9 of Mr Bradshaw's material provided to the judges in this Court) and another which appears to be a draft notice of appeal in respect of the orders of 8 September 2008 (A10 to A12 of Mr Bradshaw's material provided to the judges in this Court). ↩

5. Legal Services Commissioner v Bradshaw [2008] LPT 9. ↩

6. Legal Services Commissioner v James Todd Bradshaw No. 2 [2008] LPT 11. ↩

7. [2006] QCA 145 at [56]-[57]. ↩

8. Legal Services Commissioner v James Todd Bradshaw No. 2 [2008] LPT 11 at [10]. ↩

9. Legal Profession Act 2007 (Qld), s 3(a). ↩

10. Legal Profession Act 2007 (Qld), s 13(1). ↩

11. Legal Profession Act 2007 (Qld), s 29.