Legal Services Commissioner v Irving [2025] QCAT 197

• [12] If the Tribunal is satisfied that the respondent has engaged in "unsatisfactory professional conduct"[3] or "professional misconduct",[4] the Tribunal may make any order as it thinks fit. Because there are admitted convictions for a serious offence, s 420(1)(c) of the Act provides that this conduct is capable of constituting unsatisfactory professional conduct or professional misconduct. But, regardless of that provision, it cannot be doubted that, with the exception of charge four in the first application, the conduct engaged in by the respondent amounts to professional misconduct. As defined, that includes conduct by a legal practitioner in connection with the practice of the law or happening otherwise than in connection with the practice of the law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.[5]
• [13] In determining whether a practitioner is not a fit and proper person to engage in legal practice, regard may be had to suitability matters that would be considered if the practitioner were an applicant for admission, or for the grant or renewal of a local practising certificate.[6] These include whether the practitioner has been convicted of an offence in Australia and, if so, the nature of the offence and how long ago the offence was committed.[7]
• [14] Here, the charges which are based on the respondent's convictions for making false declarations, committing perjury, and attempting to pervert justice, go to the very heart of the administration of the system of justice of which the respondent was a privileged participant. The charges of fraud and money laundering are of a similar order. The charge of supplying dangerous drugs is yet another example of the respondent being prepared to knowingly contravene the criminal law, and in a serious way. Overall, the respondent's conduct must be regarded as reprehensible, as the respondent himself accepts. It has not only brought shame on himself, it has damaged the reputation of the profession. The public are not only entitled to expect a high degree of integrity from legal practitioners, they are entitled to expect that legal practitioners will obey the law. The respondent failed to do so on multiple occasions over a protracted period.
• [15] The Tribunal has no hesitation in finding the charges proved to the requisite standard and in concluding that each charge amounts to professional misconduct, save for charge four in the first application.[8] That charge - failing to make a costs disclosure - amounts in the Tribunal's view to unsatisfactory professional conduct.

• [16] When deciding what orders should follow in consequence of the findings which the Tribunal has just made, regard should primarily be had to the protection of the public and the maintenance of proper professional standards.[9] Furthermore, an order removing a practitioner's name from the roll should only be made when the probability is that the practitioner is permanently unfit to practise.[10] That determination is as to present fitness, not fitness at the time of the offending conduct.[11]
• [17] The Tribunal is satisfied that, on the whole of the evidence, the respondent is permanently unfit to practise. Accordingly, it will be ordered that his name be removed from the local roll in Queensland.
• [18] In addition, there being no exceptional circumstance to justify an order departing from the usual position as to costs reflected by s 462(1) of the Act, the respondent will be ordered to pay the costs of and incidental to the applications, such costs to be assessed on the standard basis for matters in the Supreme Court of Queensland.
• [19] Despite the making of those orders, it should be recorded that there was a considerable, and impressive, body of medical and other evidence which was relied on at the respondent's sentence hearings in the criminal courts. Indeed, it might be said this body of evidence was especially important to the exercise of the sentencing discretion, on each occasion, in a way that did not result in a sentence involving actual custody. It disclosed that the respondent had a significant history of mental illness which included a chronic and severe post-traumatic stress disorder in consequence of his active service in the Army in Iraq, Afghanistan and East Timor. His military service was, to say the very least, meritorious. The psychological conditions with which the respondent was afflicted went largely undiagnosed and certainly untreated until after the conduct that resulted in his criminal convictions. He has since that time been in receipt of specialist psychiatric treatment and other medical assistance, and his prospects of rehabilitation are regarded as excellent. The respondent has been gradually reintegrating into the workforce under the supervision of his psychiatrist, but he has no intention of returning to the practice of the law. It should also be made plain that the respondent fully cooperated in the Commission's investigative process, as well as this proceeding, and he surrendered his practising certificate in a timely manner. However, unlike the respondent in cases such as Legal Services Commissioner v Munt,[12] he did not seek to persuade the Tribunal that he is now fit to practise, whether by reason of the extent of his recovery, or at all.

[3] Within the meaning of s 418 of the Act.

[4] Within the meaning of s 419 of the Act.

[8] That is to say, application 110 of 2024.

[9] Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149, [122].

[10] Watts v Legal Services Commissioner [2016] QCA 224, [46].

[11] Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320, [17].

[12] [2019] QCAT 160.