plaintiff. The respondent was publicly reprimanded and made subject to practising-certificate restrictions, psychiatric-report requirements and an ethics-course requirement, and was ordered to pay the...
Key principles
The admitted dishonesty, repeated failures to follow the insurer's proper instructions, and settlements made without instructions were, in the circumstances, conduct that...
Under s 443(3) and (4)(a) of the Legal Profession Act 2007 (Qld), the admitted failure without reasonable excuse to comply with the Commissioner's notice carried a finding of...
The Tribunal should not lightly depart from a parties' agreed position on proposed disciplinary orders when satisfied about the accuracy of the agreed facts and their...
Removal from the local roll was not warranted on the material before the Tribunal because it was not satisfied that the probability was that the respondent was permanently unfit...
Issues before the court
Whether the conduct in Charges 1 to 5 amounted to professional misconduct.
Whether the respondent's failure to comply with the Commissioner's notice constituted professional misconduct.
Plain English Summary
The Tribunal found that the solicitor's admitted conduct in insurer litigation, including extensive dishonesty, ignoring instructions and settling cases without authority, was professional misconduct. His failure without reasonable excuse to comply with a statutory notice was also professional misconduct. The Tribunal considered his depressive disorder, treatment, remorse and repayment of losses when deciding the sanction. It did not find that he was probably permanently unfit to practise, so it did not remove him from the roll. Instead, it imposed a public reprimand, conditions on future practising certificates, psychiatric-report requirements, an ethics course and a costs order.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,326 words · generated 01/10/2026
What happened
In Legal Services Commissioner v McLeod [2020] QCAT 371, the Queensland Civil and Administrative Tribunal dealt with a discipline application concerning Cameron Stuart McLeod, a solicitor who had practised for about 20 years. The matter was determined on the papers under s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). McLeod admitted the factual basis of the charges, and the parties provided a Statement of Agreed Facts. The Tribunal nevertheless had to decide how to characterise the conduct and whether the agreed orders were appropriate ([1]–[2]).
Whether the agreed orders should be made, or whether removal from the roll or other orders were required.
Cited legislation
No linked legislation citations have been extracted yet.
The conduct arose from McLeod's work on litigation matters for an insurer, representing insured defendants. The relevant period was late 2014 to April 2017. The Tribunal's account describes failures to progress proceedings in a timely way, failures to tell the insurer about significant events, and repeated departures from the insurer's instructions ([3]–[7]).
The admitted conduct included dishonest communications about offers and counter-offers, settlement dates and related communications. McLeod settled matters without instructions, falsely said that counsel had been briefed, and signed a request for a trial date without informing the insurer or obtaining instructions. In other matters, he did not disclose trial listings or costs orders, misrepresented the plaintiff's solicitors' conduct, and told plaintiff's solicitors that steps had been taken to pay settlement funds when the insurer had not been told that the matter had settled ([5]–[6]). The dishonesty extended to tax invoices and, in one case, an incorrect date on a deed of settlement intended to conceal when settlement occurred ([14]).
The respondent also failed without reasonable excuse to comply with a written notice issued by the Commissioner under s 443(3) of the Legal Profession Act 2007 (Qld) in December 2017 ([8]). The insurer's review did not identify misconduct in matters beyond the five in the application. The insurer did, however, suffer loss, apparently mainly through additional costs. The amounts were reimbursed, with the Statement of Agreed Facts recording a sum over $100,000 and McLeod's unchallenged evidence putting it at almost $156,000 ([9]).
The Tribunal considered medical evidence documenting a history of depressive disorder, treatment and hospital admissions. It accepted the parties' position that there was a sufficient causal connection between the depressive disorder and the misconduct, while acknowledging the treating psychiatrist's caution about causal attribution ([23]–[29], [33]).
Why the court decided this way
The central characterisation question was whether the conduct fell within professional misconduct. The Tribunal referred to the test from Adamson v Queensland Law Society Inc: conduct is professional misconduct if it violates or falls short, to a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competency. It also referred to the accepted formulation that conduct reasonably regarded as disgraceful or dishonourable by professional colleagues of good repute and competency can constitute professional misconduct ([11]).
The Tribunal used rr 4, 5 and 8 of the Australian Solicitors Conduct Rules 2012 as context, although McLeod had not been specifically charged with breaches of those rules ([12]). Rule 4, as described in the reasons, required honesty in dealings and avoiding compromise to a solicitor's integrity; r 5 concerned fitness to practise and conduct likely materially to bring the profession into disrepute; and r 8 required compliance with lawful, proper and competent client instructions ([13]).
The Tribunal accepted that McLeod's conduct was dishonest and that he repeatedly failed to follow the insurer's instructions. It treated honesty in lawyers' dealings with clients as fundamental to the legal system and the administration of justice ([14]–[16]). The insurer's instructions were intended to ensure litigation was managed properly and efficiently, so failure to comply with them was serious in this setting ([17]).
The unauthorised settlements were also serious. The Tribunal noted that a solicitor has ostensible authority to compromise litigation, even though choosing whether to settle ordinarily belongs to the client. It observed that such conduct could undermine client confidence and the objective of early settlement. But the Tribunal did not need to decide whether unauthorised settlements, considered on their own, would affect the profession's reputation. The dishonesty and repeated instruction failures already supported the necessary characterisation. It also found that the settlements formed part of a scheme to conceal failures to follow instructions and meet the insurer's expectations ([18]–[20]).
Charge 6 had a direct statutory consequence. The Tribunal said that a failure without reasonable excuse to comply with a s 443(3) notice carried a finding of professional misconduct under s 443(4)(a). McLeod did not argue that he had a reasonable excuse, so the Tribunal treated that charge as misconduct too ([21]). It concluded that the conduct covered by the charges was professional misconduct ([22]).
The question of sanction was not simply punitive. The Tribunal identified public protection as the main purpose of disciplinary proceedings, alongside safeguarding the profession's reputation. It also recognised general deterrence as important, but capable of being sensibly moderated where mental disorder contributed to misconduct ([30]). It considered the evidence that McLeod's depressive disorder had affected his mood, problem-solving and avoidance of conflict, while noting the limits in the psychiatrist's ability to ascribe causation ([27]–[28], [33]).
The Tribunal also assessed ongoing risk. McLeod still required treatment, which raised concern about possible deterioration. At the same time, the medical material did not suggest a significant chance of a mental-health-related event leading to repeated conduct; the Tribunal considered the proposed conditions protective. It found no basis to conclude that McLeod would probably enter a similar difficult workplace situation again ([34]).
Other mitigating considerations included early engagement with treatment, sustained treatment, accepted remorse, a deep sense of shame, absence of personal gain, settlements that were within acceptable parameters for the insurer, and repayment of the losses ([35]). Those matters informed the orders, but did not change the Tribunal's finding that the conduct was serious professional misconduct.
Before and after state of the law
The reasons do not present the decision as changing the general law of professional discipline. Rather, the Tribunal applied existing formulations of professional misconduct and disciplinary purpose to admitted facts. Its statement of the substantial-departure test came from Adamson, and it also referred to conduct that colleagues would reasonably regard as disgraceful or dishonourable ([11]).
The Tribunal's discussion of agreed sanctions is a notable procedural point, but not a general rule that a tribunal must accept a regulator's and practitioner’s agreement. In Legal Services Commissioner v Manz, the Tribunal had questioned how far principles from civil penalty cases about agreed penalties applied in professional discipline. Here it accepted that an agreed position should not be lightly departed from if the Tribunal is persuaded that the agreed facts and consequences are accurate and the proposed penalty appropriate. It also expressly retained its own responsibility to determine the conduct and impose sanctions ([31]–[32]). Thus, agreement informs the Tribunal's task; it does not replace it.
On removal from the roll, the Tribunal relied on the principle that removal should occur only when the probability is that the practitioner is permanently unfit to practise, as accepted in Watts v Legal Services Commissioner from Prothonotary of the Supreme Court of New South Wales v P ([30]). The Tribunal applied that threshold to the evidence before it and found it was not met ([34]). The decision therefore illustrates the distinction between serious misconduct and the separate question whether permanent unfitness has been established.
The reasons also recognise mental health as relevant to sanction, including the potential to moderate general deterrence where mental disorder contributed to misconduct ([30], [33]). They do not hold that mental illness excuses dishonesty or prevents a finding of professional misconduct. In this case, the Tribunal found misconduct and then considered the causal connection, treatment and risk in deciding orders.
Nothing in the supplied judgment establishes how later courts treated McLeod itself. The judgment's footnote refers to Victorian Legal Services Commissioner v Harriss [2020] VCAT 689 as adopting the agreed-penalty discussion in Victorian Legal Services Commissioner v Hyatt. That is a relationship between those Victorian decisions, not evidence of later treatment of McLeod ([31] n 16).
Key passages with plain-English translation
At [11], the Tribunal quotes the Adamson test: professional misconduct involves falling short of professional standards “to a substantial degree”. In plain English, a minor error is not enough under that formulation; the question is whether the conduct represents a serious departure from what competent and reputable members of the profession observe or approve.
At [16], the Tribunal says honesty in dealings between lawyers and clients is fundamental to the legal system and administration of justice. This explains why the dishonesty was not treated as merely an internal client-service failure. The Tribunal regarded it as going to professional integrity and public confidence.
At [18], the Tribunal notes that a solicitor may have ostensible authority to compromise litigation, while stressing that the decision to settle is ordinarily the client's choice. In practical terms, the existence of authority that may bind a client does not make it proper for a solicitor to disregard the client's instructions.
At [20], the Tribunal says the dishonest conduct and accepted failures to follow instructions were sufficient to support the finding that the conduct would be regarded as disgraceful or dishonourable. The unauthorised settlements were also serious, particularly because they helped conceal the other failures.
At [32], the Tribunal explains that it should not lightly depart from the parties' agreed position, but that principle operates only after its own assessment of the facts and proposed consequence. In plain English, agreement is relevant, not determinative.
At [34], the Tribunal states that it was not satisfied the probability was that McLeod was permanently unfit to practise. That was the reason it did not order removal from the local roll. The conclusion was made on the evidence and protective conditions in this case, not as a general finding that mental-health-related misconduct cannot justify removal.
What fact patterns trigger this precedent
The decision is most directly relevant to disciplinary cases involving a combination of dishonesty to a client, repeated disregard of client instructions, and efforts to conceal failures in the conduct of litigation. The Tribunal considered the cumulative pattern, not just an isolated missed deadline. The facts included inaccurate statements about settlement activity, failure to disclose trial and costs events, unauthorised settlement decisions, and false explanations to both the insurer and opposing solicitors ([5]–[6], [14]–[20]).
It is also relevant where a practitioner admits failing without reasonable excuse to comply with a notice under s 443(3) of the Legal Profession Act 2007 (Qld). The Tribunal treated the statutory consequence in s 443(4)(a) as requiring a finding of professional misconduct for that failure ([21]).
For sanction analysis, the case is relevant where the parties propose agreed orders but the tribunal must still scrutinise their accuracy and appropriateness. The decision emphasises that the tribunal cannot delegate its responsibility to the parties ([31]–[32]). It may also be relevant where medical evidence links a mental disorder to the misconduct and there is evidence of treatment, remorse, repayment and continuing risk. Those features informed the orders, but did not prevent the misconduct finding ([33]–[37]).
The decision should be read with care where the conduct is materially different. The Tribunal did not decide that every unauthorised settlement, every failure to follow instructions, or every regulatory notice failure will produce the same sanction. It assessed the admitted facts, evidence and proposed safeguards together.
How later courts have treated it
The supplied judgment identifies no subsequent decision treating Legal Services Commissioner v McLeod as applied, followed, distinguished or otherwise considered. It would therefore be unsupported to claim a particular later-court treatment from this source alone.
The judgment does refer to other decisions in its own reasoning. It applies the professional misconduct formulation from Adamson and relies on Watts for the threshold concerning removal from the roll ([11], [30]). It discusses Manz on the treatment of agreed disciplinary orders and considers the High Court's approach to agreed penalty submissions in Commonwealth v Director, Fair Work Building Industry Inspectorate & Ors ([31]–[32]).
A footnote states that the discussion in Victorian Legal Services Commissioner v Hyatt was adopted in Victorian Legal Services Commissioner v Harriss. That reference concerns the agreed-penalty proposition from those cases, not subsequent application of McLeod ([31] n 16). Any account of later treatment of McLeod would require additional sources not contained in the judgment provided.
Still-open questions
The decision leaves some questions open because it expressly found that it was unnecessary to resolve them. First, it did not decide whether unauthorised settlements, considered apart from the accompanying dishonesty and concealment, would themselves be enough to bring the profession into disrepute ([19]–[20]). It described the conduct as unusual and suggested it might be seen as an individual's aberration rather than as conduct affecting the profession generally.
Second, the Tribunal did not determine every alleged ASCR contravention. It used rr 4, 5 and 8 as context and found the accepted contraventions sufficient for its characterisation. It said there was no need to consider the applicant's other submissions about the rules ([12], [20]).
Third, the reasons do not supply a general formula for how much weight to give a psychiatric condition in disciplinary orders. The Tribunal accepted a sufficient causal connection on the agreed position and available material, while noting the treating psychiatrist's caution about causation ([28], [33]). Its assessment of risk was case-specific and connected to proposed certificate conditions, treatment needs and workplace circumstances ([34]).
Finally, the decision does not establish how an agreed disciplinary outcome should be assessed in every category of professional discipline. It states that the Tribunal should not lightly depart from a suitable agreed position, while preserving the Tribunal's overriding responsibility ([31]–[32]). The boundary between a suitable agreed position and one requiring departure remains dependent on the particular facts, consequences and protective needs presented.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
[1] The discipline application for this proceeding has alleged that in relation to five litigation matters, the respondent engaged in conduct which should be characterised as professional misconduct or unprofessional conduct; and that he has failed without reasonable excuse to comply with a notice issued under s 443(3) of the Legal Profession Act2007 (Qld) ("LP Act"), to be characterised as professional misconduct. The respondent has, in his response to the discipline application, admitted the factual substratum of the charges. The parties have produced a Statement of Agreed Facts ("SOAF"). It is necessary for the Tribunal to consider whether it should make the orders which the parties have agreed upon, or whether it should take some other course.
[2] In view of the position taken by the parties, the Tribunal considers that it is appropriate to conduct the hearing of the proceeding entirely on the basis of documents, without the parties, their legal representatives, or witnesses appearing at a hearing, under s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld).
[3]
[3] The respondent was an Australian legal practitioner for a period of 20 years. He was admitted to practice as a solicitor in Queensland in February 1997. He was employed as a solicitor, then as a senior associate, and later as special counsel, with a prominent firm in Brisbane over a period of 14 years. From 30 June 2012, he became a one-third equity partner in another firm. An important client of the firm was an insurer. The charges all relate to the conduct of matters by the respondent on behalf of the insurer, for insured defendants, during his time with this firm. The respondent retired from the firm on 30 April 2017. Later in 2017, he took a position with another firm for three months (though it is not clear that he acted in that position). He allowed his practising certificate to lapse at some point in 2017.
[4] The details of the respondent's conduct are set out in the discipline application, and are admitted by the respondent. It is not necessary to repeat them in full. It is sufficient to give a brief outline of what occurred.
[5] Generally, the conduct relates to the respondent's failure to conduct proceedings in a timely fashion, in accordance with the standards set by the insurer. On occasion, that had the consequence that a plaintiff would apply (successfully) to dispense with a defendant's signature for a certificate of readiness, and have the matter listed for trial, without the respondent informing the insurer of these facts. In a number of matters, he caused the legal practice to make untrue and dishonest representations to the insurer about offers and counter-offers to settle matters, and related communications; settled matters when he did not have instructions to do so; and made false representations about when matters had been settled. Tax invoices to the insurer were based on the false representations. In one matter, the respondent falsely informed the insurer that Counsel had been briefed to provide advice, when that had not occurred; and he signed a request for a trial date without informing the insurer or obtaining its instructions to do so. In another matter, the respondent failed to inform the insurer that the proceeding had been listed for trial, he dishonestly represented that the plaintiff's solicitors were delaying the resolution of the issue of costs, and he did not inform the insurer that a costs certificate had been filed and that the Court had ordered a specific amount of costs to be paid. In yet another matter, the respondent dishonestly represented to the solicitor for the plaintiff that the insurer had taken steps to pay settlement funds, when the insurer had not been informed that the matter had settled.
[4]
The definitions of unsatisfactory professional conduct and professional misconduct found in ss 418 and 419 of the LP Act both make reference to failures (to different degrees) to achieve standards of competence and diligence. Although the conduct alleged against the respondent may be able to be traced back to failures of this kind (a matter unnecessary to decide), it in truth relates to other matters. That is not determinative, as the definitions are inclusive. More broadly, in Adamson v Queensland Law Society Inc,[1] Thomas J said the following of professional misconduct:
[5]
The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.[2]
[6]
It has also been accepted that professional misconduct includes conduct that would reasonably be regarded as disgraceful or dishonourable by the lawyer's professional colleagues of good repute and competency.[3]
[7]
[12] It is convenient to commence with a consideration of the conduct which is the subject of Charges 1 to 5. In this context, the applicant's submissions draw attention to rr 4, 5 and 8 of the Australian Solicitors Conduct Rules 2012 ("ASCR"). The respondent has not been specifically charged with breaches of the ASCR. That being said, there has been no objection to the applicant's reference to them; and they provide some context for the assessment of the respondent's conduct.
[13] Rule 4 requires a solicitor (amongst other things) to act in the best interests of the client in all matters in which the solicitor represents the client; and to be honest in all dealings in the course of legal practice. The rule also requires a solicitor to avoid any compromise to the solicitor's integrity. Rule 5 requires a solicitor not to engage in conduct which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely, to a material degree, to bring the profession into disrepute. Rule 8 requires a solicitor to follow a client's lawful, proper and competent instructions.
[14] The applicant has submitted that the respondent, contrary to r 4, has failed to be honest in all dealings in the course of legal practice. That is apparent from the admitted allegations in the discipline application, as well as the SOAF and the summary set out earlier in these reasons. The dishonesty was extensive, involving tax invoices, emails and messages; and extending in one case to putting an incorrect date on a deed of settlement, to hide the true date of the settlement.
[15] The applicant has also submitted that, contrary to r 8, on numerous occasions the respondent did not follow the client's lawful, proper and competent instructions. That submission should also be accepted.
[8]
The applicant has submitted that the respondent's conduct was likely, to a material degree, to bring the legal profession into disrepute, contrary to r 5. The respondent's dishonesty is likely to have that effect. Honesty on the part of lawyers in their dealings with their clients is a fundamental feature of our legal system, and is of importance to the administration of justice generally.[4] The respondent's dishonesty is of considerable importance in the characterisation of his conduct.
[9]
[17] In some cases, a failure to follow an instruction may be a matter of little moment. That is not the case here. The insurer's instructions appear to be designed to ensure that the litigation which was conducted on behalf of those who were insured by it was managed properly and efficiently. This aspect of the respondent's conduct is also a matter of some seriousness.
[18] There is one other aspect of the respondent's conduct which warrants consideration. That is his making of offers and settling litigation without instructions from the insurer to do so. It has been accepted that a solicitor has ostensible authority to compromise litigation.[5] A solicitor's conduct may result in a client becoming subject to a liability, when the choice to do so is the client's choice. Ordinarily, it will be seriously wrong for a solicitor to engage in such conduct. Were it to occur more frequently, it could undermine the confidence of clients in their legal representatives, and have adverse effects on the achievement of the desirable end of early settlements of litigation.
[19] The matters so far discussed all have the capacity to bring the legal profession into disrepute. Dishonesty, in particular, is likely, to a material degree, to have that effect. So are persistent failures to comply with proper instructions. The question is less clear in relation to settling matters without instructions, only because the conduct is so unusual that it may well be regarded as one individual's aberration, rather than a matter affecting the reputation of the legal profession generally.
[20] It is unnecessary to consider this question further. Nor is it necessary to consider the other submissions of the applicant as to contraventions of the ASCR. The contraventions of those rules which have been accepted are sufficient to support a finding that the conduct of the respondent would reasonably be regarded as disgraceful or dishonourable by the respondent's professional colleagues of good repute and competency. The same finding should also be made with respect to the settlement of matters by the respondent, particularly as this formed part of his scheme for concealing from the insurer his failure to comply with its instructions and to meet its expectations in relation to the conduct of these proceedings.
[21] Charge 6 is based on the respondent's admitted failure, without reasonable excuse, to comply with a written notice issued under s 443(3) of the . The finding of such a failure, by force of the section, carries with it a finding that the respondent has committed professional misconduct, unless he has a reasonable excuse for the non-compliance. The respondent has not contended that he has such an excuse.
[10]
[23] Shortly after his departure from the relevant firm in April 2017, the respondent engaged LawCare for a number of appointments. He saw Dr Thomas Moore, a psychiatrist, on 8 June 2017, and on subsequent occasions. He moved (with his family) to northern New South Wales in the latter part of 2017, and undertook psychological therapy with Ms Sara Goldie, a clinical psychologist. This therapy was the result of a mental health plan prepared by the respondent's general practitioner. Ms Goldie saw the respondent on 10 occasions up to February 2018.
[24] The respondent states that his mental health had improved with professional help in 2017, but that he lost the gains he had made when he learnt of the insurer's complaint, and subsequently of these proceedings. He suffered what he describes as a significant relapse in August 2019, resulting in his return to Dr Moore for treatment, and his admission to Belmont Private Hospital ("Belmont") from 9 to 21 September 2019. Dr Moore recommended that the respondent undertake a course of Transcranial Magnetic Stimulation ("TMS") and other cognitive behavioural therapy programmes. The respondent was an inpatient at Belmont for this treatment from 3 to 30 November 2019. He was admitted to Belmont for a further course of TMS on 10 February 2020, expecting to be discharged in early March.
[25] Dr Moore's initial diagnosis, made in June 2017, was of a Major Depressive Disorder, of moderate to severe intensity. The respondent's symptoms were said to have been present since December 2015. In his report of 10 February 2020, Dr Moore says that this condition has remitted and recurred. He also said that an alternative explanation could be the depressive disorder, in treated remission, together with an Adjustment Disorder with Mixed Features of Mood and Anxiety in the setting of the ongoing consequences of the complaint resolution process.
[26] Ms Goldie's report, dated 23 February 2018, records treating him from October 2017. Ms Goldie was aware of the diagnosis by Dr Moore of a Major Depressive Disorder, but her testing and observations indicated sub-clinical levels of depression and anxiety. She recorded the setting of the respondent's conduct in somewhat similar terms to Dr Moore in his reports. She also recorded that the respondent had expressed strong motivation to address issues, no doubt related to his conduct.
[27] In his 2018 report, Dr Moore associated the diagnosed condition with ongoing grief at the death of his mother, and a complicated financial situation that became apparent during the resolution of her estate. He referred to tensions which the respondent experienced at the firm, associated with the demands and expectations of the majority partner. Dr Moore thought the respondent's diagnosed condition was likely to have been relevant to his mood, reduced problem-solving abilities, and avoidance of conflict resolution within the firm. He also associated the respondent's sense of shame, at one point described as acute, with withdrawal and avoidance.
[11]
Function of disciplinary proceedings and appropriate orders
[12]
[30] It is well established that the main purpose of disciplinary proceedings is to protect members of the public from misconduct by lawyers.[7] Associated with this is the need to safeguard the reputation of the legal profession. General deterrence is, in this context, a matter of some importance.[8] However, it has been recognised that this consideration may be "sensibly moderated" where mental disorder has contributed to a lawyer's misconduct.[9] In Watts v Legal Services Commissioner,[10] the Court accepted the proposition from Prothonotary of the Supreme Court of New South Wales v P[11] that an order for the removal of a practitioner's name from the roll should only be made when the probability is that the practitioner is permanently unfit to practice.
[13]
In Legal Services Commissioner v Manz[12] this Tribunal, as presently constituted, questioned the applicability of the proposition that, in determining civil penalty, a tribunal should not depart from the position taken by both parties in relation to the orders to be made, based on NW Frozen Foods v Australian Competition and Consumer Commission,[13]Commonwealth v Director, Fair Work Building Industry Inspectorate & Ors,[14] and Legal Services Commissioner v XBV.[15] In the present case, the applicant referred to a statement by Vice President Judge Hampel in Victorian Legal Services Commissioner v Hyatt:[16]
The High Court in Commonwealth v Director Fair Work Building Industry Inspectorate, set out the following principles which are applicable here:
[14]
there is an important public policy benefit in receiving, and if appropriate, accepting agreed penalty submissions;
2. the decision of the High Court in Barbaro and Zirilli v The Queen, as to the inadmissibility of prosecution, or agreed penalty provisions in criminal proceedings has had no application to cases of this kind;
[15]
upon persuasion of the accuracy of the parties' agreement as to facts and consequences, and that the penalty the parties propose is an appropriate one, it is a highly desirable practice for the Court to accept the parties' proposal.
2. It is clear that it is my duty to determine the level of conduct alleged, and to impose sanctions. No agreement between a regulator and a regulated practitioner such as Mr Hyatt can supplant that duty. Subject to that overriding responsibility, it is appropriate for parties to put an agreed position before the Tribunal. If satisfied the agreed penalty is an appropriate one, it follows I should not lightly depart from that agreed position.
[16]
[32] The Tribunal accepts that, if satisfied of the accuracy of the agreement of the parties as to the facts and their consequences, it should not lightly depart from the agreed position. That inevitably requires some consideration of the relevant facts, in the light of the principles relating to the Tribunal's powers to make orders on the determination of a discipline application.
[33] One of the factual matters accepted by the applicant is that there is a sufficient causal connexion between the respondent's depressive disorder and the respondent's misconduct. Notwithstanding the cautious approach to this question taken by Dr Moore, the Tribunal is prepared to accept this view. It finds some support in the respondent's previous good conduct. There is also support in Dr Moore's observation that the respondent's condition was likely to have been relevant to his mood, reduced problem-solving abilities, and avoidance of conflict resolution within the firm.
[34] The fact that the respondent, notwithstanding the treatment he has undertaken to date, requires further treatment, remains a matter of concern. It indicates a remaining risk that the respondent's mental health might deteriorate, with a risk of some form of misconduct. However, at an early stage, Dr Moore stated that he did not have any particular concerns about the respondent's capabilities when performing the duties of a solicitor, though he recommended mentoring, supervision, and mental health-based support; and he did not think there was a significant chance of a mental health-related event leading to a repeat of the respondent's conduct. Although not more recently asked to comment on these matters, there is nothing to suggest that Dr Moore no longer holds those views. It is apparent from the material that, in addition to the respondent's own sensitivity to criticism, a significant factor in the respondent's conduct has been the personality of the majority partner in the firm, with whom he experienced great difficulty in dealing. It seems quite unlikely that the respondent would enter into such a situation again. Moreover, the proposed orders would provide some protection against the risk of a recurrence of misconduct by the respondent as a result of a mental health issue. In the circumstances, the Tribunal accepts that this is not a case calling for the removal of the respondent's name from the local roll. It is not satisfied that the probability is that the respondent is permanently unfit to practice.
[17]
[38] The following orders are made:
The respondent is publicly reprimanded;
The respondent may not apply for or obtain an employee level practising certificate until his application is accompanied by:
[18]
(b) a report on his mental condition and its effect on his ability to engage in legal practice, prepared by an independent practising psychiatrist who has been provided with a copy of the Reasons, with such report to be prepared no earlier than 12 months from the date of this Order, and within six months before the date upon which the respondent makes any such application;
[19]
Upon his being granted an employee level practising certificate, the respondent must undertake the next available ethics course facilitated by the Queensland Law Society;
The respondent may not apply for or obtain a certificate to practise as a principal until he has practised as an employed solicitor for five years. His first application for a certificate to practise as a principal must be accompanied by a report on his mental condition and its effect on his ability to engage in legal practice, prepared by an independent practising psychiatrist who has been provided with a copy of the Reasons, with such report to be prepared within six months before the date upon which the respondent makes the application;
On the third occasion the respondent applies for a certificate to practise as a principal (i.e. for the period next after he has held such certificate for two years), his application must be accompanied by a report on his mental condition and its effect on his ability to engage in legal practice, prepared by an independent practising psychiatrist who has been provided with a copy of the Reasons, with such report to be prepared within six months before the date upon which the respondent makes the application; and
The respondent is to pay the applicant's costs to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.
[3] See Allinson v General Council of Medical Education and Registration[1894] UKLawRpKQB 36; [1894] 1 QB 750. See also the discussion in Gino E Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 6th ed, 2017) 762 [23.85] ("Dal Pont").
[5]Lucke v Cleary(2011) 111 SASR 134, [60]-[62]; Pavlovic v Universal Music Australia Pty Ltd[2015] NSWCA 313, [150] (Beazley P, Bathurst CJ agreeing at [21], Meagher JA agreeing at [160]).
[8] See Attorney-General of the State of Queensland v Legal Services Commissioner; Legal Services Commissioner v Shand[2018] QCA 66, [54]-[55].
[24]
[9] See Dal Pont, 753 [23.25], text at n 39. In the criminal sphere, it has been recognised that a person suffering from a serious psychiatric illness is not an appropriate vehicle for general deterrence: see, eg, R v Tsiaris[1996] VicRp 26; [1996] 1 VR 398, 400 and R v Verdins[2007] VSCA 102; (2007) 16 VR 269, [32]; cited with approval in R v Yarwood[2011] QCA 367; (2011) 220 A Crim R 497, [23]-[26]. Also note the significance attributed to the lawyer's mental health in Watts v Legal Services Commissioner[2016] QCA 224 ("Watts").
The respondent was publicly reprimanded and made subject to practising-certificate restrictions, psychiatric-report requirements and an ethics-course requirement, and was ordered to pay the applicant’s costs on the standard basis.
[6] The terms on which the firm was engaged by the insurer required it to obtain the insurer's instructions before certain steps were taken in relation to the conduct of proceedings. On a number of occasions, the respondent failed to comply with these terms. The respondent failed to make an offer to settle on one occasion, having been instructed to do so.
[7] This conduct occurred in the period from late 2014 to April 2017 (though the dishonest misconduct appears to have commenced in March 2015).
[8] The respondent also failed, without reasonable excuse, to comply with a written notice issued by the applicant in December 2017 under s 443(3) of the LP Act, requiring an explanation of his conduct.
[9] Some other things should be mentioned. The insurer has reviewed the files which the respondent conducted, and there has not been any suggestion of misconduct, except in the five matters identified in the discipline application. The settlements which the respondent agreed to without instructions were within parameters acceptable to the insurer. However, the insurer suffered loss as a result of the respondent's actions. It would appear that these primarily related to the incurring of excess costs, apparently on the basis that matters might have been resolved earlier, or because of delay in informing the insurer of a settlement. The loss was reimbursed to the insurer, either directly by the respondent, or by the firm and in turn reimbursed by the respondent. The amount is said in the SOAF to be in excess of $100,000, though the respondent's unchallenged evidence is that it was almost $156,000.
[22] Accordingly, the Tribunal concludes that the conduct of the respondent which is the subject of the charges in the discipline application should be characterised as professional misconduct.
[28] When addressing the question of whether the respondent's condition might provide an explanation for his conduct, Dr Moore in his report of February 2020 referred to the fact that his only source of information was the respondent whom he was treating, and that within that limitation it is often difficult to ascribe causation; but said that nevertheless he could outline events described to him in a temporal manner. He went on to repeat that the respondent's condition was likely to have been relevant to his mood, reduced problem-solving abilities, and avoidance of conflict resolution within the firm. He referred to the respondent's underlying sensitivity to bullying, being belittled or denigrated, and his long term trait of avoiding confrontation in personal conflicts as apparently having reduced or impaired his capacity to access reasonable solutions to the pressures he was experiencing at work. Dr Moore considered the respondent's prognosis to be fair; and that at that time he needed further treatment. He was likely to experience dread and suicidal angst, and lethargy; with the goal of treatment being to manage symptoms and avoid negative consequences. He was unlikely to resume the level of responsibility which he previously held; but was likely to engage in a work environment. He would require ongoing psychological or psychiatric treatment for the foreseeable future.
[29] Dr Moore provided a further brief report dated 26 May 2020. It confirmed that the respondent undertook treatment at Belmont in February 2020. Dr Moore stated that the respondent described ongoing distress in the setting of a persisting Adjustment Disorder with Mixed Features of Mood and Anxiety. He also commenced treatment with an antidepressant. He was discharged with a documented improvement in mood and outlook. A further admission was likely to occur later in the year.
[35] The serious nature of the respondent's conduct has already been discussed. There are, however, some other factors which are relevant to the orders to be made, either because they support the view that further misconduct is unlikely to occur, or because they otherwise warrant mitigation of a punitive order. They are that the respondent moved early to get treatment, and has maintained a commitment to treatment at a significant level for a number of years now; his deep sense of shame (as reported by Dr Moore), and his accepted remorse; the fact that the respondent did not act for the purpose of personal gain; the settlements he entered into were at least consistent with the insurer's approach to settling matters, and are not said to have disadvantaged it; and the respondent has made good the losses resulting from his conduct.
[36] The respondent's failure to comply with the notice from the applicant issued under s 443(3) of the LP Act is also a serious matter. It does not, however, alter the Tribunal's view as to the appropriate orders to be made.
[37] The Tribunal is content to make orders generally consistent with the orders proposed by the parties. However, the panel members have raised some matters designed to give clarity and provide somewhat better protection to the public than would be achieved by the orders proposed by the parties. A revised draft of the orders has been circulated to the parties, and they do not object to the changes. The orders will accordingly be those in the revised draft.