Legal Services Commissioner v Sewell [2023] QCAT 94

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

[1] The Commissioner has alleged that the respondent is guilty of professional misconduct and/or unsatisfactory professional conduct ('conduct allegations') and has sought disciplinary orders pursuant to s 456 of the Legal Profession Act 2007 (Qld) ('LP Act').

[2] The allegations made against the respondent include an allegation that the respondent had engaged in conduct which was likely to a material degree to bring the legal profession into disrepute inter alia by making statements about a District Court Judge and other members of the legal profession which were rude, discourteous, and below the standard of courtesy that the courts and other members of the legal profession are entitled to expect from a legal practitioner. The respondent's statements, among other things, appear to attribute serious departures from proper standards of judicial conduct to the Judge.

[3] In the course of the hearing, it became apparent that there was a basis for thinking that the respondent knew a number of her statements were untrue. When this was raised, the applicant indicated that she would apply to vary the discipline application to raise such issues. Hence the present application. The applicant has also filed and served submissions in support of the application. The application is made under s 455 of the LP Act.

[4] The variation application was listed for hearing on 28 March 2023. Directions were made including a direction that the respondent file and serve her submissions on the application to vary the discipline application by 17 March 2023. The respondent has sent a very large volume of material to the Tribunal, but it is not apparent that somewhere in that mass of material there are any submissions on the application.

[5] At 9.41 pm on 23 March 2023, the respondent sent an email to the Tribunal. In it she stated that she did not think she should participate in an oral hearing; and that she would not be in attendance at the hearing of the variation application, and that she would let the applicant do what she wanted.

[6] The application is relatively straightforward. It is apparent that the respondent does not oppose it. It is therefore convenient to deal with it without an oral hearing, under s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Accordingly, directions have issued vacating the hearing scheduled for 28 March 2023, and directing that the variation application be determined entirely on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing.

[7] Section 455 of the LP Act permits the Tribunal to vary a discipline application by, inter alia, including allegations, if the Tribunal is satisfied that it is reasonable to do so having regard to all the circumstances. It is necessary to have regard to whether varying the discipline application will affect the fairness of the proceeding.

[8] The applicant submitted that the basis for the allegations of dishonesty to be made against the respondent is found in emails sent by the respondent; the respondent would have the opportunity to engage with the new allegations; and it is difficult to see how the respondent could provide a rational explanation for making the statements honestly, or to see any basis for making them.

[9] The proposed amendments to the discipline application reflect matters apparent in the material already before the Tribunal. Generally, that material originates with the respondent. The factual basis for the new allegations is found in matters well known to the respondent, and she should be able to deal with them without the need for further investigation. Generally, where it becomes apparent that alleged misconduct of a practitioner involves dishonesty, that is something which the Tribunal should not ignore, at least when a practitioner will be given a fair opportunity to deal with the issue. In the present case, in view of the serious allegations which the respondent has made against a judicial officer and other members of the profession, there is additional reason to consider the issue of the practitioner's honesty in making them. While it is true that the allegations raised by the variations to the application are raised at a late stage of the proceedings, that does not warrant a refusal of the application. There is no reason to think that the fairness of the proceeding will be affected. There is the additional consideration that the application is not opposed.

[10] In the circumstances, the application should be granted. Directions should be made which give the respondent the opportunity to deal with the new allegations, notwithstanding the present indication of her position. No doubt if there is any genuine difficulty with the directions, an application could be made to vary them.

[11] Accordingly, the following directions are made:

1. The discipline application is varied in accordance with the variations sought by the applicant's application filed on 3 March 2023.
2. The applicant is to file a copy of the varied application in the Tribunal, and to serve a copy on the respondent, forthwith.
3. The respondent has leave to amend her response, but only to the extent of responding to the variations approved by these directions, by filing and serving a copy thereof, by 4.00 pm on 12 April 2023.
4. The respondent is to file and serve any material on which she wishes to rely in relation to the variations by 4.00 pm on 12 April 2023.
5. The applicant is to file and serve any submissions and material in reply by 4.00 pm on 17 April 2023.
6. The discipline application is to be listed for further hearing on a date to be fixed, after consultation with the parties, the panel members appointed for this matter, and the Tribunal.
7. The costs of and incidental to the application to vary the discipline application are reserved.