Bhandari v Morgan Conley Solicitors Pty Ltd - [2022] QCAT 282

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Bhandari & Ors v Morgan Conley Solicitors Pty Ltd [2022] QCAT 282

PARTIES:

puna bhandari

(applicant)

australian management skills pty ltd

(applicant)

future college pty ltd

(applicant)

v

morgan conley solicitors pty ltd

(respondent)

APPLICATION NO/S:

OCL104-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 September 2022

HEARING DATE:

20 June 2022

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons KC, Judicial Member

ORDERS:

1. The application by Mr Puna Bhandari for leave for Mr Rudy Frugtniet to represent him in these proceedings is refused.

2. Declare that the applicants Australian Management Skills Pty Ltd and Future College Pty Ltd may appear in these proceedings through Mr Rudy Frugtniet.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – where Mr Frugtniet wrote the applicant’s submissions for leave to be represented by him – whether appropriate

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – where corporate applicants propose that leave of the tribunal to be represented by Mr Frugtniet is not required because he is an officer of each applicant – where Mr Frugtniet has never been an Australian legal practitioner – whether leave is required

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – where natural person applied for leave for Mr Frugtniet to represent him in proceedings in the Tribunal – where Mr Frugtniet was not found to be a fit and proper person to be admitted to the legal profession – where Mr Frugtniet was designated as a ‘disqualified person’ for three years by VCAT – other misconduct of Mr Frugtniet considered – whether Mr Frugtniet an appropriate person to represent applicant in proceedings in the Tribunal

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – where the applicants applied for leave for Mr Frugtniet to represent them in proceedings before QCAT – where the application was opposed – where the applicants applied to refer a question of law to the Queensland Court of Appeal – whether Tribunal had power to refer question to Court of Appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 42(2)(b)(iv), s 43, s 43(1), s 43(2), s 43(2)(i)(v), s 43(3), s 43(4), s 118, s 224(3)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 54, s 57

Legal Profession Act 2007 (Qld) s 6

Castillon v P&O Ports Ltd [2008] 2 Qd R 219

Frugtniet v Board of Examiners [2002] VSC 140
Frugtniet v Board of Examiners [2005] VSC 332
Frugtniet and Tax Practitioners Board (2014) 148 ALD 401
Frugtniet and Tax Practitioners Board (2015) 67 AAR 336
Frugtniet v Migration Agents Registration Authority [2016] AATA 299
Frugtniet and Australian Securities and Investments Commission [2022] AATA 295
Hollington v Hewthorn [1943] KB 587
In re A Solicitor [1993] QB 69

Law Institute of Victoria Limited v Frugtniet [2011] VCAT 596

APPEARANCES…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCAT 282
Decision Date

CaseChat Overview and Summary

Bhandari and others have commenced proceedings in the Queensland Civil and Administrative Tribunal (QCAT) seeking to have costs agreements set aside under s 328 of the Legal Profession Act 2007 (Qld) (“LP Act”). They rely on allegations of fraud, misrepresentation, non-compliance with the disclosure requirements of the LP Act, and on circumstances and the conduct of the respondent both before and after the agreements were made. They have applied to be represented in these proceedings by Mr Rudy Frugtniet. The application is made under s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). It is opposed.

The Tribunal held that the application for leave for Mr Bhandari to be represented by Mr Frugtniet will be refused. It found that Mr Frugtniet is not an appropriate person to represent Mr Bhandari in these proceedings. It was unnecessary to consider whether other factors favour or do not favour a grant of leave. The Tribunal found that leave is not required for Mr Frugtniet to represent the corporate applicants in these proceedings.

The Tribunal also held that it is not permitted to refer a question of law to the Court of Appeal. Any error in relation to the construction of ss 54 and 57 of the QCAT Rules can be more conveniently dealt with by way of appeal against this decision. No particular need for an early determination by the Court of Appeal has been established.

The orders made are that the application by Mr Puna Bhandari for leave for Mr Rudy Frugtniet to represent him in these proceedings is refused. It is also declared that the applicants Australian Management Skills Pty Ltd and Future College Pty Ltd may appear in these proceedings through Mr Rudy Frugtniet.

Orders