Boland v Boxall - [2018] TASFC 11

[2018] TASFC 11

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Boland v Boxall [2018] TASFC 11

PARTIES:  BOLAND, Chris
  v
  BOXALL, Andrea
  LEGAL PROFESSION BOARD

FILE NOS: 51/2017

2594/2018

JUDGMENTS

APPEALED FROM: Boland v Legal Profession Board of Tasmania [2016] TASSC 63; Boland v Boxall [2016] TASSC 30

DELIVERED ON:  29 November 2018
DELIVERED AT:  Hobart
HEARING DATE:  11 October 2018
JUDGMENT OF:  Estcourt J, Brett J, Martin AJ

CATCHWORDS:

Professions and Trades – Lawyers – Complaints and discipline – Tasmania – Legal Profession Board finding of unsatisfactory professional conduct following complaint – Appeal from a re-determination of complaint by Supreme Court by way of re-hearing – Primary judge's findings and orders reprimanding the appellant and ordering the payment of costs confirmed – Appeal dismissed.

Legal Profession Act 2007(Tas), ss 422 and 454.
Stirling v Legal Services Commissioner [2013] VSCA 374, referred to.
Aust Dig Professions and Trades [1274]

REPRESENTATION:

Counsel:
             Appellant:  A C Wood
             Respondent:  K Cuthbertson
Solicitors:
             Appellant:  Chris Boland Lawyers
             Respondent:  Tremayne Fay Rheinberger Lawyers

Judgment Number: [2018] TASFC 11
Number of paragraphs: 131

Serial No 11/2018
File Nos 51/2017
2594/2018

CHRIS BOLAND v ANDREA BOXALL
and LEGAL PROFESSION BOARD OF TASMANIA

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J (Dissenting)
BRETT J
MARTIN AJ
29 November 2018

Order of the Court:

Appeal dismissed.

Serial No 11/2018
File Nos 51/2017
2594/2018

CHRIS BOLAND v ANDREA BOXALL
and LEGAL PROFESSION BOARD OF TASMANIA

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
29 November 2018

The appeal

Appeal number 51 of 2017 is an appeal from Tennent J (Boland v Legal Profession Board of Tasmania [2016] TASSC 63).
The first named respondent who is alternately referred to as "the complainant" in these reasons, and those below, did not take part in this appeal.
The second named respondent is alternately referred to in these reasons, and those below, as "the Board".
There is no real disagreement between the parties about the legal principles that are to my mind relevant. They are compendiously set out in the reasons below.
There is little if any significant disagreement between the parties as to the relevant facts, although the construction of some relevant documents is problematic.

The background

The background to the appeal is, as to relevant issues, the same as the background to the rehearing before Tennent J. That was an application "involving a re-determination" (Blow CJ: Boland v Boxall [2016] TASSC 30 at [9]). The learned primary judge set out that background in her reasons for judgment as follows at [1]):
"[1] The applicant, Christopher John Boland, is a legal practitioner. The applicant acted for the complainant, Andrea Boxall, between 2006 and 2010. On 11 August 2010, the complainant lodged a written complaint in respect of the applicant with the Legal Profession Board of Tasmania (the Board). The complaint was investigated, and a determination made to refer it for a hearing. The Board conducted a hearing in respect of…

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: [2018] TASFC 11
Decision Date: 29 November 2018

CaseChat Overview and Summary

The appellant, a legal practitioner, appealed to the Full Court of the Supreme Court of Tasmania against a re-determination of a complaint of unsatisfactory professional conduct made against him. The Legal Profession Board had initially made a finding of unsatisfactory professional conduct, which was subsequently reviewed by a primary judge of the Supreme Court. The primary judge upheld the finding and ordered the appellant to be reprimanded and to pay costs. The appeal to the Full Court was by way of a re-hearing.

The central legal issue before the Full Court was whether the primary judge erred in upholding the finding of unsatisfactory professional conduct and in imposing the reprimand and costs order. This required the Full Court to consider the evidence and submissions afresh, applying the relevant legal standards for unsatisfactory professional conduct under the applicable legislation.

The Full Court, in dismissing the appeal, confirmed the primary judge's findings and orders. The Court found no error in the primary judge's assessment of the appellant's conduct, which had been deemed unsatisfactory. Consequently, the reprimand and the order for costs were maintained.

Orders