Bradshaw v Bar Association of Queensland
[2011] QCAT 675
•23 December 2011
| CITATION: | Bradshaw v Bar Association of Queensland [2011] QCAT 675 |
| PARTIES: | James Todd Bradshaw (Applicant) |
| v | |
| Bar Association of Queensland (Respondent) |
| APPLICATION NUMBER: | OCR018-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 23 December 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application dismissed. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – PROFESSIONS AND TRADES – LAWYERS – REVIEW APPLICATION – where Bar Association of Queensland refused application for practising certificate – where applicant sought to review that decision – where applicant had history of adverse findings in disciplinary proceedings – whether the Bar Association was correct in deciding that the applicant was not a fit and proper person to be granted a practising certificate Legal Profession Act 2007, s 52(8) Bradshaw v Bar Association of Queensland [2009] QSC 226 discussed |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 17 November 2010 the Bar Association refused Mr Bradshaw, who has practised as a barrister for many years, a practising certificate. The requirement for a practising barrister to have a certificate is contained in the Legal Profession Act 2007 (LPA). Under s 51 the regulatory authority (here, the Bar Association) is prohibited from renewing a practising certificate if it is satisfied that the applicant is not a fit and proper person to continue to hold the certificate. That is the position the Association took with Mr Bradshaw’s application.
Under s 51(9) he may apply, in the manner provided under the QCAT Act, to this Tribunal for a review of that decision. That is his application here. It is to be decided in accordance with the QCAT Act and, for that purpose, this tribunal has all the functions of the Bar Association[1]. The review is a fresh hearing, on the merits[2]. This Tribunal’s powers are identified in s 24 of the QCAT Act: to confirm or amend the decision, or set it aside and substitute its own decision or return it to the decision making body for reconsideration.
[1] Queensland Civil and Administrative Tribunal Act 2009, s 19.
[2] Queensland Civil and Administrative Tribunal Act 2009, s 20.
In previous orders the Tribunal has directed that Mr Bradshaw’s matter be determined on the papers and, by an order of 16 September 2011, that a named Senior Member and Member would constitute the Tribunal. Under s 598(1) of the LPA, however, in a matter arising under that Act the Tribunal is to be constituted by a Judicial Member who is a Supreme Court Judge.
The Association was required to give Mr Bradshaw an Information Notice[3]. Under s 10 of the LPA the notice is required to contain the decision and the reasons for it. The Notice here is annexed to these reasons.
[3]Legal Profession Act 2007, s 52(8); Queensland Civil and Administrative Tribunal Act 2009, s 157.
The Notice shows that the Association relied upon a number of matters: his failure to lodge tax returns over an extended period; his failure to provide a full and frank account of matters relevant to the Association’s consideration of his application; his commission of disciplinary offences; his failure to comply with an order made in respect of one of those offences; and, issues about his competence.
Mr Bradshaw has not filed any substantive affidavit but, rather, several sets of submissions which are wide-ranging. His application identifies a number of grounds which, he asserts, warrant review and a decision in his favour. He has also raised other matters in his written submissions.
He was entitled to apply for a practising certificate, and the Bar Association had a statutory duty to consider the application and grant or refuse it. It could not, as noted above, grant the certificate unless it was satisfied that Mr Bradshaw was a fit and proper person to hold a certificate.[4]
[4] Legal Profession Act 2007, 51(4)(b).
For the purpose of determining its state of satisfaction, the Association was obliged to take into account the broad range of matters contained in s 9 of the LPA (called suitability matters) and, also, those set out in s 46(2) which include whether a person has contravened an order of a disciplinary body and, under s 46(2)(g), any other matters the regulatory authority considers appropriate.
It is appropriate to observe at this early point that a Notice in very similar terms to the attached document was central to the recent decision of Byrne SJA in Bradshaw v Bar Association of Queensland [2010] QSC 306, in which Mr Bradshaw also appealed the Association’s refusal, a year earlier, to grant him a practising certificate. The only difference between the Notice in that case, and the attachment, is the addition of two further reasons numbered 5(k) and 5(l): that Mr Bradshaw failed to comply with an earlier order of the Legal Practice Tribunal of 10 July 2008 that, within the following twelve months, he undertake not less that 10 hours of compulsory professional development approved by the Association in the areas of ethics and practice management; and, that he falsely represented, in a letter to the Bar Association of 6 September 2010, that he had complied with that order.
The present application necessarily involves reference to the proceedings which led to that decision, and the decision itself, as well as a number of previous proceedings involving Mr Bradshaw in the Supreme Court, the Court of Appeal, the Legal Practice Tribunal and QCAT in recent years.
They include Legal Services Commissioner v Bradshaw [2008] LPT 9 (White J, as her Honour then was); Legal Services Commissioner v Bradshaw (No 2) [2008] LPT 11 (White J); Legal Services Commissioner v Bradshaw [2009] LPT 021 (Fryberg J); Legal Services Commissioner v Bradshaw [2009] QCAT 001 (Fryberg J); Bradshaw v Bar Association of Queensland (Supreme Court of Queensland (Fryberg J) unreported, 9 December 2008, 10774/2008); Bradshaw v Bar Association of Queensland [2009] QSC 226 (Douglas J); Legal Services Commissioner v Bradshaw [2009] QCA 126 (McMurdo P, Holmes JA, Chesterman JA); and, the decision of Byrne SJA mentioned above.
Mr Bradshaw’s submissions, and the contents of the Association’s Notice, make it appropriate to begin with a summary of these various proceedings – and, some others which explain his present predicament.
His troubles began, it appears, around the time he was convicted by a Magistrate in April 2008 of the offence of failing to lodge tax returns for the years 1999-2005. In the same year the Legal Practice Tribunal (White J) also, however, found him guilty of unsatisfactory professional conduct and he was publicly reprimanded and ordered to undertake not less than 10 hours of additional CPD in the areas of ethics, and practice management. Later, White J also ordered that he pay the costs of the Legal Services Commissioner, and the complainant.
The Association then refused to renew his practising certificate. He appealed that decision to Fryberg J who, after a hearing on 9 December 2008, struck out his appeal (after Mr Bradshaw had indicated he wished to withdraw it) and ordered costs against him.
The proceedings in the Court of Appeal in 2009 involved applications by Mr Bradshaw to extend time for his proposed appeal against the decisions of White J, and to adduce further evidence. Both were dismissed, with extensive Reasons, on 15 May 2009.
He then applied to the Supreme Court for judicial review of the Association’s decision not to renew his certificate. That application was dismissed, after argument and again with extensive Reasons, by Douglas J on 13 August 2009.
The Legal Services Commissioner had brought a separate disciplinary application against him in respect of his failure to lodge tax returns, and for engaging in conduct alleged to fall short of the necessary standards of a barrister. They were heard and determined by Fryberg J in the latter part of 2009. His Honour found three charges involving the failure to lodge tax returns, unsatisfactory professional conduct, and failing to reply to a notice from the Commissioner proven, and directed that Mr Bradshaw be publicly reprimanded and that, when he next obtained a practising certificate, conditions should be attached to it.
Mr Bradshaw then brought proceedings in the Supreme Court seeking a declaration that he is a fit and proper person to practice, and an order that the Association issue a certificate. That application was struck out by the Chief Justice on 27 May 2010.
The most recent proceeding was Mr Bradshaw’s application to Byrne SJA, again by way of an appeal from the Association’s decision not to issue a certificate. That application was dismissed, again with detailed Reasons, on 20 August 2010.
The present application for review was filed in QCAT on 31 January 2011.
Mr Bradshaw’s first assertion is that he is, in truth, a fit and proper person to hold a practising certificate. LPA s 51(4)(b) places an onus upon him to demonstrate this.
According to its Notice the Association was not so satisfied, for the reasons contained in that document. Reasons 5(a)-(j) are identical to those which resulted in a similar refusal a year earlier and were considered by Byrne SJA in his Honour’s Reasons of 20 August 2010. They concern Mr Bradshaw’s failure to lodge tax returns, or adequately explain that failure; misconduct in the course of litigation; a misstatement about, and misrepresentation of certain remarks made by Fryberg J in proceedings on 9 December 2008; and, what is said to be demonstrated incompetence in proceedings before the Court of Appeal.
Byrne SJA traversed each of these allegations and held that ‘… the course of events reveals that it was well open to BAQ to conclude, fairly and reasonably, that it was not satisfied that Mr Bradshaw was a fit and proper person to hold a practising certificate’[5].
[5] Bradshaw v Bar Association of Queensland [2010] QSC 306, [55].
His Honour also made specific findings that Mr Bradshaw had not provided an adequate explanation for his failure to lodge tax returns; persisted with submissions that the offence was, in any event, inconsequential when ‘Such an approach to an important civic obligation and statutory duty is not consistent with the standards to be expected of a barrister’[6]; and, had evinced conduct which raised ‘… a serious question about his capacity to grasp what happens in court’[7].
[6] Bradshaw v Bar Association of Queensland [2010] QSC 306, [58].
[7] Bradshaw v Bar Association of Queensland [2010] QSC 306, [68].
In its submissions here the Bar Association, unsurprisingly, points to the fact that because the decision of Byrne SJA was handed down less than one month before Mr Bradshaw’s further application for a certificate, giving rise to the present proceeding, this Tribunal could reasonably expect Mr Bradshaw to attempt, at least, to demonstrate that his situation is materially different to the circumstances addressed by Byrne SJA. Rather, as the Association’s submissions fairly point out, Mr Bradshaw has sought in large measure to simply re-argue the matters which had previously been rejected by Byrne SJA, and other judges.
As to the tax returns, both Douglas J and Byrne SJA held that Mr Bradshaw’s failure was, save in respect of the 1999 tax year, one which involved a deliberate disregard of his obligations. Fryberg J reached the same conclusion in the disciplinary proceedings, which involved a full hearing on the merits.
Mr Bradshaw nevertheless seeks, in his submissions here, to dispute that conclusion and invites a ‘clear ruling’ about it. It is difficult to reach any conclusion but that he remains unable to accept these previous findings, which have all been made after a close examination of the surrounding circumstances and events, and have never been shown to be wrong. This is, as the Association again submits and I accept, part of a broader pattern of Mr Bradshaw misstating, or being apparently unable to comprehend, events in connection with proceedings in which he has been directly involved.
The same comments apply to his failure to fully cooperate with the Association, and provide information it has requested over a long period – matters which were, again, the subject of comment by both Douglas J and Byrne SJA. The same conclusion relates to Reason 5(g), which concerns his failure to comply with the notice issued by the Legal Services Commissioner.
Items 5(d) and (e) of the Notice have also, regrettably, attracted responses from Mr Bradshaw which indicate a lack of understanding on his part (for example, he appears to assume that the Bar Association and the Legal Services Commissioner are effectively the same institution). He has done nothing in his submissions to address, or attempt to dispel the apparent continuing effects of, the adverse conclusions drawn by Byrne SJA: that he has ignored, or only responded incompletely, to many requests from the Association (over a lengthy period) for information; that he has failed to satisfactorily explain his unwillingness to assist the Association to perform its statutory function[8]; and, that his responses to the Association lacked candour[9].
[8] Bradshaw v Bar Association of Queensland [2010] QSC 306, [46].
[9] Bradshaw v Bar Association of Queensland [2010] QSC 306, [61].
His response to Reason 5(i) is particularly troubling. Mr Bradshaw continues, in his submissions, to rely heavily on his contention that at a previous hearing Fryberg J has made comments to the effect that he should recommence practice, and be permitted to do so. This, again despite strong adverse comments about that claim by both Douglas J[10] and Byrne SJA, who said:
[66] Mr Bradshaw’s claim that Fryberg J had recommended that he should be entitled to recommence practice also had potential to call his competence into question.
[67]Mr Bradshaw characterised his false claim that Fryberg J had made such a recommendation as, at worst for him, an ‘exaggeration’. His conduct is not, he submits, capable of sustaining an adverse view of his professional competence.
[68]Misunderstandings that conform with an observer’s preferred outcome are common enough: people often hear what they want to hear. Due allowance must be made for that tendency. Moreover, Mr Bradshaw was arguing his own case in litigation vital to his professional future. In such circumstances he might not have brought to his self representation that attachment and judgment to be expected of a barrister. Even so, the claim that Fryberg J had recommended that he be granted a certificate could fairly be regarded as raising a serious question about his capacity to grasp what happens in court. Coupled with events before the Court of Appeal, it was open to the BAQ Council to entertain substantial reservations about Mr Bradshaw’s professional competence, after allowing for the inevitable stresses and difficulties of self representation.
[10] Bradshaw v Bar Association of Queensland [2009] QSC 226, [22].
Despite this Mr Bradshaw says, in his submissions to this Tribunal: ‘I have been prevented from practising since 6 October 2008 and all my disciplinary matters are history where the final order of Fryberg J in December 2009 stated ‘when Mr Bradshaw next gets his Practising Certificate’’.
Reason 5(k) in the Notice concerns what happened before the Court of Appeal. It also shows a continuing absence of insight into the nature of the proceedings there, and serious procedural defects in them.
Mr Bradshaw signed a notice of appeal on 10 July 2008 against the earlier orders made by White J (as her Honour then was), but continues to assert that he did not appeal those orders. In that Court his proposed grounds of appeal were, otherwise, described as ‘completely unmeritorious’, ‘unpromising’ and ‘without any prospects of success’[11]. At para [98] Chesterman JA described Mr Bradshaw’s ‘… tale (as) one of confusion, inefficiency and incompetence’.
[11]Legal Services Commissioner v Bradshaw [2009] QCA 126, [37], [52], [57], [60] and [54].
Mr Bradshaw’s written submissions to this Tribunal repeat his errors. It is inescapable that, notwithstanding what has now been said on several occasions by Judges of the Supreme Court, he still lacks understanding of what happened in the Court of Appeal, or the nature of the proceedings there.
It is also apparent from the history of the consideration of Mr Bradshaw’s application for a practising certificate within the Bar Association that it has been steady, careful and fair in its deliberations of Mr Bradshaw’s applications, and his circumstances.
The exercise commenced with Mr Bradshaw’s first application for renewal of his practising certificate of 23 June 2008. Affidavit evidence from the Association’s Chief Executive Officer shows that, after White J made costs orders in relation to earlier disciplinary proceedings against Mr Bradshaw in favour of the Legal Services Commissioner on 8 September 2008, Senior Counsel nominated by the Bar wrote to Mr Bradshaw seeking an affidavit, and further information. He responded with an affidavit which was, however, unsigned.
In a subsequent letter to him of 21 August 2008 he was asked to provide further information and was encouraged to err on the side of supplying more, rather than less, relevant information. He did not respond to that letter. The CEO wrote again, on 16 September 2008. Mr Bradshaw’s only response was to provide the Association with a signed Notice of Appeal against the decision of White J of 11 July 2008, and an unsigned Notice of Appeal against her Honour’s decision of 8 September 2008. The Bar Council resolved on 6 October 2008 to refuse a practising certificate. That was followed by the proceedings before Fryberg J, in which Mr Bradshaw’s appeal was struck out.
He applied again for a certificate on 11 December 2008. On 20 February 2009 the Chief Executive Officer wrote to him requesting further information, including information about his tax compliance, any finalised complaints, and details of compliance with orders made against him in the Legal Practice Tribunal by White J. He responded by a letter of 3 March 2009 which did not, however, provide the information or respond appropriately. Rather, he then commenced proceedings for judicial review of the Association’s earlier decision (of 6 October 2008) not to renew his practising certificate.
On 2 April 2009 the Bar Association CEO wrote to him again, seeking information and urging him to be fulsome in his responses. He replied in a letter of 13 April 2009, accusing the Association of a vendetta against him, and again failing to provide the information it sought.
Notwithstanding that response a further letter was sent to him on 22 April 2009, again requesting the information sought earlier. In his reply he asserted that he had complied with orders made by White J including, in particular, orders requiring that he comply with conditions requiring further legal education.
On 15 May 2009 the Court of Appeal delivered the decision discussed earlier. Subsequently, the Bar Council resolved to obtain a transcript of the hearing, and appoint Senior Counsel to prepare a report for its consideration. Mr Bradshaw was notified of these matters. His only response was to file an amended application in the judicial review proceeding, seeking to challenge the Council’s resolution to have a report prepared. That proceeding was dismissed by Douglas J. His Honour specifically referred to Mr Bradshaw’s failure to adduce the evidence sought by the Association.
Nevertheless the Association invited Mr Bradshaw, yet again, by letter of 29 July 2009 to make a submission in relation to a number of matters including the concerns about his competence raised by the Court of Appeal, and his contention that Fryberg J had recommended that he be granted a Practising Certificate. He did not reply.
On 8 September 2009 Fryberg J, sitting in the Legal Practice Tribunal, found disciplinary offences established against him. On 19 October 2009 the Bar Council resolved to refuse his application. This was followed by the proceedings before Byrne SJA.
Mr Bradshaw then lodged a further application for a Practising Certificate, by letter dated 6 September 2010. On 29 October 2010 the CEO sought further information about his compliance with the order of White J. In his response Mr Bradshaw again argued that the matter had been dealt with by an order of Fryberg J in December 2009.
The Association commissioned a report from two of its Members, and decided on 17 November 2010 to refuse Mr Bradshaw’s application. The memorandum contained extensive discussion of Mr Bradshaw’s practice history, and the course and outcomes of the proceedings involving him.
The additional grounds now relied upon by the Association concern the allegation that Mr Bradshaw failed to comply with the order of White J of 10 July 2008 that he undertake, within 12 months, not less than 10 hours of CPD approved by the Association in the areas of ethics and practice management (in addition to the usual CPD requirements of the Bar Association). It is also alleged that he falsely represented, in a letter to the Association of 6 September 2010, that he had complied with the order.
On 29 October 2010 the CEO sought more information about Mr Bradshaw’s compliance with the order of White J, advising that it had no records to confirm it. In his reply of 8 November 2010 Mr Bradshaw asserted that his attendance at a conference in July 2008 constituted compliance. He relied, in part, on what he said was a private discussion with one of the presenters.
The Association’s letter of 29 October 2010 sought specific information about the date of each CPD event attended since July 2008, its location and nature; and, proof of attendance. In his reply of 8 November 2010 Mr Bradshaw said that he had completed his 10 hours CPD at the Cairns Law Conference in each previous year. It was apparent, however, that he had attended the 2008 conference before the order of White J of 10 July in that year. In any event, the accreditation of the conference for that year only shows two points for ethics and practice management.
The terms of White J’s order are clear. It would have been a straightforward matter for Mr Bradshaw to comply with them, and to establish compliance to the Association. This is, again, a matter in which he appears, either wilfully or through a lack of comprehension and focus upon what is being asked of him, to be unable to address a matter which is central to the relief he seeks.
It is true that, in Legal Services Commissioner v Bradshaw [2009] QCAT 1 Fryberg J found that the case against Mr Bradshaw was not one which would leave open a finding that he was not, at the time, fit to practice; but as Byrne SJA observed in his subsequent decision in Bradshaw v BAQ, the issues for the Bar Association in deciding whether or not to grant a certificate are different from those which faced Fryberg J in the former Legal Practice Tribunal and, now, QCAT. There are, also, different statutory considerations: in particular this Tribunal, in determining sanction in legal practitioner matters, is limited by what is charged. The task confronting the Association under s 51(4) is markedly different.
As observed earlier it might be thought that any competent lawyer would, in the circumstances which now confront Mr Bradshaw, accept the judgment of Byrne SJA made shortly before his most recent application and, then, explain how and why the circumstances relevant to his new application are different to those which applied when that decision was made. Mr Bradshaw’s submissions do address a number of the cases discussed earlier, and remarks made by judges in them, but do not touch upon the decision of Byrne SJA.
Mr Bradshaw does submit that he did not intend to deceive the Bar Association about his compliance with the order of White J and could not have done so, and that after 6 October 2008 he had no inducement to comply with the order because he was unable to practice. These submissions simply fail to properly address the significance of his non-compliance, and of his incorrect claim that he had complied with the order.
In short, nothing has changed since Byrne SJA dismissed his appeal against the Association’s earlier decision, and nothing in Mr Bradshaw’s submissions here warrants a different conclusion.
His second ground involves an assertion that the Bar Association failed to take into account the earlier decisions of White J and Fryberg J in disciplinary proceedings. That ground was also raised before Byrne SJA, and dismissed. As his Honour said, the conclusion of the disciplinary proceedings did not make the matters which gave rise to them immaterial to the question of Mr Bradshaw’s fitness to practice; they remained a relevant factor.
Mr Bradshaw’s third ground involves, again as before Byrne SJA, a contention that the Bar Association has acted in an adversarial way towards him. As his Honour pointed out, the Association’s enquiries of him did not involve the assumption of an inappropriate role; rather, they resulted from his failure to supply relevant information and to respond ‘… sensibly to subsequent requests for additional material’[12]. Nothing in Mr Bradshaw’s submissions to this Tribunal suggest the Association’s conduct in connection with this application was not proper, or even-handed.
[12] Bradshaw v Bar Association of Queensland [2010] QSC 306, [49].
His fourth ground is that the Association failed to afford him procedural fairness. The recitation of the many communications the Association sent Mr Bradshaw point, rather, to the contrary view: that he was given every possible opportunity to explain his position, to provide material relevant to his application, and to address those matters about which the Association was, reasonably, concerned.
His final ground alleged that the Association failed to take all relevant matters into account including, in particular, the length and nature of his practice. It is also said that the Association adopted inappropriate and extravagant allegations, to condemn him. As the affidavit material from the Association CEO shows, however, the length and nature of his practice was specifically referred to in a report which preceded the Association’s decision.
It is true that Mr Bradshaw had been in practice for a long time, and that much of his work as a lawyer was creditable to him. It is apparent that the Association took those factors into account.
The question is, rather, whether or not the Association gave them appropriate weight. It was required to balance them against what has happened in recent years plus, as Byrne SJA observed, the fact that he was self represented in all of these proceedings with all of the ‘… inevitable stresses and difficulties…’ of that exercise[13].
[13] Bradshaw v Bar Association of Queensland [2010] QSC 306, [68].
The Bar Council had before it, the time it made the decision to refuse a certificate, a report of Senior and Junior Counsel dated 9 November 2010 which said, at para 25:
The last three paragraphs of Mr Bradshaw’s letter (6 September 2010) are un-numbered. Those three paragraphs should be read by Council Members in full and taken into account. In summary they refer to: Mr Bradshaw’s success, over a long period of time, as an advocate; that no complaint has been made against him by a client; and that a number of findings made by the Legal Practice Tribunal involve litigation concerning his wife.
As the Association’s submissions here point out, Mr Bradshaw’s long experience also makes it more rather than less difficult to understand what has occurred in recent years. It might reasonably be expected, in light of that experience, that the misunderstandings and lack of apparent comprehension of the nature or outcome of proceedings, or knowledge of proper procedural steps, would not have manifested.
Their occurrence serves, instead, to aggravate a reasonable concern that the knowledge and understanding which might be expected to accompany Mr Bradshaw’s long vocational experience have for some reason abated, or evaporated. That conclusion is cemented by his failure, in the present application, to properly address that history, and the concerns arising from it.
I am satisfied that the Association’s contentions, in the Notice, were not stated in terms which are inappropriate or extravagant but, rather, in appropriately dispassionate terms, in reliance upon facts which are not contradicted, and amply supported.
It will be apparent from these Reasons that I am not persuaded that the Association’s decision was wrong in any respect, or not properly made. Indeed, the Association’s decision was entirely justified. Mr Bradshaw’s application must be dismissed.
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