Evans v Queensland Law Society - [2022] QCAT 284

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Evans & Anor v Queensland Law Society [2022] QCAT 284

PARTIES:

david alan evans

(applicant)

gold coast city council solicitors pty ltd

(applicant)

v

queensland law society

(respondent)

APPLICATION NO:

OCR100-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 November 2022

HEARING DATE:

17 October 2022

HEARD AT:

Brisbane

DECISION OF:

Hon. Duncan McMeekin KC, Judicial Member

ORDERS:

1. Application dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by the Queensland Law Society about the employment of the applicant disqualified solicitor in his previous law firm – what is the correct and preferable decision – fresh hearing on the merits

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – EMPLOYMENT IN SOLICITOR’S OFFICE AFTER STRIKING OFF – whether the applicant disqualified lawyer should be permitted to be employed as a lay associate of the law firm he was formerly a director of –where the application is opposed – whether the public is protected – whether the standing of the legal profession is at risk – whether the applicant should be called a lay associate or law clerk – whether the proposed supervisor is appropriate

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – DUTIES TO COURT – OTHER MATTERS – where the applicant communicated with the tribunal without consent of its opponent

Legal Profession Act2007 (Qld) s 3, s 26(4), s 68, sch 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 20(2), s 24, s 26

Aussel re McCaffrey [2013] NSWADT 102

Briginshaw v Briginshaw (1938) 60 CLR 336
Camille Eduoard Dezarnaulds and Stephen Wawn v The Law Society of New South Wales (Unreported Supreme Court 27 June 1995)
Council of The Law Society of New South Wales v Hutton [2012] NSWADT 48
Dona v Council of The Law Society of New South Wales [2014] NSWCA 444
Kyriackou v Law Institute of Victoria Ltd 45 VR 540
La Fontaine v Law Society of New South Wales [2006] NSWADT 244
Legal Services Commissioner v Munt [2019] QCAT 160
McGirr v The Council of the Law Society of NSW [2014] NSWCATOD 154

Michael John Charles Caiger (1994) 1 LPDR 32

APPEARANCES & REPRESENTATION:

Applicant:

N J Pearce ib Gold Coast City Solicitors

Respondent:

B W Wacker ib Queensland Law Society

REASONS FOR DECISION

Mr David Evans and the Incorporated Legal Practice, Gold Coast City Solicitors Pty Ltd (“GCCS”), apply for a review of the decision of the respondent to refuse an application under s 26(4) of the Legal Profession Act2007 (Qld) (“LPA”) for Mr Evans to be employed as a “lay associate” of GCCS. The Society maintains its opposition to the application.
Mr Evans is a “disqualified person” as that term is defined under the LPA because he is “a person who has been refused a renewal of an Australian practising certificate under [the LPA] or a corresponding law, and to whom an Australian…

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 284
Decision Date

CaseChat Overview and Summary

Evans and the Queensland Law Society were before the court in a matter concerning the disqualification of Mr Evans as a lay associate. The applicants sought to have Mr Evans employed as a lay associate, despite his prior disqualification, raising issues of legal interpretation and the application of principles from previous cases. The court was required to decide whether the applicants’ arguments, which relied on previous cases with different circumstances, were applicable to this situation. Specifically, the court had to consider whether the principles from Kyriackou v Law Institute of Victoria Ltd, and the notion of “evidentiary logic” as applied in Briginshaw, could be used to support the applicants’ case.

The court examined the previous cases cited by the applicants and concluded that each had distinct facts that did not align with the current situation. The court noted that the level of dishonesty, drug-related activities, and other specific circumstances in those cases were not present here. The court also highlighted that the previous cases involved different considerations regarding the employment of disqualified individuals as lay associates. The court found that the applicants' reliance on these cases was misplaced, as the circumstances and the reasoning in those cases did not provide a suitable basis for the applicants' arguments. The court further considered the intent of the lay associate provisions under the Legal Profession Act, which is to afford disqualified individuals the chance to gain re-employment where appropriate, and acknowledged that the applicants did not seek to have Mr Evans employed as a legal practitioner.

Based on the reasoning, the court found that the applicants' arguments were not supported by the precedents they cited. The court concluded that the previous cases did not provide a valid basis for the applicants' claims. Consequently, the application to have Mr Evans employed as a lay associate was dismissed. The court's decision underscored the importance of considering the specific circumstances of each case when applying legal principles and precedents.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Applicants’ counsel referred me to four decisions. Council of The Law Society of New South Wales v Hutton,[19] Dona v Council of The Law Society of New South Wales,[20] Legal Services Commissioner v Munt,[21] and Aussel re McCaffrey.[22] In Hutton the tribunal made an order prohibiting any law practice from employing Ms Hutton as a lay associate after she was found guilty of more than 50 charges of fraud when employed as a paralegal and secretary in a law practise. That case involves a level of dishonesty not present here and provides no insight into this decision. In Dona the Court was concerned to point out that no matter the method of stealing the public still needed to be protected. The decision does not assist the applicants. Munt was a case of drug trafficking and supply by a solicitor and inferentially the taking of drugs severely impacted on the solicitor’s capacities. That is a very different case to this one. As well, the Society did not oppose the application to him being employed as a lay associate subject to strict rules including the provisions of regular urine analysis testing. McCaffrey involved a barrister practising without a practising certificate. The court did approve of him being employed as a lay associate. Mr McAffrey’s circumstances that led to him ignoring his responsibilities were very different to those pertaining here. He had become clinically depressed and suicidal following the decline of his practise, his father becoming ill and dying, and he becoming estranged from his wife and family. He was to be employed in a friend’s solicitor’s practise. Several members of the Bar supported his application. A psychiatrist gave evidence to the effect that he was overcoming the psychiatric issues that had overwhelmed him. The considerations there were very different. Most significantly in each of these cases there was no prior relationship with the clients of the firm that was to employ the disqualified person.[19] [2012] NSWADT 48.[20] [2014] NSWCA 444.[21] [2019] QCAT 160.[22][2013] NSWADT 102.Conclusion I bear in mind the obvious intent of the lay associate provisions in s 26 of the LPA that the applicant is to be afforded, where appropriate, the chance to gain re-employment. And I acknowledge that the applicants do not seek to have Mr Evans employed as a legal practitioner. Quite what they envisage is, as I have said, an issue of concern. Applicants’ counsel referred me to the following passage from Kyriackou v Law Institute of Victoria Ltd,[23]a case concerning the disqualification of the appellant there, and the reference later in the decision to “evidentiary logic”:Because the tribunal is not bound by the rules of evidence, it is not bound by the provisions of s 140 of the Evidence Act 2008 nor by the common law principles established by Briginshaw. Nevertheless, those principles reflect common sense notions of probability with respect to human conduct and it is entirely proper for the tribunal to take them into account when considering allegations of serious misconduct.[24]…We shall also approach the Tribunal’s findings of fact cognisant of the principles stated in Briginshaw. We do so, however, on the basis that those principles inform consideration of the question whether it was open to the Tribunal to conclude as it did as a matter of evidentiary logic.[25][23]45 VR 540.[24]At [26].[25]At [29].

Ratio Decidendi

Legal Principle Established

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