In the matter of an application by Rbi for admission to the Legal Profession

[2022] QCA 156

SUPREME COURT OF QUEENSLAND

CITATION:

In the matter of an application by RBI for admission to the Legal Profession [2022] QCA 156

PARTIES:

IN THE MATTER OF THE LEGAL PROFESSION ACT 2007 (QLD) AND THE SUPREME COURT (ADMISSION) RULES 2004 (QLD)
and
IN THE MATTER OF AN APPLICATION BY RBI
(applicant)

FILE NO/S:

Proceeding No XX of 20XX

DIVISION:

Court of Appeal

PROCEEDING:

Application for Admission

ORIGINATING COURT:

Court of Appeal

DELIVERED ON:

23 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2022

JUDGES:

Bowskill CJ and Dalton JA and Wilson J

ORDER:

Application for admission as a legal practitioner dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS – where the applicant applies for admission as a legal practitioner – where the applicant has met the academic and practical legal training requirements for admission – where the applicant has a history of domestic violence offences and is subject to a domestic violence protection order – where the applicant’s material suggested that she may have mental health issues – where the Legal Practitioners Admissions Board issued a notice to the applicant pursuant to s 40 of the Legal Profession Act 2007 (Qld) (the Act) – where the applicant failed to comply with the s 40 notice – where the Legal Practitioners Admissions Board issued a notice to the applicant pursuant to s 87 of the Act – where the applicant refused to comply with the s 87 notice – where the Legal Practitioners Admissions Board opposed the applicant’s admission – whether the applicant is a fit and proper person to be admitted to the legal profession in Queensland

Legal Profession Act 2007 (Qld), ss 9, 31, 34, 40, 87

SOLICITORS:

L V Strachan (Brisbane Criminal Lawyers) for the applicant
M Timmins for the Legal Practitioners Admissions Board

1. THE COURT: By application first filed in January 2022, the applicant applies under s 34 of the Legal Profession Act 2007 (the Act) to be admitted to the legal profession.  She is eligible for admission to the legal profession, having achieved the requisite academic and practical legal training qualifications.  However, there is a question as to whether she is, at present, a fit and proper person to be admitted.[1]

   [1]See s 31 of the Act.

2. In that regard, the applicant’s affidavit filed on 25 March 2022 disclosed a number of “suitability matters”[2], as follows:

   [2]See s 9(a), (e) and (o) of the Act.

   (a)A number of traffic infringements, in the period from 2007 to 2016.

   (b)Summary offences committed variously between 2005 and 2017, including for fare evasion, littering and parking violations, as well as failing to vote.

   (c)In May 2009 she “violently attacked” her boyfriend, and was charged with two offences of unlawful assault with a circumstance of aggravation (that it occurred in a domestic relationship).  She was convicted of those offences, after a trial, at a Magistrates Court in another State in January 2011.  The delay, between offence and conviction, is explained by her failure to attend the initial trial date set for May 2010, as a result of which she was charged with breach of bail.

   The applicant does not exhibit a copy of the remarks of the sentencing Magistrate.  She does exhibit a copy of her criminal history which shows that she was fined relatively small amounts of money for the offending.  Nonetheless, given that the matter ran to trial, the sentencing remarks ought to be before the Court on an application such as this.  Even if the Magistrate regarded the offending as relatively minor, there may well be remarks which bear upon the applicant’s state of mind and her honesty.

   In relation to this matter, the applicant swore:

   “13.I am regretful and sorry.  I do not have an excuse and I understand this crime presents a serious suitability issue.  This does not form the courteous character that I have now become.

   14.I have recovered from a personality problem and a downward spiral by learning through consequence and by treating people with kindness I have transformed through self-love.” [underlining added]

   (d)In March 2019 the applicant was named as the respondent to a police protection notice issued under the Domestic and Family Violence Protection Act 2012 (Qld). The aggrieved was the boyfriend or ex-boyfriend of the applicant, who she says she had been in a relationship with for three years. We will call him X. The couple had just relocated from another State to Queensland. X had told the applicant, whilst they were on their way to Queensland, that he no longer wished to be in a relationship with her. It seems the applicant did not accept that the relationship was over.

   On 6 March 2019 the applicant got into X’s car and would not get out.  He drove her to a police station where he asked for a protection order against her.  There were allegations of a physical altercation.  A protection order was made.  similar incident involving the applicant and X before they came to Queensland was revealed by police investigation.

   (e)In December 2019 the applicant was again physically violent to X.  Police were called.  The man claimed he had been assaulted and made another protection order application.  Police were unable to find the applicant to serve her until March 2020.  The applicant was charged with possession of cannabis and a pipe.  She was convicted on her pleas of guilty, on 15 January 2020, and released upon a good behaviour recognisance order for three months, subject to a condition that she attend a drug diversion program.

   The applicant says that in the “few months” before December 2019 she frequently contacted X and attended his home, “… desperate to make it work.  I honestly believed that he would love me.”  After being served in March 2020 the applicant says she does not know what happened as she did not attend the hearing.

   In relation to the 2019/2020 relationship issues, the applicant says:

   “26.I now have a higher self-esteem and I am not afraid of being alone if need be so I will not take part in a toxic relationship.

   27.I suffered from stressors, unsafe accommodation and inadequate socialisation in childhood and adolescence, and I did not have consistent positive role models to learn good behaviour.  I commenced adulthood with poor emotional regulation and low self-esteem.

   28.I do not have an excuse for my previous offending, I am only embarrassed and regretful, and I have become a much better person.”

   (f)On 16 March 2022 the applicant attended the Holland Park Magistrates Court to make an application to have the protection order lifted.  She made the application thinking the respondent would not appear.  He did appear.  The Magistrate explained that she needed evidence in support of her application, or to withdraw it.  She withdrew her application.  The protection order remains in place.  The Court notes that while some of the documents relevant to the history of these protection orders is exhibited to the applicant’s affidavits, not all the documents are.  The current protection order is not exhibited, for example.  All these documents need to be exhibited on an application such as this.

3. The Legal Practitioners Admissions Board (the Board) issued a notice dated 6 April 2022 under s 40 of the Act requesting the applicant provide additional information and material including a current report from a psychiatrist or psychologist in relation to her “personality problem” as disclosed in paragraph 14 of her affidavit. The applicant failed to comply with the notice. Instead she provided a letter from her General Practitioner who wrote a letter addressed “To whom it may concern”, which consisted only of two sentences:

   “This is to verify that [the applicant] …  does not currently have any mental health concerns warranting either psychology or psychiatric referral.  I understand from what [the applicant] tells me that she has been charged with offences in the past but has learnt significantly from her mistakes.”

4. This letter from the General Practitioner is quite inadequate to persuade this Court that it should not have concerns about the applicant’s mental functioning, personality, and suitability for admission to the legal profession.  It is not equivalent to the type of report the Board asked for.

5. The application for admission was to have come before the Court on 7 June 2022. About a week prior to this, by letter dated 1 June 2022, the Board advised the Court that, at its meeting on 31 May 2022, the Board had resolved that it “is not currently satisfied that [the applicant] is suitable for admission to the legal profession” and noted that an information notice under s 87 had been issued to the applicant.

6. Section 87 provides as follows:

   “87     Health assessment

   (1)This section applies if a relevant authority believes a subject person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.

   (2)The relevant authority may require the subject person to undergo a health assessment by a person appointed by the relevant authority.

   (3)If the relevant authority decides to require the health assessment, the authority must give the subject person an information notice about the decision to require the assessment that includes—

   (a)     the name and qualifications of the person appointed by the authority to conduct the assessment; and

   (b)     a stated date, and a stated time and place, for the assessment that must be reasonable having regard to the circumstances of the subject person as known to the relevant authority.

   (4)The stated date must be no sooner than 28 days after the information notice is given to the subject person unless the person and the relevant authority agree, in writing, to an earlier date.

   (5)The subject person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.”

7. The information notice issued to the applicant on 1 June 2022, under this section, stated that:

   “[t]he Board has concerns as to whether you are currently able to satisfactorily carry out the inherent requirements of practice and, in accordance with chapter 2, part 2.5 of the Act, it requires you to undergo a health assessment by a psychiatrist, at the Board’s expense.

   The Board requires you to choose from the following panel of psychiatrists to conduct the assessment:

   ●      Dr Jill Reddan

   …

   ●      Dr Martin Nothling

   …

   ●      Dr Tod Wakefield

   …

   ●      Dr David Alcorn

   …

   Could you please choose a psychiatrist from the above panel and indicate when you may be available for an assessment to be completed.  I will then liaise between yourself and the psychiatrist’s rooms to arrange a suitable appointment date in order for the assessment to take place.”

8. In consequence of those letters, the Board and the applicant agreed to adjourn the hearing of the application, from 7 June 2022 to a date to be fixed.

9. Emails exchanged between Ms Timmins, the Solicitor and Secretary to the Board, and the applicant from 1 to 3 June 2022 show that the applicant was initially co-operative, and an arrangement was made for an appointment to be made on 1 November 2022 with one of the nominated psychiatrists, Dr Nothling.  This appears to have been the earliest then available appointment; the applicant was also placed on a cancellation list with the psychiatrist, in case an earlier appointment became available.

10. Then, on 13 June 2022 the applicant sent an email to the Board’s generic email address attaching a form 9, notice of intention to apply for admission, and nominating 11 July 2022 as the hearing date.

11. Ms Timmins replied to this email, on 14 June 2022, saying:

    “Unfortunately, I am a little confused. On 6 April 2022, the Board asked you to provide a report from a psychiatrist under a section 40 notice and detailed the information as to matters that the Board requires to be addressed. In response to that letter you provided a letter from your GP. In and of itself, the failure to comply with the Board’s section 40 notice is a ground for the Board to recommend that you not be admitted.

    The Board subsequently required you to undergo a health assessment under section 87 at the Board’s expense. I understand that you consider this to be unreasonable, however the Board has a statutory obligation to ensure persons who are admitted are fit and proper and able to carry out the inherent requirements of practice. If you wish to challenge the Board’s requirement, you can however you would need to seek a review of the decision through QCAT.

    I have made an appointment for you with Dr Nothling on 1 November 2022 at 9 am.  I note in your email of 4 June 2022 that you have stated you refuse to undergo therapy or take any drugs.  The Board has not made any inferences to suggest that you would be required to attend therapy or take medication at any stage.  I am in the process of trying to make arrangements for you to be assessed by a psychiatrist at an earlier time and yesterday afternoon I managed to book an appointment with Dr Frank Varghese on 16 August 2022 at 1pm.  …

    I would also point out that you currently have a domestic violence order against you which is in effect until 30 June 2025.  … I have never seen the Board admit a person while they are under a DVO, so I anticipate the Board will not be minded to recommend your admission at this stage on this basis alone.

    ...  In the meantime, can you please let me know what your intentions are with respect to your application?  Of course, you can proceed if you wish, however, at this stage, based on the above, I actually don’t think there is much point.”

12. The applicant responded to that email, saying that she would proceed with her application for admission, and further:

    “I complied with the s 40 request to the best of my capability. The request stipulated a psychologist or psychiatrist report and because I could not decide on either I considered a letter from a GP that suggests I do not need either is in compliance.

    I believe it is unreasonable to make an appointment with a psychiatrist that will interfere with my admission timeline.  Could I not be admitted on the condition I have the assessment?  Can I not see a psychologist?  There are health assessor’s available today/tomorrow aren’t there?

    …

    I would not prefer to seek a review through QCAT I also believe that is not required as an admission applicant.”

13. Ms Timmins responded to say the Board would not accept a report from a psychologist; that the earliest appointment available with a psychiatrist acceptable to the Board was 16 August 2022, and asked the applicant to confirm she would like to keep this appointment.  The applicant responded to say she could not “at this stage” confirm whether 16 August was suitable to her, and said the reason for her confusion is that she believes she should be given an information notice with a stated date that must be reasonable to her, and that she did not consider the information notice to have complied with the legislation and “this is unfair for me”.

14. On 27 June 2022, the applicant filed a further affidavit.  In this affidavit, she refers to the marks she achieved in her graduate diploma of legal practice and says “my good mental health is clearly apparent”.  She also says:

    “6.I have never suffered from a significant disturbance of thought, mood, perception or memory (including alcoholism and drug dependence).

    7.During PLT [Practical Legal Training] with [a particular firm] I appeared numerous times in the Magistrates Court as a clerk and I drafted high quality submissions.

    8.I will not speak to a Psychiatrist.  I  have spoken to a General Practitioner about my suitability issues and numerous other people who have supported me.  I have recovered from whatever problems I had.

    9.The 1 June 2022 information notice is not compliant with section 87(3)(b) of the Act because it is without a reasonable date. The impossibility of choosing a Psychiatrist from the panel was unprofessional.

    10.The grounds for the belief of my inability must be stated to me, and it must be clear for me to understand.  I am dissatisfied with the lack of sensitivity.  The communication to me was unfair.”

15. There were further email exchanges between the applicant and Ms Timmins on 7 and 8 July, ahead of the scheduled hearing date of 11 July 2022.  The applicant does not appear to have replied to Ms Timmins’ requests for her to indicate what she intended to do on 11 July 2022 (adjourn the hearing of her application again, or proceed).

16. Ultimately, a Mr Strachan appeared for the applicant before the Court on 11 July 2022 (Bowskill CJ, Boddice and Kelly JJ) and sought an order adjourning the application to 15 August 2022.  That was not opposed by the Board and the order was made.

17. On 15 July 2022, Ms Timmins exchanged emails with Mr Strachan, a solicitor with Brisbane Criminal Lawyers.  Ms Timmins referred to the appointment that had been made with Dr Varghese on 16 August 2022; also referred to the applicant’s statement in her affidavit that she would not speak to a psychiatrist, and asked Mr Strachan to please confirm whether the applicant would be attending the appointment (explaining that if the applicant did not attend, the Board would incur a substantial non-attendance fee).

18. On 18 July 2022, the applicant sent an email to the “admissions” email address simply saying “[I] intend to proceed with my admission on 15 August 2022” and asking for her name to be added to the list of applicants.

19. On 9 August 2022, Dr Varghese’s rooms emailed the Board, enquiring whether the appointment on 16 August was still required.  Ms Timmins forwarded this to Mr Strachan asking him if he could confirm.  Mr Strachan responded, later that same day, to say “I have tried to convince [the applicant] to take the appointment, but she is adamant that she doesn’t wish to dig up her past”.  Ms Timmins responded to say, on that basis, she would cancel the appointments that had been arranged with Dr Varghese on 16 August 2022 and with Dr Nothling on 1 November 2022.

20. On 9 August 2022, the Board wrote to the Registrar of the Court, making a recommendation under s 39 of the Act. This letter informed the Court that the Board resolved at its meeting on 9 August 2022 that it is not currently satisfied the applicant is suitable for admission to the legal profession on the material provided, and the application raises matters for consideration by the Court, being:

    (a)the applicant’s failure to comply with the s 40 notice (requiring her to provide additional information and material including a current report from a psychiatrist or psychologist in relation to her “personality problem” as disclosed in her affidavit affirmed on 24 March 2022);

    (b)the applicant’s failure to comply with the s 87 notice, requiring that she undergo a health assessment by a psychiatrist;

    (c)that the applicant has not applied to QCAT to review the Board’s decision to require her to undergo a health assessment;

    (d)that in circumstances where the applicant has not provided a report from either a psychiatrist or psychologist addressing her “personality problem” as described by her, the Board continues to have concerns as to whether she is currently able to satisfactorily carry out the inherent requirements of practice.

21. On 12 August 2022, the applicant filed two further affidavits. The first was affirmed on 7 May 2022, and appears to be her response to the Board’s notice under s 40 of the Act. It said:

    (a)that she attended at the PA Hospital on 20 January 2020 for the drug assessment and education session ordered as a condition of her recognisance order (Magistrates Court drug convictions, December 2019);

    (b)some things about the protection order (made in 2019) and explained why it had not been varied or lifted;

    (c)under the heading “Recovering from a personality problem”:

    “9.I have never received psychological or psychiatric treatment for my personality problem that I have recovered from.

    10.The personality problem I had is not a personality disorder and I have never suffered from, or been diagnosed with a mental health disorder.

    11.I have very good mental health.

    12.I had a personality problem in my younger years because I did not have sufficient experience in living at peace.

    13.I thought that physically attacking my boyfriend was justified for an emotional reason.

    14.I now know that any physical assault, especially in a household, is not justified no matter how difficult things become.

    15.I have discussed my suitability issues with … my General Practitioner, whom provides a letter in support of my application for admission, as Exhibit A.”

1. The second affidavit was affirmed by the applicant on 12 August 2022, and states:

   “1.I have complied with the Board’s notice under section 40(1) of the Act.

   2.I discussed the entirety of issues with an appropriately qualified health assessor, [the named General Practitioner].

   3.I wish for the Board to accept the evidence that psychology or a psychiatrist has not been referred, therefore, either is not suitable.

   4.I understand I can attend a psychiatrist (or a psychologist) without a referral however I believe this to be inappropriate.

   5.I will pay for a report if needed.

   6.The team at Brisbane Criminal Lawyers have knowledge of my suitability issues and support my admission.”

2. In relation to this affidavit, it is to be noted that:

   (a)paragraph 1 is incorrect, as the applicant has not complied with the s 40 notice, nor the s 87 notice for that matter; and

   (b)paragraph 6 is inadmissible; there is no evidence from Brisbane Criminal Lawyers.

3. Written submissions were filed by Mr Strachan, on behalf of the applicant.  In the submissions, he records the applicant’s belief that the Board’s request (the original request to obtain a psychiatric or psychological report) is unreasonable, because it is based only on her “throw away remark” in her (March 2022) affidavit that she had a “personality problem” in the past.  He submits the Board was mistaken in its interpretation of this remark in the applicant’s affidavit; that the letter from the General Practitioner should be enough to show the applicant is able to satisfactorily carry out the inherent requirements of practice; that the Board has not raised anything else about the suitability matters disclosed, and therefore the applicant should be admitted.

4. The matter came on for hearing on 15 August 2022.  The Court gave Mr Strachan, who appeared on behalf of the applicant, an opportunity to seek instructions to adjourn the application, indicating that it was likely to be refused on the current state of the material.  Mr Strachan indicated that his client was adamant that the application go ahead.  He made brief further submissions.

5. The Board opposed the admission and filed comprehensive and helpful submissions as to the rather lengthy history set out above.

6. The applicant’s application for admission as a lawyer must be dismissed because this Court cannot feel confident that she is, at present, a fit and proper person to be admitted.[3]  She has offences of violence in another State.  They are somewhat dated but there is a worrying similarity between them and the behaviour which took place between her and her then boyfriend, or ex-boyfriend, in Brisbane in 2019.  Although there were not criminal charges laid as a result of the applicant’s behaviour in 2019, she acknowledges that behaviour involved some physical violence.  It appears that one, or perhaps two, protection orders were made in Queensland in 2019 and 2020.  A protection order is still current and, despite attempt, the applicant has not been able to have it lifted.  The drug offending in December 2019 might not trouble a court were that the only disclosure by an applicant for admission.  The same might be said about the applicant’s other summary offences, all of which occurred before 2017, and her traffic history, all of which occurred before 2016.  However, this Court is of the view that the cumulative effect of all these matters is one for concern.

   [3]S 31 of the Act.

7. Further, the applicant’s attempts to explain her past behaviour give more reason to think that she is not a suitable candidate for admission. Even accepting that she did not mean to say she had a personality disorder when using the term “personality problem”, the affidavits she has sworn on this application, and her correspondence with the Board, reveal that she has had prejudicial events and vulnerabilities in her past, including her childhood, and that she has had difficulty coping with these things and their psychological sequelae. She blames them for her violent behaviours. The fact that she will not comply either with the s 40 notice or the s 87 notice issued by the Board gives cause for concern. Her affidavits, and correspondence with the Board, show inaccuracy and inconsistency in her approach, and an inability to deal in a mature, insightful or rational way with the issues her behaviour raises.

8. The applicant says that she does not wish to dig up her past.  However, in a very real sense the behaviour with which this Court is concerned is not in the past.  The offending in 2019 is recent, and the history of the protection orders granted in 2019 and 2020 extends to the present.  As pointed out in the course of this judgment, the Court cannot feel satisfied even that the history of the applicant’s offending, and the history of the domestic violence orders made, is complete on the material before the Court.

9. These reasons have been anonymised having regard to s 159(2)(d) of the Domestic and Family Violence Protection Act 2012 (Qld).