Kerr v Legal Services Commission
[2025] QDC 187
•26 November 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Kerr v Legal Services Commission [2025] QDC 187
PARTIES: ROBERT JOHN KERR (Appellant)
V
LEGAL SERVICES COMMISSION (Respondent)
FILE NO/S
D 4 of 2024
DIVISION:
Appellate
PROCEEDING:
Appeal pursuant to section 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:
Magistrates Court at Gladstone
DELIVERED ON:
26 November 2025
DELIVERED AT:
Rockhampton
HEARING DATE:
28 July 2025
JUDGE:
Clarke DCJ
ORDERS: 1. Appeal be dismissed.
2. The orders made by the Magistrate are confirmed.
3. The appellant is to pay the respondent’s costs on the standard basis.
CATCHWORDS:
APPEAL – APPEAL AGAINST CONVICTION – APPEAL AGAINST SENTENCE – summary hearing – where appellant was not a registered legal practitioner – whether the appellant was convicted of engaging in legal practice when not entitled to, and representing he was entitled to do so – whether a discretionary, legal or factual error has been demonstrated – whether the penalty imposed was excessive
LEGISLATION: Justices Act 1886 (Qld), ss 148A, 222, 223, 225, 226
Justices Regulation 2014 (Qld), Schedule 2
Legal Profession Act 2007 (Qld), ss 5(1), 6(1), 22, 24, 25, 432
Penalties and Sentences Act 1992 (Qld), s 19
CASES: Allesch v Maunz (2000) 203 CLR 172
Cornall v Nagle [1995] 2 VR 188
Fox v Percy (2003) 214 CLR 118
Hili v The Queen (2010) 242 CLR 520
Legal Services Commissioner v Raghoobar [2023] QSC 41
Legal Services Commissioner v Walter [2011] QSC 132
Mbuzi v Torcetti [2008] QCA 231
McDonald v Queensland Police Service [2018] 2 Qd R 612
R v Pham (2015) 256 CLR 550
Raghoobar v Legal Services Commissioner [2023] QCA 191
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679
Teelow v Commissioner of Police [2009] QCA 84
APPEARANCES:
R Kerr (self-represented)
RC Taylor instructed by Legal Services Commission for the Respondent
Mr Kerr appeals against his conviction by a Magistrate sitting at Gladstone on 6 November 2024 for two offences brought under the Legal Profession Act 2007 (Qld) (LPA). The appeal is against his convictions for engaging as a legal practitioner or holding himself out to be one, while not registered or entitled to do so.
Although not precisely stipulated in the notice of appeal or documents subsequently filed, the self-represented appellant also confirmed in oral argument that the appeal is against the sentence imposed. It is said to be excessive. The penalty was a global fine of $4000.00 which was referred to the State Penalty Enforcement Registry. Convictions were recorded.
The first charge was brought under s 24(1) of the LPA that the appellant engaged in legal practice in Queensland, when he was not an Australian legal practitioner, on divers dates between 22 November 2022 and 12 July 2023 (first complaint). Charge two alleged that between those dates he represented that he was entitled to engage in legal practice, when not entitled to, contrary to s 25 (1) of the Act (second complaint).
Those offence provisions are contained with Chapter 2, Part 2.2 of the LPA. Section 22 provides that the main purposes of Part 2.2 are -
(a)to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so;
(b)to protect consumers by ensuring that persons carrying out legal work are entitled to do so.
At the relevant time, the appellant was an “Australian lawyer” as defined in s 5(1) of the LPA, but not an “Australian legal practitioner”, as defined in s 6(1). He had previously held a restricted practising certificate which had lapsed by the time of the offences in the complaints. Consequently, s 24 of the LPA provides that he must not “engage in legal practice”. Section 25 of the Act also prohibits him representing that he is entitled to engage in legal practice.
The grounds of appeal
A document entitled “Attachment A” to the notice of appeal states the conviction is unjust and there has been a miscarriage of justice. Although mixed with statements of fact (including some facts admitted at the hearing but now disputed), the thrust of the appellant’s grounds of appeal are that the learned Magistrate erred in both law and fact; should not have found the case was proved beyond reasonable doubt; and where it had not been proven that he had caused “harm”.
The appellant’s Outline of Argument is equally confusing, focussing on why the prosecution had failed to present their case, with a vague reference to the judge on appeal “in the alternative” applying s 19 of the Penalties and Sentences Act 1992 (Qld) (perhaps referring to the power to discharge the appellant absolutely, or order he be released on recognisance to a good behaviour order).
The respondent’s Outline of Submissions confirmed that the Notice of Appeal (and the appellant’s Outline of Argument) had failed to identify any legal, factual or discretionary error in the orders appealed against.
By what is contained in an undated unpaginated document entitled “Supplementary Outline of Argument for the appellant” which the appellant subsequently filed, he seemed to attempt to identify errors in the respondent’s written submissions.
Mr Kerr also produced another document called “Amended Submissions for the Appellant” at the time of the appeal hearing, which also impermissibly mis-stated the facts and referred to evidence either not challenged or led in the hearing before the Magistrate. There was no application for leave to adduce fresh or new evidence. Leave was granted to rely on that document for the presentation of oral argument, only.
In that document, the appellant also directed my attention to a number of authorities from Queensland and elsewhere, which he said supported his arguments. The respondent confirmed that an analysis of those cases showed that they either failed to support the appellant’s argument or were completely irrelevant. Where he disagreed with a statement of principle, Mr Kerr simply asserted the court was in error.
The focus of the appellant’s written and oral argument was that the complaints made against him were not in accordance with the intention of the LPA, especially in circumstances where he had not sought nor been given renumeration for his legal work, and where it could not be said there had been numerous clients engaged with, to ground the complaint. He says he was only trying to help a vulnerable elderly lady, who had not been assisted by her then legal representatives, whom he continues to accuse of wilfully breaching the Australian Solicitors Conduct Rules. He relied on the fact he had told the lady he could not represent her in a “court of law or act on her behalf”.
I note that the investigation which led to the prosecution of the complaints against of Mr Kerr was commenced because of documents he provided to the Legal Services Commission in making a complaint against Shine Lawyers, which was summarily dismissed pursuant to s 432 of the LPA. That conduct was not relied on by the respondent in support of the first or second complaint.
Specifically, in respect of the second complaint, Mr Kerr’s position is that the Supreme Court awarded him the “distinction” of lawyer, so he should be entitled to refer to himself as one in correspondence. He argues the prosecution failed to prove he didn’t “intentionally” solicit legal work (which is not relevant to the elements requiring proof). Essentially, he says that by writing correspondence where he was referring to himself as a lawyer and giving the recipients legal advice or assistance, he wasn’t engaging in legal practice.
Principles - appeal
As to the legislative framework of the appeal, s 223 of the Justices Act 1886 (Qld) confirms that an appeal under s 222 is by way of rehearing on the original evidence given in the proceeding the order is appealed against.
The basic following principles apply:
(a)It is for the appellant to demonstrate some legal, factual or discretionary error: see Allesch v Maunz (2000) 203 CLR 172; Teelow v Commissioner of Police [2009] QCA 84.
(b)The court is obliged to conduct a “real review”, and to make its own findings of fact, or draw its own inferences and conclusions: see Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; McDonald v Queensland Police Service [2018] 2 Qd R 612.
(c)In Mbuzi v Torcetti [2008] QCA 231 at [17] Fraser JA said this:
“The appeal proceeded under s 223(1) on the evidence given in the Magistrates Court. On such an appeal the judge should afford respect for the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions: Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2008] QCA 175 at [5].”
Further, pursuant to s 225 of the Act, among other things, on hearing the appeal I may confirm, set aside, or vary the appealed order, or make any other order I consider just. By operation of s 226 I may make such order as to costs as I may think just.
The evidence
I have conducted a real review. The appellant (who continues to refer to himself as a lawyer and PhD candidate in the appeal documents – as if that was relevant to his status as a self-represented defendant) also had represented himself in the summary hearing held on 12 September 2024.
Formal admissions of fact were made by consent at the start of the trial, as provided for in s 148A (2) of the Justices Act 1886.
Crucially to the elements which had to be proved on each complaint, the admissions included that the appellant was admitted as a lawyer to the Supreme Court of Queensland in 2016, held only a restricted volunteer solicitor practising certificate between 12 October 2016 and 30 June 2019, and did not hold a practising certificate in Queensland or elsewhere between the charged dates, 22 November 2022 to 12 July 2023. It was also an admitted fact that the appellant was not an Australian legal practitioner, as defined in s 6 (1) of the LPA, at the time relevant to the complaints.
By way of background, the admitted facts confirm that an elderly woman Ms Saggus spoke to the appellant when he was working in a voluntary capacity at the Central Queensland Community Legal Centre (CQCLC) in 2018 in relation to a dispute she had with a man called Hutchings and others about unpaid wages and loans. A letter of demand sent by the CQCLC on her behalf to Mr Hutchings was not responded to. The CQCLC then wrote to Ms Saggus, confirming they couldn’t provide any further assistance to her.
Following that, an admitted fact the appellant now disputes is that he initiated contact with her and offered to help, including: assessing when any action may become statute barred; assessing the viability of a “cause of action”; assisting by drafting the required court documents to progress the dispute; and suggesting actions and searches she should undertake to progress her claim.
Ms Saggus filed her claim in the Gladstone District Court in February 2019 against Mr Hutchings and nine other defendants.
Over two years later in mid-2021 the appellant informed her that he could not act on her behalf anymore. He was not successful in finding a law firm in Gladstone or elsewhere to act on her behalf.
Relevantly to the first complaint, charged between November 2022 and July 2023, it was further admitted that Mr Kerr:
(i) assisted Ms Saggus by responding to her request to explain a conditional costs agreement with Shine Lawyers, which was subsequently executed; and
(ii) had discussions with, and collated and provided documentation to Shine Lawyers, as requested by the firm, to progress Ms Saggus’ claim; and
(iii) explained documents to Ms Saggus, including Shine Lawyers’ preliminary advice, draft notice of appointment and draft notice of offer to settle; and
(iv) in respect of (iii), provided a written document headed “Legal Opinion” to Ms Saggus (which she passed onto Shine Lawyers, who then terminated their costs agreement); and
(v) submitted the complaint to the Commissioner about Shine Lawyers on Ms Saggus’ behalf; and
(vi) drafted court forms and an affidavit for Ms Saggus to submit and file as a self-represented litigant, on Shine Lawyers’ application to withdraw.
Part of those admissions also were relevant to other evidence tendered and led in support of the second complaint, which showed that it was not disputed that Mr Kerr:
(i) offered to and also provided advice to Ms Saggus about Shine Lawyers’ costs agreement; and
(ii) signed off in all emails and headed all correspondence to Ms Saggus and Shine Lawyers as Robert Kerr LLB (Hons) GDLP, Lawyer, PhD candidate; and
(iii) communicated to Shine Lawyers that he would be seeking redress on Ms Saggus’ behalf; and
(iv) offered to and also provided the written legal advice to Ms Saggus, which also included his “qualifications” and “relevant accreditations” as:
1.1Admitted as a Lawyer to the Queensland Supreme Court at Rockhampton on 10 October 2016.
1.2Awarded First Class Honours by Central Queensland University on 21 November 2017.
1.3Confirmed as a PHD candidate (Law) on 19 February 2021 by Central Queensland University.
1.4Engaged as a sessional academic with Macquarie Law School at Macquarie University on 22 February 2021.
1.5Transferred to Charles Darwin University as a confirmed PhD candidate on 31 August 2021.
In the correspondence referred to in (iv), Mr Kerr criticised the work performed, likely costs incurred, and the quality of the opinion provided to Ms Saggus by legal practitioners at Shine Lawyers. At page 4, he wrote: “It is my considered legal opinion that the preliminary advice of [redacted] Senior Solicitor of Shine Lawyers cannot be accepted for the reasons provided.” He advised Ms Saggus against accepting the recommended settlement, which he called “inequitable”. There are clear errors of law in Mr Kerr’s document entitled “Legal Opinion”, with respect.
The decision appealed against
The Magistrate adjourned to consider the evidence and submissions before giving comprehensive reasons for her decision on 6 November 2024. Her Honour directed herself appropriately as to the fundamental principles of the onus and burden of proof, and the use to be made of the direct and circumstantial evidence. The Magistrate also correctly directed herself as to the need to not draw an adverse inference from the defendant’s exercise of his right to silence.
Her Honour confirmed that the term “engage in legal practice” is not defined in the LPA. The Magistrate adopted the appropriate test laid down in Cornell v Nagle [1995] 2 VR 188 (Cornell v Nagle) which has been consistently followed, albeit having regard to the distinctions provided by a consideration of the facts, in other cases: see Legal Services Commissioner v Walter [2011] QSC 132 (Walter); Legal Services Commissioner v Raghoobar [2023] QSC 41; Raghoobar v Legal Services Commissioner [2023] QCA 191 (Raghoobar).
I am prepared to accept the Magistrate’s reasoning that what Mr Kerr did fell within the term “engage in legal practice”. The test about whether a person has engaged in legal practice is an objective one.[1] The appellant’s conduct in this case involved multiple different acts, many of which were proved by admitted facts. The appellant was not absolved because of the subjective evidence he told Ms Saggus (as she accepted) that he wasn’t entitled to represent her.[2] The question was whether the evidence proved beyond reasonable doubt he was nonetheless acting contrary to s 24 and/or s 25 of the LPA.
[1]Raghoobar v Legal Services Commissioner [2023] QCA 191 at [17].
[2]Ibid at [27] - [29].
The decisions relied on by Mr Kerr do not demonstrate that there necessarily needs to be renumeration to engage the offence provision, were correctly rejected by the Magistrate, and do not assist his position on appeal.[3] The fact that had occurred in the case of Raghoobar, (and to a lesser extent in Walter), combined with the fact that more people were impacted by the acts of those defendants who were injuncted from engaging in legal practice, is not determinative of whether the appellant’s conduct was sufficient to ground the complaints. The argument is flawed. As pointed out by the respondent, if the argument was accepted it would mean that any barrister or legal practitioner who undertook pro bono work would not be subject to the provisions of the LPA.
[3]Legal Services Commissioner v Walter [2011] QSC 132 at [21], [22] and [26].
In my view, there is no error in her Honour’s reasoning that the appellant’s conduct engaged the first and third limbs in Cornell v Nagle, as applied in Walter and Raghoobar, and further correctly reasoned that the appellant’s acts of providing written advices and opinions fell within the type of activity which would amount to engaging in legal practice, and of holding himself out as being entitled to do so.
I am satisfied that the appeal against conviction should be dismissed, and the order of the learned Magistrate be confirmed.
The sentence appeal
On conviction, her Honour ordered that the appellant pay a fine of $4000.00, which was referred to the State Penalties Enforcement Registry, (together with court costs of $2875.00). The maximum penalty for each offence is a fine of up to 300 penalty units or 2 years imprisonment.
I am unable to accept Mr Kerr’s argument that no penalty should have been imposed. Her Honour identified, by reference to the sentencing guidelines in the Penalties and Sentences Act 1992, the need for general and personal deterrence, community protection and community denunciation, in cases like this. The appellant’s lack of insight into the wrongfulness of his actions, and absence of any remorse following conviction, goes against a hope for rehabilitation to be achieved by imposition of penalty.
Her Honour was guided by the yardstick of penalty in comparable cases. There was no misapplication of principle.[4] It has not been shown that the sentence imposed is ‘unreasonable or plainly unjust’.[5]
[4]R v Pham (2015) 256 CLR 550.
[5]Hili v The Queen (2010) 242 CLR 520.
Whilst her Honour did make the finding of fact, which was open on the evidence, that the conduct of the appellant had caused Shine Lawyers to withdraw their representation, she did not increase penalty by having regard to the financial detriment or “harm” caused to Ms Saggus, including by her inability to make a professional indemnity insurance claim.
Her Honour correctly took into account factors in the appellant’s favour: his lack of criminal history; that he ceased and desisted when asked to by the Commissioner; that he received no financial reward; and that his intention was to assist Ms Saggus.
I am also satisfied the Magistrate did not take into account any of the appellant’s conduct outside of the charged period.
Although the appellant was a man in his late 60’s who was of limited financial means, there was no information that he could not enter a payment plan with the State Penalties Enforcement Registry. Convictions should be recorded. There was no evidence about a negative impact that recording a conviction would have on the appellant’s economic or social wellbeing, or chances of finding employment.[6] The appeal against sentence is dismissed.
[6]The appellant is a disability support pensioner.
Costs
The respondent’s application for costs was not opposed by the appellant. I have had regard to the relevant provision in Schedule 2 of the Justices Regulation 2014 (Qld). I am satisfied there were four mentions, in addition to the hearing of the appeal. The 20% District Court uplift should be applied.
It is ordered the appellant pay the respondent’s costs on the standard basis, fixed at $3000.00. If the costs remain unpaid after a period of 28 days, the Registrar of the court is to give notice of that to the State Penalty Enforcement Registry.
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