Lavercombe v Legal Services Commissioner

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lavercombe v Legal Services Commissioner [2024] QCAT 440

PARTIES:

JAMES MATTHEW LAVERCOMBE

(applicant)

v

LEGAL SERVICES COMMISSIONER

(respondent)

APPLICATION NO/S:

OCR081 of 2022

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

4 September 2024 (ex tempore)

HEARING DATE:

4 September 2024

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons KC, Judicial Member

ORDERS:

1. The Tribunal directs that it may hear and determine the present review, without help from panel members.

CATCHWORDS:

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - GENERALLY - where the applicant applied for a review of a discipline application before the Tribunal - whether there must be a panel for the application for review to be heard and determined by the Tribunal - where the proper construction of s 599 of the Legal Profession Act 2007 (Qld) means a review can be heard without the assistance of panel members

Australian Solicitors Conduct Rules 2012 r 33

Legal Profession Act 2004 (Qld) s 451
Legal Profession Act 2007 (Qld) ss 452, 456, 458, 469, 598, 599, 621

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 6, 17, 18, 19, 20, 21, 23, 24, 165

APPEARANCES & REPRESENTATION:

Applicant:

A Morris KC instructed by Bartley Cohen Law

Respondent:

D De Jersey instructed by Legal Services Commissioner

REASONS FOR DECISION

These proceedings commenced with a discipline application filed in the Legal Practice Committee. That committee determined the application on 21 March 2022. It found that the applicant in this Tribunal, who was the respondent before the committee, had dealt directly with the client of another practitioner in breach of r 33 of the Australian Solicitors’ Conduct Rules 2012 (‘ASCR’). It found that the conduct amounted to unsatisfactory professional conduct.
The applicant then applied to this Tribunal for a review of the decision. The matter came before Boddice J, who determined that the person identified in the discipline application as a client of another practitioner, was not in fact a client at the time, and identified a body corporate as, in truth, the client of the practitioner.
The present respondent then applied to amend the discipline application and was granted leave to do so by Williams J in a judgment delivered on 19 September 2023. The matter has now come before me to deal with the proceedings. A question has arisen whether I can do so alone, or whether the provisions of s 599 of the Legal Profession Act 2007 (Qld) (‘LP Act’) have the effect that I am to be helped by two panel members. The question arises because of the wording of s 599(1) which is as follows, ‘this section applies for the tribunal’s hearing and deciding of a discipline application.’
I have briefly stated the procedural history of the matter. It is necessary to examine the statutory provisions which give rise to that procedural history and some other provisions, particularly of the LP Act, which it seems to me are of assistance in determining the question which has arisen.
I do not intend to attempt to recite the submissions that have been made to me. I have taken them into account and I hope that I deal with them to the extent necessary in the reasons which follow. The discipline application I mentioned is an application made under s 452(1)(b)(i) of the LP Act. For present purposes, it is sufficient to note that it authorises the present respondent to apply ‘to the committee for an order against an Australian legal practitioner in relation to a complaint against that legal practitioner or an investigation matter.’ The committee which is referred to, is the committee which was established under the Legal Profession Act 2004 (Qld), s 451, and which is continued in existence by s 621 of the LP Act.
The latter Act provides for the membership of the committee, comprising of some seven persons, a chairperson, two solicitors, two barristers and two lay members. The committee to which an application is made under s 452 is given certain powers. They appear in s 458 of the LP Act. They are conditional on a finding that the practitioner has engaged in unsatisfactory professional conduct. I do not propose to recite the orders the committee can make, but it is sufficient to note that they commence with an order for a public reprimand.
The LP Act then provides in s 469 that a party dissatisfied with a final decision of the committee about a discipline application, that is an application made under s 452, may apply as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act') to the Tribunal for a review of the committee’s decision. That is what has happened in the present case.
Section 17 of the QCAT Act then provides for the Tribunal’s review jurisdiction, which is the jurisdiction conferred on the Tribunal by what is described as an enabling Act, to review a decision made or taken to have been made by another entity under that Act. The LP Act is an enabling Act for the purposes of the QCAT Act. A decision for which a review application may be made is described as a reviewable decision, and the entity that made the decision is referred to as the decision-maker for the reviewable decision.
Section 18 of the QCAT Act then provides, ‘The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.’ Section 19 then deals with exercising review jurisdiction. It provides that the Tribunal must decide the review in accordance with both the QCAT Act and, in this case, the LP Act; it may perform the functions conferred on the Tribunal by the QCAT Act or the LP Act; and it has all the functions of the decision-maker for the reviewable decision being made.
Of importance, s 20 states, ‘The purpose of the review of a reviewable decision is to produce the correct and preferable decision’ and ‘The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.’ Section 21 identifies that the relevant decision-maker must use their best endeavours to help the Tribunal so that it can make its decision on the review.
While not particularly significant, it is relevant to note that, under s 23(1), at any stage of a proceeding for the review of a reviewable decision, the Tribunal might invite the decision-maker for the decision to reconsider it. Section 23 then provides for what is to follow, including to amend or set aside the original decision.
For the review, the functions of the Tribunal are identified in s 24 of the QCAT Act. Under s 24(1), the Tribunal may either confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter for reconsideration to the original decision-maker with such directions as the Tribunal considers appropriate.
Section 24(2) provides that if the Tribunal confirms or amends the decision or sets the decision aside and substitutes its own decision, then its decision is taken to be a decision of the decision-maker. That is, in this case, a decision of the committee. It might also be noted that under s 24(3) of the QCAT Act, ‘The tribunal may make, to the chief executive of the entity in which the reviewable decision was made, written recommendations about the policies, practices and procedures applying to reviewable discussions of the same kind.’
Section 165 of the QCAT Act deals with the constitution of a Tribunal generally. It provides that the President is to choose one, two or three members or an adjudicator to constitute the Tribunal for a particular matter, and that the person or persons chosen by the President constitute and may exercise all the jurisdiction and powers of the Tribunal in relation to a matter. I have not been able to identify any specific provision dealing with the constitution of the Tribunal on proceedings for a review of a reviewable matter within the provisions of the QCAT Act.
I have mentioned the provisions of s 599 of the LP Act. Mention should also be made of s 598 of that Act. It provides that for a proceeding for a matter the Tribunal is empowered to deal with under the LP Act, the Tribunal is to be constituted by a judicial member who was either a Supreme Court judge, or who was a former Supreme Court judge nominated by the President to constitute the Tribunal. To have some context for understanding ss 598 and 599, reference should then be made to s 452, which separately provides that the present respondent may apply to the Tribunal for an order against an Australian legal practitioner in relation to a complaint against that practitioner or in relation to an investigation matter.
In such a case, that is, where the discipline application is initially made to this Tribunal, the Tribunal’s powers appear from s 456, in particular, of the LP Act. It commences with a provision that, after it has completed a hearing of a discipline application, the Tribunal might make any order as it thinks fit, including any one or more of orders specifically identified in s 456, if the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct. The orders which the Tribunal is specifically empowered to make include, in particular, an order recommending that the name of the Australian legal practitioner be removed from the roll; an order for the suspension of the practitioner’s local practising certificate for a stated period; or for the cancellation of the practising certificate. These powers are not powers conferred on the committee.
It seems to me that s 599, in particular, is to be read in the context of the provisions of the LP Act to which I have referred. It clearly applies to a hearing referred to in s 456. The question that arises in the present case is whether the expression, the tribunal’s hearing and deciding of a discipline application, also extends to the Tribunal determining a proceeding for a review of a reviewable decision as mentioned.
The Tribunal is to hear and decide the review of a reviewable decision by way of a fresh hearing on the merits. It has been suggested in submissions that in substance this is a fresh hearing of the discipline application and the consequence that s 599 applies to such a hearing. It seems to me that the functions conferred on the Tribunal in a proceeding for a review of a reviewable decision are much broader in scope than that. The consequence is that it is unlikely that s 599(1) was intended to apply to what I will describe as review proceedings.
Thus in determining the proceeding, the Tribunal might simply confirm the decision which is made below. It is not inevitable that it will result in a decision on the merits. The Tribunal, on review, may return the matter for reconsideration to the Committee.
On a review, the range of orders available to be made against a respondent is less extensive than when determining a discipline application made to it in the first instance. Moreover, on a review, the Tribunal may exercise powers which are not exercisable when it hears and decides a discipline application. It may set aside a decision of the Committee. It may invite the Committee to reconsider its decision. It may make recommendations about the Committee’s policies, practices and procedures.
It therefore seems to me that, on balance, the better view as a matter of construction is that s 599 is directed to the hearing and deciding by the Tribunal of a discipline application made to it under s 452 of the LP Act.
I am conscious of the provisions of the QCAT Act which deal with the relationship between itself and Acts, such as the LP Act. In particular, I notice that in s 6(4) of the QCAT Act, an Act, such as the LP Act, may state the Tribunal’s functions in exercising its review jurisdiction which may add to, vary or exclude the functions stated in the QCAT Act. I have not noticed any provision in the LP Act which affects the functions stated in s 24 of the QCAT Act.
I also notice s 6(7) of the QCAT Act which recognises that an Act, such as the LP Act, might include provisions about a number of matters. Among them are the conduct of proceedings for jurisdiction conferred by the enabling Act, including practices and procedures and the Tribunal’s powers for the proceedings. The relevant jurisdiction under consideration here is the Tribunal’s review jurisdiction. Section 6(7) does not assist in answering the question whether s 599 of the LP Act is a section which adds to, varies or excludes provisions of the QCAT Act about the conduct of proceedings for this Tribunal’s review jurisdiction.
Although the matter is by no means as straightforward, in the end, it seems to me that s 599 does not apply to the determination of an application for a review of a reviewable decision which is the proceeding before me and accordingly, it is proposed to proceed to a hearing without the assistance of panel members.

Orders

The Tribunal directs that it may hear and determine the present review, without help from panel members.

[2024] QCAT 440

4 September 2024 (ex tempore)