Legal Services Commissioner v Bosscher
[2014] QCAT 232
•12 June 2014
| CITATION: | Legal Services Commissioner v Bosscher [2014] QCAT 232 |
| PARTIES: | Legal Services Commissioner (Applicant/Appellant) |
| v | |
| Michael Bosscher (Respondent) |
| APPLICATION NUMBER: | OCR063-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 12 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for non-publication order is refused. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – APPLICATION FOR NON-PUBLICATION ORDER – where Legal Services Commissioner brought application for disciplinary proceedings against the respondent practitioner – where practitioner applied for a non-publication order concerning all information concerning the application – where grounds for seeking order concern reputation of practitioner and his employer – whether in all the circumstances it is appropriate to grant non-publication order Legal Profession Act 2007 (Qld), s 472, s 473, s 477, s 656D Legal Services Commissioner v CBD [2011] QCAT 401, applied Legal Services Commissioner v Sing (No.2) 2007 LPT 005, applied |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
The respondent practitioner, Michael Bosscher, made an application for a non-publication order for all information concerning the application for disciplinary proceeding, OCR063-14, made by the Legal Services Commissioner against him, filed 31 March 2014, and all proceedings on that application.
The application contemplates that the order sought will also extend to the application for non-publication and the proceedings in relation to that application.
The disciplinary proceedings in this matter relate to an appearance by the practitioner, on 24 July 2012 before the Queensland Child Protection Commission of Inquiry, conducted by Mr Carmody SC, in relation to an application that Mr Carmody recuse himself from sitting on the inquiry as Commissioner. During that appearance, the practitioner tendered an outline of argument which attached, inter alia, a document entitled “The Rofe QC Audit of the Heiner affair”.
The Rofe Audit included allegations that Justice Holmes, in her position (at the time), as counsel assisting the Forde Commission of Inquiry into the abuse of children in Queensland institutions, was guilty of the offence of official corruption pursuant to s 87 of the Criminal Code Act 1899 (Qld).
As far as the practitioner’s conduct concerns Justice Holmes, both parties have indicated that they do not object to my determining both this application for non-publication, and the disciplinary proceeding proper.[1] I will therefore, proceed to decide on the present application for non-publication order.
[1]On 12 May 2014, at a directions hearing for OCR063-14, I questioned both parties as to whether, as a judicial officer of the Supreme Court of Queensland, like Justice Holmes, either of them objected to my determining the matter. Both parties answered in the negative.
Part 4.11 of the Legal Profession Act 2007 (Qld) deals with “publishing disciplinary action”. Section 472 of that part requires the Commissioner to keep a register about relevant disciplinary action taken under the Legal Profession Act 2007 (Qld).
Section 472(2) prescribes that the discipline register must include:
· The full name of the practitioner;
· The persons business address;
· The practitioners home jurisdiction;
· Particulars of the disciplinary action taken;
· Other particulars prescribed under a Regulation.
The disciplinary register must, pursuant to section 472(4), be available for public inspection on the internet site of the Commissioner. In addition, information recorded in the disciplinary register may be given to the members of the public in another way approved by the Commissioner (s 472(5)), and section 473(1) provides that the Commissioner may publicise disciplinary action taken against a person in any way the Commissioner decides appropriate.
Section 477 provides that part 4.11 is subject to any order made by this Tribunal which regulates the disclosure of information. However, despite any such order, the name and identifying particulars of the person against whom the disciplinary action was taken; the law practice who employs or employed the person; and, the kind of disciplinary action taken, must be recorded in the register and must otherwise be published under part 4.11 (see section 477(2)).
By force of section 477(2) the information identified in that subsection must be recorded in the disciplinary register. It may otherwise be published under part 4.11 of the Legal Profession Act 2007 (Qld).
No order can be made to alter this requirement.
Section 656D of the Legal Profession Act 2007 (Qld) allows the Tribunal either before, during, or, immediately after a hearing to make an order prohibiting the publication of information stated in the order, that relates to the disciplinary action, the hearing, or an order of the Tribunal.
The QCAT Act also provides the Tribunal with power to make non-publication orders. Under section 66, the Tribunal may make an order prohibiting the publication of the contents of any document or thing produced to the Tribunal, evidence given before the Tribunal, and information that might enable a person who appeared before the Tribunal to be identified.
The Tribunal may make such an order only if the Tribunal considers the order is necessary:
a)To avoid interfering with the proper administration of justice or
b)To avoid endangering the physical or mental health or safety of a person or
c) To avoid offending public decency or morality or
d)To avoid the publication of confidential information or information whose publication would be contrary to public interest or
e) For any other reason in the interests of justice.[2]
[2]QCAT Act s 66(2).
The provisions of the Legal Profession Act 2007 (Qld) override the provisions of the QCAT Act. This follows from the requirements of s 7(2) of the QCAT Act.
In relation to the question of non-publication, the Chief Justice, in the case of Legal Services Commissioner v Sing (No.2)[3] observed that:
“The transparency of the judicial process, which applies in this Tribunal just as in the Court, is the lynch pin of the public confidence on which the court system depends. A perception that courts operate in secret … would obviously be inimical to the courts effective discharge of its central mission, the delivery of justice according to law”.
[3]2007 LPT 005.
The Chief Justice, in referring to the legislative regime governing the legal profession, pointed to the fact that the scheme was aimed “to secure a level of transparency, accountability and independence in the disciplinary process not previously thought to have been present.”
As to non-publication of information, the Chief Justice concluded that:
“The Tribunal must be very careful not to thwart the achievement of that objective in any way. It would do so here if, by a non-publication or suppression order, it were seen to elevate the practitioner’s private interest over the public interest which should rightly predominate.”
In Sing, an order was sought prohibiting the publication of the respondent’s name. This order was refused, despite the respondent having been successful in the disciplinary proceedings, which resulted in that application against him being dismissed.
Sing’s case was considered by Justice Wilson in Legal Services Commissioner v CBD.[4]
[4][2011] QCAT 401.
Justice Wilson described it as a “rare case in which the Tribunal would interfere with the legislative scheme”.
The practitioner’s submissions for the non-publication order were in an affidavit annexed to his application.
They included an issue relating to private interests, namely that the allegation of professional misconduct or unprofessional conduct would be damaging to his professional reputation, and the commercial interests of his employer (Bosscher Lawyers ILP). The practitioner also raised an issue relating to a public interest, for the reputation of Justice Holmes, her office, and the administration of justice.
As the Chief Justice correctly observed, a private interest cannot prevail as against the overriding public interest in the transparent delivery of justice according to law. The first issue raised does not justify a non-publication order being made.
As to the second issue, the Legal Services Commissioner, after consultation with Justice Holmes, does not adopt the practitioner’s concern for the privacy of Justice Holmes as a reason to make a non-publication order. Neither party has expanded on the potential detriment, raised by the practitioner in his submissions, to “the administration of justice”. As I see it, the publication of these disciplinary proceedings would bolster public confidence in the justice system and is consistent with the proper administration of justice.
I refuse the application made by the practitioner.