Legal Services Commissioner v Brown - [2020] QCAT 423

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Brown [2020] QCAT 423

PARTIES: LEGAL SERVICES COMMISSIONER

(applicant)

v

KATHERINE ANN BROWN AKA KATHERINE ANN COX

(respondent)

APPLICATION NO/S:

OCR002-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 November 2020

HEARING DATE:

17 November 2020

HEARD AT:

Brisbane

DECISION OF:

Hon. Duncan McMeekin QC, Judicial Member

Assisted by:

Dr John de Groot, Legal Panel Member
Dr Susan Dann, Lay Panel Member

ORDERS:
1. Pursuant to s 456(2)(a) of the Legal Profession Act 2007 (Qld), it is recommended that the name of the respondent be removed from the local Roll.

2. The respondent shall pay the applicant’s costs to be assessed on the standard basis on the Supreme Court scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – CRIMINAL OFFENCES – where the respondent was convicted on her own plea of guilty of one count of dishonestly obtaining property from another, subject to a trust, direction or condition, contrary to s 408C(1)(b) and (2)(c) of the Criminal Code – where the applicant Commissioner has brought two charges against the respondent for the conviction of a serious offence and for engaging in conduct which was likely, to a material degree, to bring the profession into disrepute – where the respondent has not responded to or engaged with the discipline application – where the respondent did not appear at the hearing of the application – whether the respondent’s conduct amounts to professional misconduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the Tribunal’s orders in this jurisdiction are protective and not punitive – where the applicant seeks an order recommending that the name of the respondent be removed from the Roll – where such orders should only be made when the probability is that the practitioner is permanently unfit to practise – where the respondent persisted in the fraud over three years – where the respondent has not advanced any evidence in support of her being likely to become a person who is fit to be a legal practitioner – whether the probability is that the respondent is permanently unfit to practice so that her name should be removed from the Roll

Criminal Code Act 1899 (Qld) sch 1 s 408C

Legal Profession Act 2007 (Qld) s 5, s 417, s 418, s 419, s 452, s 453, s 456, s 462, s 656C

Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Attorney-General of the State of Queensland v Legal Services Commissioner; Legal Services Commissioner v Shand [2018] QCA 66
Barristers’ Board v Darveniza [2000] QCA 253
Law Society of NSW v Jones [1977] NSWCA 333
Legal Services Commissioner v…

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: [2020] QCAT 423
Decision Date: 19 November 2020

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Brown, the Legal Services Commissioner, acting on behalf of the Queensland Legal Services Commission, brought charges against the respondent, Brown, for professional misconduct and unsatisfactory professional conduct. The charges were predicated on Brown's conviction for dishonestly obtaining property from another, subject to a trust, direction or condition, as per sections 408C(1)(b) and (2)(c) of the Criminal Code. The Commissioner sought to have Brown's name removed from the Roll of Legal Practitioners, contending that her conduct was likely to bring the profession into disrepute and that she had engaged in professional misconduct by virtue of her criminal conviction.

The central legal issues before the Tribunal were whether Brown's conduct amounted to professional misconduct and whether it was appropriate to recommend the removal of Brown's name from the Roll. The Commissioner argued that the persistent nature of Brown's fraud over a three-year period indicated that she was permanently unfit to practise law. Brown, who had not responded to the discipline application or appeared at the hearing, did not provide any evidence to suggest that she might become fit to practise in the future.

The Tribunal found that Brown's actions constituted professional misconduct and that she had engaged in conduct likely to bring the profession into disrepute. Given the gravity of her criminal conviction and the fact that she had not contested the charges or provided any evidence to suggest she could be fit to practise in the future, the Tribunal concluded that it was highly probable that Brown was permanently unfit to practise law. Therefore, the Tribunal recommended that Brown's name be removed from the local Roll of Legal Practitioners.

In light of the findings, the Tribunal ordered that Brown's name be removed from the local Roll and that she pay the Commissioner's costs, to be assessed on the standard basis on the Supreme Court scale under the Uniform Civil Procedure Rules 1999 (Qld).

Orders

Orders of the court

1. Pursuant to s 456(2)(a) of the Legal Profession Act 2007 (Qld), it is recommended that the name of the respondent be removed from the local Roll.

2. The respondent shall pay the applicant’s costs to be assessed on the standard basis on the Supreme Court scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Brown [2020] QCAT 423
PARTIES:	LEGAL SERVICES COMMISSIONER
(applicant)
v
KATHERINE ANN BROWN AKA KATHERINE ANN COX
(respondent)
APPLICATION NO/S:	OCR002-20
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	19 November 2020
HEARING DATE:	17 November 2020
HEARD AT:	Brisbane
DECISION OF:	Hon. Duncan McMeekin QC, Judicial Member Assisted by: Dr John de Groot, Legal Panel Member Dr Susan Dann, Lay Panel Member
ORDERS:	1. Pursuant to s 456(2)(a) of the *Legal Profession Act* 2007 (Qld), it is recommended that the name of the respondent be removed from the local Roll. 2. The respondent shall pay the applicant’s costs to be assessed on the standard basis on the Supreme Court scale under the *Uniform Civil Procedure Rules* 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – CRIMINAL OFFENCES – where the respondent was convicted on her own plea of guilty of one count of dishonestly obtaining property from another, subject to a trust, direction or condition, contrary to s 408C(1)(b) and (2)(c) of the Criminal Code – where the applicant Commissioner has brought two charges against the respondent for the conviction of a serious offence and for engaging in conduct which was likely, to a material degree, to bring the profession into disrepute – where the respondent has not responded to or engaged with the discipline application – where the respondent did not appear at the hearing of the application – whether the respondent’s conduct amounts to professional misconduct PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the Tribunal’s orders in this jurisdiction are protective and not punitive – where the applicant seeks an order recommending that the name of the respondent be removed from the Roll – where such orders should only be made when the probability is that the practitioner is permanently unfit to practise – where the respondent persisted in the fraud over three years – where the respondent has not advanced any evidence in support of her being likely to become a person who is fit to be a legal practitioner – whether the probability is that the respondent is permanently unfit to practice so that her name should be removed from the Roll Criminal Code Act 1899 (Qld) sch 1 s 408C Legal Profession Act 2007 (Qld) s 5, s 417, s 418, s 419, s 452, s 453, s 456, s 462, s 656C Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Attorney-General of the State of Queensland v Legal Services Commissioner; Legal Services Commissioner v Shand [2018] QCA 66 Barristers’ Board v Darveniza [2000] QCA 253 Law Society of NSW v Jones [1977] NSWCA 333 Legal Services Commissioner v…