Legal Services Commissioner v CBD - [2012] QCA 69

SUPREME COURT OF QUEENSLAND

CITATION:

Legal Services Commissioner v CBD [2012] QCA 69

PARTIES:

LEGAL SERVICES COMMISSIONER
(appellant)
v
CBD
(respondent)

FILE NO/S:

Appeal No 9140 of 2011
QCAT No 255 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

27 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2012

JUDGES:

Muir JA and Margaret Wilson AJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent pleaded guilty to possession of child exploitation material – where the respondent was sentenced to 12 months imprisonment wholly suspended with an operational period of two years – where the respondent was a solicitor with no previous criminal history – where the respondent had been deprived of his practising certificate as a result of the offence – where the appellant made application to QCAT seeking disciplinary orders against the respondent – where the Tribunal declined to impose further sanctions – whether the respondents conduct constituted unsatisfactory professional conduct and/or professional misconduct – whether the respondent was a fit and proper person to practice law – whether the Tribunal should have imposed further sanction on the respondent

Legal Profession Act 2007 (Qld), s 9, s 68, s 419, s 420, s 452, s 456

A Solicitor v Council of Law Society (NSW) (2004) 216 CLR 253; [2004] HCA 1, cited
Barristers’ Board v Darveniza (2000) 112 A Crim R 438; [2000] QCA 253, cited
Legal Services Board v McGrath [2010] VSC 266, cited
Legal Services Board v McGrath (No 2) [2010] VSC 332, cited
Legal Services Commissioner v Hewlett [2008] 2 Qd R 292; [2000] LPT 3, distinguished
Legal Services Commissioner v Madden [2009] 1 Qd R 149; [2008] QCA 301, cited
Legal Services Commissioner v Quinn [2008] LPT 19, cited
Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279; [1957] HCA 46, distinguished

COUNSEL:

P T Davis, with B McMillan, for the appellant
T Pincus for the respondent

SOLICITORS:

Legal Services Commission for the appellant
Brian Bartley & Associates for the respondent

MUIR JA: Introduction The respondent, a solicitor, pleaded guilty to possession of child exploitation material and was sentenced to 12 months imprisonment wholly suspended with an operational period of two years. He is a middle aged male with no criminal history and a previously unblemished professional record. The offending occurred when the respondent, to use the words of the sentencing judge, “stumbled upon” the offending material when looking for legal adult pornography. His mistake, according to the sentencing judge, was that he failed to deal with the material that had inadvertently come before him and continued to look at it. The offending material was stored with a greater mass of material which was not unlawful and…

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: [2012] QCA 69
Decision Date: 27 March 2012

CaseChat Overview and Summary

The case of Legal Services Commissioner v CBD involved the Legal Services Commissioner, the appellant, and the respondent, a solicitor who had been found guilty of possessing child exploitation material. The respondent had been sentenced to 12 months imprisonment, wholly suspended for two years, and had his practising certificate revoked. The Commissioner sought disciplinary orders against the respondent, arguing that his conduct constituted unsatisfactory professional conduct and professional misconduct, and that he was not a fit and proper person to practice law. The Queensland Civil and Administrative Tribunal (QCAT) declined to impose further sanctions on the respondent, leading to the Commissioner’s appeal to the court.

The central legal issues in the case were whether the respondent’s conduct amounted to unsatisfactory professional conduct and/or professional misconduct, and whether the Tribunal should have imposed additional sanctions on the respondent. The court had to determine if the Tribunal’s decision to not impose further sanctions was correct and if the respondent was a fit and proper person to hold a practising certificate. The appeal hinged on whether the Tribunal appropriately balanced the respondent's culpability and the need for deterrence and protection of the public.

The court found that the Tribunal had adequately considered the factors relevant to the respondent’s fitness to practice law. It noted that the Tribunal had taken into account the respondent’s guilty plea, the nature of the offence, and the absence of previous criminal history. The court also emphasised that the Tribunal had appropriately balanced the public interest in maintaining the integrity of the legal profession against the respondent's personal circumstances. The appeal was dismissed, and the court upheld the Tribunal’s decision, holding that no further sanctions were necessary. The court found that the Tribunal had exercised its discretion correctly in declining to impose additional sanctions.

The court’s final order was to dismiss the appeal with costs, affirming the decision of the Tribunal that no further disciplinary action was warranted against the respondent. The court concluded that the Tribunal had appropriately exercised its discretion and that the respondent’s fitness to practice law had been adequately assessed in light of the circumstances.

Orders

Orders of the court

Appeal dismissed with costs.

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 CBD [2012] QCA 69
PARTIES:	LEGAL SERVICES COMMISSIONER (appellant) v CBD (respondent)
FILE NO/S:	Appeal No 9140 of 2011 QCAT No 255 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	27 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	14 March 2012
JUDGES:	Muir JA and Margaret Wilson AJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent pleaded guilty to possession of child exploitation material – where the respondent was sentenced to 12 months imprisonment wholly suspended with an operational period of two years – where the respondent was a solicitor with no previous criminal history – where the respondent had been deprived of his practising certificate as a result of the offence – where the appellant made application to QCAT seeking disciplinary orders against the respondent – where the Tribunal declined to impose further sanctions – whether the respondents conduct constituted unsatisfactory professional conduct and/or professional misconduct – whether the respondent was a fit and proper person to practice law – whether the Tribunal should have imposed further sanction on the respondent Legal Profession Act 2007 (Qld), s 9, s 68, s 419, s 420, s 452, s 456 A Solicitor v Council of Law Society (NSW) (2004) 216 CLR 253; [2004] HCA 1, cited Barristers’ Board v Darveniza (2000) 112 A Crim R 438; [2000] QCA 253, cited Legal Services Board v McGrath [2010] VSC 266, cited Legal Services Board v McGrath (No 2) [2010] VSC 332, cited Legal Services Commissioner v Hewlett [2008] 2 Qd R 292; [2000] LPT 3, distinguished Legal Services Commissioner v Madden [2009] 1 Qd R 149; [2008] QCA 301, cited Legal Services Commissioner v Quinn [2008] LPT 19, cited Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279; [1957] HCA 46, distinguished
COUNSEL:	P T Davis, with B McMillan, for the appellant T Pincus for the respondent
SOLICITORS:	Legal Services Commission for the appellant Brian Bartley & Associates for the respondent