Legal Services Commissioner v Cullen - [2020] QCAT 439

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Cullen [2020] QCAT 439

PARTIES: LEGAL SERVICES COMMISSIONER

(applicant)

v

COREY WAYNE CULLEN

(respondent)

APPLICATION NO/S:

OCR104-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

30 October 2020 (ex tempore)

HEARING DATE:

30 October 2020

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:

Mr Peter Sheehy, Legal Panel Member
Dr Margaret Steinberg AM, Lay Panel Member

ORDERS:
Upon the undertaking given to the Tribunal by the respondent as recorded in Exhibit 1, there will be the following orders:

1.   On each of Charges 1 and 2, there is a finding that the respondent engaged in unsatisfactory professional conduct.

2.   The respondent is publicly reprimanded.

3.   The respondent shall pay the applicant’s standard costs of and incidental to this discipline application, such costs to be assessed as if this were a matter before 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 his own plea of guilty of the serious offence of possession of dangerous drugs – where the applicant has brought two charges against the respondent, being 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’s offending was an isolated instance of unintentional offending – where the parties jointly urge that there be a finding of unsatisfactory professional conduct on Charge 1 – where the applicant seeks a finding of professional misconduct on Charge 2 – whether the conduct is of such an egregious character such as to warrant a finding of professional misconduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the respondent has expressed genuine remorse and contrition – where the respondent has provided evidence of insight into his conduct and the steps he has taken to address certain mental health issues – where the respondent has proffered an undertaking to provide evidence of quarterly drug testing and ongoing mental health reviews when applying for renewal of his practising certificate for the next couple of years – whether the Tribunal should impose a public reprimand – whether any further sanctions are necessary or warranted, in light of the undertaking given by the respondent

Drugs Misuse Act 1981 (Qld) s 9

Legal Profession Act 2007 (Qld) s 418, s 419, s 420, s 462, sch 2

Legal Services Commissioner v Bentley [2016] QCAT 185

Legal Services Commissioner v Brown [2018] QCAT 263
Legal Services Commissioner v Challen [2019] QCAT 273
Legal Services Commissioner v Greenhalgh [2020] QCAT 349
Legal Services Commissioner v Munt [2019] QCAT 160
Legal Services Commissioner v Nguyen [2015] QCAT 211

NSW Bar Association v Sahade (No 3) [2006] NSWADT 39

APPEARANCES & REPRESENTATION:

Applicant:

M Lester, legal officer for the Legal Services Commission

Respondent:

A Edwards, instructed by Hannay…

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 439
Decision Date: 30 October 2020 (ex tempore)

CaseChat Overview and Summary

The case of Legal Services Commissioner v Cullen was heard by the Legal Services Tribunal of Queensland. The respondent, a legal practitioner, had been convicted on his own plea of guilty of possession of dangerous drugs, a serious offence. The Legal Services Commissioner brought two charges against the respondent: one for the conviction of a serious offence and another for engaging in conduct which was likely, to a material degree, to bring the profession into disrepute. The central legal issues for the court to determine were whether the respondent's conduct warranted a finding of professional misconduct or unsatisfactory professional conduct, and what appropriate disciplinary measures should be imposed.

The court considered the nature of the respondent's offending, which was an isolated instance of unintentional conduct. Both parties agreed that there should be a finding of unsatisfactory professional conduct on the first charge. The Commissioner sought a finding of professional misconduct on the second charge, arguing that the respondent's conduct was egregious enough to warrant such a finding. The court examined the circumstances of the offence and the respondent's contrition, including his expressions of remorse, insight into his conduct, and steps taken to address mental health issues. The respondent also offered to provide evidence of quarterly drug testing and ongoing mental health reviews when applying for renewal of his practising certificate for the next couple of years.

The Tribunal concluded that the respondent's conduct warranted a finding of unsatisfactory professional conduct on both charges. Given the respondent's genuine remorse, insight, and the measures he had taken to address his issues, the Tribunal imposed a public reprimand and ordered the respondent to pay the Commissioner's costs, to be assessed as if the matter were before the Supreme Court of Queensland. The Tribunal did not find it necessary to impose further sanctions beyond the public reprimand, considering the respondent's undertaking and demonstrated efforts to address his conduct.

Orders

Orders of the court

Upon the undertaking given to the Tribunal by the respondent as recorded in Exhibit 1, there will be the following orders:

1. On each of Charges 1 and 2, there is a finding that the respondent engaged in unsatisfactory professional conduct.

2. The respondent is publicly reprimanded.

3. The respondent shall pay the applicant’s standard costs of and incidental to this discipline application, such costs to be assessed as if this were a matter before the Supreme Court of Queensland.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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