Legal Services Commissioner v Cullen (No 2)
[2024] QCAT 412
•1 October 2024
SUPREME COURT OF QUEENSLAND
CITATION: | Legal Services Commissioner v Cullen (No 2) [2024] QCAT 412 |
PARTIES: | LEGAL SERVICES COMMISIONER (applicant) v (respondent) |
APPLICATION NO/S: | No OCR 239 of 2022 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 1 October 2024 |
HEARING DATE: | 9 May 2023, 6 June 2023 and 14 August 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Burns J Assisted by: |
ORDER: | The Tribunal made findings in accordance with these reasons. |
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where the practitioner was previously dealt with by the Tribunal for engaging in conduct that was likely to a material degree to bring the profession into disrepute contrary to r 5.1.2 of the Australian Solicitors’ Conduct Rules 2012 – where, on the practitioner’s undertaking to the Tribunal to do certain things, he was publicly reprimanded – where the practitioner subsequently fell in breach of part of his undertaking to the Tribunal – where the applicant brought a discipline application against the practitioner by which it was alleged he contravened part of his undertaking and thereby engaged in conduct which was likely to a material degree to bring the profession into disrepute contrary to r 5.1.2 of the Australian Solicitors’ Conduct Rules 2012 – where it was not in issue that the practitioner failed to comply with part of his written undertaking – where it was not in issue that the breach constituted conduct that was likely to a material degree to bring the profession into disrepute – where the practitioner advanced an explanation for breaching part of his undertaking to the applicant as well as the Tribunal – whether the practitioner’s explanation should be accepted as truthful |
| APPEARANCES & REPRESENTATION: Applicant: Respondent: | A E Ellis of the Legal Services Commission (on 9 May 2023) |
In this disciplinary proceeding brought by the applicant Commissioner, it is alleged that on 28 May 2021 the respondent, Mr Cullen, contravened a written undertaking he gave to the Tribunal on 30 October 2020 (Charge 1) and that, between 30 October 2020 and 28 May 2021, he engaged in conduct which was likely to a material degree to bring the profession into disrepute contrary to r 5.1.2 of the Australian Solicitors’ Conduct Rules 2012 (Charge 2). The Commissioner alleges these charges together constitute professional misconduct and/or unsatisfactory professional conduct within the meaning of the Legal Profession Act 2007 (Qld), and disciplinary orders pursuant to s 452 of the Act are sought accordingly.
Before there is jurisdiction to make a disciplinary order under s 456 of the Act, the Tribunal must first be satisfied that the practitioner engaged in unsatisfactory professional conduct or professional misconduct.[1] That requires consideration of the proven conduct in light of the statutory definitions of those expressions in ss 418 and 419 of the Act respectively as well as the common law test.[2]
[1] Legal Services Commission v Shand [2008] QCA 66.
[2] See: Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498.
Unsatisfactory professional conduct is defined by s 418 of the Act to include “conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner”.
Professional misconduct is defined to include “(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence and (b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice”: s 419(1). Further, for a finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in s 419(1), regard “may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under [the] Act or for the grant or renewal of a local practising certificate”: s 419(2).
That said, it is well-established that disciplinary penalties are not imposed as punishment; they are imposed for the protection of the community. Accordingly, in determining what order the Tribunal might make, regard should primarily be had to that purpose[3] as well as the maintenance of proper professional standards.[4] As to that, the question of Mr Cullen’s fitness to remain a solicitor is to be ascertained as at the date of the hearing rather than at the date of the conduct the subject of the charges.[5]
[3] New South Wales Bar Association v Evatt (1968) 117 CLR 177, 183.
[4] Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149, [122].
[5] A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253.
Importantly, an order recommending the removal of the name of a practitioner from the local roll should only be made when the probability is that the practitioner is permanently unfit to practise.[6] This test of “probable permanent unfitness” is “a way of identifying that the character of the practitioner is so indelibly marked by the misconduct that he cannot be regarded as a fit and proper person to be upon the roll”.[7] As to this, the following observations made by Thomas JA (with whom McMurdo P and White J agreed) in Barristers’ Board v Darveniza are apposite:[8]
“Generally speaking the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system in which he or she practises.”
[6] Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320; Watts v Legal Services Commissioner [2016] QCA 224, [46].
[7] Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66, [57].
[8] Barristers’ Board v Darveniza [2000] QCA 253, [33].
Those principles explained, it has never been disputed that Mr Cullen failed to comply with part of his written undertaking. Nor was it disputed that the undertaking was designed to protect the public, other members of the profession and the Court and that Mr Cullen’s breach of it constituted conduct which was “likely to a material degree to bring the profession into disrepute”. Mr Cullen also acknowledged through his counsel that he “failed to properly and correctly explain his circumstances when submitting his [application for] renewal” of his practising certificate and “in correspondence with the QLS in June 2021 relating to this application”. The “correct explanation” was given by Mr Cullen, it was initially submitted, in later correspondence.[9] Mr Cullen advanced evidence on affidavit in February and June 2023 regarding these very matters and was cross-examined at the hearing at some length by counsel for the Commissioner at the hearing in August 2023. However, during the course of closing submissions it became clear that the Tribunal should first decide whether Mr Cullen’s explanation ought be accepted by the Tribunal as truthful. After all, the determination of that issue is essential before submissions may sensibly be continued regarding Mr Cullen’s fitness to practise and, associated with that, the making of submissions as to the appropriateness or otherwise of the disciplinary order to be made. That is the purpose of these reasons; to make findings about Mr Cullen’s explanation.
[9] His letter to the QLS dated 19 July 2021.
Background
Mr Cullen is an Australian legal practitioner, having been admitted to practice on 2 February 2015. He is 34 years of age. Following his admission, Mr Cullen worked as an employed solicitor at a series of three firms over a period of approximately two-and-a‑half years. In late 2017, he decided to commence practice on his own account as Cullen Lawyers. For that purpose, he obtained an unrestricted principal level practising certificate on, it seems, 2 January 2018 and he has been the legal practitioner director of Cullen Lawyers and the holder of a principal level practising certificate ever since.
On 23 September 2019, Mr Cullen was charged with possession of a small quantity of cocaine (the gross weight of the substance in which cocaine was detected was only 1.46 grams). He pleaded guilty to this offence in the Magistrates Court of Brisbane on 27 November 2019 and was ordered to perform 80 hours of unpaid community service work. No conviction was recorded. He completed his community service on 19 June 2020.
Subsequently, a discipline application was commenced against him by the Commissioner. Two charges were preferred; one relying on the conduct underlying his conviction and the other more broadly alleging he engaged in conduct on the day he was found in possession of the cocaine that was likely, to a material degree, to bring the profession into disrepute contrary to r 5.1.2 of the ASCR. On 30 October 2020, the application came on for hearing before the Tribunal with the then president of the Tribunal, Daubney J, presiding.
Amongst the material before the Tribunal was a report dated 13 October 2020 from Professor Freeman, a consultant psychologist who assessed Mr Cullen four days earlier. In that report, Professor Freeman observed:
“There does not appear to be any evidence that Mr Cullen has a recognised drug misuse or dependency problem, but rather, continues to maintain abstinence. More specifically, his psychosocial functioning (particularly his vocational capacity) has not been deleteriously affected by any type of drug misuse or associated dependency. Similarly, he reports intending to undergo urinalysis that confirms his abstinence from drug use. Future intermittent testing may prove to be further [sic] protective factor against relapse. However, Mr Cullen reported that he has experienced a greater level of benefit from engaging in the psychological consultations, and thus, periodic reviews of his mental health may prove more salutary.”
The Tribunal found Mr Cullen had engaged in unsatisfactory professional conduct in respect of both charges. Judgment was handed down on the same day. Mr Cullen was publicly reprimanded by the Tribunal and ordered to pay the Commissioner’s costs.
These orders were founded on an important written undertaking given by Mr Cullen that day to the Tribunal, that is to say:
“At the time Mr Cullen applies for renewal of his practising certificate in 2021 and 2022, he undertakes to provide supporting documentary evidence that he has as from 30 October 2020:
(a) maintained ongoing counselling at least quarterly with a registered psychologist or psychiatrist; and
(b) has provided urine samples clear of unlawful drugs on at least a quarterly basis through a pathology practice.”
It should be recorded parenthetically that, before the terms of the undertaking were worked out, Daubney J observed that “the more up-to-date thing is hair follicle testing rather than … urine testing”. Mr Cullen’s counsel agreed with that observation but made the point that this was “quite an expensive testing regime”. Instead, he foreshadowed fashioning an undertaking involving “quarterly urine analysis” and that was ultimately accepted by the Tribunal. Moreover, when doing so, the Tribunal observed that the requirements of the undertaking were:
“… not to be effectively imposed on the respondent by way of punishment; rather, they are supportive of him in his ongoing development as a member of the profession, and more importantly are designed to be protective of the public, his fellow professionals and the court in terms of their dealings with the respondent and his broader engagement in the profession.”
Furthermore, the Tribunal accepted that Mr Cullen’s undertaking:
“… obviates the necessity for the Tribunal to make orders which would have the effect of imposing conditions on the respondent’s practising certificates for the next couple of years.”
On 28 May 2021, Mr Cullen made application to the Queensland Law Society for the renewal of his 2021/2022 practising certificate. At the time of this application, he did not provide any supporting documentary evidence in compliance with paragraph (b), that is to say, his undertaking to provide urine samples clear of unlawful drugs on at least a quarterly basis. Given he applied for renewal on 28 May 2021, his undertaking required the provision of documentary evidence evidencing urine samples clear of unlawful drugs for two quarters, the first for the period from 1 November 2020 to 31 December 2020 and the second for the period from 1 January 2021 to 31 March 2021.
In that regard, it is admitted in Mr Cullen’s response to the subject application as well as in a statement of agreed facts filed on behalf of the parties for the purposes of this proceeding that Mr Cullen was unable to provide this evidence to the QLS and in fact only obtained one clear urine screen that was analysed only a couple of days before making his application for renewal. It therefore did not relate to either of the quarterly periods in question.
Mr Cullen’s explanation
Several versions have been advanced by, or on behalf of, Mr Cullen regarding his failure to comply with paragraph (b) of his undertaking. They are to be found in:
(a)his correspondence with the Queensland Law Society;
(b)his correspondence with the Legal Services Commission;
(c)an affidavit sworn by him on 20 February 2023;
(d)a further affidavit sworn by him on 20 June 2023; and
(e)the evidence he gave to the Tribunal on 14 August 2023.
Correspondence with the Queensland Law Society
On 14 June 2021, the QLS sent an email to Mr Cullen in which evidence of his compliance with paragraph (b) of his undertaking was requested. On 17 June 2021, following a discussion between Mr Cullen and the General Manager of Regulation at the QLS, Mr Smiley, Mr Cullen emailed a drug screen that was obtained from Sullivan Nicolaides Pathology. It related to a urine sample collected on 25 May 2021 and tested the next day. It was, for all intents and purposes, a clear result.
It should be noted that the general practitioner referral for this urine test was provided to Mr Cullen almost two months earlier, on 30 March 2021. Thus, had Mr Cullen acted on the referral by attending on the pathology practice to which he had been referred by the next day, the analysed results would have satisfied the evidentiary requirements of his undertaking for at least one of the two quarters in question, but that of course did not happen.
On 18 June 2021 Mr Smiley sent an email to Mr Cullen in terms reminding him of the requirements of his undertaking – i.e., to provide, as from 30 October 2020, evidence of quarterly drug screens – and noting that the drug screen provided by Mr Cullen was “from May 2021”. Mr Smiley requested “the screen results for quarters ending 31 December and 31 March please”.
Mr Cullen replied almost immediately in an email sent 11 minutes later. It was in these terms:
“I was unable to get a screen done in the December – March period with the Christmas period and COVID lock downs in January and March,
There were limited staff over that period as well as restrictions with only limited services available. The screens are not easily obtained and are expensive. I have to make an appointment with the doctor then a further appointment with the pathology centre.
Please take this explanation into consideration. I’m am [sic] able to provide more regular urine screens from now on if that assists.” [Emphasis in original].
On 23 June 2021, the QLS issued a notice to Mr Cullen pursuant to s 51 of the Act whereby submissions were sought as to whether he was a fit and proper person to continue to hold a practising certificate given his failure to comply with paragraph (b) of his undertaking. He was invited to make submissions in reply within 28 days.
Mr Cullen responded by letter dated 19 July 2021. This of course is the letter which his counsel submitted contained Mr Cullen’s “correct explanation”. The presently relevant portions of the letter were as follows:
“11.As regards my non-compliance with limb (b) and whilst my intention was always to comply with the requirements of my undertaking, I admit that I have not done so by failing to provide two urine screens, one for each of the October to December and January to March quarters respectively. I accept that my undertaking was my bond and that my failure to comply with the terms of my undertaking are a serious matter and may cause you to hold concerns about whether I am fit to practise and whether I am responsible, reliable or trustworthy. Whilst I can assure you that I am all of those things, I know that my actions may not reflect that fact.
12.I do not intend to trivialise the importance of my non-compliance. I recognise that the matter is serious, and to illustrate that fact I have paid up-front for fortnightly testing with Sullivan Nicolaides to 15 November 2021. Attached are documents supporting that fact and that I have, since the test dated 25 May 2021 that I submitted with my application for practising certificate renewal, performed three negative urine screens dated 28 June, 5 July and 12 July respectively. I remain abstinent of drug use and intend to continue that course. I understand that that is not the end of it, and that the breach with the undertaking itself is a serious matter.
13.Insofar as my breach of the undertaking in not providing urine screens quarterly before 25 May 2021, I offer no excuse, but proffer the following explanation.
14.At the hearing on 30 October, counsel for the Legal Services Commissioner, Ms Lester, raised, rather than quarterly urine screens, that I undertake a hair follicle test, which would cover the whole of the period rather than the sporadic nature of urine screens. My legal representatives, however, submitted for quarterly urine screens, and ultimately that was what was agreed upon. It was clear to me, however, that the Commissioner would have preferred a hair follicle test. I resolved then to perform a hair follicle test when I came to apply for my practising certificate. I had the thought that in doing so I would show how seriously I had taken the matter and how important my right to practise was to me.
15.With the relief that I was able to continue to practise, I commenced once again the busy life of running my small firm. That is not without its difficulties. I deal with a high volume of cases, some of which are traumatic in their nature …
16.On a personal note, I still deal with the ongoing grief and trauma of the unexpected passing of my brother which was a major trigger to the offence dealt with before the Brisbane Magistrates Court on 27 November 2019. Additionally, my 89-year-old grandmother fell quite ill over the Christmas period. I wanted to spend as much time with her as possible. I shut the office from 20 December to 20 January 2021 to attend to her. I was also going through IVF with my partner … On 5 January 2021, we were notified that everything was successful, and [we] are expecting a baby … on 10 August 2021.
17.I include these matters not to engender sympathy but to explain that the time in my life when I should have been providing those urine screens was a busy one. Nonetheless, I comforted myself that when I came to apply for my practising certificate I would be able to obtain a hair follicle test to exhibit that I had remained drug free for the whole period, and not just on two occasions three months apart. I understood that the purpose of my undertaking was to show my rehabilitation and that I was a reliable and responsible member of the profession and that the profession, my clients, the public and the Court could be assured that I was a fit and proper person to be performing the work of a member of the legal profession. I believed that I would be congratulated for, as it were, going one better than 3 monthly urine screens when I provided my hair follicle test.
18.I recognise now how foolish such a belief was and that I should just have complied with my own undertaking. It was not that I was attempting to hide any drug use, but that I honestly believed that a hair follicle test, as had been suggested by the Legal Services Commission at the hearing, would be seen as a step beyond what I had already undertaken to do.
19.Unfortunately, as it turns out “hair follicle” testing, does not, as I believed, just test the hair follicle. What is required for effective testing to show six months abstinence is seven centimetres of hair taken from the crown of the head, or so I was advised when I made inquiries with Mr Ian Schaumberg of Safework Laboratories when I went to arrange for the testing shortly prior to my practising certificate renewal. I have always kept my hair short about a zero to one blade in length which meant that I could not provide sufficient hair for a hair follicle test covering the relevant period. …
20.No doubt it was naïve of me to think you needed only the hair follicle for hair follicle testing, but I have never had any contact with hair follicle testing before, at least not at the level where I came to know that the actual strand of hair was required to conduct the test. I thought that it would be straightforward. It was not. I admit that I panicked then and did one urine screen test. I knew that it was insufficient, but I hoped that with the regular counselling that I had undertaken and the other things which had been going on in my life, that I would receive some leeway.
21.I recognise that my current situation is entirely of my own creation, but I hope that you will see that my non-compliance was out of a misguided but genuine attempt to do better than was expected of me. I hope also that the mechanisms I have put in place illustrate how genuine I am about my compliance into the future, and that my more regular drug screening sufficiently proves that I am in fact drug free.”
Attached to Mr Cullen’s letter was a copy of the supporting material to which he referred, along with a brace of other material which went to his compliance with paragraph (a) of the undertaking. Each of the four urine screens provided was clear. In addition, Mr Cullen advised he had obtained the agreement of a senior solicitor, Mr McGinness, the principal of McGinness and Associates, to monitor his “continued compliance” with the whole of the undertaking. Otherwise, Mr Cullen advised he had reduced his workload in recognition that it had “perhaps distracted [him] to some extent from focusing more effectively on what was required of” him by the undertaking.
On 21 July 2021, the QLS forwarded to Mr Cullen’s then solicitor, Mr Hannay, a copy of a submission that had been prepared internally for the assistance of the Executive Committee of the QLS in their consideration of Mr Cullen’s application for renewal of his practising certificate. Mr Hannay was invited to make submissions in reply, presumably so that they could be placed before the Executive Committee to also be considered prior to the decision about Mr Cullen’s practising certificate.
Subsequently, Mr McGinness started acting for Mr Cullen. He took up the invitation to make reply submissions. These were communicated by letter dated 11 August 2021 in which the following appears:
“Initially, the respondent attended Sullivan Nicolaides for a hair follicle test. He was told that they did not do hair follicle testing and gave him the number for Safework Laboratories. There is independent evidence by email and letter from Safework Laboratories confirming that the respondent did attend Safework Laboratories for the purpose of testing in this manner, prior to submitting his practising certificate application. This indicates that his intention was not to ignore the undertaking, but to obtain and provide evidence of his drug free status in a different way. It was then found that he did not have sufficient hair, as the email and letter from Safework Laboratories both show.
Upon finding that the hair test could not be performed, it is understandable that the respondent panicked and, on 26 May 2021, obtained a urine screen. By then of course, it was too little too late to satisfy this aspect of the QCAT undertaking.
The timeline referred to in Mr Schaumberg’s email also shows that the respondent remained committed to hair testing for weeks after his initial consultation, but he could not provide enough hair.
Had the respondent’s efforts to have his hair tested been successful, he would have demonstrated abstinence over a full period of 7 months, not simply on the occasions of quarterly testing. In that scenario, the breach of undertaking would have been no more than technical, and it is more likely than not that no action would have been taken. It is submitted that it is more important to assessment of character that the respondent has remained drug abstinent, than that he has not met the specified manner of proof of that abstinence.
It is accepted that the respondent should have simply kept the terms of the undertaking. His conduct reflects an error of judgment in that respect. But given that there appears to be no issue that he has been abstinent, his failure to provide the evidence in the specified manner would not justify refusal of a practising certificate on the basis of unfitness for practice.”
Mr McGinness concluded by submitting that if the Executive Committee was “not satisfied with the continuance of the respondent’s undertaking”, then “the appropriate course would be to impose conditions on the respondent’s practising certificate for the 2021 and 2022 years that the Tribunal would have imposed, absent the undertaking to do it”. As it turned out, that is what happened.
On 3 September 2021, the Executive Committee of the Council of the QLS resolved that Mr Cullen was a fit and proper person for the purposes of renewal of his unrestricted, principal practising certificate, which was then issued with conditions mirroring those that were the subject of his undertaking to the Tribunal and a further condition that he be mentored by Mr McGinness.
It is a matter of record that Mr Cullen complied with all conditions imposed by the QLS during the period of operation of his practising certificate and that, when he applied for renewal on 25 May 2022, it was renewed on 27 September 2022 with no conditions.
The email and letter from Safework Laboratories to which Mr McGinness referred deserves some emphasis. The email was forwarded by Mr Schaumberg on 28 July 2021. It confirmed Mr Cullen had been referred to Safework Laboratories after attending Sullivan Nicolaides. This was said to have occurred in “late May 2021”. It also confirmed that Mr Cullen “advised of his need to have hair analysis completed for a six-month timeline period” and that he was “advised that his (hair) length will need to be 7-8 cm with a mass to be collected of 60 mg in weight”. Mr Cullen then advised he “did not have the required hair length”. The letter was dated 27 July 2021 and was authored by Dr Tynan, a toxicologist employed by Safework Laboratories. It verified the facts confirmed in Mr Schaumberg’s email and, in particular, that Mr Cullen had “presented to the Safework Laboratories Murarrie site for hair drug testing to cover drug use over the previous six-month period”, and that his hair was “not long enough for practical sampling”.
Correspondence with the Legal Services Commission
It appears the Commission also became involved at some time in the first half of 2021. Mr Hannay forwarded a letter to them on 19 July 2021 which enclosed “Mr Cullen’s response”. It is likely this was in the same terms as Mr Cullen’s letter to the QLS of the same date, although that is not clear on the face of the material that is presently before the Tribunal. Be that as it may, Mr Edwards of the Commission forwarded a letter to Mr Hannay on 22 July 2021 in which he questioned what Mr Cullen had said by way of explanation regarding his failure to comply with the part of the written undertaking that related to drug testing. Mr Edwards wrote:
“If I understand the response, Mr Cullen essentially states that, notwithstanding the terms of the undertaking, he decided to ‘go further’ and have hair follicle testing conducted, but on attending a hair testing practice, was advised he did not have ‘enough’ hair for the testing to be conducted.
This seems rather different from the explanation Mr Cullen proffered to the QLS, which made no mention of these matters.
In his correspondence with the QLS, Mr Cullen referred to COVID-related lockdowns, and the difficulty and expense of testing. I note these matters were not mentioned in his response to the Commission.”
Mr McGinness, who was by then acting for Mr Cullen, responded to this letter on 11 August 2021, the same day on which he forwarded his letter of response to the QLS. Mr McGinness provided Mr Edwards with a copy of that letter to the QLS, along with the many attachments accompanying it. Further, in his letter to Mr Edwards, he relevantly asserted:
“There is no ‘discrepancy’ in Mr Cullen’s explanation of the circumstances in which he failed to obtain two urine tests. Mr Cullen decided to have hair testing undertaken with a view to demonstrating abstinence over the whole period. The personal and time pressure difficulties encountered in December 2020 and January 2021 were contextual to that decision.”
The February affidavit
Mr Cullen deposed to the following in the affidavit sworn by him on 20 February 2023:
“Hair Follicle Testing
28.What I failed to include in my email to the QLS on 18 June 2021 was that in December 2020 I made a decision to take a hair follicle test after March 2021 in lieu of the urine screen test, to show that I was clean of drugs for the December and March quarters. I also failed to explain, as outlined below, that in May 2021, prior to submitting my application for renewal of my practising certificate, I attempted unsuccessfully to have the hair follicle test, which meant that I did not have the evidence to submit concerning my drug free status.
29.At the time that I made this decision to take a hair follicle test, I had not undertaken any research regarding the length of hair required for a test.
30.At the QCAT hearing on 30 October 2020, drug testing was raised by Justice Daubney. It was proposed by His Honour that the parties adjourn to negotiate an undertaking.
31.Outside of court, the legal officer for the LSC, Ms Lester, proposed that rather than undertaking quarterly urine screens, I undertake a hair follicle test, to cover the whole period. My legal representatives, however, proposed quarterly urine screens. Ultimately that was agreed upon.
32.The LSC’s suggestion in this discussion for a hair follicle test gave me the idea to proceed down that path. I thought that in doing so I would show how seriously I had taken the matter. This was because such a test would show continuous drug abstinence over the whole of the relevant period.
33.I was not attempting to hide any drug use. I honestly believed that a hair follicle test, as had been suggested by the LSC, would be seen as a step beyond what I had already undertaken to do.
34.I understood that the purpose of my undertaking was to provide evidence of my rehabilitation and as such, that I was a reliable and responsible member of the profession. Further that the legal profession, my clients, the public and the Court could be assured that I was a fit and proper person to be performing the work of a member of the legal profession. I believed that I would be seen in a good light for, as it were, going one better than 3 monthly urine screens by taking a hair follicle test.
35.On or about 19 May 2021, I attended Sullivan Nicolaides for a hair follicle test. I was told they did not complete the testing. I was referred to Safework Laboratories.
36.On or about 20 May 2021, I called Safework Laboratories and spoke to Mr Ian Schaumberg. He advised me that to show six months abstinence, I would require a hair length taken from the crown of the head of 7-8cm with a mass of 60mg. I have always kept my hair short, about a zero to one blade in length, which meant that I could not provide sufficient hair for a test covering the relevant period. …
37.After this conversation with Mr Schaumberg I panicked, realising that a hair follicle test would be of limited value, and that I could not provide drug screens for the December and March quarters. I then did one urine screen test, dated 25 May 2021, which was submitted with my application.
38.I accept it was naïve of me not to just do the quarterly tests as per my undertaking, and that this was an error of judgment for which I am responsible.” [Emphasis in original].
The June affidavit
In his affidavit sworn on 20 June 2023, Mr Cullen deposed:
“Dealings with QLS
45.I accept I did not make a full and accurate disclosure of my circumstances on 18 June 2021. I am extremely remorseful for not responding to the QLS in a full and proper manner and not properly submitting the renewal application. I gave a full and correct account in my letter to QLS on 19 July 2021.
46.I did not mention the absence of drug screens in the renewal process in May 2021 as I was extremely stressed about the position I had put myself in. I wanted to try to rectify the situation by providing evidence of clean hair follicle testing. When I made inquiries with Safework Laboratories I realised I was not going to be able to get the required hair follicle to cover the December and March quarter.
47.From the time I found that I could not obtain a hair follicle test I was in a state of panic for myself, the practice, my employees and my family. I wanted to be able to provide correspondence to the QLS about this issue but rather than raise the problem, I stayed silent in the renewal application. I realise now, this was poor judgement not to mention anything about the issues in relation to hair follicle testing.
48.In hindsight, I see that ignoring mention of the required drug test was the worst decision I could have made at the time.
49.I regret not correctly explaining the full circumstances in correspondence to the QLS on 18 June 2021. I realise I should have taken the time to provide a full and correct account. I instead panicked and responded without proper thought.
50.In my correspondence of 19 July 2021 I said, amongst other things that my intention was always to comply with the requirement of my undertaking. I believe this has been misinterpreted by the applicant. I never lost sight of the undertaking, or of the need to provide proof of drug abstinence. I always intended to remain drug free (which was the underlying objective of the undertaking) and to provide proof of that abstinence.
51. I accept full responsibility for my failure to comply with the terms of the undertaking.” [Footnotes omitted].
Mr Cullen’s oral evidence
When Mr Cullen was called to give evidence at the hearing in August 2023, he confirmed the accuracy of his February and June 2023 affidavits before he was cross-examined by counsel for the Commission regarding his explanation.
The cross-examination covered a range of topics including the “numerous stressors” in Mr Cullen’s life at the time of his default and his subsequent, extensive efforts to regain an appropriate degree of control over his life and his work. He was then asked about paragraph 46 of his June 2023 affidavit and, in particular, the deposition that he “wanted to try to rectify the situation by providing evidence of clean hair follicle testing”. Mr Cullen was asked whether it was at that “particular point when [he] panicked and realised that [he] had not complied with [his] obligations to go down the road of a hair follicle test”, to which he replied that he “always intended to … go better with a hair follicle test”.
What followed was a series of questions (from counsel for the Commission and the Tribunal) about this proposition. Mr Cullen was asked when he formed that intention. He initially said this was “probably in early January” 2021, although it must be said that it was apparent when Mr Cullen gave that evidence (and like answers to similar questions) that he was unsure of the precise timing. Paragraph 14 of his letter to the QLS of 19 July 2021 was drawn to his attention. There he stated that at the time of the hearing before this Tribunal in October 2020 he “resolved then to perform a hair follicle test when [he] came to apply for [his] practising certificate”. Mr Cullen’s attention was also directed to paragraph 28 of his February 2023 affidavit where he deposed that “in December 2020 [he] made a decision to take a hair follicle test after March 2021 in lieu of the urine screen test to show that [he] was clean of drugs for the December and March quarters”.
Mr Cullen was cross-examined in various ways about these differences in recollection before there was this exchange with the Tribunal:
“But I’ll just ask you this, Mr Cullen. Just speaking for myself, I’m a little confused about your thinking about the hair follicle test. There’s discussion at the hearing?---Yes.
But that wasn’t a condition. At some point, you thought you’d get a hair follicle test, and at certainly one point when you’d missed getting the screening done, you thought, “If I got a hair follicle test, that’d cover the whole period”?---That’s so.
Okay. So is that when you first thought about getting a hair follicle test or was it earlier? So you’d already - - -?---I - - -
- - - missed two screenings, right?---I accept that, yes.
Okay. So was your thinking, “I’ll get a hair follicle test, and that’ll make up for missing the earlier screenings”?---Your Honour, my thinking was that I could get a hair follicle test, and it would – it would make up for the screenings. I had a lot of stressors in that period, and I’d mistakenly left it too long.
So that’s – so you missed the tests?---Yes. Two of them?---Yes.
And you thought, “Well, if I got a hair follicle screen, then that would cover those periods”?---Correct.
You thought?---And I would have complied with the undertaking.
No. The undertaking required you to get particular screens, and you hadn’t done that. Do you accept that?---Yes.
But you hoped to put evidence before the Society of the effect that you’d been abstinent through a hair follicle test?---Yes.”
As the cross-examination progressed Mr Cullen confirmed his understanding that strict compliance with the terms of the undertaking was required and that any change would be required to be notified to the QLS and/or the Tribunal. He also accepted that, on 27 January 2021, the QLS had emailed him in terms reminding him of his undertaking and inquiring why he had not complied with it. Similarly, on 31 January 2021 and 5 February 2021 he was communicating with the QLS, but raised nothing about performance of the undertaking.
Additionally, Mr Cullen agreed that he failed to act in a timely way on the referral from his general practitioner for urine tests, it having been obtained on 30 March 2021 but only acted on in late May 2021. He also accepted that the explanation he advanced to the QLS in his email of 18 June 2021 was false and born out of panic. More generally, Mr Cullen agreed that there were a number of inconsistencies in what he told the QLS and what he subsequently advanced to the Tribunal in his affidavit material.
In re-examination, Mr Cullen was taken back to the timing of his decision to pursue hair follicle testing. He said this this was “around the Christmas (2020) period” and agreed that when he went to Safework Laboratories in May 2021 to do so, this was with the “expectation to be able to have a negative test cover the timeframe in question”.
Findings
At the outset, it should be recorded that the Commissioner does not allege that the failure on the part of Mr Cullen to comply with the terms of his undertaking was motivated by a desire, for example, to conceal ongoing drug use. Quite to the contrary, the unchallenged evidence is that Mr Cullen has remained abstinent throughout.
However, what the Commissioner does allege is that Mr Cullen’s breach of the undertaking was deliberate and, for that reason, sufficient to constitute professional misconduct. Further, the Commissioner contended that there are “concerns with the integrity” of Mr Cullen’s explanation for breaching the undertaking and these reasons are of course concerned with the truthfulness of that explanation.
As to this, the evidence was revealing of two explanations – the one advanced by email by Mr Cullen to the QLS on 18 June 2021 which he admitted in evidence was false and the other being the version he gave to the QLS, the Commission and this Tribunal about his intention to pursue hair follicle testing (as a reason for not obtaining urine screens). The Commissioner submitted the Tribunal should find both were false.
For Mr Cullen, it was accepted of course that the June 2021 explanation was false but the state of panic which enveloped Mr Cullen at the time when he advanced it (and the reasons for that state) was emphasised. As to the hair follicle testing explanation, Mr Cullen’s counsel submitted that “it may be testing [Mr Cullen’s] memory too much to be able to pinpoint a moment in time when” he decided to pursue testing in that way as an alternative means of proving his abstinence. The uncontested feature that he did approach Safework Laboratories in May 2021 to do so – before both his application for renewal and his 18 June 2021 email – was significant in any event. Ultimately, it was submitted, the Tribunal should find that Mr Cullen at all material times had “a bone fide intent to obtain another form of proof”.
An allegation that Mr Cullen’s explanations were false is a serious accusation to level against a legal practitioner and that is especially so where it is alleged they were deliberately false. The onus is on the Commissioner to establish falsity and, in that respect, the Tribunal must consider not merely whether the Commissioner has made good the allegation on the balance of probabilities, the degree of satisfaction required varies according to the consequences for the legal practitioner of finding the allegation to be true.[10] The seriousness of the allegation in this case therefore means the degree of satisfaction required is high.
[10] Legal Profession Act 2007 (Qld), s 656C. See Briginshaw v Briginshaw (1938) 60 CLR 336; Adamson v Queensland Law Society Inc [1990] 1 Qd R 498, 504.
That made clear, by his own admission, the explanation advanced by Mr Cullen to the QLS by email dated 18 June 2021 was false. The circumstances under which he came to do that, however, require deeper analysis.
Mr Cullen’s account in that regard, along with the associated issues regarding the timing of, and reason for, his decision to pursue hair follicle testing has not always been coherent. Across the several versions he has given, there are inconsistencies on important matters. Taken together, his account over time is marked by a disorganised retelling of what the Tribunal finds must have involved a significant degree of reconstruction on his part. The different versions he offered as to the timing of his decision to pursue hair follicle testing in lieu of urine tests underscore that conclusion as does the observation previously made (at [38]) that Mr Cullen appeared unsure of the precise timing when giving evidence to the Tribunal. Indeed, it is probably for that reason that some of his evidence before the Tribunal was internally inconsistent. By way of example, in the exchange with the Tribunal extracted earlier (at [39]), Mr Cullen appeared to accept the proposition that he only decided on hair follicle testing after he neglected to obtain urine tests for the two quarters in question to “make up for the screenings” he missed. That would sit comfortably alongside what he deposed in paragraph 46 of his June 2023 affidavit to the effect that he “wanted to try and rectify the situation by providing evidence of clean hair follicle testing”. However, in subsequent answers to questions put to Mr Cullen in cross-examination it became unclear whether he did accept that proposition and, in the end, it was made plain that he did not when he affirmed during his re-examination that he decided to obtain a hair follicle test “around the Christmas (2020) period”.
Ordinarily such incompatibility between versions on a key feature would give cause to doubt Mr Cullen’s credit but, as has been touched on now more than once, that is more than likely the product of attempts at reconstruction rather than deliberate untruthfulness. Certainly, before such an adverse finding could be made, the Tribunal would require a high degree of satisfaction that Mr Cullen lied in his evidence on this point, but the Tribunal is not persuaded this was the case.
As to what occurred, the Tribunal accepts that, at the hearing in October 2020, the seed was planted in Mr Cullen’s mind that follicle hair testing would be a superior form of proof of his abstinence. However, that was not the method expressly undertaken by him and it is probable Mr Cullen did not give this different form of testing much further thought until after he neglected to obtain a urine test by the end of the first quarter under consideration, that is to say, by 31 December 2020. It is likely Mr Cullen was comforted by the thought that hair follicle testing would cover the period he missed as well as the next quarter and so he decided at this point in time to pursue that different form of testing, and for that reason. He did not decide to do so out of a desire to supply a better form of analysis than that which was the subject of his undertaking i.e., to “go one better”; he was motivated instead to seek hair follicle testing to remedy to some extent his already-existing default. That he expected such testing would reveal his abstinence over an extended period then became a key part of his thinking and, later, his explanation, but that feature alone was not the reason, at least initially, for Mr Cullen choosing to proceed down that path. Of course, what followed was yet another period of neglect punctuated only by his obtaining (quite inconsistently) a referral for urine testing from his general practitioner on 30 March 2021, but that too was not acted on until 25 May 2021. This was around the time when Mr Cullen approached Safework Laboratories to arrange for hair follicle analysis but learned, for the first time, this would not in his circumstances be possible. He proceeded with his application to the QLS for renewal of his 2021/2022 practising certificate on 28 May 2021 but concerningly failed to disclose his non-compliance with the relevant part of his undertaking, hoping instead that his default in that regard would go unnoticed. Then, when called out on that omission by Mr Smiley, Mr Cullen panicked in haste and responded by email on 18 June 2021 in a way that the Tribunal is satisfied to the high degree of satisfaction required was deliberately false, but that is something he is appropriately regretful, and remorseful, about.
It is the view of the Tribunal that Mr Cullen’s conduct (including his inaction) over the whole of the period in question, as serious as it is, should nonetheless be seen as the unfortunate product of the degree to which his life was in tumult rather than as necessarily revealing of a defect of character of the kind discussed in Barristers’ Board v Darveniza[11] and Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand.[12]
[11] [2000] QCA 253, [33].
[12] [2018] QCA 66, [57].
Next step
On the handing down of these reasons, directions will be made regarding the making of submissions to facilitate the final disposition of the application.
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