Legal Services Commissioner v Feeney - [2020] QCAT 122

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Feeney [2020] QCAT 122

PARTIES: LEGAL SERVICES COMMISSIONER

(applicant)

v

WILLIAM ROBERT FEENEY

(respondent)

APPLICATION NO/S:

OCR061-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

Assisted by:

Ms Julie Cork, Lay Panel Member

Ms Susan Forrest, Legal Panel Member

ORDERS:
1.   The matter is to be determined by the Tribunal on the basis of the documents, without the parties, their representatives or witnesses appearing at a hearing.

2.   It is declared that the respondent’s conduct, the subject of his conviction in the District Court of Queensland at Mackay on 23 August 2017, amounts to professional misconduct.

3.   It is recommended that the name of the respondent be removed from the local roll of practitioners.

4.   The respondent is to pay the applicant’s costs of and incidental to the application fixed at $20,000 as follows:

(a)    $10,000 to be paid within 7 days; and

(b)   $1,000 to be paid on the first day of each month commencing 1 July 2020 for 10 months.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the respondent was admitted to practice but did not hold a practising certificate – where the respondent was an ‘Australian lawyer’ within the meaning of s 5 of the Legal Profession Act 2007 (Qld) but not an ‘Australian legal practitioner’ as defined in s 6 – whether a discipline application can be brought against an ‘Australian lawyer’

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent was charged and convicted of dishonestly causing a risk of a loss to the Commonwealth under the Criminal Code Act 1995 (Cth) for not remitting PAYG tax withholdings to the Australian Taxation Office – where the respondent was sentenced to a term of imprisonment and ordered to pay reparation – where a discipline application was subsequently brought against the respondent by the applicant Commissioner pursuant to s 452 of the Legal Profession Act 2007 (Qld) – where the respondent admits the allegations in the discipline application and accepts that the conduct should be characterised as professional misconduct – where the respondent accepts that an order recommending his removal from the local roll should be made – where the parties have agreed on an order for costs – whether the respondent’s conduct should be characterised as professional misconduct – whether an order recommending the removal of the respondent’s name from the local roll should be made – whether an order for costs should be made in terms agreed by the parties

Criminal Code Act 1995 (Cth) Schedule s 135.1(5)

Legal Profession Act 2007 (Qld) s 5, s 6, s 417, s 419, s 452, s 456

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

Attorney-General of…

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 122
Decision Date: 19 May 2020

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Feeney, the Legal Services Commissioner sought disciplinary action against the respondent, who was admitted to practice as a lawyer in Queensland. The Commissioner alleged that the respondent's conduct amounted to professional misconduct and unsatisfactory professional conduct. The respondent did not dispute the allegations and conceded that his conduct warranted a recommendation for his removal from the local roll of practitioners. The case was heard by the Queensland Civil and Administrative Tribunal, which was required to determine whether the respondent's conduct constituted professional misconduct, whether his name should be removed from the local roll, and whether an order for costs should be made in the terms agreed by the parties.

The Tribunal had to consider whether the respondent's conviction for dishonestly causing a risk of a loss to the Commonwealth, under the Criminal Code Act 1995 (Cth), constituted professional misconduct. The respondent's failure to remit PAYG tax withholdings to the Australian Taxation Office led to his conviction and subsequent imprisonment. The Tribunal also needed to decide if the respondent's removal from the local roll was warranted, given his admission of the allegations and acceptance of the characterisation of his conduct as professional misconduct. Furthermore, the Tribunal was to determine whether the agreed order for costs, set at $20,000, should be made.

The Tribunal found that the respondent's conduct, as evidenced by his conviction, amounted to professional misconduct. The Tribunal concluded that the respondent's actions demonstrated a significant breach of professional standards and warranted his removal from the local roll of practitioners. Additionally, the Tribunal accepted the parties' agreement on the costs order, directing the respondent to pay $10,000 within 7 days and $1,000 monthly for 10 months commencing 1 July 2020. Consequently, the Tribunal declared the respondent's conduct to be professional misconduct, recommended his removal from the local roll, and ordered him to pay the specified costs.

Orders

Orders of the court

1. The matter is to be determined by the Tribunal on the basis of the documents, without the parties, their representatives or witnesses appearing at a hearing.

2. It is declared that the respondent’s conduct, the subject of his conviction in the District Court of Queensland at Mackay on 23 August 2017, amounts to professional misconduct.

3. It is recommended that the name of the respondent be removed from the local roll of practitioners.

4. The respondent is to pay the applicant’s costs of and incidental to the application fixed at $20,000 as follows:

(a) $10,000 to be paid within 7 days; and

(b) $1,000 to be paid on the first day of each month commencing 1 July 2020 for 10 months.

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 Feeney [2020] QCAT 122
PARTIES:	LEGAL SERVICES COMMISSIONER
(applicant)
v
WILLIAM ROBERT FEENEY
(respondent)
APPLICATION NO/S:	OCR061-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	19 May 2020
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Hon Peter Lyons QC, Judicial Member Assisted by: Ms Julie Cork, Lay Panel Member Ms Susan Forrest, Legal Panel Member
ORDERS:	1. The matter is to be determined by the Tribunal on the basis of the documents, without the parties, their representatives or witnesses appearing at a hearing. 2. It is declared that the respondent’s conduct, the subject of his conviction in the District Court of Queensland at Mackay on 23 August 2017, amounts to professional misconduct. 3. It is recommended that the name of the respondent be removed from the local roll of practitioners. 4. The respondent is to pay the applicant’s costs of and incidental to the application fixed at $20,000 as follows: (a) $10,000 to be paid within 7 days; and (b) $1,000 to be paid on the first day of each month commencing 1 July 2020 for 10 months.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the respondent was admitted to practice but did not hold a practising certificate – where the respondent was an ‘Australian lawyer’ within the meaning of s 5 of the Legal Profession Act 2007 (Qld) but not an ‘Australian legal practitioner’ as defined in s 6 – whether a discipline application can be brought against an ‘Australian lawyer’ PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent was charged and convicted of dishonestly causing a risk of a loss to the Commonwealth under the Criminal Code Act 1995 (Cth) for not remitting PAYG tax withholdings to the Australian Taxation Office – where the respondent was sentenced to a term of imprisonment and ordered to pay reparation – where a discipline application was subsequently brought against the respondent by the applicant Commissioner pursuant to s 452 of the Legal Profession Act 2007 (Qld) – where the respondent admits the allegations in the discipline application and accepts that the conduct should be characterised as professional misconduct – where the respondent accepts that an order recommending his removal from the local roll should be made – where the parties have agreed on an order for costs – whether the respondent’s conduct should be characterised as professional misconduct – whether an order recommending the removal of the respondent’s name from the local roll should be made – whether an order for costs should be made in terms agreed by the parties Criminal Code Act 1995 (Cth) Schedule s 135.1(5) Legal Profession Act 2007 (Qld) s 5, s 6, s 417, s 419, s 452, s 456 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Attorney-General of…