Legal Services Commissioner v Fellows - [2017] QCAT 337

CITATION:

Legal Services Commissioner v Fellows [2017] QCAT 337

PARTIES:	Legal Services Commissioner (Applicant)
v
Michael Arthur Fellows (Respondent)

APPLICATION NUMBER:

OCR027-14

MATTER TYPE:	Occupational Regulation Matters
HEARING DATE:	On the papers

HEARD AT:

Brisbane

DECISION OF:

The Hon. Justice Martin Burns
Judicial Member

Assisted by:

Mr Thomas Bradley QC
Practitioner Panel Member

Dr Margaret Steinberg AM
Lay Panel Member

DELIVERED ON:

6 October 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal, being satisfied that the respondent, Michael Arthur Fellows, engaged in professional misconduct, makes the following orders:

1. The respondent is publicly reprimanded;

2. The respondent is ordered to pay:

(a) a pecuniary penalty in the sum of $6,000; and

(b) the applicant’s costs of the application fixed in the sum $4,000;

within 42 days.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where the respondent was charged and convicted of various tax offences in 2001, 2006 and 2011 – where the respondent pleaded guilty to each such offence in the Magistrates Court at Townsville and was fined – where application for disciplinary orders against the respondent was subsequently brought by the applicant Commissioner pursuant to s 452 of the Legal Profession Act 2007 (Qld) – where three charges were preferred against the respondent by which it was alleged that he had engaged in unsatisfactory professional conduct or professional misconduct – where the conduct underlying the convictions and about which the charges were concerned consisted of omissions occurring over a period in excess of 12 years and across the successive disciplinary regimes established by the Queensland Law Society Act 1952 (Qld), the Legal Profession Act 2004 (Qld) and the Legal Profession Act 2007 (Qld) – whether the respondent engaged in unsatisfactory professional conduct or professional misconduct – whether disciplinary orders should be made pursuant to s 456 of the Legal Profession Act 2007 (Qld) – whether the respondent should be ordered to pay the Commissioner’s costs of the application

Queensland Law Society Act 1952 (Qld), s 3B, s 6A
Legal Profession Act 2004 (Qld), s 418, s 419, s 420
Legal Profession Act 2007 (Qld), s 244, s 245, s 246, s 456, s 462, s 724
Taxation Administration Act 1953 (Cth), s 8C

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, followed
Gee v General Medical Council [1987] 1 WLR 564, cited
In the matter of an application for admission as a legal practitioner by MCF [2015] QCA 154, cited
Johnson v Miller (1937) 59 CLR 467, cited
Legal Services Commissioner v Cain [2009] LPT 19, discussed
Legal Services Commissioner v Donnelly [2010] QCAT 569, discussed
Legal Services Commissioner v Hewlett [2008] 2 Qd R 292, discussed
Legal Services Commissioner v Laurie [2011] QCAT 335, discussed
Legal Services Commissioner v Lee [2013] QCAT 447, discussed
R v General Medical Council, Ex parte Gee [1986] 1 WLR 226, cited
R v L; ex parte Attorney-General for Queensland

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: [2017] QCAT 337
Decision Date: 6 October 2017

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Fellows, the Legal Services Tribunal examined disciplinary proceedings against Michael Arthur Fellows, a legal practitioner. The dispute arose following Fellows' convictions for various tax offences in 2001, 2006, and 2011. Each conviction resulted from pleas of guilty in the Magistrates Court at Townsville, where Fellows was fined. The Legal Services Commissioner subsequently brought an application for disciplinary orders against Fellows, alleging that he had engaged in unsatisfactory professional conduct or professional misconduct. The underlying conduct pertained to tax omissions that spanned over 12 years and occurred under different regulatory regimes.

The primary legal issues before the Tribunal were whether Fellows' conduct constituted unsatisfactory professional conduct or professional misconduct, and if so, what disciplinary orders should be imposed under the Legal Profession Act 2007 (Qld). The Tribunal had to determine the nature of the misconduct and the appropriate sanctions to address the serious breaches of professional and ethical standards by Fellows. Given the length and recurrence of the tax offences, the Tribunal had to consider the gravity of the misconduct and its implications for the legal profession.

The Tribunal concluded that Fellows' conduct amounted to professional misconduct due to the seriousness and repetitive nature of the tax offences. The Tribunal found that the misconduct was significant and warranted public reprimand and financial penalties. Accordingly, the Tribunal ordered Fellows to be publicly reprimanded and to pay a pecuniary penalty of $6,000, along with the Commissioner's costs of $4,000, within 42 days. The decision underscores the importance of upholding professional standards and the consequences faced by legal practitioners who engage in repeated breaches of tax laws.

Orders

Orders of the court

The Tribunal, being satisfied that the respondent, Michael Arthur Fellows, engaged in professional misconduct, makes the following orders:

1. The respondent is publicly reprimanded;

2. The respondent is ordered to pay:

(a) a pecuniary penalty in the sum of $6,000; and

(b) the applicant’s costs of the application fixed in the sum $4,000;

within 42 days.

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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