Legal Services Commissioner v Ferguson - [2021] QCAT 205

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Ferguson [2021] QCAT 205

PARTIES: LEGAL SERVICES COMMISSIONER

(applicant)

V

KENNETH IAN FERGUSON

(respondent)

APPLICATION NO/S:

OCR102-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 July 2021

HEARING DATE:

12 February 2021

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:
Mr Geoffrey Sinclair
Ms Patrice McKay

ORDERS:

1.   There is a finding that the Respondent engaged in professional misconduct.

2.   The Respondent is publicly reprimanded.

3.   The Respondent not be granted a practising certificate for a period of three years from 5 November 2019.

4.   During the balance of that three year period, the Respondent shall continue to attend psychiatric consultations at least once every six months.

5.   Following the expiration of the said three year period, any application by the Respondent for a practising certificate must be accompanied by:

(a)     a copy of these reasons; and

(b)     a report on his mental condition and its effect on his ability to engage in legal practice, prepared by an independent practising psychiatrist who has been provided with a copy of these reasons, with such report to be prepared not earlier than six months prior to the date upon which the Respondent makes any such application.

6.   The Respondent’s second application for a practising certificate after the expiration of the said three year period must be accompanied by a report on his mental condition and its effect on his ability to engage in legal practice, prepared by an independent practising psychiatrist who has been provided with a copy of these reasons, with such report to be prepared not earlier than six months before the date upon which the Respondent makes that application.

7.   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 respondent convicted of serious offences involving child exploitation material – where respondent pleaded guilty and sentenced to 18 months’ imprisonment, suspended – where applicant filed a discipline application in the Tribunal – where respondent has admitted to all allegations in that application – where respondent’s practising certificate was cancelled – where respondent accepts there should be a finding of professional misconduct – where the Tribunal is required to make finding on sanction – where respondent has demonstrated insight and remorse for offending – where respondent has cooperated fully with the Tribunal – where respondent has engaged in rehabilitative treatment – whether the Tribunal should impose a public reprimand – whether any further orders are necessary or warranted

Legal Profession Act 2007 (Qld), s 9, s 68, s 419, s 420, s 456, s 462

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

Legal Services Board v McGrath (No 2) [2010] VSC 332
Legal Services Commissioner v CBD [2012]…

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: [2021] QCAT 205
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal considered an application by the Legal Services Commissioner against Kenneth Ian Ferguson, a legal practitioner, in relation to Ferguson's convictions for serious offences involving child exploitation material. Ferguson pleaded guilty and was sentenced to 18 months' imprisonment, suspended. The Commissioner filed a discipline application against Ferguson, alleging his convictions constituted professional misconduct or unsatisfactory professional conduct. Ferguson admitted all allegations. The Tribunal found Ferguson engaged in professional misconduct, and imposed sanctions including a public reprimand, a three-year suspension from practising, ongoing psychiatric treatment during the suspension, and requirements for psychiatric reports before applying for a practising certificate after the suspension. The Tribunal also ordered Ferguson to pay the Commissioner's costs. The key issues were characterising Ferguson's conduct, determining an appropriate sanction that protected the public while recognising Ferguson's rehabilitation efforts, and weighing mitigating factors against the gravity of the offending. The Tribunal balanced these considerations in imposing the orders made.

The Tribunal considered the nature of Ferguson's offending conduct, which occurred outside his legal practice. While serious criminal conduct by a legal practitioner raises concerns, the Tribunal found Ferguson had demonstrated insight, remorse and had undertaken extensive rehabilitation. The Tribunal concluded a three-year suspension, public reprimand and requirements for psychiatric reports before re-applying for a practising certificate were appropriate sanctions that protected the public while recognising Ferguson's efforts to reform. The Tribunal balanced mitigating factors, such as Ferguson's otherwise unblemished record and clear evidence of rehabilitation, against the seriousness of his criminal offending in imposing the orders made.

Orders