Legal Services Commissioner v Foster
[2015] QCAT 214
•10 June 2015
| CITATION: | Legal Services Commissioner v Foster [2015] QCAT 214 |
| PARTIES: | Legal Services Commissioner (Applicant/Appellant) |
| v | |
| Emily Louise Foster (Respondent) |
| APPLICATION NUMBER: | OCR195-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice DG Thomas, President Assisted by: Mrs Joanne Collins Dr Margaret Steinberg AM |
| DELIVERED ON: | 10 June 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to dismiss or strike out the disciplinary proceedings is dismissed. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – where Respondent has filed an application to strike out or dismiss the disciplinary proceedings on the basis of administrative error – where the Respondent has filed an application to strike out or dismiss the disciplinary proceedings on the basis of the Applicant’s delay under s 450 of the Legal Profession Act 2007 – where Respondent has filed an application to strike out or dismiss the disciplinary proceedings on the basis of s 476 of the Legal ProfessionAct 2007 – whether disciplinary proceedings are to be struck out or dismissed Legal Profession Act 2007 (Qld) ss 450, 476 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
Background
The Legal Services Commissioner has brought five charges against Ms Emily Foster concerning allegations involving provision of a false academic record, making false statements to a prospective employer in the course of an application for employment and making a false statement to the Legal Services Commissioner.
Ms Foster intends to defend those proceedings and has, in that context, sought an order that the proceedings be dismissed on a summary basis.
Discussion
Whilst the submissions filed on behalf of Ms Foster do not specifically refer to the relevant provisions of the QCAT Act, the provision dealing with summary dismissal is s 47, which allows the Tribunal to dismiss or strike out proceedings, or part of proceedings, if the Tribunal considers a proceeding or part of a proceeding is:
a)frivolous, vexatious or misconceived; or
b)lacking in substance; or
c)otherwise an abuse of process.
The submissions filed on behalf of Ms Foster outline a number of bases which will be discussed, in turn, in these reasons.
Administrative error
In this section of the submissions, there is a commentary as to the background circumstances which lead to the charges being made by the Legal Services Commissioner. The commentary asserts reasons why the charges will be unsuccessful.
The circumstances raised are matters which would be dealt with and taken into account during the consideration of the charges at a hearing. They are not matters which demonstrate, on a summary basis, that the proceeding is frivolous, vexatious or misconceived, or lacking in substance or otherwise an abuse of process.
Duty of the Commissioner to efficiently and expeditiously deal with the matter
The submissions filed on behalf of Ms Foster refer to the requirement in s 450 of the Legal Profession Act 2007 (Qld) (‘Legal Profession Act’) that the Commissioner deal with complaints as efficiently and expeditiously as is practicable.
The submissions refer to the date from which the matter was officially bought to the attention of Ms Foster (namely, 13 June 2012), note that Ms Foster has provided full cooperation and promptly responded to all requests, and then refer to a communication which the Legal Services Commissioner forwarded on 1 May 2013 which indicated:
“Each year we seek feedback from the people we have been in communication with regarding complaints lodged with us, from both complainants and respondents. You are receiving this message because within the last 12 months a complaint against you has been closed and we are seeking your feedback on the complaint handling process.”
The solicitors for Ms Foster responded to this email on 27 May 2013 observing that “our client thanks you for the finalisation of the matter and we note that the matter is at an end”.[1]
[1]Submissions filed on behalf of Ms Foster on 16 December 2013, exhibit 3.
The applicant responded by way of a facsimile of 29 May 2013 indicating that the matter was proceeding to prosecution.
In the submissions filed on behalf of Ms Foster it is suggested that for “natural justice to be seen to be done would require a further complaint to be made before any disciplinary action should be taken”.[2]
[2]Ibid, paragraph 27.
The Legal Services Commissioner adds to this sequence of communications the fact that on 26 March 2013 a letter was forwarded to Ms Foster which stated:[3]
“I refer to the above respondent (Emily Foster) and advise that this matter has been referred to the Commissioner’s prosecutors for disciplinary action. The previous submissions made on Ms Foster’s behalf had not convinced the Commissioner that dismissing the complaint would serve the public interest.”
[3]Outline of argument on behalf of the Commissioner filed 21 February 2014, paragraph 10.
The Legal Services Commissioner submits that, by no reasonable reading of the email dated 1 May 2013 could it be construed as formal notification that the Commission did not intend to pursue disciplinary proceedings against the practitioner.[4]
[4]Ibid, paragraph 12.
The email communication forwarded by the Commissioner on 1 May 2013 was unfortunate. The Commissioner may be aware of the difference between a complaint and a prosecution (which seems to be the distinction being made in the Commissioner’s submissions) but general members of the public or even legal practitioners are unlikely to be aware of such a fine distinction. Such a person could easily misunderstand the current stage of the complaint process or investigation.
Ms Foster is understandably upset about having received such an email.
However, the receipt of such a communication does not lead to the conclusion that there is a lack of natural justice.
Generally speaking, the right to natural justice carries with it the right to a fair hearing without bias. In the context of a fair hearing, a person must be given notice of the case and be given a fair opportunity to answer the case put, as well as being given the opportunity to present a case.
The forwarding of the email of 1 May 2013 does not breach the requirements of natural justice.
Respondent’s health
The submissions filed on behalf of Ms Foster referred to Ms Foster’s health condition and to the fact that, according to specialist medical advice, the existence of the disciplinary proceedings have had (and will continue to have) a detrimental effect on Ms Foster’s mental health. Also, were the proceedings to conclude, it is submitted that it is likely Ms Foster’s mental health would improve.[5]
[5]Submissions filed on behalf of Ms Foster on 16 December 2013, paragraphs 35-46.
The submissions filed on behalf of Ms Foster refer to s 476 of the Legal Profession Act, which states that “disciplinary action taken against a person because of infirmity, injury or mental or physical illness is not to be recorded in the disciplinary register or otherwise publicised under this part”.
The submissions continue that, “according to the professional opinions provided by the respondent’s medical team in regards to her psychological and physical conditions, they are of the view that s 476 of the Act is indeed applicable in this matter”.[6]
[6]Ibid paragraph 48.
The question of whether s 476 applies is, of course, a legal, not a medical question. Whether s 476 applies is not otherwise addressed in the submissions.
As is obvious from the words of s 476, it applies only to disciplinary action “taken against a person because of infirmity, injury or mental or physical illness”. This action was not instituted by the Legal Services Commissioner because of infirmity, injury or medical or physical illness. Therefore, s 476 does not apply.
Furthermore, as a basis upon which it is asserted that the proceedings should be dismissed or struck out, s 476 has no application. The consequence of the application of s 476 is not to record the disciplinary action in the discipline register – the application of the section does not allow or contemplate dismissing or striking out of proceedings.
The public interest test
In this section, the submissions filed on behalf of Ms Foster refer to the possibility that there might be more cost efficient (and equally effective) ways to protect the interests of the public, and the reputation of the profession, than by disciplining an errant practitioner in the expectation the practitioner will be punished for his or her conduct.[7]
[7]Ibid paragraph 54.
In terms of the way in which Ms Foster believes that the Commissioner should exercise the public interest discretion, paragraph 55 refers to a number of factors which might be taken into account. The list includes many factors which are often taken into account in deciding on the sanction which should be imposed in a legal disciplinary matter.
The factors outlined are not relevant to the dismissing or striking out of a proceeding under s 47 of the QCAT Act.
Conclusion
None of the matters outlined in the submission filed on behalf of Ms Foster suggest that the proceedings are frivolous, vexatious, misconceived or lacking in substance.
Some of the matters raised in the submissions are likely to be traversed in the course of this matter and relevant to the final determination.
The Legal Services Commissioner is an independent statutory office established under the Legal Profession Act which, amongst other objects, promotes, monitors and enforces appropriate standards of conduct in the legal profession. In its independent role, it is the decision of the Legal Services Commissioner as to whether matters which are bought to the attention of the Legal Services Commission are prosecuted through the Queensland Civil and Administrative Tribunal. The Queensland Civil and Administrative Tribunal is the forum for these proceedings, which are conducted pursuant to the provisions of the QCAT Act.
In this case, the Legal Services Commissioner decided, after investigation, to issue proceedings. That decision is one taken by the Commissioner in its discretion, subject to the requirements of the Legal Profession Act. Under its Act, the Queensland Civil and Administrative Tribunal must act fairly and according to the substantial merits of the case and, in conducting proceedings, observe the rules of natural justice.[8]
[8]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28.
The matters raised in the submissions filed on behalf of Ms Foster are matters which will, no doubt, be the subject of argument in the proceedings which have been brought by the Legal Services Commissioner. However, they do not give rise to any basis upon which the proceedings can be dismissed or struck out pursuant to s 47 of the QCAT Act. Therefore, the application is dismissed.
0
0
0