Legal Services Commissioner v Han - [2023] QCAT 310

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Han [2023] QCAT 310

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant)

v

BING HAN

(respondent)

APPLICATION NO/S:

OCR265-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 August 2023

HEARING DATE:

29 June 2023

HEARD AT:

Brisbane

DECISION OF:

Justice Brown

Assisted by:
Mr Geoffrey Sinclair, Practitioner Panel Member
Dr Julian Lamont, Lay Panel Member

ORDERS:

1.     It is declared that the charge is established and that the respondent’s conduct constitutes professional misconduct.

2.     The respondent be publicly reprimanded.

3.     The respondent be suspended from practice for a period of six months.

4.     The respondent be prohibited from holding a principal’s practising certificate for a period of two years after the suspension.

5.     The respondent complete the next available Queensland Law Society ethics referral course and provide evidence of its completion to the applicant.

6.     The respondent pay the applicant’s costs of the proceeding on the standard basis.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent was a party to proceedings in the District Court of Queensland which alleged that the respondent provided negligent legal advice – where the respondent, through his legal representatives in those proceedings, provided false and misleading information to his opponent that two file notes had been prepared contemporaneously to the two meetings which they documented – where the file notes were in fact created after the proceedings had issued – whether the respondent’s conduct constitutes professional misconduct or unsatisfactory professional conduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – GENERALLY – where the respondent was found to have engaged in professional misconduct – whether, amongst other sanctions, a suspension for a period of two years is an appropriate sanction

Legal Profession Act 2007 (Qld)

Council of the Queensland Law Society Incorporated v Whitman [2003] QCA 438
Jensen v Legal Services Commissioner [2017] QCA 189
Legal Services Commissioner v O’Reilly [2019] QCA 251
Legal Services Commissioner v Sturgeon [2019] QCAT 286
Mellifont v Queensland Law Society Incorporated [1981] 1 Qd R 17

Watts v Legal Services Commissioner [2016] QCA 224

APPEARANCES & REPRESENTATION:

Applicant:

V Deane of the Legal Services Commission

Respondent:

M Black instructed by Gilshenan & Luton Lawyers

REASONS FOR DECISION

This is an application under s 452 of the Legal Profession Act 2007 (Qld) (LPA) for the Tribunal to make disciplinary orders pursuant to s 456 of the LPA.
A single charge lies against the respondent, namely that on various dates between 10 May and 13 September 2019 the respondent, through his legal representative, provided false and misleading information to an opponent in ongoing proceedings in breach of the respondent’s paramount duty to the court and to the administration of justice.
The respondent does not contest the charge. The facts are agreed and set out in a Statement of Agreed Facts. The salient facts are set out below.

Background

At all material times, the…

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: [2023] QCAT 310
Decision Date

CaseChat Overview and Summary

The Legal Services Commissioner brought a disciplinary application against Bing Han, a lawyer, for professional misconduct. The sole charge was that Mr Han provided false and misleading information to an opponent in proceedings in the District Court of Queensland in breach of his paramount duty to the court and to the administration of justice. Mr Han admitted the charge. The Tribunal found the charge was established and that the conduct was properly characterised as professional misconduct. In determining an appropriate sanction, the Tribunal had regard to the seriousness of the breach, the respondent’s cooperation, his remorse, his efforts at rehabilitation, and his otherwise unblemished record. The Tribunal decided that a suspension of six months followed by a period of two years working as an employee solicitor was an appropriate sanction. The Tribunal ordered that Mr Han be publicly reprimanded, suspended from practice for six months, prohibited from holding a principal’s practising certificate for two years after the suspension, complete an ethics course, and pay costs.

Orders