Legal Services Commissioner v Kirin - [2024] QCAT 489

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Kirin [2024] QCAT 489

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant)

V

MILLS JOHN KIRIN

(respondent)

APPLICATION NO/S:

OCR271 of 2023

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

14 November 2024

HEARING DATE:

24 October 2024

HEARD AT:

Brisbane

DECISION OF:

Hon Duncan McMeekin KC, Judicial Member

Assisted by:
Mr John Sneddon
Ms Julie Cork

ORDERS:

1.     That the respondent’s conduct the subject of Charge 1 amounts to unsatisfactory professional conduct.

2.     That the respondent be publicly reprimanded;

3.     That the respondent pay a penalty of $2000 within 30 days;

4.     That the respondent be required to undertake specialist domestic violence training approved by the Applicant; and

5.     That the respondent pay the applicant’s costs of and incidental to this discipline application, such costs to be agreed or assessed on the standard basis in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent was engaged to act for a client in a matter under the Domestic and Family Violence Protection Act2012 (Qld) – where the respondent sent correspondence to the opposing solicitor acting in that matter – whether that correspondence was discourteous and that went beyond legitimate advocacy and was likely to embarrass or frustrate another person – whether the respondent’s conduct amounts to professional misconduct or unsatisfactory professional conduct – where parties dispute the pecuniary penalty amount – appropriate pecuniary penalty

Legal Profession Act 2007 (Qld) ss 418, 419, 452, 456, 462
Australian Solicitors’ Conduct Rules 2012 rr 21
Domestic and Family Violence Protection Act 2012 (Qld) s 3

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408
Legal Services Commissioner v Brown [2020] QCAT 423
Legal Services Commissioner v Bussa [2011] QCAT 388
Legal Services Commissioner v Cooper [2011] QCAT 209
Legal Services Commissioner v Ferguson [2021] QCAT 205
Legal Services Commissioner v Madden [2009] 1 Qd R 149
Legal Services Commissioner v Munt [2023] QCAT 479
Legal Services Commissioner v PRF [2023] QCAT 291
Legal Services Commissioner v Orchard [2012] QCAT 583
Legal Services Commissioner v SYG [2023] QCAT 401
Legal Services Commissioner v Winning [2008] LPT 13

Legal Services Commissioner v XBT [2018] QCAT 64

APPEARANCES & REPRESENTATION:

Applicant:

H Edwards instructed by Legal Services Commissioner

Respondent:

C McGee, of 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.
The respondent, Mills John Kirin, has been charged by the Legal Services Commissioner that:
On various dates between 22 February 2022 and 16 August 2022 [Mr Kirin] sent correspondence that was discourteous and that went beyond legitimate advocacy and was likely primarily designed…

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: [2024] QCAT 489
Decision Date: 14 November 2024

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Kirin, the Legal Services Commissioner brought a disciplinary action against the respondent, Mr Kirin, who was a solicitor admitted to practice in Tasmania. The Commissioner alleged that Mr Kirin had engaged in unsatisfactory professional conduct by sending discourteous and offensive correspondence to an opposing solicitor in a matter concerning domestic and family violence under the Domestic and Family Violence Protection Act 2012 (Qld). The Tribunal was tasked with determining whether Mr Kirin's conduct amounted to professional misconduct or unsatisfactory professional conduct, and if so, to decide on an appropriate sanction.

The Tribunal found that Mr Kirin's correspondence was indeed discourteous, offensive and thoughtless, and that his conduct went beyond legitimate advocacy. The Tribunal noted that Mr Kirin had no prior experience in domestic and family violence matters, which may have contributed to his insight into the inappropriateness of his comments. Given these factors, the Tribunal concluded that Mr Kirin's conduct amounted to unsatisfactory professional conduct, rather than professional misconduct. The Tribunal also considered the appropriate sanction, taking into account the need for personal and general deterrence, as well as various mitigating factors such as Mr Kirin's cooperation in the proceedings, his insight and remorse, and his steps towards self-improvement.

The Tribunal ultimately decided that Mr Kirin's conduct warranted a public reprimand, a pecuniary penalty of $2000, and a requirement to undertake specialist domestic violence training approved by the Commissioner. Additionally, Mr Kirin was ordered to pay the Commissioner's costs of and incidental to the disciplinary application. The Tribunal took into account Mr Kirin's age, his unblemished career, his modest income, and his temporary cessation from practice when determining the penalty and other sanctions.

Orders

Orders of the court

1. That the respondent’s conduct the subject of Charge 1 amounts to unsatisfactory professional conduct.

2. That the respondent be publicly reprimanded;

3. That the respondent pay a penalty of $2000 within 30 days;

4. That the respondent be required to undertake specialist domestic violence training approved by the Applicant; and

5. That the respondent pay the applicant’s costs of and incidental to this discipline application, such costs to be agreed or assessed on the standard basis in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

So far as the facts are relevant here we do not accept that we should take a different view of the characterisation of the conduct by reason that the area of law concerned related to allegations of domestic and family violence.Conclusion – unsatisfactory professional conduct Mr Kirin had a view that his comments here were expected in the practice in litigation involving commercial matters and the like, matters of which he had experience. The practitioners on this Tribunal do not share that experience, but whether true or not, his complete lack of prior experience in cases of allegations of domestic and family violence in this area of practice was admitted and evidently contributed to his insight into his discourteous, offensive and thoughtless comments. In our view the conduct here should be characterised as unsatisfactory professional conduct.Sanction We have no doubt that a pecuniary penalty is appropriate. It is plainly as a reminder to the profession that the conduct here is unacceptable and useful to achieve the aim not of punishment but to securing “the interests of the protection of the community from unsuitable practitioners”: Legal Services Commissioner v Madden [2009] 1 Qd R 149. The Commissioner submits that personal and general deterrence are relevant to the protection of the public and is particularly relevant in sanctioning Mr Kirin. Aggravating features were that Mr Kirin acted with apparent impunity in continuing such conduct, and, following complaint, in making threats in seeking the complaint be withdrawn. As mentioned, it is agreed that Mr Kirin should be subjected to being publicly reprimanded for his conduct. That of course is a significant sanction involving public shame and the probable impact on the practitioner’s future practice. It is in that context that we consider the remaining issue of the suitable size of the pecuniary penalty. Mr Kirin is 51 years old. He was admitted to the Supreme Court of Tasmania in 2004. He was a principal solicitor at the time of the conduct in question. He has worked in litigation, corporate finance, leveraged buy-outs, and international contractual fields. For 12 years Mr Kirin practised in Central and Eastern Europe and the United Kingdom, returning to Australia in 2018. Prior to the subject matter he had no experience in family law or domestic violence offences. He has now ceased practice at least temporarily. When in practice he enjoyed a very modest income. Mr Kirin had an unblemished career over a period of 20 years and has no disciplinary history. He has not been the subject of any complaints or further disciplinary action since the conduct the subject of the charge. Counsel submitted on Mr Kirin’s behalf that from the start of these proceedings, Mr Kirin “has acknowledged the inappropriateness of his actions, and his regret for his conduct in sending the correspondence”. There were several further matters that were urged in mitigation. Each matter urged was appropriate and justified a more lenient approach:(a)his co-operation in admitting the impugned conduct and not requiring witnesses to attend; (b)this was the respondent’s first domestic and family violence matter;(c)the respondent’s demonstrated insight and remorse, as outlined in his apology letter; (d)the steps he has taken by way of further education and self-improvement;(e)the correspondence was not sent directly to the aggrieved;(f)the correspondence was not in contravention of any protection order and therefore did not amount to any criminal offence;(g)the correspondence was private and was not disseminated to other person, practitioners or agencies.

Ratio Decidendi

Legal Principle Established

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