Legal Services Commissioner v Lee - [2013] QCAT 447

CITATION:

Legal Services Commissioner v Lee [2013] QCAT 447

PARTIES:	Legal Services Commissioner (Applicant)
v
John William Lee (Respondent)

APPLICATION NUMBER:

OCR205-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers; the Panel met to consider the matter on 6 August 2013

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Assisted by:
Mr Douglas Murphy QC
Practitioner Panel Member
and
Ms Julie Cork
Lay Panel Member

DELIVERED ON:

27 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent’s application for a non-publication order is refused.

2. The Respondent be publicly reprimanded.

3. That the conditions imposed by the Bar Association of Queensland on the Respondent’s practising certificate:

a. requiring him to provide its Chief Executive a sworn statement that he has lodged each Business Activity Statement after it is due;

b. authorising his accountants to report to the Chief Executive any concerns they have about his ability to comply with his tax obligations; and

c. requiring him to report to it any incident of non-compliance and the steps he has taken to rectify any breach,

continue for a further three years from the date of this order.

4. The Respondent is ordered to pay a pecuniary penalty of $5,000, within 90 days of the date of this order.

5. The Respondent is ordered to pay the Applicant’s costs of and incidental to the disciplinary proceedings as agreed or, failing agreement, as assessed according to the Supreme Court scale of costs under the Uniform Civil Procedure Rules 1999.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE –UNSATISFACTORY PROFESSIONAL CONDUCT OR PROFESSIONAL MISCONDUCT – where the Respondent was convicted for failing to lodge income tax returns and Business Activity Statements between 1991 and 2009 – where the Respondent failed to give notice of his conviction to the Bar Association of Queensland – where s 420 of the Legal Profession Act 2007 (Qld) provides that a conviction of a tax offence is capable of constituting unsatisfactory professional conduct or professional misconduct – where the parties disagree about the proper characterisation of the Respondent’s conduct – whether the Respondent’s conduct amounts to unsatisfactory professional conduct or professional misconduct – whether a pecuniary penalty is appropriate in the circumstances

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PUBLICATION OF INFORMATION – where Respondent has applied for a non-publication order – where Applicant opposes application – where s 656D of the Legal Profession Act 2007 (Qld) provides that the Tribunal may make an order prohibiting the publication of information stated in the order that relates to the discipline application, the hearing or an order of the Tribunal – where the public interest ordinarily requires the publication of any disciplinary orders and findings by the Tribunal – whether a non-publication order is appropriate in the circumstances

Legal Profession Act 2004 (Qld), s 63(1), s 480
Legal Profession Act 2007 (Qld), s 418, s 419, s 420, s 472(1), s 472(2), s 473, s 656D
Queensland Civil and Administrative Tribunal Act

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: [2013] QCAT 447
Decision Date

CaseChat Overview and Summary

The Legal Services Commissioner brought a disciplinary proceeding against Mr John William Lee, a Queensland barrister, in the Queensland Civil and Administrative Tribunal. The proceeding was brought as a consequence of a number of convictions Mr Lee had obtained over a 19 year period for failing to lodge income tax returns and Business Activity Statements. Mr Lee had also failed to give notice of one of those convictions to the Bar Association of Queensland. The Commissioner sought a public reprimand, a pecuniary penalty and the continuation of certain conditions imposed by the Bar Association on Mr Lee’s practising certificate. Mr Lee opposed the proceeding and sought a non-publication order. The Tribunal refused Mr Lee’s application for a non-publication order. It concluded that the public interest in the transparency of the disciplinary process required the publication of its orders and findings. The Tribunal found that Mr Lee’s conduct amounted to professional misconduct in respect of each of the charges brought against him. It ordered that he be publicly reprimanded, that the conditions imposed by the Bar Association on his practising certificate continue for a further three years, that he pay a pecuniary penalty of $5,000 and that he pay the Commissioner’s costs.

Orders