QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: Legal Services Commissioner v Li [2023] QCAT 383 PARTIES: LEGAL SERVICES COMMISSIONER (applicant) v XIAOYU (LORRAINE) LI (respondent) APPLICATION NO/S: OCR206-22 MATTER TYPE: Occupational regulation matters DELIVERED ON: 3 October 2023 HEARING DATE: 7 September 2023 HEARD AT: Brisbane DECISION OF: Williams J ORDERS:
The Respondent’s Application is dismissed. The Tribunal will hear further from the parties in
respect of costs.CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the applicant alleges professional
misconduct and/or unsatisfactory professional conduct by the respondent in respect of two contraventions of an undertaking
given to the Queensland Law Society – where the respondent seeks various orders including striking out paragraphs of the discipline application and supporting affidavit filed on behalf
of the applicant (the ‘identified paragraphs’) – whether the Tribunal has power to strikeout part of the discipline application and supporting affidavit – whether the identified paragraphs should be struck out PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN
TRIBUNALS – where the respondent submits that the matters in the identified paragraphs are not relevant, are prejudicial without being probative and constitute an abuse of the
Tribunal’s process – where the respondent submits that it would be jurisdictional error for the Tribunal to consider matters in the identified paragraphs which go beyond the
matters charged in the disciplinary application – where the applicant submits that the matters set out in the identified paragraphs provide necessary context to understand the nature and seriousness of the subsequent alleged breach of the undertaking and are logically probative to the Tribunal’s task of characterising the respondent’s conduct – where the
Tribunal’s statutory task is to hear and determine the allegations in a discipline application – whether it would be jurisdictional error for the Tribunal to consider the matters in the identified paragraphs – whether there is any remaining basis to conclude the identified paragraphs should be struck out as frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process
453, s 456, s 462, s 656D
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s
3, s 4, s 6, s 7, s 10, s 28, s 47, s 62, s 64, s 66Legal Profession Act 2007 (Qld) s 9, s 46, s 418, s 419, s 452, s s 115
Broadbent v Medical Board of Australia [2019] QCA 139
Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138
Council of the Law Society (NSW) v Fisher [2021]
NSWCATOD 73
Cutbush v Team Maree Property Services (No 3) [2010]
QCATA 89
Health Ombudsman v Shemer (No 2) [2019] QCAT 54
J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10Karimbla Construction Services P/L v President of the Industrial Court of Qld & Ors [2014] QSC 56
Kirk v Industrial Court of (NSW) (2010) 239 CLR 531Langerak v State…
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- Case
- [2023] QCAT 383
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the QCAT had correctly applied the relevant provisions of the Legal Profession Act 2007 (LP Act) and the Australian Solicitors Conduct Rules 2012 (ASCR) in making its decision. The LSC argued that the QCAT had failed to properly consider certain "suitability matters" that were relevant to a determination of whether Mr Li was a fit and proper person to hold a practising certificate. The LSC also argued that Mr Li had breached rule 6.1 of the ASCR by failing to honour an undertaking he had given in the course of legal practice.
The court found that the QCAT had not erred in its decision, and that the orders sought by the LSC were not appropriate. The court held that while "suitability matters" may be relevant to a determination of whether a legal practitioner is a fit and proper person, they are not necessarily required to be considered in every case. The court also found that there was no evidence that Mr Li had breached rule 6.1 of the ASCR. The court noted that the QCAT had properly considered the relevant provisions of the LP Act and the ASCR in making its decision, and had not erred in law.
The court dismissed the application by the LSC and made no orders.
Orders
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