Legal Services Commissioner v Li - [2023] QCAT 383

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 66

Legal 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 10
Karimbla 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 531
Langerak v State…

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 383
Decision Date

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Li, the Legal Services Commissioner (LSC) sought a review of a decision made by the Queensland Civil and Administrative Tribunal (QCAT) in relation to the conduct of a legal practitioner, Mr Li. The LSC argued that Mr Li had engaged in unsatisfactory professional conduct and professional misconduct, and sought a range of orders including a fine and suspension from practice. The court was required to determine whether the QCAT had erred in its decision and whether the orders sought by the LSC were appropriate.

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 456(1) of the LP Act provides: “456 Decisions of tribunal about an Australian legal practitioner (1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.” (underlining added) Subsections (2) to (6) of s 456 identify the range of orders that may be made following a finding of unsatisfactory professional conduct or professional misconduct. Section 418 of the LP Act defines unsatisfactory professional conduct as follows: “418 Meaning of unsatisfactory professional conduct Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.” Section 419 of the LPA defines professional misconduct as follows: “419 Meaning of professional misconduct (1) Professional misconduct includes— Section 419(1)(b) and (2) raise “suitability matters” which in turn raises ss 9(1) and 46(2) of the LP Act. Further, s 115(3) of the QCAT Rules provides: “115 Making a discipline application … (3) A discipline application must state particulars of the alleged unsatisfactory professional conduct or professional misconduct of the person to whom the application relates. …” In light of these provisions, the LSC submits: In respect of the suitability matters raised by s 419(2) LP Act, it has been recognised that they may be relevant but regard to them is not necessarily required. Muir JA, with whom Wilson AJA and Applegarth J agreed, stated in Legal Services Commissioner v CBD [2012] QCA 69 at [20]: “Section 419(2) does not require that regard be had to ‘suitability matters’ in all circumstances in which it is being considered whether a legal practitioner is ‘a fit and proper person’. Nevertheless, a consideration of ‘suitability matters’ will normally be relevant to such a determination …”. Rule 6.1 of the Australian Solicitors Conduct Rules 2012 (ASCR) also relevantly provides: “A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction.” Consideration of a contravention of rule 6.1: Further, the LSC addresses the issue that the Identified Paragraphs raise matters in the particulars. The LSC submits: The LSC also contends that the Respondent unduly narrows the LSC’s case against the Respondent and does so without proper regard to the relevant provisions of the LP Act. The Respondent’s characterisation of the case against the Respondent fails to take into account that matters relevant to a finding of professional misconduct would include the Respondent’s past conduct as a legal practitioner and any disciplinary sanctions.

Ratio Decidendi

Legal Principle Established

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