Legal Services Commissioner v Madden - [2008] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION:

Legal Services Commissioner v Madden [2008] QCA 52

PARTIES:

LEGAL SERVICES COMMISSIONER
(respondent)
v
JAMES XAVIER MADDEN
(applicant/appellant)

FILE NO/S:

Appeal No 1782 of 2008
BS No 1119 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for stay of execution

ORIGINATING COURT:

Legal Practice Tribunal

DELIVERED ON:

5 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2008

JUDGES:

Fraser JA

ORDER:

Upon the undertaking of the appellant:

1.    Not to undertake any legal work, including having contact with clients in his professional capacity

2.    To step aside from the day-to-day conduct of his practice and not play any active role in the practice but to remain as principal in name only pending the determination of this appeal

3.    To use his best endeavours to cause his existing staff and any additional staff engaged pending the determination of the appeal to take over the conduct of all files on a day-to-day basis under the supervision of John Marshall Davies pending determination of this appeal

4.    To use his best endeavours to cause John Marshall Davies to undertake the steps set out in paragraphs 11 to 14 of Mr Davies’ affidavit filed 3 March 2008 and to cause his staff to cooperate in that

The order of the Court is that:

1.    The enforcement of order 1 of the Legal Practice Tribunal made on 8th February 2008 be stayed until determination of this appeal

2.    The appellant be released from his undertaking given to the Legal Practice Tribunal on
8 February 2008

3.    The appellant cause notice of the order of the Legal Practice Tribunal and of this order, including the undertakings given and upon which it is conditioned, to all active clients of the practice pending determination of the appeal

4.    There be liberty to apply on two business days notice

5.    The costs of and incidental to this application be costs
in the appeal

CATCHWORDS:

PROFESSION AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – APPEALS

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – WHEN GRANTED – where the appellant was found to have committed professional misconduct – where the appellant’s name was struck from the roll of practitioners – where the respondent conceded there were arguable grounds of appeal – where the appellant demonstrated that he would suffer severe prejudice if a stay were not granted – where the appellant offered extensive undertakings – where the appeal would be expedited within two months – whether in the circumstances the stay should be granted – examination of the relevant considerations to be taken into account in assessing whether a stay should be granted or refused

Cahill v The Law Society of New South Wales (1988) 13 NSWLR; [1987] 1 NSWCA 444, cited
Croney v Nand [1999] 2 Qd R 342; [1998] QCA 367, cited
Legal Services Commissioner v Baker No 1 [2006] 2 Qd R 107; [2005] QCA 482, followed
New…

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: [2008] QCA 52
Decision Date: 5 March 2008

CaseChat Overview and Summary

The case of Legal Services Commissioner v Madden involved a complaint against the appellant, a legal practitioner, regarding his conduct. The Legal Practice Tribunal in Queensland found the appellant to have committed professional misconduct and subsequently removed his name from the roll of practitioners. The appellant sought an appeal and applied for a stay of enforcement of the Tribunal's order pending the appeal. The central legal issues were whether the appeal had arguable grounds and if the appellant would suffer severe prejudice without a stay, given the respondent's concession on these points. The appellant had also provided extensive undertakings and committed to an expedited appeal process.

The Court considered the relevant factors for granting a stay, including the arguable merits of the appeal, the likelihood of prejudice to the appellant if the stay was not granted, and the extent of the appellant's undertakings. The Court noted that the appellant would suffer significant prejudice if the stay was not granted, as he would be unable to practice law, potentially causing harm to his clients and his business. The Court also considered the appellant's extensive undertakings, including refraining from legal work, stepping aside from the practice, and ensuring staff took over the day-to-day conduct of the practice under supervision. Given these factors, the Court decided to grant the stay.

The orders of the Court included a stay on the enforcement of the Tribunal's order, the release of the appellant from his earlier undertaking, and the requirement for the appellant to notify his clients of the Tribunal's order and the Court's decision. The appellant was also directed to ensure his staff took over the conduct of all files and cooperate with the supervisor. The Court further granted liberty to apply on short notice and allocated costs of the application to the appellant.

Orders

Orders of the court

Upon the undertaking of the appellant:

1. Not to undertake any legal work, including having contact with clients in his professional capacity

2. To step aside from the day-to-day conduct of his practice and not play any active role in the practice but to remain as principal in name only pending the determination of this appeal

3. To use his best endeavours to cause his existing staff and any additional staff engaged pending the determination of the appeal to take over the conduct of all files on a day-to-day basis under the supervision of John Marshall Davies pending determination of this appeal

4. To use his best endeavours to cause John Marshall Davies to undertake the steps set out in paragraphs 11 to 14 of Mr Davies’ affidavit filed 3 March 2008 and to cause his staff to cooperate in that

The order of the Court is that:

1. The enforcement of order 1 of the Legal Practice Tribunal made on 8th February 2008 be stayed until determination of this appeal

2. The appellant be released from his undertaking given to the Legal Practice Tribunal on

8 February 2008

3. The appellant cause notice of the order of the Legal Practice Tribunal and of this order, including the undertakings given and upon which it is conditioned, to all active clients of the practice pending determination of the appeal

4. There be liberty to apply on two business days notice

5. The costs of and incidental to this application be costs

in the appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Madden [2008] QCA 52
PARTIES:	LEGAL SERVICES COMMISSIONER (respondent) v JAMES XAVIER MADDEN (applicant/appellant)
FILE NO/S:	Appeal No 1782 of 2008 BS No 1119 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for stay of execution
ORIGINATING COURT:	Legal Practice Tribunal
DELIVERED ON:	5 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2008
JUDGES:	Fraser JA
ORDER:	Upon the undertaking of the appellant: 1. Not to undertake any legal work, including having contact with clients in his professional capacity 2. To step aside from the day-to-day conduct of his practice and not play any active role in the practice but to remain as principal in name only pending the determination of this appeal 3. To use his best endeavours to cause his existing staff and any additional staff engaged pending the determination of the appeal to take over the conduct of all files on a day-to-day basis under the supervision of John Marshall Davies pending determination of this appeal 4. To use his best endeavours to cause John Marshall Davies to undertake the steps set out in paragraphs 11 to 14 of Mr Davies’ affidavit filed 3 March 2008 and to cause his staff to cooperate in that The order of the Court is that: 1. The enforcement of order 1 of the Legal Practice Tribunal made on 8th February 2008 be stayed until determination of this appeal 2. The appellant be released from his undertaking given to the Legal Practice Tribunal on 8 February 2008 3. The appellant cause notice of the order of the Legal Practice Tribunal and of this order, including the undertakings given and upon which it is conditioned, to all active clients of the practice pending determination of the appeal 4. There be liberty to apply on two business days notice 5. The costs of and incidental to this application be costs in the appeal
CATCHWORDS:	PROFESSION AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – APPEALS APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – WHEN GRANTED – where the appellant was found to have committed professional misconduct – where the appellant’s name was struck from the roll of practitioners – where the respondent conceded there were arguable grounds of appeal – where the appellant demonstrated that he would suffer severe prejudice if a stay were not granted – where the appellant offered extensive undertakings – where the appeal would be expedited within two months – whether in the circumstances the stay should be granted – examination of the relevant considerations to be taken into account in assessing whether a stay should be granted or refused Cahill v The Law Society of New South Wales (1988) 13 NSWLR; [1987] 1 NSWCA 444, cited Croney v Nand [1999] 2 Qd R 342; [1998] QCA 367, cited Legal Services Commissioner v Baker No 1 [2006] 2 Qd R 107; [2005] QCA 482, followed New…