Legal Services Commissioner v Merkin
[2017] QCAT 440
•6 December 2017
CITATION: | Legal Services Commissioner v Merkin [2017] QCAT 440 |
PARTIES: | Legal Services Commissioner |
| v | |
| Patricia Sandra Merkin (Respondent) | |
APPLICATION NUMBER: | OCR154-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Hon J B Thomas, Judicial Member Ms Patrice McKay |
DELIVERED ON: | 6 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application to strike out is dismissed. 2. That the respondent Patricia Sandra Merkin pay the applicant Commissioner’s costs of the application to strike out to be assessed and paid at a time to be specified at the completion of the hearing of this discipline application. |
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the Legal Services Commissioner commenced a disciplinary proceeding against the respondent practitioner – where the Commissioner was required by s 449 of the Legal Profession Act 2007 (Qld) to keep a record of any decision made about a complaint or investigation matter – whether the Commissioner complied with s 449 of the Legal Profession Act 2007 (Qld) – whether the Commissioner was obliged to provide the respondent practitioner with a record of its decision under s 449 – whether the Commissioner is precluded from proceeding further against the respondent practitioner - whether Commissioner required to provide record of decision to start proceedings and reasons therefor to practitioner – whether compliance with s 449 is a jurisdictional requirement of bringing disciplinary proceedings under s 452 Menon v Council of the Law Society of New South Wales [2016] NSWCA 1322 distinguished Legal Profession Act 2007, s 435, s 436, |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Jurisdiction
This is an application by a respondent legal practitioner (“Ms Merkin”) to strike out a disciplinary proceeding brought against her by the Legal Services Commissioner (“the Commissioner”).
The present Tribunal has been constituted under ss 598 and 599 of the Legal Profession Act 2007 (“LPA”) to deal with the disciplinary application that is brought by the Commissioner under s 452(1)(a) and 456 of that Act. It has express power under s 460 to deal with interlocutory matters.
Ms Merkin’s application alleges that the Commissioner’s disciplinary proceeding is “infected with jurisdictional error, is a nullity and ought to be dismissed”.[1] The alleged error of the Commissioner is said to be non-compliance with the requirements of s 449 of the LPA. If those allegations are substantiated, the principal proceedings could be struck out under s 47(1) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). Nothing in the enabling act (the LPA) for a case of this kind modifies the application of ss 47 and 48 of the QCAT Act.
[1]Respondent’s submissions, dated 14 June 2017, paragraph 24.
Issues
The essential questions are whether in the lead up to these proceedings the Commissioner failed to comply with the requirements of s 449 of the LPA, and, if so, whether the Commissioner is thereby precluded from proceeding further with the disciplinary application against Ms Merkin.
Factual Background
At material times, Ms Merkin was a practising barrister. On two separate occasions her conduct as a barrister caused concern to the Full Court of the Family Court, and in each case the relevant Court caused copies of its reasons for judgment to be forwarded to the Bar Association of Queensland (“the BAQ”) to take whatever action was considered appropriate.
The first of these matters (“Carpenter”) involved conduct by her on 20 September 2013, and the second (“Kamano”) on 2 May 2015.
Both matters came to the attention of the Commissioner. In respect of the Carpenter matter, the BAQ was authorised as the investigating entity under s 435 of the LPA. The BAQ conducted an investigation, and on 19 January 2015 reported to the Commissioner recommending that charges be brought. Copies of the report, which contained draft charges, were provided to the Commissioner and to Ms Merkin.
On 8 April 2015, the Commissioner notified Ms Merkin of the investigation report and of further possible steps to be taken by him, noted her submissions to the BAQ and invited her to make any further submissions to him.
Charges 1 and 2 in the Commissioner's application relate to Ms Merkin’s conduct in the Carpenter matter.
The second matter, Kamano, was subsequently brought to the Commissioner’s notice and was investigated separately by the Commissioner under s 435 of the LPA. That matter is the subject of charge 3.
The Commissioner gave Ms Merkin notice of both investigations and the opportunity to make submissions in compliance with s 437 of the LPA through letters dated 8 April 2015 (re Carpenter) and 15 December 2015 (re Kamano).
No failure is alleged in respect of s 437 concerning either the Carpenter or Kamano matters.
Subsequently Ms Merkin retained a solicitor who on 24 March 2017 requested that he be furnished with a statement of reasons for bringing the disciplinary application in compliance with s 499 (which was a mistaken reference to s 449).
The main allegation maintained on Ms Merkin's behalf is that s 449 of the LPA obliged the Commissioner to keep and to provide her with his decision and reasons for the decision about a complaint or an investigation matter, and that he failed to do so.
The contention of the Commissioner was that he did keep a record of the relevant decision and reasons therefore, and that s 449 does not in any event mandate that the record or reasons be provided to any party or person.
The correspondence and the evidence shows that the Commissioner caused an internal record dated 25 August 2015 to be made, titled "record of decision", containing his decision to start disciplinary proceedings against Ms Merkin in respect of the Carpenter matter under s 447 of the LPA. It also contains his reasons for that decision, although it is contended for Ms Merkin that they are inadequate.
In the course of correspondence, the Commissioner provided that document to Ms Merkin's solicitor while denying any obligation to do so.
Discussion
Chapter 4 of the LPA (ss 416 – 492) deals with “complaints and discipline”, and within that chapter, Part 4 (ss 428 – 439) deals with “complaints”.
Complaints may be made to the Commissioner, and the Commissioner must investigate them. A complaint may be investigated directly by the Commissioner (s 436) or may be referred to a regulatory authority such as the BAQ or the Queensland Law Society (s 435).
The investigative power includes power to require the practitioner to give a full explanation of the matter being investigated (s 443(1)(a)).
In all cases, s 437 requires certain details of the complaint and investigation to be given to the practitioner against whom the complaint has been made, and the practitioner must be given the opportunity to make submissions on his or her behalf. The Commissioner or regulatory authority must consider such submissions before deciding whether to make a discipline application in that matter (s 438(3)).
No irregularity is alleged to have occurred under s 437 or 438 or in any part of the investigative process.
The alleged irregularity is that the Commissioner failed to do something that was required to be done by s 449 in relation to his decision to start this proceeding against Ms Merkin.
Part 7 of Chapter 4 (ss 447 – 449) contains the sections with which the present case is directly concerned. They state:-
447 Decision of commissioner to start proceeding under ch 4
As the commissioner considers appropriate in relation to a complaint or investigation matter that has been or continues to be investigated, other than a complaint or investigation matter about the conduct of an unlawful operator, the commissioner may start a proceeding under this chapter before a disciplinary body.
448 Dismissal of complaint
(1) The commissioner may dismiss the complaint or investigation matter if satisfied that –
(a) there is no reasonable likelihood of a finding by a disciplinary body of –
(i)for an Australian legal practitioner – either unsatisfactory professional conduct or professional misconduct; or
(ii)for a law practice employee – misconduct in relation to the relevant practice; or
(b) it is in the public interest to do so.
(2) The commissioner must give the respondent and any complainant written notice about the commissioner’s decision to dismiss the complaint or investigation matter.
449 Record of decision
The commissioner must cause a record of his or her decision about a complaint or an investigation matter, together with reasons for the decision, to be kept for each complaint or investigation matter dealt with under this part.
Plainly, the “decision” of which the Commissioner is required by s 449 to make a record is the Commissioner’s decision under s 447 to start a proceeding under Chapter 4.
Section 447 gives the Commissioner an untrammelled power (“as the Commissioner considers appropriate”) to start such a proceeding. Within the present disciplinary system, it may be likened to a decision to prosecute.
On its face, s 449 requires only the making of a record of the decision together with reasons. There is no requirement that it be sent to any person or party.
Counsel for the Commissioner submitted that the requirement may be seen as imposing some intellectual rigour on the decision making, and that the section pointedly stops short of requiring that the reasons be furnished to anyone. It simply requires that they be kept.
Section 449 may be contrasted with s 448, which expressly requires written notice of a Commissioner's decision to summarily dismiss a complaint to be given to the complainant and to the practitioner.
It would be surprising if the Act required the Commissioner to provide reasons to the parties for every step in the administrative process that would led to a disciplinary proceeding. One would expect the occasions where such a step was considered to be necessary by the legislature to be expressly mentioned or specified.
There is no such specification in s 449.
It is worthy of note that there is a separate provision, s 451, which obliges the Commissioner to provide certain details to a complainant about the way a complaint is dealt with. Inter alia, the Commissioner must provide the complainant with a copy of any discipline application made because of the complaint. That section contains no reference to the record that the Commissioner is obliged to make under s 449, and in any event, no similar provision exists in s 451 or elsewhere in favour of a prospective respondent.
It was contended for Ms Merkin that s 451(d) (sic) (presumably s 451(2)(d)) implies that "when a decision is made these must include the reasons." However, s 451 is concerned with the subject of keeping a complainant informed about the way a complaint is dealt with, and in any event, it contains no such implication.
The scheme of the Act seems to be that s 449 obliges an internal record to be made to record the step by which the Commissioner decides to go ahead with a disciplinary application; but it does not contemplate this as a necessary step inter parties.
The consequences of noncompliance with these internal requirements is not specified and the question is hypothetical in the present case where it does not appear that those requirements have been breached.
Strict compliance with the requirements of s 449 is not made a jurisdictional prerequisite to the bringing of disciplinary proceedings against a practitioner. It may be that a breach of those requirements would amount to a breach of statutory duty that could ground some claim in civil liability, but the best interpretation of s 449 would seem to be that suggested by Mr Rice QC, namely an attempt to impose some intellectual rigour on the decision making and to discourage perfunctory prosecution.
The evidence does not reveal any breach by the Commissioner of the requirements of s 449 in either matter. Further, strict compliance with the procedural specifications of s 449 is not in my view a jurisdictional prerequisite to the bringing of disciplinary proceedings against a practitioner.
Ms Merkin’s solicitor submitted in the alternative:
a) that s 158 of the QCAT Act imposes a duty on the Commissioner to provide a written statement of reasons for the decision;
b) that the Commissioner did not do so;
c) that this is a jurisdictional error and an error on the face of the record; and
d) that “such an error will ground orders to remove the purported legal consequences of an administrative decision”.[2]
[2]Citing Menon v Council of the Law Society of New South Wales [2016] NSWCA 1322 at [60].
The answer to this is that s 158 of the QCAT Act does not apply to the present proceedings. The obligations under that section only exist in respect of “reviewable decisions” and are for the benefit of “a person who may apply to the Tribunal for a review of a reviewable decision”.[3]
[3]QCAT Act, s 158.
The LPA confers no right of review in respect of any decision mentioned in Part 7 of Chapter 4 of the LPA (i.e. ss 447 – 449) and no jurisdiction exists in QCAT to review decisions of that kind under its review jurisdiction conferred by ss 17 – 24 of the QCAT Act.
The case of Menon[4] was cited on Ms Merkin’s behalf. In that case, judicial review was sought in the Supreme Court of a decision of the Council of the Law Society of New South Wales to institute disciplinary proceedings against a practitioner in the New South Wales Civil and Administrative Tribunal. The review was allowed with consequential orders setting aside the commencement of proceedings in the Tribunal against Menon. The decision of Fagan J was to the effect that the recording and issuing of adequate reasons was a condition precedent to the making of a valid decision to institute proceedings, and that it was a jurisdictional requirement of the disciplinary proceeding. However, in contrast with the LPA in this state, the applicable New South Wales legislation consisted of the "provisions of the old legislation" which contained express provisions[5] entitling the practitioner to a statement of reasons in relation to a decision to commence proceedings. The case of Menon is therefore distinguishable and of little assistance in resolving the proper interpretation of s 449 of the LPA.
[4]Menon v Council of the Law Society of New South Wales [2016] NSWCA 1322.
[5]These provisions are set out at paragraph [28] of Menon.
Since there is no requirement in the LPA that the Commissioner provide reasons to the practitioner for a decision to commence a discipline application, there is no occasion to consider the adequacy of the reasons in the record kept by the Commissioner. However, I may say that I see no reason why a Commissioner’s concurrence with and adoption of the reasoning contained in an adequate investigative report such as that of the BAQ in the present case could not constitute adequate reason for a decision to start a proceeding.
There is a clear distinction between reasons sufficient to justify commencing a disciplinary proceeding and reasons that would justify a finding that the charges are established to the required standard, and that they amount to unsatisfactory professional conduct or to professional misconduct.
The principal proceedings in this matter seek a determination in QCAT’s original disciplinary jurisdiction of an application made by the Commissioner under s 452 of the LPA. The practitioner’s rights in relation to the proceeding that has been commenced are to defend the charges on the merits.
Ms Merkin's application also cites ss 36 and 40 of the Public Interest Disclosure Act 2010 (Qld) as a ground for striking out, but did not press this in submissions, and I cannot see any basis upon which those sections could apply to her conduct in the Family Court or the bringing of the present proceedings.
In summary, none of the bases upon which a dismissal or striking out of the application could be justified under s 47 of the QCAT Act have been made out. The relevant right of Ms Merkin is to defend the application on the merits.
Costs
In the event of dismissal of the present application by Ms Merkin, the Commissioner seeks an order for costs of the application.
The Commissioner has a special costs advantage under s 462(1) when a finding is made that the practitioner has engaged in prescribed conduct. However, no such finding has been made at this point. The applicable provision at this stage of proceedings is s 462(3), which empowers the Tribunal to make an order for costs against a practitioner when it makes an interlocutory order under s 460.
It would seem that the combination of provisions in relation to costs in s 462 of the LPA is sufficient to displace the general provisions in the QCAT Act, which favour the position that each party usually bears its own costs. The power given by s 462(3) of the LPA should therefore be exercised in what might be described as the ordinary way in which a Court might approach such a situation.
Ms Merkin’s application has not advanced the litigation and has resulted in costs being thrown away. The costs should therefore be the Commissioner’s in any event. However the ultimate merits of the litigation are not yet known. The appropriate order at this stage will be that the costs of the application to strike out be the applicant Commissioner's costs in the cause, and that unless agreed upon that they be assessed and paid by the respondent at a time to be specified at the completion of this discipline application.
Orders
1. The application to strike out is dismissed.
2. That the respondent Patricia Sandra Merkin pay the applicant Commissioner’s costs of the application to strike out to be assessed and paid at a time to be specified at the completion of the hearing of this discipline application.
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