Legal Services Commissioner v O'Brien - [2025] QCAT 190

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v O’Brien [2025] QCAT 190

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant)

v

BENJAMIN JOSEPH O’BRIEN

(respondent)

APPLICATION NO:

OCR167-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 June 2025

HEARING DATE:

9 May 2025

HEARD AT:

Brisbane

DECISION OF:

Justice Williams

Assisted by:
Mr Geoffrey Sinclair, Practitioner Panel Member

Mr Keith Revell, Lay Panel Member

ORDERS:

1.     The Respondent’s conduct identified in respect of each of Charges 1, 2, 3 and 4 in the discipline application is proved and is found to constitute professional misconduct.

2.     The Respondent is publicly reprimanded.

3.     The Respondent pay a pecuniary penalty in the sum of $4,000 within three months of these orders being made.

4.     The Respondent successfully complete the next available QLS Remedial Ethics Course at his own expense and provide to the Applicant, within a month of having complete the course, evidence of his successful completion of the course.

5.     The Respondent pay the Applicant’s costs of and incidental to the discipline application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent failed to disclose traffic infringements when applying to renew his practicing certificate on two occasions – where the respondent falsely declared that he had not been subject to any suitability matters mentioned in ss 9 and 46 of the Legal Profession Act 2007 (Qld) on two occasions – where the respondent had a history of failing to disclose traffic offences and had previously been issued a practicing certificate on the condition that he undertake the Queensland Law Society Ethics Course because of the failure to disclose these offences – whether the respondent engaged in unsatisfactory professional conduct or professional misconduct – where the amount of a pecuniary penalty was in dispute

Australian Solicitors Conduct Rules 2012, r 5

Legal Profession Act 2007 (Qld), s 9, s 46, s 418, s 419, s 420, s 456, s 462

Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498, cited
Council of the Law Society of NSW v Nguyen [2010] NSWADT 128, considered
Heffernan v Law Society Northern Territory [2023] NTCA 10, cited
Legal Profession Board of Tasmania v Haque [2015] TASSC 5, considered
Legal Services Commissioner v Bradshaw [2009] QCA 126, cited
Legal Services Commissioner v Challen [2019] QCAT 273, cited
Legal Services Commissioner v Cruise [2019] QCAT 182, cited
Legal Services Commissioner v Laylee [2016] QCAT 237, cited
Legal Services Commissioner v Scott [2014] QCA 266, cited
Legal Services Commissioner v Telehus (Legal Practice) [2013] VCAT 2185, considered
Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409, cited

APPEARANCES & REPRESENTATION:

Applicant:

F Wood instructed by the Legal Services Commissioner

Respondent:

B Cohen of Bartley Cohen

REASONS FOR DECISION

This…

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: [2025] QCAT 190
Decision Date: 17 June 2025

CaseChat Overview and Summary

The Legal Services Commissioner brought proceedings against O'Brien for professional misconduct and unsatisfactory professional conduct. O'Brien failed to disclose traffic infringements when applying to renew his practicing certificate on two occasions. He also falsely declared that he had not been subject to any suitability matters mentioned in ss 9 and 46 of the Legal Profession Act 2007 (Qld). The court had to decide whether O'Brien engaged in unsatisfactory professional conduct or professional misconduct. The court found that O'Brien's conduct constituted professional misconduct and ordered a public reprimand, a pecuniary penalty, and completion of an ethics course. The court also ordered O'Brien to pay the Commissioner's costs of and incidental to the discipline application. The court found that O'Brien's conduct was egregious and demonstrated a lack of integrity, honesty, and trustworthiness. It was noted that O'Brien had a history of failing to disclose traffic offences and had previously been issued a practicing certificate on the condition that he undertake the Queensland Law Society Ethics Course because of the failure to disclose these offences. The court found that O'Brien's conduct was of a serious nature and warranted a public reprimand. The court also ordered O'Brien to pay a pecuniary penalty of $4,000 and to complete the next available QLS Remedial Ethics Course at his own expense. The court found that the amount of the pecuniary penalty was in dispute but ultimately ordered O'Brien to pay $4,000 within three months of the orders being made.

Orders

Orders of the court

1. The Respondent’s conduct identified in respect of each of Charges 1, 2, 3 and 4 in the discipline application is proved and is found to constitute professional misconduct.

2. The Respondent is publicly reprimanded.

3. The Respondent pay a pecuniary penalty in the sum of $4,000 within three months of these orders being made.

4. The Respondent successfully complete the next available QLS Remedial Ethics Course at his own expense and provide to the Applicant, within a month of having complete the course, evidence of his successful completion of the course.

5. The Respondent pay the Applicant’s costs of and incidental to the discipline application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 456 of the LP Act states:“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.(2)The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—(a) an order recommending that the name of the Australian legal practitioner be removed from the local roll;(b) an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period;(d) an order that—(i)imposes stated conditions on the practitioner’s practising certificate granted or to be issued under this Act; and(ii) imposes the conditions for a stated period; and(iii) specifies the time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed;(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner;(f) an order that no law practice in this jurisdiction may, for a period stated in the order of not more than 5 years—(i) employ or continue to employ the practitioner in a law practice in this jurisdiction; or(ii) employ or continue to employ the practitioner in this jurisdiction unless the conditions of employment are subject to conditions stated in the order.(3)The tribunal may, under this subsection, make 1 or more of the following—(a) an order recommending that the name of the Australian legal practitioner be removed under a corresponding law from an interstate roll;(b) an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled under a corresponding law;(c) an order recommending that an interstate practising certificate not be, under a corresponding law, granted to the practitioner until the end of a stated period;(d) an order recommending—(i) that stated conditions be imposed on the practitioner’s interstate practising certificate; and(ii) that the conditions be imposed for a stated period; and(iii) a stated time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed.(4)The tribunal may, under this subsection, make 1 or more of the following—(a) an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100,000;(b) a compensation order; (c) an order that the practitioner undertake and complete a stated course of further legal education;(d) an order that, for a stated period, the practitioner engage in legal practice under supervision as stated in the order;(e) an order that the practitioner do or refrain from doing something in connection with the practitioner engaging in legal practice;(f) an order that the practitioner stop accepting instructions as a public notary in relation to notarial services;(g) an order that engaging in legal practice by the practitioner is to be managed for a stated period in a stated way or subject to stated conditions;(h) an order that engaging in legal practice by the practitioner is to be subject to periodic inspection by a person nominated by the relevant regulatory authority for a stated period;(i) an order that the practitioner seek advice from a stated person in relation to the practitioner’s management of engaging in legal practice;(j) an order that the practitioner must not apply for a local practising certificate for a stated period.(5)To remove any doubt, it is declared that the tribunal may make any number of orders mentioned in any or all of subsections (2), (3) and (4).(6)Also, the tribunal may make ancillary orders, including an order for payment by the Australian legal practitioner of expenses associated with orders under subsection (4), as assessed in or under the order or as agreed.(7)The tribunal may find a person has engaged in unsatisfactory professional conduct even though the discipline application alleged professional misconduct.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.