Legal Services Commissioner v Rowe - [2017] QCAT 85

CITATION:	Legal Services Commissioner v Rowe [2017] QCAT 85
PARTIES:	Legal Services Commissioner (Applicant)
v
Chad Everett Rowe (Respondent)
APPLICATION NUMBER:	OCR030-15

MATTER TYPE:

Occupational Regulation Matter

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody
Assisted by:
Dr John de Groot, Legal panel member
Dr Margaret Steinberg AM, Lay panel member

DELIVERED ON:

10 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The respondent’s name be removed from the local roll of solicitors.

2. The respondent pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld), in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY CONDUCT – where the respondent accepted the charges but argued that his mental illness excused that conduct or was a mitigating factor.

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the applicant filed a disciplinary application against the respondent, alleging 28 separate charges of professional misconduct and or unsatisfactory professional conduct – where the respondent was found guilty of professional misconduct by the Tribunal – where the tribunal has been unable to find in the circumstances a reasonable explanation for a persistent pattern of contrary conduct or how long his unfitness would last and remove his name from the roll of legal practitioners and costs ordered assessed on a standard basis

Australian Solicitors Conduct Rules 2012 (Qld), rr 5, 33

Legal Profession Act 2007 (Qld), ss 9, 268, 274, 418, 419, 443, 452, 453, 456, 462

Legal Profession (Solicitors) Rule 2007 (Qld), rr 1, 14, 16, 28

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 32

Uniform Civil Procedure Rules 1999 (Qld), Schedule 1

BRJ v Council of New South Wales Bar Association [2016] NSWSC 146

Chandra v Queensland Building and Construction Commission [2017] QCA 4

Quinn v Legal Services Commissioner [2016] QCA 354

Re: Maraj (a legal practitioner) (1995) 15 WAR 12

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The purpose of this on the papers hearing is to decide a discipline application under s 452 of the Legal Profession Act 2007 (Qld) (LPA).

The charges

The commission (or LSC) applies for orders against the practitioner in relation to eight categories of complaints of contrary conduct between 29 August 2011 and 29 May 2015. They are:
·Charges 1-5 – a complaint of a breach of the Legal Profession (Solicitors) Rule 2007 in unreasonably making unsubstantiated allegations about the practitioner’s former wife in court documents.

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: [2017] QCAT 85
Decision Date: 10 March 2017

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Rowe, the respondent, a legal practitioner, was the subject of disciplinary proceedings brought by the Legal Services Commissioner. The Commissioner filed a disciplinary application against the respondent, alleging 28 separate charges of professional misconduct and or unsatisfactory professional conduct. The Tribunal found the respondent guilty of professional misconduct and ordered the removal of his name from the roll of legal practitioners, as well as ordering the payment of costs assessed on a standard basis. The respondent accepted the charges but argued that his mental illness excused his conduct or was a mitigating factor.

The central legal issue for the Tribunal was whether the respondent's mental illness provided an excuse or a mitigating factor for his professional misconduct. The Tribunal examined the evidence presented regarding the respondent's mental health and considered the impact of his condition on his professional conduct. The Tribunal concluded that the respondent's mental illness did not excuse his conduct or provide a sufficient mitigating factor to justify a less severe penalty.

The Tribunal found that the respondent's persistent pattern of misconduct, coupled with his inability to provide a reasonable explanation for his actions, demonstrated a lack of fitness to practise law. The Tribunal determined that the respondent's mental illness did not adequately explain his conduct or mitigate the seriousness of his professional misconduct. The Tribunal also noted that the respondent's mental illness did not necessarily preclude him from practising law, but rather affected his ability to do so in a manner that complied with professional standards. The Tribunal concluded that the respondent's misconduct warranted the removal of his name from the roll of legal practitioners.

The Tribunal ordered that the respondent's name be removed from the local roll of solicitors and that the respondent pay the applicant's costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld), in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland. The Tribunal determined that the appropriate penalty for the respondent's professional misconduct was the removal of his practising rights, given the seriousness and persistence of his misconduct. The order reflects the Tribunal's conclusion that the respondent's conduct warranted the most severe penalty available under the relevant legislation.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The respondent’s name be removed from the local roll of solicitors.

2. The respondent pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld), in the manner that the costs would be assessed were the matter in 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

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Ratio Decidendi

Legal Principle Established

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