Legal Services Commissioner v Singh

[2012] QCAT 181

CITATION: Legal Services Commissioner v Singh [2012] QCAT 181

PARTIES:	Legal Services Commissioner (Applicant)
v
Abhay Kumar Singh (Respondent)

APPLICATION NUMBER: OCR204-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: 17 February 2012

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 30 April 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Declare that the discipline application should not be permanently stayed on the grounds that it constitutes an abuse of process or offends the principle of double jeopardy.

2.    List the matter for a directions hearing in Brisbane at a time and date to be advised by QCAT. 

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – ABUSE OF PROCESS – DOUBLE JEOPARDY – where the Respondent faces disciplinary proceedings arising out of his conviction for attempting to pervert the course of justice in Fiji – where the Respondent completed the sentence imposed for the offence in Fiji and has been disciplined for the offence in that country – where the conduct of which the Respondent was found guilty in Fiji is the same conduct alleged in the discipline application – where the Respondent submits that any further proceedings on the same facts would offend the principle of double jeopardy – where the Respondent submits that any further litigation in Australia relying upon the same facts constitutes an abuse of process – whether the proceedings before the Tribunal should be allowed to proceed

Legal Profession Act2007, ss 460, 598, 599
Queensland Criminal Code, s 16

R v Carroll (2002) 213 CLR 635
Walton v Gardiner (1993) 177 CLR 378

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Legal Services Commissioner: Ms S Lane of Counsel

RESPONDENT: Mr Singh in person

REASONS FOR DECISION

1. Mr Singh is an Australian legal practitioner.  He was also, in the past, admitted to practice in Fiji.  The Commissioner has brought disciplinary proceedings against him arising out of his conviction there for one count of attempting to pervert the course of justice in 2003.  He has challenged this Tribunal’s jurisdiction, and his exposure to the proceedings, on a number of grounds and he and the Commissioner have asked for those grounds to be determined before the matter proceeds.

2. Mr Singh’s objections have already been before the Tribunal twice: Legal Services Commissioner v Singh [2011] QCAT 448, and Legal Services Commissioner v Singh (No 2) [2011] QCAT 580.

3. (The first decision noted that although the Legal Profession Act2007 requires that, when QCAT ultimately hears and decides a discipline application of the kind brought here, the Tribunal is to be comprised of a Supreme Court Judge, a Practitioner Panel Member and a Lay Panel Member, the Act also provides that a ‘disciplinary body’ may make an interlocutory or interim order before making its final decision and that phrase is defined to include the Tribunal, i.e. QCAT[1].)

   [1]        Legal Profession Act2007, ss 460, 598 and 599.

4. The three charges brought against Mr Singh arise from conduct associated with the conviction in Fiji: an alleged failure on his part concerning his obligations under the Legal Profession Act2007 to give notice of that conviction within 7 days of its occurrence, or provide an explanation within 28 days why (despite the conviction) he continued to be a fit and proper person to hold a local practising certificate; and, his alleged failure to disclose the conviction when he applied for renewal of his 2007-08 restricted employee practicing certificate from the Queensland Law Society.

5. At the time of the first decision I understood that, following a compulsory conference before QCAT’s Deputy President her Honour Judge Fleur Kingham on 29 August 2011, Mr Singh had filed submissions in the Tribunal indicating he contested all these charges on a variety of grounds including the lack, in QCAT, of the necessary jurisdiction; unreasonable delay on the part of the Commissioner; and, double jeopardy.  As I understood the Deputy President’s report after the compulsory conference, however, it was only the question of jurisdiction which the parties wish to have determined on a preliminary basis.  For the reasons set out in the first decision I concluded that QCAT had jurisdiction, and listed the matter for directions.

6. As it subsequently transpired, however, Mr Singh and the Commissioner had also asked QCAT whether, if the question of jurisdiction was determined in the Commissioner’s favour, the application should nevertheless be permanently stayed because of delay on its part.  In the second decision I determined, again with Reasons, that the delay was not of a kind which called for an order that the proceedings be permanently stayed.

7. Then, Mr Singh indicated that he also wished to have an adjudication on what his written and oral submissions to the Tribunal described as a question of ‘double jeopardy’.

8. In the submissions he lodged on 3 August 2011, Mr Singh sets out a history of his problems in Fiji.  On 26 October 2006 he was convicted of one count of attempting to pervert the course of justice and he was sentenced to 12 months imprisonment, later reduced to 6 months.  He served that sentence.  In November 2006 he received a letter from the Fiji Law Society cancelling his practicing certificate.  He appealed to a court in Fiji and was, it appears, granted an interim stay pending the hearing of his appeal in the criminal proceedings.  The history is, with respect, confusing but it seems Mr Singh again applied to the Fiji Law Society in June 2007 for the renewal of his practicing certificate and, when his application was refused, he took the matter to Fijian court and his practising certificate was given back to him.

9. He says that later, however, in October 2009 he received a notice to appear before the Fijian Independent Legal Service Commission and in November 2009 the Commissioner ordered that his name be removed from the Roll.  His subsequent application for a stay of that decision was rejected and he then appealed to the Fiji Court of Appeal which granted him a temporary stay, and lifted the order striking his name from the Roll.  On 2 September 2010 his appeal was heard by the full Fijian Court of Appeal and was dismissed but his previous suspension for life was reduced to 10 years.  It seems he has sought leave to appeal that decision to the Supreme Court of Fiji.

10. In his submissions he refers to s 16 of the Queensland Criminal Code and its prohibition upon convictions for the same act.  The submissions make clear that the argument he categorises as ‘double jeopardy’ is in fact a submission that he has already been dealt with by the Fijian Independent Legal Service Commission on the same facts, and any further proceeding on those facts would offend the principles which underlie that provision.

11. He also contends that any further litigation in Australia relying upon the same facts as those dealt with by the Independent Commission and the Fijian High Court constitutes an abuse of process, and is ‘vexatious and oppressive’ because his case has already been disposed of by earlier proceedings.

12. It is apparent, and the Queensland Legal Services Commissioner concedes, that the conduct of which he was found guilty in Fiji is the same conduct alleged in charge one of the LSC’s present discipline application.

13. Mr Singh’s submissions are, with respect, fundamentally misconceived.  The proceedings brought by the Queensland Commissioner relate to his right to practice as a lawyer here.  Those in Fiji only affected his right to have a practicing certificate, and to practice there.

14. As McHugh J explained in R v Carroll[2], the double jeopardy rule should now be seen as merely one aspect of the processes through which Courts may protect an accused person by staying proceedings that are an abuse of process.

    [2] (2002) 213 CLR 635 at [128] and following.

15. As the High Court observed in Walton v Gardiner[3], proceedings before a Court should be stayed as an abuse of process if, although the circumstances may not give rise to an absolute prohibition, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a new case which has already been disposed of by earlier proceedings.

    [3] (1993) 177 CLR 378 at 393.

16. There are a number of reasons why the hearing and determination of the Commissioner’s current charges against Mr Singh would not constitute an abuse of process.

17. First, the present proceedings are being undertaken in the Australian disciplinary jurisdiction, under Australian legislation, and can produce no outcome except one which will, at worst, affect Mr Singh’s ability to practice law here.  The purpose of the disciplinary proceedings in Fiji was the same, but in that country alone.  None of the orders made in Fiji about his right to practice as a lawyer there affect his similar, but separately bestowed, rights here.  This is not, then, an attempt to litigate a new case in Queensland.  The factual background springs from events in another country, but there have been no previous proceedings here and no charges have been brought here before.

18. Secondly, the purpose of disciplinary proceedings is not to punish, but to protect the public of Queensland.  Again, it may be presumed that was also a purpose of the proceedings in Fiji, but the orders made there do not have that effect in Queensland, or Australia – i.e., they do not provide any protection to the Australian public if, in truth, Mr Singh ought not have the right to practice here.  That remains to be determined.

19. This is not, then, a case in which the principle of double jeopardy should be activated so as to ensure that he is not improperly punished twice.  Nor is it a case in which separate proceedings in Queensland relating only to his right to practice law here constitute an abuse of process.  Under Queensland law – and, it appears, Fijian law – his right to practice depends upon a lawful entitlement to a practicing certificate and the entry of his name in the Roll of Practitioners.  Because, it seems, of his conduct in Fiji, steps have been taken there which mean he can no longer practice in that country.  He has, separately, a legal right to practice in Queensland and, under the Legal Profession Act2007, is subject in that respect to the jurisdiction of Queensland law and exposed to charges which may, under that law, be brought against him by the LSC.  The penalty, if those charges succeed, will relate only to his right to practice here.

20. Mr Singh has not been previously exposed to a disciplinary application in Queensland about his right to practice here.  He has been the subject of proceedings of a similar kind, in another country but the outcome there does not determine his right to a practicing certificate in Queensland.  The proceedings brought by the LSC do not offend the principle, and are not an abuse of process and should be allowed to proceed.

21. The matter will be listed for a further directions hearing at a time and date to be advised to the parties.