Legal Services Commissioner v Singh
[2011] QCAT 448
•16 September 2011
| CITATION: | Legal Services Commissioner v Singh [2011] QCAT 448 |
| PARTIES: | Legal Services Commissioner (Applicant) |
| v | |
| Abhay Kumar Singh (Respondent) |
| APPLICATION NUMBER: | OCR204-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 16 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Declare that the Queensland Civil and Administrative Tribunal has jurisdiction to determine the disciplinary application against the respondent filed 23 August 2010. 2. List the matter for a directions hearing on a date to be advised to the parties by QCAT. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – JURISDICTION – where the respondent faces disciplinary proceedings arising out of his conviction for attempting to pervert the course of justice in Fiji – where the offence is categorised in Fiji as a misdemeanour – where the respondent completed the sentence imposed for the offence in Fiji and has been disciplined for the offence in that country – where the respondent contests the Tribunal’s jurisdiction to determine the disciplinary application – whether the Tribunal has jurisdiction to hear and determine the disciplinary proceedings Criminal Code Act 1899, s 140 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Singh is an Australian legal practitioner. He is also admitted to practice in Fiji. The Commissioner has brought disciplinary proceedings against him arising out of his conviction for one count of attempting to pervert the course of justice in Fiji in 2003. He challenges this Tribunal’s jurisdiction and he (and the Commissioner) have asked for that question to be determined, before the matter goes any further, on the basis of written submissions they have lodged.
The particular questions the parties have posed concern the Tribunal’s jurisdiction when Mr Singh was convicted of the offence in Fiji, not Queensland; the offence is not categorised in Fiji as a crime but, rather, as a misdemeanour; he has completed the sentence imposed for the offence in Fiji; and, he has been disciplined for the offence in that country by both the Fiji Law Society, and the Independent Legal Services Commission.
Although the Legal Profession Act 2007 requires that, when QCAT ultimately hears and decides a discipline application of the kind brought here by the Commissioner, the Tribunal is to be comprised of a Supreme Court Judge, a practitioner panel member and a lay panel member,[1] the Act also provides that a ‘disciplinary body’ may ‘… make an interlocutory or interim order as it considers appropriate before making its final decision about a discipline application’;[2] and, the Act defines a disciplinary body to include the Tribunal, and that term is itself defined to mean QCAT.[3]
[1] Sections 598, 599.
[2] Section 460.
[3] See also s 598(1).
The three charges brought against Mr Singh arise from the conduct associated with the conviction, mentioned earlier; an alleged failure of his obligations under the Legal Profession Act 2007 to give notice of his 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 practicing certificate; and, his alleged failure to disclose the conviction when he applied for renewal of his 2007-2008 restricted employee practicing certificate from the Queensland Law Society.
According to submissions he has already filed in the Tribunal Mr Singh contests 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 understand a report from the Deputy President of 29 August 2011 after a compulsory conference at which she presided, it is only the question of jurisdiction which the parties wish to have determined on a preliminary basis.
Mr Singh’s submissions show that he obtained a law degree in New Zealand in 1994 and practiced there until 1996. Then he moved to Fiji. He admits that on 26 October 2006 he was convicted in Fiji of one count of attempting to pervert the course of justice which, he said, is a misdemeanour under Fijian law. Thereafter he has been involved in a variety of proceedings in Fiji including appeals against conviction and sentence, and actions involving the Fiji Law Society as a result of which, he says, his practicing certificate was restored there in 2007. Since 2009 he has been involved in other proceedings brought by the Fijian Independent Legal Service Commission.
The announced purpose of the Legal Profession Act 2007 is to provide for the regulation of legal practice in Queensland in the interests of the administration of justice, and for the protection of consumers of the services of the legal profession and the public generally.[4] It does not appear to be in dispute that Mr Singh was, at the time the discipline application was filed, an Australian legal practitioner – a term defined in s 6 to mean an Australian lawyer who holds a current local practising certificate. The term ‘Australian lawyer’ is also defined, in s 5, as a person who was admitted to the legal profession under the Legal Profession Act 2007.
[4] Section 3(a).
Nor does it appear to be in dispute that Mr Singh was convicted of the offence mentioned earlier outside Queensland, in Fiji; and, that it is categorised under the Fijian criminal law as a misdemeanour, and not a crime. It appears, too, that it is accepted he has served the sentence imposed upon him in Fiji for that offence, and has been disciplined by the Fiji Law Society and is presently involved in disciplinary proceedings brought by the Fijian Independent Legal Services Commission.
His submission that QCAT lacks jurisdiction is, however, without substance. Chapter 4 of the Legal Profession Act 2007 deals with Complaints and Discipline. Its provisions apply to the conduct of an Australian legal practitioner happening, for present purposes, either in Queensland or outside this jurisdiction.[5] Indeed, s 423(2)(c) makes it clear that disciplinary proceedings may have their genesis in conduct which ‘… happened entirely … outside Australia’ if the practitioner is a local legal practitioner.
[5] Section 423.
[10] Nor does the fact that the conviction in Fiji may have been, as Mr Singh asserts, for a misdemeanour and not a crime have the effect of removing jurisdiction. Under s 424, the conduct which may warrant disciplinary proceedings may happen ‘… in Australia or elsewhere’ and includes conduct ‘… in relation to which there is a conviction for – (i) a serious offence …’.
[11] The term serious offence is defined in sch 2 to include an offence against the law of a foreign country that would be an indictable offence against the law of the Commonwealth or this jurisdiction, if committed in this jurisdiction, whether or not the offence could be dealt with summarily if committed here. Under s 140 of the Queensland Criminal Code Act 1899 a person who attempts to pervert the course of justice is guilty of a crime, and is liable to a maximum term of 7 years imprisonment.
[12] The offence of which Mr Singh was convicted in Fiji would be an indictable offence in Queensland and falls, therefore, within the definition of serious offence. On a plain reading of the passages from s 424 and sch 2 set out above he is, as an Australian legal practitioner, exposed to the charges brought by the Commissioner in this jurisdiction, and in QCAT.
[13] In short, QCAT has jurisdiction to hear and determine the disciplinary application brought against Mr Singh by the Commissioner.
[14] Steps can be taken now to arrange a directions hearing to determine how the matter will proceed. The QCAT Registry will take steps to that end.
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