Legal Services Commissioner v Singh (No 2)
[2011] QCAT 580
•16 November 2011
| CITATION: | Legal Services Commissioner v Singh (No 2) [2011] QCAT 580 |
| PARTIES: | Legal Services Commissioner (Applicant/Appellant) |
| 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 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Declare that the application should not be permanently stayed. |
| 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 asserts that the application should be permanently stayed because of delay by the Legal Services Commissioner in commencing the proceedings Herron v McGregor (1986) 6 NSWLR 246, cited |
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’s circumstances, and the allegations leading to the current charges against him by the Commissioner, were set out in my decision of 16 September 2011 in which it was held that QCAT does have jurisdiction to determine the Commissioner’s disciplinary proceedings. In giving that decision I overlooked the fact that the parties had also asked whether, if it was held that QCAT had jurisdiction, the application should be permanently stayed because of delay by the Legal Services Commissioner.
At the core or the Commissioner’s case is the allegation that Mr Singh, having been convicted in Fiji in August 2006 of one count of attempting to pervert the course of justice, arising out of events that occurred in mid 2003, failed to give notice of his conviction to the Queensland Law Society within 7 days (as required by s 68 of the Legal Profession Act 2007); failed to provide a written statement within 28 days as to why he should continue to be a fit and proper person to hold a local practicing certificate; and, did not disclose the conviction to the Society in his application for a renewal of his 2007-08 practicing certificate, dated 25 May 2007.
In his written submissions to QCAT Mr Singh alleged delay, on the part of the Commissioner, in instigating the present application.
He asserts that his conviction in Fiji was disclosed to the Society in the first part of 2007 but the Society did not take any action until his certificate expired in June 2008; but, a short time later, on 15 July 2008, he received a notice advising him of the Society’s refusal to renew the certificate. The Society wrote to him on 17 July 2008 and, thereafter, an investigation commenced – but, the Commissioner’s charges were not brought until 23 August 2010. Five years have now elapsed, then, since his conviction in Fiji.
The Commissioner accepts that when Mr Singh wrote to the Society on 27 March 2007 seeking the renewal of his practising certificate he disclosed that he had been convicted of one count of attempting to pervert the course of justice, but he also said the conviction was not confirmed because his appeal against it was still pending. On 25 May 2007 Mr Singh formally submitted his application for renewal. On 26 June 2008 the Executive Committee of the Society resolved not to authorise renewal and, on 17 July, referred the matter to the Commissioner.
The Commissioner then agreed not to take any investigative steps until Mr Singh’s appeal to the Supreme Court of Fiji had been determined. On 20 February 2009 he told the Commissioner that his appeal had been unsuccessful and, four days later, the Commissioner advised him that the investigation would be re-opened.
Draft charges were sent to him under the cover of the Commissioner’s letter of 12 June 2009, and he made some submissions about that. On 27 July 2009 the Commissioner told him by letter of its decision to commence disciplinary proceedings. He was asked whether he was prepared to accept service of the application by post, given that he was residing in Fiji at the time.
The Commissioner asserts that by subsequent letters of 3 and 6 August 2009 and 4 March 2010 he was again asked whether he would accept service by post, but did not respond. The application was then filed on 23 August 2010. The Commissioner goes on to assert that emails were sent to Mr Singh at his last known email address in September and November 2010 but in the absence of a further reply the Commissioner sought an order for substituted service in February 2011, which was granted. On the same day Mr Singh contacted the Commission to make arrangements to collect a copy of the discipline application.
This recitation which is not, it appears, disputed by Mr Singh shows the matter has moved slowly but that, since the Commissioner received its referral from the Queensland Law Society in July 2008, the initial delay of about 7 months arose from an agreement that the charges would not be prosecuted while Mr Singh persuaded his appeal in Fiji; and, that the delay in the latter part of 2009 and at least the first half of 2010 was taken up with attempts to contact Mr Singh, and making arrangements about service.
[10] Tribunals have the power to stay abusive or oppressive proceedings.[1] The power involves exercising a discretion which, in cases such as the present one, will entail consideration of the length and causes of the delay; and, importantly, whether the action has been so long delayed that the other party cannot respond effectively.
[1] Re Ross [1995] 1 Qd R 319.
[11] The delay here is largely explained by steps taken to accommodate Mr Singh’s own request to be allowed to pursue his appeal in Fiji before the charges proceeded, and difficulties in communicating with him – which he does not deny and which appear to involve a breakdown in communication on his side, rather than that of the Commissioner. There is nothing to suggest that relevant records have been destroyed[2] or witnesses have become unavailable, or that evidence has been lost.[3]
[2] R v Chief Constable of Merseyside Police; Exparte Calveley [1986] QB 424.
[3] Herron v McGregor (1986) 6 NSWLR 246.
[12] In short, there is nothing here to suggest that the delay has been either excessive, or of such a kind as to create apparent prejudice. For these reasons, it should be declared that the application ought not to be permanently stayed because of any delay by the Legal Services Commissioner in commencing the proceedings.
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