Legal Services Commissioner v SYG - [2023] QCAT 401

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v SYG [2023] QCAT 401

PARTIES:

LEGAL SERVICES COMMISSIONER

(applicant)

v

SYG

(respondent)

APPLICATION NO/S:

[redacted]

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

23 October 2023

HEARING DATE:

5 September 2023

HEARD AT:

Brisbane

DECISION OF:

Williams J

Assisted by:
Ms Annette Bradfield
Dr Susan Dann

ORDERS:

1.     Information which might enable the Respondent, the Respondent’s partner and the location where the Respondent conducts his legal practice to be identified is not to be published, except to the parties in these proceedings.

2.     The Respondent’s conduct identified in respect of the charge in the discipline application is found to constitute professional misconduct.

3.     The Respondent refrain from acting for [redacted].

4.     The Respondent pay a pecuniary penalty in the amount of $2,000.

5.     The Respondent is reprimanded for his conduct.

6.     The Respondent pay the Legal Services Commissioner’s costs of and incidental to the discipline action, to be assessed on the standard basis in the manner costs would be assessed if the matter were in the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent sent seven letters over a period of approximately 14 weeks in the course of acting for a client, who was also his partner – where the applicant contends that various aspects of the letters breached rules 4.1.4, 34.1.1 and 34.1.3 of the Australian Solicitors’ Conduct Rules 2012 – whether the respondent is guilty of professional misconduct or unsatisfactory professional conduct

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent undertakes legal practice in a small remote town where he also lives with his partner – where the respondent applies, on behalf of himself and his partner, for a non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and/or s 656D of the Legal Profession Act 2007 (Qld) – where the respondent submits that publication of certain details would significantly endanger the respondent’s partner’s mental health – whether an order should be made prohibiting the publication of the names of the respondent, his partner and the location of the respondent’s legal practice

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where, if the tribunal is satisfied that a practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make any order it thinks fit – whether, if a finding of professional misconduct is made, a public reprimand for the purpose of general deterrence (which would ordinarily be imposed) is appropriate when a non-publication order is in place

Legal Profession Act 2007 (Qld) s 418, s 419, s 452, s 456, s 462, s 472, s 473, s 477, s 656D

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 6, s 66

Attorney-General v Bax [1999] 2 Qd R

Department of Family and Community Services v Chamberlain (2002) 116 FCR 348
J v L&A Services Pty Ltd (No 2) [1995] 2 Qd R 10
Legal Services Commissioner v CBD [2011] QCAT 401
Legal Services Commissioner v Cooper [2011] QCAT 209
Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149
Legal Services Commissioner v O’Connor [2006] LPT 001
Legal Services Commissioner v O’Connor (No 2) [2006] LPT 002
Legal Services Commissioner v Shand [2018] QCA 66
Legal Services Commissioner v Sing [2007] LPT 005
Legal Services Commissioner v Winning [2008] LPT 13
Legal Services Commissioner v Wrightway Legal [2015] QCAT 174
Legal Services Commissioner v XBN [2016] QCAT 471
Legal Services Commissioner v XBT [2018] QCAT 64
Legal Services Commissioner v XBV [2018] QCAT 332
Legal Services Commissioner v XBY [2016] QCAT 102

Legal Services Commissioner v XKR [2015] QCAT 469

APPEARANCES & REPRESENTATION:

Applicant:

S Tan instructed by Legal Services Commissioner

Respondent:

M O Plunkett instructed by Cranston McEachern Lawyers

REASONS FOR DECISION

This is a discipline application by the Legal Services Commissioner (LSC) under s 452 of the Legal Profession Act 2007 (Qld) (LP Act) for disciplinary orders pursuant to s 456 of the LP Act. The discipline application raises a single charge against the Respondent in respect of the Respondent’s conduct in sending seven letters over a period of approximately 14 weeks.
The facts are not contentious between the parties and the Respondent accepts that it is open for the Tribunal to make a finding of unsatisfactory professional conduct or professional misconduct.
However, there are a number of issues that require determination by the Tribunal, namely:
(a)Is the Respondent’s conduct properly characterised as unsatisfactory professional conduct or professional misconduct?
(b)What are the appropriate orders under s 456 LP Act?
(c)Should an order be made prohibiting the publication of information that may identify the names of the Respondent, his partner and the location of the respondent’s legal practice under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and/or s 656D of the LP Act?
Justice Mellifont, President of QCAT, made an interim non-publication order on 19 April 2023 which continues “until further or final order”. Consistent with the interim non-publication order, the matter was listed as “ONE MATTER” in the daily law list. The hearing was conducted on an open basis, recognising the principles of open justice.
The Tribunal will consider the issue of whether a non-publication order should be made before considering the issue of the appropriate orders pursuant to s 456 of the LP Act (if a relevant finding is made) as there is some inter-relationship between the two issues. To the extent that a non-publication order is made, this may have an impact on the types of orders that are appropriate taking into account all of the circumstances.

Allegations stated in the discipline application

The disciplinary application contains one charge as follows:
“On divers dates between 23 April 2021 and 2 August 2021, the respondent engaged in unsatisfactory professional conduct or professional misconduct in the course of acting for a client, who was also his partner, in relation to a workplace bullying matter.”
The particulars set out in detail the facts relied upon in respect of the seven letters and also other background facts.
The Respondent admits the facts and circumstances set out in [1.1] to [1.9] of the particulars. Further, the Respondent accepts that the allegations in [1.10] are open but it is a matter for the Tribunal to determine whether the conduct is unsatisfactory professional conduct or unprofessional conduct.
Relevantly, [1.10] of the particulars of the discipline application states:
“the conduct of the respondent amounts to unsatisfactory professional conduct or professional misconduct as he:
(a)failed to avoid any compromise to [his] integrity and professional independence in the course of acting for a client;
(b)made statements that grossly exceeded the legitimate assertion of the rights or entitlement of his client and which mislead or intimidates the other person; and
(c)used tactics that went beyond legitimate advocacy and which were primarily designed to embarrass or frustrate another person.”
In the LSC’s written submissions dated 3 March 2023, the LSC analyses each of the seven letters and identifies whether they fall within one or more of the bases outlined in (a), (b) and (c) of [1.10] of the particulars of the discipline application. This is the first time this analysis had been done and provided to the Respondent. The Respondent had earlier identified that the specific bases had not been particularised but this has now been addressed.
Relevant facts
The LSC and the Respondent have agreed the relevant facts in respect of the discipline application. The hearing proceeded on the basis of a statement of agreed facts dated 10 February 2023 (ASOF).
The ASOF is 13 pages and will not be replicated in these reasons for decision in full. However, the Tribunal has considered the ASOF in full for the purposes of the discipline application.
In summary, the relevant facts are:
(a)The Respondent is a long-standing solicitor in Queensland and has held an unrestricted principal practicing certificate and operated as a sole practitioner at all material times.
(b)The Respondent has no previous findings of misconduct.
(c)The Respondent undertakes legal practice in a remote town in Queensland where he also lives, together with his partner.
(d)As part of his legal practice, the Respondent was engaged by his partner to act for her in relation to a workplace claim. The issues giving rise to the workplace claim occurred over a number of years.
(e)The conduct relevant to the discipline application is constituted by seven letters that the Respondent sent to various recipients.
(f)The seven letters were sent over a 14-week period, being approximately three-and-a-half months.
(g)The Respondent sent the first letter on 23 April 2021 on behalf of his client, his partner.
(h)The Respondent sent the second letter four days later on 27 April 2021, on the Respondent’s personal letterhead, to the same recipient. The letter was sent allegedly in his personal capacity: as a concerned resident of the community.
(i)The Respondent sent the third letter approximately one week later on 4 May 2021. The recipient of the letter was a superior of the recipient of the first two letters.
(j)The Respondent sent the fourth letter one day later on 5 May 2021 to the officer in charge of the local police station.
(k)Approximately a week later, the Respondent was sent a letter in response to the fourth letter. The letter concluded that there was insufficient evidence to charge the recipient of the first letter with unlawful stalking.
(l)Approximately six days later, the Respondent sent a response to the officer in charge of the local police station, raising various matters including expressing disappointment at the outcome.
(m)A couple of days later, it was again confirmed that there was no evidence to justify an unlawful stalking charge.
(n)Five days after that further response, the Respondent sent the fifth letter dated 25 May 2021 to the Ethical Standards Command of the Queensland Police Service to complain about another officer at the local police station.
(o)Further correspondence was sent to the Ethical Standards Command of the Queensland Police Service on 16 July 2021.
(p)On 2 August 2021, being approximately two months and one week after the fifth letter, the Respondent sent the sixth letter to the Ethical Standards Command of the Queensland Police Service.
(q)On the same day, the Respondent sent the seventh letter to the Crime and Corruption Commission alleging the commission of serious offences, official misconduct and/or official corruption by various people.
(r)It is accepted that at the time of sending the seven letters the Respondent was overcome with strong emotions due to the mental health issues of his partner, and he was impacted by a number of stresses including the drought affecting rural Australia and his other community roles.
(s)The Respondent was also impacted by witnessing the daily deterioration of his partner’s mental health.
The contents and nature of the seven letters will be considered further below in respect of the characterisation of the conduct.
Characterisation of unsatisfactory professional conduct or professional misconduct
It is necessary to consider the statutory provisions to characterise the Respondent’s conduct.
Sections 418 and 419 of the LP Act state as follows:
“418 Meaning of unsatisfactory professional conduct
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
419 Meaning of professional misconduct
(1) Professional misconduct includes—
(a)unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.
It is accepted for the current purposes that the relevant provisions are ss 418 and 419(1)(a). Consequently, the difference between the conduct being unsatisfactory professional conduct and being professional misconduct is whether the conduct “involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence”.
Further, reference is made to three particular rules in the Australian Solicitors’ Conduct Rules 2012 (ASCR) as relevant to the current conduct:
(a)Rule 4.1.4 which states:
“A solicitor must also … avoid any compromise to their integrity and professional independence”.
(b)Rule 34.1.1 which states:
“A solicitor must not in any action or communication associated with representing a client … make any statement which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and which misleads or intimidates the other person.”
(c)Rule 34.1.3 which states:
“A solicitor must not in any action or communication associated with representing a client …use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.”
The LSC submits that the seven letters can be analysed as follows:
(a)First letter:
(i)      Relevant paragraphs of the whole letter, and particularly items 3 and 4, form part of the basis for the allegation in [1.10(a)] of the particulars[1] and is contrary to rule 4.1.4 of the ASCR due to:
[1][1.10(a)]: Failed to avoid any compromise to his integrity and professional independence in the course of acting for his partner.
A.Questioning the authenticity of the request to return keys and work computer on the basis of the alleged prior misconduct of the recipient’s personal assistant;
B.Claiming the request was sent to intentionally cause anxiety and stress to the Respondent’s partner and to deliberately destroy evidence which is a criminal offence; and
C.Proffering his personal opinion about the conduct of the recipient and others in circumstances where the evidence did not support such an opinion.
(ii) Statements made form part of the basis of [1.10(b)] of the particulars,[2] and are contrary to rule 34.1.1 of the ASCR by, in particular:
[2][1.10(b)]: Made statements that grossly exceeded the legitimate assertion of the rights or entitlements of his partner and which misled or intimidated the recipient.
A.Claiming the Respondent’s partner had a right to retain property owner by the employer after a lawful request had been made for its return; and
B.Claiming the recipient could not contact the Respondent’s partner or the Respondent about matters within the scope of the recipient’s authority in her employed role.
(iii)     The conduct outlined at (a)(i) and (a)(ii) above also form part of the basis of [1.10(c)] of the particulars[3] and are contrary to rule 34.1.3 of the ASCR.
[3][1.10(c)]: Used tactics that went beyond legitimate advocacy, and which were primarily designed to embarrass or frustrate another person.
(b)Second letter:
(i)      Relevant paragraphs of letter as a whole form part of the basis of [1.10(a)] of the particulars and are contrary to rule 4.1.4 of the ASCR. In particular:
A.Regardless of the letterhead, the Respondent sent the letter following the commencement of the retainer as the solicitor for his partner and in circumstances where the Respondent had already written to parties advising of him acting in the matter on behalf of his partner;
B.Sending correspondence to the recipient on the pretext of being “a concerned resident of the … community”, that nevertheless looked to advance his client’s position, claims his request in the first letter has been contravened and mentions facts relevant to his client’s claim;
C.Proffering his personal opinion about the conduct of the recipient and others in circumstances where the evidence does not support such an opinion;
D.Proffering his personal opinion about the conduct of the recipient’s personal assistant in circumstances where the evidence does not support such an opinion; and
E.Describing another person as a “narcissistic sociopath” and saying he believes she is “a great risk” to others at the place of employment and the community in general.
(ii)      It is also submitted that in doing these things the Respondent acted contrary to:
A.Rule 34.1.1 of the ASCR, thus forming part of the basis of [1.10(b)] of the particulars; and
B.Rule 34.1.3 of the ASCR, thus forming part of the basis of [1.10(c)] of the particulars.
(c)Third letter:
(i)      Forms part of the basis of [1.10(a)] of the particulars and is contrary to rule 4.1.4 of the ASCR.
(ii)      Relevant paragraphs of letter as a whole are relied on, and in particular that the Respondent was:
A.Proffering his personal opinion about the conduct of the recipient of the original letter and others; and
B.Suggesting his client would seek legal remedies that were not available on the evidence.
(d)Fourth letter:
(i)      Forms part of the basis of [1.10(a)] of the particulars and is contrary to rule 4.1.4 of the ASCR. This applies to relevant paragraphs of letter as a whole and, in particular, the Respondent proffering his personal opinion about the conduct of the recipient of the first letter and others.
(ii)      Relevant parts of the letter as a whole also form part of the basis of [1.10(c)] and are contrary to rule 34.1.3 of the ASCR.
(e)Fifth letter:
(i)      Relevant paragraphs of letter as a whole form part of the basis of [1.10(c)] and are contrary to rule 34.1.3 of the ASCR.
(f)Sixth letter:
(i)      Relevant paragraphs of letter as a whole form part of the basis of [1.10(a)] and are contrary to rule 4.1.4 of the ASCR.
(ii)      Relevant paragraphs of letter as a whole form part of the basis of [1.10(c)] and are contrary to rule 34.1.3 of the ASCR.
(g)Seventh letter:
(i)      Relevant paragraphs of letter as a whole form part of the basis of [1.10(a)] and are contrary to rule 4.1.4 of the ASCR.
(ii)      Relevant paragraphs of letter as a whole form the basis of [1.10(c)] and are contrary to rule 34.1.3 of the ASCR.

The LSC also relies on the Respondent’s later conduct, including:
(a)His response to the Legal Services Commission (Commission) dated 2 August 2021 where he:[4]
(i)      Offered to provide the Commission further information and supporting evidence to “substantiate” the allegations.
(ii)      Advised the second letter was a personal letter and not sent in his personal capacity and therefore he was uncertain whether the Commission had a basis for investigating that matter.
(iii)     Maintained his belief that the recipient of the first letter, together with others, had committed a criminal offence and he had statements from other people in the community.
(iv)     Offered to obtain a statutory declaration to support his remarks about a named person’s parents and adopted the position that his remarks could not be defamatory in respect of that person’s father as he was deceased.
(v)      Maintained that the allegation of a named person being a narcissistic sociopath was a personal observation, not made as a solicitor and that the named person should be medically examined.
(b)On 21 February 2022, after the Commission had notified the Respondent that it was proceeding with a discipline application, the Respondent sent a response apologising for “overstepping the mark” in relation to his professional behaviour.
(c)The LSC acknowledges that while the Respondent initially defended his conduct, he has subsequently engaged with the LSC and the Tribunal and taken steps to expedite the matter and to minimise disputes between the parties.
[4]The LSC’s letter to the Respondent dated 30 July 2021 was received after the fifth letter was sent by the Respondent but prior to the sixth and seventh letters. The sixth and seventh letters were sent on the same day as the Respondent sent his response to the Commission.

LSC’s position

Based on the analysis of the seven letters, the LSC submits that the Respondent’s conduct contravened his professional obligations on multiple occasions by:
(a)Failing to avoid any compromise to his integrity and professional independence in the course of acting for a client;
(b)Making statements that grossly exceeded the legitimate assertion of the rights or entitlements of his client and which mislead or intimidated other persons; and
(c)Using tactics that went beyond legitimate advocacy and which were primarily designed to embarrass or frustrate other persons.
Taking into account the number of letters and the scope of the recipients (including a superior at a government department, the Crime and Corruption Commission and the Ethical Standards Command at the Queensland Police Service), the LSC submits that the respondent’s conduct was serious and repetitious.
The LSC submits that, therefore, the Tribunal can be satisfied that:
(a)The Respondent’s conduct violated or fell short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.[5]
(b)The Respondent’s conduct may be properly characterised as professional misconduct pursuant to s 419(1)(a) of the LP Act.
[5]As recognised in Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 at [507].
The LSC refers to a number of comparative authorities in support of this submission.
The decision in Legal Services Commissioner v XBT [2018] QCAT 64 is relied on in a number of respects.
First, in respect of the independence required when acting for a client, the LSC refers to the following observations of the Tribunal:
[19]There is no question that sending rude, demeaning, derogatory, disparaging, personally abusive or offensive, undisciplined and discourteous correspondence to or about a third party with an opposing interest in a matter where the practitioner acts for a client breaches r 28(5) Solicitors Rule 2007 (since repealed) and meets the statutory description of unprofessional conduct.
[20]The conduct diminishes the dignity and high standing of the profession and tends to reduce community respect for it. It is unbecoming and suggests a loss of the objectivity, independence and judgment needed for the proper discharge of professional responsibilities on which the administration of justice depends and the court relies.
[21]The defendant appears to have allowed herself to overinvest in her client’s case to a degree that unbalanced her professional judgment. Identifying too closely with a client’s cause is a constant danger for a committed lawyer to guard against. The conduct in question amounted to a serious professional indiscretion and ordinarily calls for the censure of a public reprimand to express disapproval and deter similar conduct by others.
[footnotes omitted].
The conduct in XBT involved:
(a)Email communications which were “unbecoming of a solicitor and likely to bring the profession into disrepute”.[6]
(b)The respondent “allow[ing] herself to overinvest in her client’s case to a degree that unbalanced her professional judgment” and identifying “too closely with her client’s cause”.
(c)The respondent being impacted by a number of stressors during the relevant period, including severe depression and a cognitive impairment.
(d)Psychiatric evidence of the respondent’s mental condition, which did not excuse the conduct but was relevant as an explanation and mitigating circumstance.
[6]Rule 28.5 of the Legal Profession (Solicitors) Rule 2007 (which has since been repealed) provided that “A solicitor must not, in connection with the practice of law, in any communication with another person: … make any statement that is abusive, offensive or insulting or which is unbecoming of a solicitor or which could bring the profession into disrepute.”
In respect of the respondent’s mental condition the Tribunal in XBT observed at [7] that there is a:
“ … natural reticence to allow mental illness to excuse (as opposed to explain) dishonest conduct (where unfitness is not suggested) as it is unlikely to deprive a person of the ability to appreciate the wrongfulness of her or his behaviour.”[7]
[7]The Tribunal was quoting GE Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th ed, 2013) 762 [23.145].
In XBT, the Tribunal made a finding of unsatisfactory professional conduct.
Considering the facts of the current matter, the Respondent’s conduct is more egregious and a more serious departure from the expected standards than in XBT as the conduct is:
(a)More substantial and protracted; and
(b)Escalated to making a number of serious allegations to external official agencies, including official corruption, in circumstances where the allegations could not be made out in the evidence.
The decision of Legal Services Commissioner v Cooper [2011] QCAT 209 concerned two letters to another solicitor on behalf of a client which were insulting and personally offensive. The Tribunal described the language as “intemperate and disappointing” and the conduct was found to be unsatisfactory professional conduct.
Considering the facts of the current matter, the Respondent’s conduct is more serious conduct over a more protracted period than in Cooper.
The decision of Legal Services Commissioner v O’Connor [2006] LPT 001 also concerned correspondence written by a legal practitioner which was found to be unsatisfactory professional conduct.
In O’Connor:
(a)A complaint was made to the Commission about an employee of the respondent’s firm.
(b)The respondent sent a letter to the complainant advising that the complaint was unsubstantiated and contained false allegations which amounted to defamation.
(c)The respondent sought an apology and for the allegations to be withdrawn, together with a suggestion of an entitlement to compensation.
(d)There was a demonstrated lack of judgment as the respondent ought to have been aware, and advised his client, of the legislative requirement and statutory duty to cooperate and assist reasonably with the investigative process (as found by the Tribunal).
(e)It was a single incident of one letter being sent.
Considering the facts of the current matter, the Respondent’s conduct is a more serious and persistent failure to maintain the standard expected of a solicitor due to:
(a)The seven letters being sent;
(b)The intemperate and emotive language used; and
(c)The allegations of official corruption and other illegal activities.
The decision of Legal Services Commissioner v Winning [2008] LPT 13 concerned the respondent using grossly offensive and obscene language on a number of occasions with other practitioners, staff members of the Australian Crime Commission and during court proceedings.
In Winning, the respondent was found guilty of:
(a)Three charges of unprofessional conduct (which is the equivalent of professional misconduct under the LP Act); and
(b)One charge of unsatisfactory professional conduct.
Considering the facts of the current matter:
(a)More offensive language was used in Winning than in the current case.
(b)The Respondent’s conduct demonstrates an equal lack of insight, independence and professionalism in dealing with other persons and agencies for the benefit of a client, including allegations of corruption and illegal activities.
The LSC submits that given the seriousness and repetition of the egregious conduct by the Respondent, it is appropriate for the Tribunal to find that he has engaged in professional misconduct.

Respondent’s position

In response, the Respondent:
(a)Submits that the conduct should be considered in context.
(b)Submits that the context includes that:
(i)      The Respondent practiced in a small, isolated community, which was also where the Respondent and his partner lived and worked.
(ii)      The Respondent’s partner of 20 years had a serious deteriorating mental health issue.
(iii)     The Respondent had numerous roles in the community which resulted in overwork.
(iv)     The Respondent was subject to significant stressors, including from the drought and his partner’s deteriorating mental health.
(v)      A psychological report states that the Respondent’s judgment was impaired due to his “devoted concern for his partner’s mental health” which affected him to such a degree that for a short period of time he was “unable to distinguish between his professional role and his familial role as partner”.
(vi)     The Respondent understands the seriousness of the allegations and the consequences for his actions and he has expressed remorse for the impact on various members of the community.
(vii)   The conduct arises from a unique set of circumstances which are unlikely to occur again.
(viii)     The Respondent has put strategies in place to better cope with stressors, including his partner’s mental health.
(ix)     The respondent has shown insight and remorse in respect of the conduct.
(c)Provides some comments on the content and nature of the seven letters:
(i)      To fairly put a measure on the degree of his culpability, in context, by reference to the content of each letter and rule breached.
(ii)      That is relevant to the orders to be imposed should a finding be made.
The Tribunal accepts the Respondent’s submission that no adverse inference should be drawn from that part of the response which “grapples” with the nature of the seven letters and the culpability of the Respondent. Ultimately, the Tribunal has to be satisfied of the proper characterisation of the conduct and the submissions on behalf of the Respondent have sought to assist the Tribunal in that task.
The submissions on behalf of the Respondent are directed at:
(a)The extent to which the Respondent’s conduct falls short of the relevant standard; and
(b)The appropriate orders if a finding is made, particularly in respect of a private as opposed to a public reprimand.
Finding of the Tribunal
Taking into account:
(a)the serious nature and scope of the seven letters, including the lack of judgment in the allegations made and the unprofessional language and tone of the letters;
(b)the protracted timing of the seven letters, being over a 14-week period;
(c)the range of recipients, including escalating to a superior at a government department, the Ethical Standards Command of the Queensland Police Service and the Crime and Corruption Commission;
(d)that the sixth letter and the seventh letter were sent after receipt of correspondence from the Commission and on the same day as a response was given to the Commission; and
(e)the conduct in comparison to the decisions referred to in submissions,
the Tribunal finds that the Respondent’s conduct constitutes professional misconduct.
The various mitigating circumstances referred to by the Respondent may go to the appropriate order that is made following that finding, but the conduct itself falls within s 419(1)(a) of the LP Act.
That is, properly characterised, the conduct of the Respondent as an Australian legal practitioner is unsatisfactory professional conduct involving a substantial failure to reach a reasonable standard of competence and diligence, thereby constituting professional misconduct.
Should a non-publication order be made?
The Respondent applies, on behalf of himself and his partner, for a non-publication order pursuant to s 66 of the QCAT Act and/or s 656D of the LP Act.
Section 66 of the QCAT Act provides:
“66 Non-publication orders
(1)The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
(a)the contents of a document or other thing produced to the tribunal;
(b)evidence given before the tribunal;
(c)information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
(2)The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
(a)to avoid interfering with the proper administration of justice; or
(b)to avoid endangering the physical or mental health or safety of a person; or
(c)to avoid offending public decency or morality; or
(d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
(e)for any other reason in the interests of justice.
(3)The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
(4)The tribunal’s power to act under subsection (1) is exercisable only by—
(a)the tribunal as constituted for the proceeding; or
(b)if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.”
Section 656D of the LP Act states:
“656D Prohibited publication about hearing of a discipline application
(1)The tribunal, either before, during or immediately after a hearing, may make an order prohibiting the publication of information stated in the order that relates to the discipline application, the hearing or an order of the tribunal.
(2)A person must not contravene an order under subsection (1). Maximum penalty—200 penalty units.
(3)A person must not publish or allow someone else to publish—
(a)a question disallowed by the tribunal at the hearing; or
(b)an answer given to a question disallowed by the tribunal at the hearing.
Maximum penalty—200 penalty units.
(4)Also, the tribunal may make an order prohibiting—
(a)the issue of the entire or part of a copy of the record made under the Recording of Evidence Act 1962; or
(b)the publication of the entire or part of a copy of the record made under that Act.
(5)A person must not contravene an order under subsection (4).
Maximum penalty—200 penalty units.
(6)In this section—
publish includes publish on radio, television or the internet.
record includes an audio recording.”
The application:
(a)Seeks that the Respondent’s name, the name of his partner and the town where the Respondent lives and practices be anonymised and/or not published; and
(b)Relies on:
(i) The basis in s 66(2)(b) of the QCAT Act, to avoid endangering the physical or mental health or safety of a person; and/or
(ii) The discretion in s 656D of the LP Act.
The Respondent relies on:
(a)The Respondent’s partner’s diagnosis of autism spectrum disorder ([20(a)] ASOF);
(b)Other material as to the Respondent’s partner’s mental health condition and suicidal ideation (including [20(b) to (c)] and [29] ASOF);
(c)The psychiatric reports of Dr Lynette Teoh dated 14 July 2021 and 11 April 2023.[8]
[8]Exhibits to the affidavit of Iain Aitken affirmed 17 April 2023.
The Respondent submits that based on this material the Tribunal can be satisfied that the Respondent’s partner:
(a)Experiences significant, escalating anxious distress associated with an increase in suicide risk; and
(b)Publication would cause re-traumatisation and a deterioration in her recovery prognosis.
Further, the Respondent submits that this risk is heightened in the circumstances of a small, remote town and publication of the place and the identities would endanger the Respondent’s partner’s mental health.
In respect of general deterrence, the Respondent contends that this can be achieved by orders and reasons being published in an anonymised form.
The LSC accepts in its written submissions that pursuant to s 656D of the LP Act and/or s 66(1)(c) of the QCAT Act the Tribunal:
“may (where satisfied of requisite matters) make an order prohibiting the publication of information that relates to a disciplinary hearing including ‘information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.’” [emphasis in original][9]
[9]LSC’s Reply submissions at [26].
However, the LSC is opposed to any non-publication order being made on the basis that:
(a)There is no proper basis to depart from the usual course in relation to disciplinary proceedings.
(b)Considerations of protection, deterrence, transparency and accountability favour no non-publication order being made, consistent with the purpose of the LP Act.[10]
(c)The Respondent’s partner’s mental health vulnerabilities do not displace the need for the proceedings to be conducted in an open way, including with reasons published in full.
[10]See Legal Services Commissioner v Sing [2007] LPT 005 at page 4.
The LSC’s submissions consider the evidence of Dr Teoh in the context of the consideration of orders under s 456 of the LP Act, in particular whether there are special circumstances for a private reprimand. Those submissions would also be relevant to the application for a non-publication order.
The LSC’s submissions extract parts from the reports as to the significance of the risk of suicide and the deterioration of the Respondent’s partner’s mental health stability.
Consideration
There is a risk in effectively “cherry picking” extracts from the medical reports. This is particularly so where the unchallenged evidence of Dr Teoh in the 11 April 2023 report is:
(a)The Respondent’s partner’s escalating anxious distress has previously been associated with an increase in her suicide risk;
(b)That publishing the outcome of the discipline application would have a “very likely harmful impact on [the Respondent’s partner’s] mental state, progress and rehabilitation”; and
(c)It is very likely that she will experience re-traumatization and significant deterioration in her mental state.
The Tribunal has been referred to a number of cases where the Tribunal has been satisfied on the basis of evidence that a non-publication order should be made in circumstances where the evidence established the basis in s 66(2)(b) of the QCAT Act alone or in combination with s 656D of the LP Act, or in s 656D of the LP Act alone.[11]
[11]See for example Legal Services Commissioner v CBD [2011] QCAT 401, Legal Services Commissioner v XBY [2016] QCAT 102, Legal Services Commissioner v XBN [2016] QCAT 471, Legal Services Commissioner v XKR [2015] QCAT 469 and Legal Services Commissioner v XBT [2018] QCAT 64.

The language in s 66 makes it clear that the person whose identity is to be protected may be a non-party. That is, it extends to those affected by a proceeding, not only those who are parties to a proceeding.
The bases for the exercise of the power in s 66(2) of the QCAT Act are quite broad and cover distinct areas. There is also the basis of “for any other reason in the interest of justice” which provides a more general discretion.
Section 656D of the LP Act provides a discretion that is not limited to defined bases.
The case of Legal Services Commissioner v XBV [2018] QCAT 332 considers the interaction between s 66 of the QCAT Act and s 656D of the LP Act, and the effect of s 7 of the QCAT Act. Not all previous decisions have grappled with this issue.
Section 7 of the QCAT Act provides:
“7 Application of Act if modifying provision in enabling Act
(1)This section applies if a provision of an enabling Act (the modifying provision) provides for—
(a)the tribunal’s functions in jurisdiction conferred by the enabling Act; or
(b)a matter mentioned in section 6(7).
(2)The modifying provision prevails over the provisions of this Act, to the extent of any inconsistency between them.
(3)This Act must be read, with any necessary changes, as if the modifying provision were a part of this Act.
(4)Without limiting subsection (3)—
(a)in a provision of this Act relating to a person starting a proceeding, a reference to the person doing something under this Act is taken to be a reference to the person doing the thing under this Act or a modifying provision; and
(b)in a provision of this Act relating to the tribunal conducting a proceeding, a reference to the tribunal doing something under this Act is taken to be a reference to the tribunal doing the thing under this Act or a modifying provision.
(5)This section does not prevent an enabling Act from expressly stating how this Act applies in relation to the modifying provision, including, for example, by stating that stated provisions of this Act do not apply, or apply subject to stated variations.
(6)In this section—
enabling Act means an enabling Act that is an Act.”
Therefore, the question arises as to whether s 656D of the LP Act prevails over s 66 of the QCAT Act to the extent of any inconsistency between them.
In XBV, the Tribunal:
(a)Noted at [28] that the parties submitted that if s 656D of the LP Act was the operative provision, then the circumstances in which the order could be made under it included the circumstance relating to health and safety specified in s 66 of the QCAT Act, though regard would have to be had to the open court principle discussed in J v L&A Services Pty Ltd (No 2) [1995] 2 Qd R 10.
(b)Observed at [29] that “it seems clear, both from the language of s 6(7)(b) of the QCAT Act, and one of the examples for that provision, that s 656D is the type of provision to which s 7 might apply”.
(c)The inconsistency may be found in that s 66 of the QCAT Act may only be exercised in specified circumstances and that is not the case for s 656D of the LP Act.
(d)Concluded at [29] that the “relevant power is found in s 656D of the LP Act”.
(e)Further concluded at [36] that:
“… the power conferred by s 656D is not subject to the same constraints as a court’s inherent jurisdiction to make a non-publication order at common law. Inevitably, the exercise of that power will be informed by the considerations which lie behind the open court principle; though they will not have the same paramountcy as they are given at common law.”
(f)In that case, consideration did not have to be given to whether s 472 of the LP Act was an obstacle to the making of a non-publication order.
(g)Determined at [39] that some form of order under s 656D of the LP Act was to be made to the extent necessary to avoid the risk of worsening the respondent’s depressive symptoms or other more serious consequences.
In light of the reasoning in XBV, the relevant power is in s 656D of the LP Act. The section does not specify circumstances in which an order may be made. Further, it does not identify criteria for the exercise of the power.
It is not necessary for the Tribunal to consider in the current circumstances whether s 656D of the LP Act would include all aspects of s 66 of the QCAT Act. It is sufficient for current purposes that the Tribunal is satisfied that the basis in s 66(2)(b) of the QCAT Act is covered by the scope of the power in s 656D of the LP Act.
It is then necessary to consider whether the power should be exercised to order non-publication of information that may identify the Respondent’s and his partner’s names and the town where they live.
A discipline application is a particular type of proceeding under the LP Act, with purposes including the protection of the public.
Clients affected by the conduct of a legal practitioner would be included in the protective focus of the legislative scheme, as well as the broader community.
Information and evidence in a discipline application by its very nature may be about a client or be the client’s information, including personal and/or confidential information, or be the identity of the client. In these circumstances, it is logical that a client’s interests may need to be protected. This would extend to the physical, mental health and safety of a client, whether as a complainant or as a person affected by a proceeding.
This matter concerns the particular situation where the client of the legal practitioner is actually the legal practitioner’s life partner.
Further, the ASOF expressly recognises that the Respondent’s partner’s legal claim, the Respondent acting for his partner and his partner’s declining mental and suicidal tendencies are all matters relevant to the consideration of the discipline application.
The Respondent’s partner is an innocent party in this matter. She is affected by the proceeding as she is both a client of the Respondent and also his partner. It is also relevant to consider her personal circumstances in the overall context of the discipline application:
(a)The relevant conduct of the Respondent flowed from her employment and her workers compensation claim and the Respondent acting on her behalf;
(b)Her mental illness, including the risk of suicide, is raised in the material and in the ASOF as being relevant to the Respondent’s conduct;
(c)The Respondent is the only lawyer in the small, isolated town; and
(d)The Respondent and his partner reside in the small, isolated town.
There is uncontested psychiatric evidence to support the conclusion that if the Respondent, the Respondent’s partner and the town were identified then the Respondent’s partner would suffer a substantial risk to her mental health.
All of these factors tend to support the making of the non-publication order to avoid endangering the physical and mental health and safety of the Respondent’s partner.
The principles of open court are a factor to be weighed in the balance. These reasons can be published in an anonymised form with sufficient detail to meet the need for general deterrence and open justice, while at the same time avoiding, or at least mitigating, the identified risk.
As a finding of professional misconduct has been made, the issue of s 472 of the LP Act arises in this case. Under s 472, the LSC is to keep a register of disciplinary action. The definition of disciplinary action in s 471 means the making of a finding of professional misconduct and other specified orders.
The register is to include certain matters, including the full name and business address of the person against whom the disciplinary action is taken. It is also to be publicly searchable and available on the internet site.
Section 477 of the LP Act provides that:
(a)The provisions in Part 4.11 dealing with publishing disciplinary action are subject to any order of the Tribunal; and
(b)Certain information must be recorded in the disciplinary register and may be “otherwise published under this part”.
The words “otherwise published under this part” is a reference to otherwise publishing the information under s 472(5) (information in the register given to the public by another means) and s 473 (LSC may publicise disciplinary action in “any way the LSC considers appropriate).
In Legal Services Commission v XBY [2016] QCAT 102, the Tribunal considered the interaction between an application for a non-publication order, the register under s 472 of the LP Act being a public record and the operation of s 477 of the LP Act. In that case, the respondent submitted that the non-publication order could be confined to the finding of the Tribunal and the order made, even where the register would remain public as required by ss 472 and 477 of the LP Act.
In XBY, the Tribunal:
(a)Concluded at [23] that the unchallenged evidence enlivened the basis for a non-publication order under s 669(2)(b) of the QCAT Act: that is, publication of the practitioner’s name was likely to endanger his mental health.
(b)Concluded at [25] that:
(i) The LP Act contemplated the making of a non-disclosure order and also prescribed the information which, despite the making of an order, must be recorded in the discipline register.[12]
(ii) The clear intention of the LP Act, in so far as the discipline register is concerned, is preserved by the requirements in s 477(2) of the LP Act.
(iii) As to public accountability and transparency:
A.The object is not to punish the practitioner, but to protect the public. This includes deterrence of other practitioners;
B.This object can be achieved by publishing the sanction and outlining the findings in relation to the particular conduct but, where a basis for a non-publication order is met, without including the practitioner’s name;
C.The unacceptable conduct and the penalties are equally clear with or without the name of the practitioner; and
D.Where the requirements of s 66(2) of the QCAT Act are fully met, this should not be seen as “detracting from the objective of the [LP Act] which is to secure a level of transparency, accountability and independence”.[13]
(c)Ordered at [27] that the information which might enable the practitioner to be identified not be published except to the parties in the proceedings.
[12]Section 477(2) of the LP Act.
[13]At [25(b)].
In the current discipline application:
(a)The Tribunal is satisfied that there is power in s 656D of the LP Act to make a non-publication order and it is the relevant power.
(b)The Tribunal is satisfied that it is appropriate to make a non-publication order where there is evidence that publication of the identity of the Respondent and his partner and the name of the town may endanger the physical or mental health and safety of the Respondent’s partner (consistent with the criteria of s 66(2)(b) of the QCAT Act).
(c)The Tribunal is satisfied that the information not to be published is limited to information that may identify the Respondent and the Respondent’s partner and the town where the Respondent lives and practices.
(d)These reasons for decision and the order of the Tribunal are to be published in an anonymised form.
(e)Despite making the non-publication order, the discipline register remains public and is governed by the requirements of ss 472 and 477 of the LP Act.
(f)In all of the circumstances, the objectives of the non-publication order and the disciplinary register and the overall objectives of the LP Act can be maintained.
Accordingly, the Tribunal orders that no information be published which may identify the names of the Respondent and his partner and the location where the Respondent conducts his legal practice.
Appropriate orders under s 456 of the LP Act
Having made the finding as to professional misconduct, the discretion in s 456 of the LP Act arises.
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.”
The discretion to make any order the Tribunal thinks fit is a wide discretion and is to be exercised primarily in the protection of the public.[14] Principles of personal and general deterrence are also relevant.[15]
[14]Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 at [122].
[15]Attorney-General v Bax [1999] 2 Qd R at 22.
The maintenance and enforcement of proper standards in the profession is a further aim. Accordingly, it is relevant to consider the need to deter other practitioners from engaging in similar conduct and also to protect the public by enforcing standards upon which the public can rely.[16]
[16]Legal Services Commissioner v Wrightway Legal [2015] QCAT 174 at [28].
The protection of the legal profession’s standing is also relevant. The purposes of orders under s 456 of the LP Act include “the preservation of the good standing of the legal profession and of the Rolls as the Court’s endorsement of the fitness of those enrolled.”[17]
[17]Legal Services Commissioner v Shand [2018] QCA 66 at [53] to [58].
The parties filed a joint submission on sanction which relevantly states as follows:
“1. The Respondent is:
(a)    not to act for [redacted];
(b)   to pay a pecuniary penalty in the amount of $2,000;
(c)    to be reprimanded; and
(d)   to pay the costs as agreed or as ordered by the tribunal.
2. Whether the reprimand referred to in paragraph 1(c) hereof is to be public or private is a matter for the tribunal to determine if there are any special circumstances within the meaning of s 456(2)(e) of the Legal Profession Act 2007 that the reprimand is to be private.”
While some aspects of the orders are agreed, it still remains for the Tribunal to consider what are the appropriate orders under s 456 of the LP Act following the finding of professional misconduct.
LSC’s position
The LSC contends that the appropriate orders are that the Respondent:
(a)         not act for [redacted];
(b)         pay a pecuniary penalty in the amount of $2,000;
(c)         be publicly reprimanded; and
(d)pay the LSC’s costs of and incidental to the discipline action, to be assessed on the standard basis in the manner costs would be assessed if the matter were in the Supreme Court of Queensland.
In support of this submission the LSC relies on a number of comparative authorities.
In XBT,[18] the Tribunal made one finding of unsatisfactory professional conduct and three findings of professional misconduct. The Tribunal ordered that the respondent be publicly reprimanded, fined $750.00 and pay the LSC’s costs.
[18]Legal Services Commissioner v XBT [2018] QCAT 64.
In particular, the LSC relies on the comments of the Tribunal on the relevance of context and external pressures:
[46]As a general rule external pressures, even dramatic life events beyond the practitioner’s control, mitigate, sometimes substantially, but never completely relieve a lawyer from the disciplinary consequences of unprofessional conduct.
[47]Professional misconduct involving dishonesty ordinarily attracts both a reprimand and a pecuniary penalty mainly for its specific deterrent effect. Public censure has the advantage of shaming the practitioner, highlighting the standards to be met and deterring others from similar breaches. However, the adequacy of disciplinary action is highly context sensitive and each case has to be decided on its own facts.
[footnotes omitted].

Considering the current matter, the LSC submits:
(a)Here, there is no allegation of dishonesty.
(b)However, the Respondent’s conduct was repetitive and occurred over a protracted period and was to such a significant degree that it amounts to professional misconduct.
(c)Any extraordinary life events should not relieve the practitioner from disciplinary consequences.
Further, in the decision of O’Connor (No 2) [2006] LPT 002,[19] the respondent was publicly reprimanded for unsatisfactory professional conduct arising from a single letter that was a “momentary lapse”.
[19]Legal Services Commissioner v O’Connor (No 2) [2006] LPT 002.
In the decision of Cooper,[20] the Tribunal ordered that the respondent pay the applicant’s costs fixed in the amount of $2,500. The Tribunal declined to publicly reprimand the respondent on the basis it would have little general deterrence as lawyers ought to be familiar with the rule requiring courtesy in communications. The Tribunal concluded that it was a minor breach in private circumstances. The conduct was two insulting and offensive letters to the same recipient in a two-week period.
[20]Legal Services Commissioner v Cooper [2011] QCAT 209.
In contrast, the Respondent’s conduct in the current matter involved seven letters to five recipients over a 14-week period.
The LSC submits that it is appropriate to order that the Respondent not act for his partner as the evidence supports and it is uncontentious that:
(a)The constant pressure of the Respondent’s partner’s deteriorating mental health was a significant factor in the overall context of the Respondent’s conduct.
(b)The Respondent advised his psychologist that he recognises he should have distanced himself from the matter and arranged independent support sooner.
Further, the LSC submits that a public reprimand is warranted as there are no “special circumstances” as required by s 456(2)(e) to support a private reprimand.
The LSC contends there is no justification for a departure from a public reprimand in the current matter as:
(a)The Respondent has not established that there are “special circumstances” attributable to him or his offending conduct to justify a private reprimand. The impact on a third party, here the Respondent’s partner, does not have any bearing on the disciplinary application.
(b)A private reprimand would provide limited protection and deterrence, and would, in effect, compromise the transparency and accountability of the Tribunal.
In respect of the Respondent’s partner, the LSC contends that the evidence in any event does not establish “special circumstances” to justify a private reprimand. Following a review of some of the evidence in respect of the Respondent’s partner’s mental health issues, the LSC concludes:
(a)There is limited evidence that substantiates that the disciplinary proceedings have, or will in fact, have a negative impact on the Respondent’s partner’s mental health stability beyond that which is and/or has already occurred.
(b)The Respondent’s conduct contributed to the dissemination of information regarding his partner.
Further, the LSC submits there is an element of futility in making a private reprimand where the discipline application has been dealt with openly since August 2022 up until the interim non-publication order, the matter has been listed in the law list on several occasions and pursuant to s 472 of the LP Act, the LSC must keep a discipline register which remains open and searchable.
The LSC goes on to make two further submissions:
(a)There is no evidence that since the discipline application was commenced on 29 August 2022 that the proceedings have independently and directly caused a significant deterioration of the Respondent’s partner’s mental health stability and/or increase in her suicidal ideation.
(b)The underlying cause of the Respondent’s partner’s mental health issues are independent of these proceedings and are unlikely to cease should a private reprimand be made.
In respect of the Respondent’s own mental health, the LSC submits that this does not amount to “special circumstances” for the purposes of a private reprimand. In this regard, reliance is placed on two authorities:
(a)Legal Services Commissioner v XKR [2015] QCAT 469, where a public reprimand was ordered even where there were extreme personal circumstances.
(b)XBV,[21] where a reprimand was ordered without naming the respondent in circumstances where the respondent suffered from a major depressive disorder and there was a risk to the respondent if the findings were published.[22]
[21]Legal Services Commissioner v XBV [2018] QCAT 332.
[22]The LSC submission is that a public reprimand was ordered despite the strong medical evidence. The Tribunal’s decision is more nuanced than that. The Tribunal concluded that ordinarily the case would warrant a public reprimand but given the non-publication orders a reprimand was ordered but the respondent was not named. This was an outcome that was open under the Tribunal’s power to make “any order as it thinks fit”. This will be addressed further later in these reasons.
Overall, the LSC submits that the agreed sanction is suitable in the circumstances as it takes into account the mitigating circumstances and the respondent’s candour and cooperation subsequent to the first response to the Commission.
In respect of the appropriate costs order, the LSC submits there is no evidence of exceptional circumstances and the usual costs order pursuant to s 462 of the LP Act should be made.
Respondent’s position
The Respondent agrees with the sanction in the joint submissions but submits that the reprimand should be private and not public.
A significant component of the Respondent’s submission focuses on the inter-relationship between the application by the Respondent and his partner for a non-publication order and the submissions for a private reprimand. As a non-publication order has been made, the Respondent’s submissions need to be considered in that context.
Further, the Respondent again relies on the submissions outlined previously in respect of the factual context and the nature of the correspondence in respect of mitigating circumstances relevant to sanction. These will not be repeated again here.
Section 456(2)(e) of the LP Act provides that a private reprimand may be ordered if there are “special circumstances”. In respect of the meaning of “special circumstances”, the Respondent’s submissions include:
(a)That “special circumstances” may have different meanings depending on the statutory setting in which it appears. The words should be construed applying the usual principles.
(b)The submissions of both parties refer to cases where a public reprimand was ordered and others where a private reprimand was ordered. There is no settled approach.
(c)Reference is made to the observations of Justice Kiefel (as the Chief Justice then was) in Department of Family and Community Services v Chamberlain (2002) 116 FCR 348 where her Honour referred to an earlier view that the words required “something which distinguishes a person’s case from others, something that sets it apart from the usual or ordinary case”.
(d)To the extent that the Tribunal accepts the LSC’s submissions that the “special circumstances” must be referable to the Respondent, the deteriorating mental health of the Respondent’s partner had a demonstrable impact on him, acting on her behalf in respect of her claim and more broadly.
The Respondent’s submissions also address the approach to considering whether a reprimand should be public or private where there is a non-publication order. The case of XBV[23] considered this issue and the Tribunal reasoned as follows:
“[45]The applicant however contended that the respondent should be publicly reprimanded because of the need for general deterrence, which would be protective of the public; and because that would be consistent with other cases; and that a decision should be made on the question whether a public reprimand is to be imposed, before the Tribunal determines the non-publication application.
[46]The last submission should be rejected. An order for a public reprimand for the purpose of general deterrence cannot be justified if the order is not to be published.
[47]Otherwise, there is some force in the submission that this case would ordinarily warrant a public reprimand, to mark the seriousness of the respondent’s conduct and to deter others from similar failures, thus contributing to the protection of the public.
[48]Accordingly, it is appropriate in the present case to make an order that the respondent be reprimanded. As a result of the non-publication orders and the form of these reasons, the identity of the respondent should not become a matter of public knowledge. In those circumstances, the order for a reprimand should pose no greater risk to the respondent’s mental health than the publication of this set of reasons, including findings adverse to the respondent. The published reasons, by and large, reflect the submissions of the respondent’s Senior Counsel as to the form which those reasons should take. The order might not squarely fit the descriptions of an order publicly reprimanding a practitioner or an order privately reprimanding a practitioner, for the purposes of s 456(2)(e) of the LP Act. However, s 456(1) gives the Tribunal the power to make ‘any order as it thinks fit’.”
[23]Legal Services Commissioner v XBV [2018] QCAT 332.
Ultimately, the Respondent submits that the proposed sanction, with the reprimand being private, is appropriate in all of the circumstances. In particular, the Respondent points to:
(a)The unique set of circumstances, with a combination of factors which are unlikely to arise again.
(b)The fact that the conduct occurred in a small remote town, which is a distinguishing feature.
(c)The case warrants a non-publication order to protect the client of the legal practitioner, the Respondent’s partner, from harm.
(d)The Respondent understands the seriousness of the discipline application and has apologised and cooperated with the LSC.
(e)The Respondent would accept a public reprimand and publication if it was just him affected, but he seeks the private reprimand in combination with the non-publication order out of concern for his partner.
Consideration
The Tribunal will deal with each of the proposed orders in turn.
Section 456(4)(e) of the LP Act provides that the Tribunal may make “an order that the practitioner do or refrain from doing something in connection with the practitioner engaging in legal practice”. This provides a basis for the proposed order that the Respondent not act for [redacted].
The conduct that has been found to be professional misconduct clearly is causally related to the Respondent acting for his partner, initially in respect of her claim. The Respondent himself recognises now that so acting was a contributing factor that led to him losing professional objectivity.
In the circumstances, the imposition of such an order is appropriate and protective in nature in accordance with the objects of the LP Act.
Section 456(4)(a) of the LP Act provides that the Tribunal may make “an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100,000.” This provides a basis for the proposed order that the Respondent pay a pecuniary penalty in the amount of $2,000.
The payment of a penalty is directed at general deterrence rather than as a punishment. The amount is submitted to be appropriate considering the totality of the sanctions and the mitigating circumstances.
Accordingly, the imposition of a penalty is relevant to general deterrence and is appropriate in the circumstances.
Section 456(2)(e) of the LP Act provides for a public reprimand or a private reprimand if special circumstances are shown. As discussed above, where a non-publication order has been made, there is some disjunct between the non-publication order and the consideration under s 456(2)(e). Accordingly, the Tribunal considers it is more appropriate to proceed under s 456(1) of the LP Act which gives the Tribunal power to “make any order as it thinks fit”.
A finding of professional misconduct would ordinarily attract a public reprimand to identify the serious nature of the conduct and to deter others from similar conduct. However, where there is a non-publication order, a public reprimand for the purpose of general deterrence cannot be justified.
Consistent with the reasoning at [48] of the decision in XBV, a reprimand without naming the Respondent, maintaining consistency with the objectives of the non-publication order, is appropriate in the particular circumstances of this case.
General deterrence is achieved through the publication of the reasons for decision and orders maintaining the non-publication of information that may identify the Respondent, his partner and the relevant town.
In respect to costs, s 462 of the LP Act provides that the Tribunal must make an order requiring the Respondent to pay costs of the LSC unless the Tribunal is satisfied exceptional circumstances exist.
The Respondent has not sought to establish exceptional circumstances. Accordingly, the costs are payable by the Respondent in accordance with s 462 of the LP Act.
Published reasons
A “confidential – not to be published” version of the reasons for decision and order were provided to the parties. The parties were asked to identify any material in the confidential version of the reasons for decision which may identify the Respondent, his partner and the town where the Respondent conducted legal practice which should be redacted.
A public version of these reasons for decision and order have then been prepared incorporating any necessary redactions consistent with the non-publication order.
Orders
Accordingly, the Tribunal orders that:
1.       Information which might enable the Respondent, the Respondent’s partner and the location where the Respondent conducts his legal practice to be identified is not to be published, except to the parties in these proceedings.
2.       The Respondent’s conduct identified in respect of the charge in the discipline application is found to constitute professional misconduct.
3.       The Respondent refrain from acting for [redacted].
4.       The Respondent pay a pecuniary penalty in the amount of $2,000.
5.       The Respondent is reprimanded for his conduct.
6.       The Respondent pay the LSC’s costs of and incidental to the discipline action, to be assessed on the standard basis in the manner costs would be assessed if the matter were in the Supreme Court of Queensland.