Legal Services Commissioner v Trost - [2019] QCAT 357

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Trost [2019] QCAT 357

PARTIES: LEGAL SERVICES COMMISSIONER

(applicant)

v

BENJAMIN CHE TROST

(respondent)

APPLICATION NO/S:

OCR254-13

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 December 2019

HEARING DATE:

19 June 2018

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:

Mr Scott Anderson

Mrs Patrice McKay

ORDERS:
1.   Charge 1 is dismissed;

2.   On each of Charge 2 and Charge 3, it is found that the respondent engaged in unsatisfactory professional conduct;

3.   The Tribunal will hear from the parties with respect to consequential orders and as to costs.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent is charged with communicating in his opponent’s absence and without their consent with the Court concerning a matter of substance in connection with current proceedings – where those communications were made by email – where the respondent’s location when sending the emails is not in evidence before the Tribunal – where the emails were sent from a server located in Brisbane, Queensland – whether the sending of the emails is conduct happening in this jurisdiction for the purposes of s 423 of the Legal Profession Act 2007

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent is charged with communicating in his opponent’s absence and without their consent with the Court concerning a matter of substance in connection with current proceedings in breach of r 18.6 – whether communications in opponent’s absence – whether communications without opponent’s consent – whether communications on a matter of substance in connection with current proceedings – whether the breach of r 18.6 of the Legal Profession (Solicitors) Rule 2007 should be characterised as unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2007

Legal Profession Act 2007, s 227, s 418, s 419, s 420, s 423, s 456, 656C
Legal Profession (Solicitors) Rule 2007, r 18.6

Adamson v Queensland Law Society Inc (1990) 1 Qd R 498
ASIC v Flugge & Geary (2016) 342 ALR 1
Carbotech Australia Pty Ltd v Yates [2008] NSWSC 540
Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209
John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34; (2011) 276 ALR 221
Jones v Dunkel (1959) 101 CLR 298

Legal Services Commissioner v Bone [2013] QCAT 550

Legal Services Commissioner v Bussa [2011] QCAT 388
Legal Services Commissioner v Madden (2009) 1 Qd R 149
LSC v Trost [2017] QCAT 171
Monis v The Queen (2013) 249 CLR 92
Monis v The Queen [2011] NSWCCA 231; (2011) 256 FLR 28
Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2012] VSC 239; (2012) 266 FLR 243

APPEARANCES & REPRESENTATION:

Applicant:

M Nicholson instructed by the Legal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 357
Decision Date: 9 December 2019

CaseChat Overview and Summary

In the matter of Legal Services Commissioner v Trost, the Legal Services Tribunal (Tribunal) was tasked with considering charges of professional misconduct and unsatisfactory professional conduct against the respondent. The Legal Services Commissioner brought the charges following an investigation into the respondent’s communication with the Court regarding a matter of substance in the absence of the opponent and without their consent. The respondent was found to have sent these communications via email, with the emails originating from a server in Brisbane, Queensland. However, the exact location of the respondent when sending the emails was not determined.

The primary issues for the Tribunal to resolve were whether the communications were made in the absence of the opponent and without their consent, and if they were on a matter of substance in connection with the current proceedings. Additionally, the Tribunal needed to decide if the respondent’s actions amounted to unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2007. The Tribunal concluded that the respondent did indeed engage in communications without the opponent's consent and on a matter of substance, but the charge of professional misconduct was dismissed.

The Tribunal found that while the respondent’s actions did constitute unsatisfactory professional conduct, they did not meet the threshold for professional misconduct. The Tribunal dismissed the first charge related to professional misconduct. However, it found that the respondent had engaged in unsatisfactory professional conduct for the second and third charges, as they had communicated with the Court without the opponent's consent and on a matter of substance. The Tribunal did not definitively rule on whether the conduct occurred within the jurisdiction, leaving this issue for further clarification.

Pending the outcome of the discussion on jurisdictional issues, the Tribunal dismissed the charge of professional misconduct, found the respondent guilty of unsatisfactory professional conduct for the remaining charges, and deferred decisions on consequential orders and costs until further submissions from both parties.

Orders

Orders of the court

1. Charge 1 is dismissed;

2. On each of Charge 2 and Charge 3, it is found that the respondent engaged in unsatisfactory professional conduct;

3. The Tribunal will hear from the parties with respect to consequential orders and as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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