Legal Services Commissioner v Voll - [2008] QCA 293

SUPREME COURT OF QUEENSLAND

CITATION:

Legal Services Commissioner v Voll [2008] QCA 293

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant/appellant)
v
PAUL MICHAEL VOLL
(respondent/respondent)

FILE NO/S:

Appeal No 2015 of 2008
LPT No 1426 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Legal Practice Tribunal at Brisbane

DELIVERED ON:

26 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2008

JUDGES:

Keane JA, Wilson and Dutney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT – MISLEADING THE COURT AND PERVERTING THE COURSE OF JUSTICE – where respondent’s clients did not appear at hearing before Queensland Building Tribunal – where QBT made orders in clients’ absence – where respondent had given clients inadequate advice of hearing dates – whether the respondent lied to the QBT about clients’ absence

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – Where Legal Practice Tribunal found respondent guilty of professional misconduct but not presently unfit to practise – where LPT reprimanded respondent and imposed fine – whether LPT’s orders were adequate to protect the public and maintain confidence in the profession – where the LPT rejected evidence given by the respondent – where LPT treated rejection of evidence as reflecting on respondent’s credibility – whether rejection of evidence was an aggravating factor in determination of appropriate disciplinary orders – distinction between rejection of evidence and finding that respondent lied to LPT – procedural fairness – whether LPT erred in not finding there was potential benefit to respondent in his lying to QBT – relevance of respondent’s subsequent conduct and changes in his practice – whether LPT erred in finding that respondent had subsequently refined his practice – whether Court of Appeal should allow evidence of respondent’s conduct in relation to the appeal – whether such evidence could be considered in relation to adequacy of disciplinary orders – procedural fairness

Legal Profession Act 2007 (Qld), s 6(2), s 37, s 419, s 452, s 456(1), s 468, s 599(1), s 746(1)(p), s 718(2)
Legal Profession Act 2004 (Qld), s 245, s 250(1), s 276
Acts Interpretation Act 1954 (Qld), s 20(2)(c), s 20(2)(e), s 20(3)

A-G of Hong Kong v Wong [1987] AC 501, referred to
Attorney-General v Bax [1999] 2 Qd R 9; [1998] QCA 89, cited
Council of the Queensland Law Society Inc v Wakeling[2004] QCA 42, referred to
Goldsmith v Sandilands (2002) 190 ALR 370; [2002] HCA 31, referred to
Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655; [1909] HCA 87, cited
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, cited
Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249; [2006] QCA 145, cited
Legal Services Commissioner v Mullins [2006]…

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: [2008] QCA 293
Decision Date: 26 September 2008

CaseChat Overview and Summary

The Legal Services Commissioner sought a review of the decisions of the Legal Practice Tribunal, which found the respondent, a lawyer, guilty of professional misconduct but not presently unfit to practise. The misconduct arose from the respondent's clients not appearing at a hearing before the Queensland Building Tribunal (QBT) due to the respondent giving them inadequate advice of the hearing dates. The Commissioner argued that the respondent had misled the QBT about his clients’ absence and perverted the course of justice. The Tribunal found that the respondent had lied to the QBT but imposed a reprimand and a fine, rather than suspending or cancelling his practising certificate.

The primary issue before the court was whether the orders made by the Legal Practice Tribunal were adequate to protect the public and maintain confidence in the legal profession. The Commissioner argued that the orders were insufficient and did not appropriately reflect the seriousness of the misconduct. The court also considered whether the Tribunal erred in its treatment of the respondent’s evidence, particularly in rejecting the evidence and using it as a reflection on the respondent’s credibility. Furthermore, the court examined whether the Tribunal correctly identified factors relevant to the determination of appropriate disciplinary orders, including whether the rejection of evidence was an aggravating factor.

The court found that the Legal Practice Tribunal did not err in its consideration of the respondent’s conduct or in its assessment of the adequacy of the disciplinary orders. The court held that the Tribunal's orders were sufficient to maintain public confidence in the legal profession and that the rejection of the respondent’s evidence was appropriately considered. The court dismissed the appeal and ordered the appellant to pay costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Voll [2008] QCA 293
PARTIES:	LEGAL SERVICES COMMISSIONER (applicant/appellant) v PAUL MICHAEL VOLL (respondent/respondent)
FILE NO/S:	Appeal No 2015 of 2008 LPT No 1426 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Legal Practice Tribunal at Brisbane
DELIVERED ON:	26 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	14 August 2008
JUDGES:	Keane JA, Wilson and Dutney JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT – MISLEADING THE COURT AND PERVERTING THE COURSE OF JUSTICE – where respondent’s clients did not appear at hearing before Queensland Building Tribunal – where QBT made orders in clients’ absence – where respondent had given clients inadequate advice of hearing dates – whether the respondent lied to the QBT about clients’ absence PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – Where Legal Practice Tribunal found respondent guilty of professional misconduct but not presently unfit to practise – where LPT reprimanded respondent and imposed fine – whether LPT’s orders were adequate to protect the public and maintain confidence in the profession – where the LPT rejected evidence given by the respondent – where LPT treated rejection of evidence as reflecting on respondent’s credibility – whether rejection of evidence was an aggravating factor in determination of appropriate disciplinary orders – distinction between rejection of evidence and finding that respondent lied to LPT – procedural fairness – whether LPT erred in not finding there was potential benefit to respondent in his lying to QBT – relevance of respondent’s subsequent conduct and changes in his practice – whether LPT erred in finding that respondent had subsequently refined his practice – whether Court of Appeal should allow evidence of respondent’s conduct in relation to the appeal – whether such evidence could be considered in relation to adequacy of disciplinary orders – procedural fairness Legal Profession Act 2007 (Qld), s 6(2), s 37, s 419, s 452, s 456(1), s 468, s 599(1), s 746(1)(p), s 718(2) Legal Profession Act 2004 (Qld), s 245, s 250(1), s 276 Acts Interpretation Act 1954 (Qld), s 20(2)(c), s 20(2)(e), s 20(3) A-G of Hong Kong v Wong [1987] AC 501, referred to Attorney-General v Bax [1999] 2 Qd R 9; [1998] QCA 89, cited Council of the Queensland Law Society Inc v Wakeling[2004] QCA 42, referred to Goldsmith v Sandilands (2002) 190 ALR 370; [2002] HCA 31, referred to Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655; [1909] HCA 87, cited Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, cited Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249; [2006] QCA 145, cited Legal Services Commissioner v Mullins [2006]…