Legal Services Commissioner v XBN - [2016] QCAT 471

CITATION:

Legal Services Commissioner v XBN [2016] QCAT 471

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
XBN (Respondent)

APPLICATION NUMBER:

OCR164-16

MATTER TYPE:

Occupational Regulation matters

HEARING DATE:

21 September 2016

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President
Assisted by:
Mr Ken Horsley, Legal panel member
Ms Julie Cork, Lay panel member

DELIVERED ON:

12 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a non-publication order is granted.

2. The respondent is publicly reprimanded.

3. The respondent is to pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland. The costs so assessed will be paid by equal monthly instalments over a period of 24 Months.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the legal services Commissioner charged the respondent with several charges including disreputable conduct for engaging in behaviour considered offensive and provocative and filing a misleading affidavit in Court – where the respondent has suffered from mental illness most of his life – where the respondent accepted the charges but argued that his mental illness excused that conduct – where the cases say mental illness is a mitigating factor – whether the conduct of the practitioner can be excused due to mental illness

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – APPLICATION FOR NON-PUBLICATION

ORDER – where the applicant applied for a non-publication order in relation to his name and identifying details – where medical evidence provided that publication would cause adverse mental health effects – where order only made in exceptional circumstances – where the applicant argues it goes against the objective of the Legal Profession Act 2007 (Qld) – whether in the circumstances a non-publication order should be granted

Australian Solicitors Conduct Rules 2012 r 5.1.2, 17.1, 19.1
Legal Profession Act 2007 (Qld) ss 418, 419, 420, 443(3), 462, 472, 477
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 7(2), 66
Uniform Civil Procedure Rules 1999 (Qld)

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498
BRJ v Council of New South Wales Bar Association [2016] NSWSC 146
Council of the New South Wales Bar Association v Fitzgibbon [2012] NSWADT 56

Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115
Law Society of New South Wales vKay [2009] NSWADT 139

Legal Practitioners Conduct Board v Ardalich [2005] SASC 478
Legal Services Commissioner v CBD [2011] QCAT 401
Legal Services Commissioner v Madden (No 2) [2008] QCA 301
Legal Services Commissioner v Mellick [2016] QCAT 155
Legal Services Commissioner v Sing [2007] LPT 004
Legal Services Commissioner v Yarwood[2015] QCAT 208
Prothonotary of Supreme Court of New South Wales v Christopher Ronald Fitzsimons [2012] NSWSC 260
Robinson v Law Society of New South Wales (Supreme Court of New…

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: [2016] QCAT 471
Decision Date: 12 December 2016

CaseChat Overview and Summary

The Legal Services Commissioner brought an action against XBN, a legal practitioner, alleging various charges of professional misconduct and unsatisfactory professional conduct. The charges included disreputable conduct for engaging in behaviour that was offensive and provocative, as well as filing a misleading affidavit in court. XBN accepted the charges but argued that his lifelong struggle with mental illness should be taken into account as a mitigating factor. The court was tasked with determining whether XBN's mental illness excused his conduct and whether a non-publication order should be granted in relation to his name and identifying details.

The court considered the impact of XBN's mental illness on his professional conduct and examined the law regarding the role of mental health as a mitigating factor in disciplinary proceedings. The court noted that while mental illness could be considered in assessing the appropriate penalty, it did not necessarily excuse the misconduct. The court also reviewed the application for a non-publication order, weighing the need for transparency in legal disciplinary proceedings against the potential adverse mental health effects on XBN if his name and details were published.

In its decision, the court granted the application for a non-publication order, finding that the exceptional circumstances warranted such an order due to the medical evidence presented about the potential harm to XBN's mental health. The court imposed a public reprimand and ordered XBN to pay the Legal Services Commissioner's costs, to be paid in monthly instalments over 24 months. This decision balances the objectives of the Legal Profession Act 2007 (Qld) with the need to protect XBN's mental health.

Orders

Orders of the court

1. The application for a non-publication order is granted.

2. The respondent is publicly reprimanded.

3. The respondent is to pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland. The costs so assessed will be paid by equal monthly instalments over a period of 24 Months.

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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