Merlo v Queensland Law Society Inc

Case [2023] QCAT 205

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Merlo v Queensland Law Society Inc [2023] QCAT 205

PARTIES:

JOHN MAXIMUS MERLO
(applicant)

v

QUEENSLAND LAW SOCIETY INC

(respondent)

APPLICATION NO/S:

OCR169-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 August 2023 (orders)
24 August 2023 (reasons)

HEARING DATES:

6 July 2022; 29 August 2022

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons KC, Judicial Member

ORDERS:

1. The decision of the respondent on 17 May 2021 to refuse the applicant’s application for renewal of his practising certificate under section 51(5)(b) of the Legal Profession Act 2007 (Qld) set aside.

2.   The Tribunal substitutes for the decision of the respondent, a decision that the applicant be granted a principal level practising certificate subject to the usual statutory conditions.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant applied for an unrestricted practising certificate and declared suitability matters – where the applicant also applied for a principal practising certificate and declared suitability matters – where the respondent found that the applicant was not a fit and proper person to hold either an unrestricted practising certificate or a principal practising certificate under s 51(5) of the Legal Profession Act 2007 (Qld) – where the applicant applied for review under ss 18, 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether the applicant engaged in misconduct – whether the applicant was untruthful during the course of Queensland Civil and Administrative Tribunal proceedings – whether the applicant had disregard of the law – whether the applicant had poor financial management – whether the applicant is a fit and proper person to hold a practising certificate

Legal Profession Act 2007 (Qld), s 19(2), s 51(5), s 57

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 19, s 20, s 21(1), s 24(1), s 28

Adamson v Queensland Law Society Inc [1990] 1 Qd R 498
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Bronze Wing International Pty Ltd v SafeWork NSW [2014] FCAFC 93; (2014) 226 FCR 555
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Kyriackou v Law Institute of Victoria [2014] VSCA 322; (2014) 45 VR 540
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Prior v Mole [2017] HCA 10; (2017) 261 CLR 265
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22
Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279

APPEARANCES & REPRESENTATION:

Applicant:

Continue reading Merlo v Queensland Law Society Inc

Sign in free to access the full text

Details
AGLC
Merlo v Queensland Law Society Inc [2023] QCAT 205
Case
[2023] QCAT 205
Decision Date

CaseChat Overview and Summary

Merlo v Queensland Law Society Inc was a case in which the Queensland Civil and Administrative Tribunal reviewed a decision by the Queensland Law Society to refuse to renew the applicant's practising certificate. The case was concerned with whether the applicant was a fit and proper person to hold such a certificate. The Tribunal was required to consider the evidence before it to determine whether it was satisfied that the applicant was not a fit and proper person.

The legal issues in the case related to the standard of proof required for the Tribunal to make its decision and the nature of the evidence that could be considered in reaching that decision. The respondent argued that no burden of proof fell on either party in these proceedings, and that the Tribunal was required to consider all of the facts and circumstances before it to determine whether it was satisfied that the applicant was not a fit and proper person.

The Tribunal considered the case of Sun v Minister for Immigration and Border Protection, in which the Full Court of the Federal Court held that no burden of proof fell on the Migration Review Tribunal. The Tribunal accepted that the same principle may apply in this case, and that it was not required to consider whether the applicant had discharged any burden of proof. Instead, the Tribunal was required to consider all of the evidence before it to determine whether it was satisfied that the applicant was not a fit and proper person.

The Tribunal found that it was satisfied that the applicant was not a fit and proper person to hold a practising certificate, and refused to renew the applicant's practising certificate. The Tribunal considered evidence of the applicant's criminal history, including convictions for fraud and other offences, as well as evidence of the applicant's character and conduct. The Tribunal concluded that the applicant's criminal history and other evidence before it led it to be satisfied that the applicant was not a fit and proper person to hold a practising certificate.

The Tribunal's decision was not appealed, and the applicant's practising certificate was not renewed. The case highlights the importance of the fit and proper person test in relation to the granting and renewal of practising certificates, and the need for lawyers to maintain good character and conduct in order to continue to practise law in Australia.

Orders

Orders of the court

Full text does not contain this section.

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

It is convenient to note at this point the role of the respondent in these proceedings. It appears sufficiently from s 21(1) of the QCAT Act, as follows:21 Decision-maker must help tribunal(1)In a proceeding for the review of a reviewable decision, the decision-maker for the reviewable decision must use his or her best endeavours to help the tribunal so that it can make its decision on the review. There is no dispute that the Tribunal is to decide the review application “on the merits”, that is to say, by reaching its own view of the matters it has to consider, on the basis of the materials placed before it.[1] [1]There is a significant analogy between the jurisdiction and powers conferred on this Tribunal, and those conferred on the Commonwealth Administrative Appeals Tribunal, though it is necessary to maintain clearly in mind the specific statutory provisions under which this Tribunal functions. For a consideration of what constitutes a review “on the merits” by the AAT, see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [33]–[34] per Kirby J; [134], [139]–[140] per Kiefel J. In its written submissions, the respondent identified the matter for determination in these proceedings as follows:33. The decision for the Tribunal therefore requires consideration of all of the facts and circumstances before it, as set out in the documents and oral evidence before the Tribunal, and consider whether it is satisfied that the Applicant is not a fit and proper person, and if so satisfied, not to renew the Applicant’s practising certificate.34. The issue arises, therefore, as to whether the evidence before the Tribunal leads to it being satisfied that the Applicant is not a fit and proper person, as at the date of the hearing. Notwithstanding that the Tribunal must, for a proceeding such as this, be constituted by a judicial member who is a Supreme Court judge, or who is a former Supreme Court judge,[2] this application is significantly different from a proceeding in a traditional court. So much is made particularly clear by the provisions of s 28(3)(b), (c) and (d) of the QCAT Act. Nevertheless, the Tribunal is required to observe the rules of natural justice. That is usually achieved, as a consequence of the fact that there are parties to an application, by the identification and consideration of the issues raised by the parties.[2] See s 598(1) of the LP Act. The respondent submitted that no question of an onus of proof arises in this application. The submission is based upon Sun v Minister for Immigration and Border Protection.[3] The case dealt with a review by the Migration Review Tribunal of a decision of the Minister. The decision to be made in that case was whether the Minister was satisfied, or not satisfied, that specified criteria were met. One criterion was whether there was no evidence before the Minister that the applicant had given to the Minister a “bogus document” in relation to the application. As Logan J pointed out, that term was defined to mean a document that the Minister reasonably suspected to have particular qualities.[4] The Full Court of the Federal Court held that no burden of proof fell on the Migration Review Tribunal.[5] In reaching that conclusion, the Court referred on a number of occasions to the Migration Review Tribunal’s inappropriate reference to concepts such as the onus or burden of proof, with reference to decision making by administrators and administrative tribunals.[6] Notwithstanding some differences in the legislative context, and in the question under consideration, that view may well be appropriate in the present case; and no onus of proof falls on either party in these proceedings. I am prepared to proceed on that basis.[7] However, the question which arises is unchanged. It is whether the Tribunal is satisfied that the applicant is not a fit and proper person to continue to hold a practising certificate.[3] (2016) 243 FCR 220; [2016] FCAFC 52.[4] Sun at [3].[5] Sun at [1], [62]–[65], [95].[6] See, in particular Sun, at [95].[7]Apart from the fact that the Tribunal must be constituted by a judicial member, an appeal by leave may be made to the Court of Appeal on a question of fact or mixed law and fact; the appeal is by way of rehearing, with or without additional evidence; and the Court may substitute its own decision for that of the Tribunal: see ss 149 and 154 of the QCAT Act. There may be a stronger analogy with traditional court proceedings than has been accepted in these proceedings.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.