Pearson v The Legal Services Commissioner

DISTRICT COURT OF QUEENSLAND

CITATION:

Pearson v The Legal Services Commissioner [2018] QDC 266

PARTIES:

MARK ANDREW PEARSON
(appellant)

v

THE LEGAL SERVICES COMMISSIONER
(respondent)

FILE NO/S:

D264/2017

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2018

JUDGE:

Richards DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – Appeal against sentence – where the appellant did not appear - whether the appellant was served with the material – where the magistrate proceeded without the appellant - whether conduct amounts to a person carrying on or exercising the profession of law and thus “engage in legal practice” – whether a conviction should be recorded.

COUNSEL:

Mr M Campbell for the appellant
Ms D A Holliday for the respondent

SOLICITORS:

Mr M Campbell appeared on direct brief
The Legal Services Commissioner for the respondent

1. The appellant was charged on complaint made by a public officer with the simple offence of breaching s 24 of the Legal Profession Act2007. On 5 September 2017 he failed to appear in the Magistrates Court for the hearing of the complaint and an application was made for the matter to proceed ex-parte pursuant to s 142A of the Justices Act1886.  He was duly convicted of engaging in legal practice when he was not an Australian legal practitioner and was fined $1,500, ordered to pay costs of $2,000 and a conviction was recorded.  He subsequently applied to reopen the hearing and that was refused and he has accordingly appealed. 

1. The grounds of the appeal are as follows:

   i.      This matter proceeded before Magistrate Previtera in the Magistrates Court at Brisbane on 5 September 2017 in the absence of the appellant/defendant.

   ii.      The appellant/defendant was never served personally with the complaint – sworn, and summons.

   iii.      The appellant/defendant corresponded with the complainant and/or his delegates in relation to the matters the subject of the complaint.

   iv.      In that correspondence the complainant and/or his delegates confirmed that personal service of proceedings of the complaint – sworn, and summons was required.

   v.      Despite this acknowledgment the complainant sought to effect service of the proceedings by registered post.

   vi.      The appellant/defendant never received the proceedings by registered post.

   vii.      The appellant/defendant denies having engaged in legal practice when not entitled contrary to the allegations made in the complaint.

   viii.Such a finding was made in civil proceedings in the Magistrates Court at Southport by Magistrate Sinclair in reasons delivered 25 August 2017.

   ix.The Legal Profession Act enables the Legal Services Commissioner to prosecute persons engaged in legal practice when not entitled to do so.

   x.The Legal Profession Act provides a statutory limitation period for commencing proceedings of 12 months in respect of the subject matter of the complaint.

   xi.The subject matter of the complaint alleged that the appellant/defendant engaged in legal practice on diverse dates between 16 January 2016 and 1 February 2017.

   xii.The complaint – sworn, and summons was filed…