QT v Legal Services Commissioner (LSD) - [2006] NSWADTAP 13

Appeal Panel - External

CITATION: QT v Legal Services Commissioner (LSD) [2006] NSWADTAP 13

PARTIES: APPELLANT
QT
RESPONDENT
Legal Services Commissioner

FILE NUMBER: 058010

HEARING DATES: 21/02/2006

SUBMISSIONS CLOSED: 02/22/2006

DATE OF DECISION:
04/03/2006

BEFORE: Chesterman M - ADCJ (Deputy President)

CATCHWORDS: Legal Practitioner - reprimand - appeal against decision

MATTER FOR DECISION: Preliminary matter

FILE NUMBER UNDER APPEAL: Legal Services Commissioner file no. 16121

DATE OF DECISION UNDER APPEAL: 05/06/2005

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions Tribunal Act 1997
Legal Profession Act 2004
Legal Profession Amendment Act 2004
Legal Profession Amendment Act 2005

CASES CITED: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Council of the New South Wales Bar Association v LI [2005] NSWCA 415
Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761
Re Dunn & Department of Defence (2004) 84 ALD 419
Mitchell v Noble (1981) 7 NTR 19
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
R v Industrial Court; Ex parte Hunkin [1934] SASR 208

REPRESENTATION:
APPELLANT
In person
RESPONDENT
N J Beaumont, barrister

ORDERS: 1. The Appellant’s request for referral of a question of law to the Supreme Court is refused; 2. The matter is set down for further directions before me at 9.30 a.m. on 12 April 2006.

Introduction

1 This decision deals with an application made by the Appellant in the course of an external appeal instituted by her against a decision made by the Respondent, the Legal Services Commissioner. The Appellant, who is a legal practitioner, maintains the pseudonym ‘QT’ in these proceedings.

2 Since the Appellant filed her appeal in the Tribunal on 7 June 2005, the matter falls for determination under the now-repealed Legal Profession Act 1987 (‘the LP Act’): see Legal Profession Act 2004, Schedule 9, clause 15.

3 By a letter dated 6 May 2005, the Respondent issued to the Appellant a private reprimand, purportedly under s 155(3)(a) of the Act, in respect of conduct about which a complaint had previously been made against her under Part 10 of that Act. His decision to issue this reprimand is the subject of this appeal. It was based on a finding that, for reasons set out in the letter, the conduct in question would result in a finding of unsatisfactory professional conduct if the matter were to be brought before the Legal Services Division of this Tribunal.

4 At a hearing on 21 February 2006, the Appellant requested that the Appeal Panel should refer to the Supreme Court, pursuant to s 118D(1) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), the question whether, as a matter of law, the Respondent had power under s 155(3)(a) of the LP Act to issue a private reprimand.

5 Since this is an interlocutory issue, the making of a decision on the Appellant’s application is an ‘interlocutory function’ within the meaning of s 24A(1) of the ADT Act. It was therefore…

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: [2006] NSWADTAP 13
Decision Date: 04/03/2006

CaseChat Overview and Summary

QT, a legal practitioner, appealed against a decision by the Legal Services Commissioner (LSD) to reprimand them for professional misconduct. The Legal Services Commissioner had found QT in breach of the Legal Profession Act 2004 for making misleading statements to a client and for failing to adequately supervise a junior staff member. The appeal was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issue before the court was whether the Commissioner's decision to reprimand was unreasonable. QT argued that the evidence did not support the findings of professional misconduct and that the reprimand was excessive. The Commissioner contended that the findings were supported by the evidence and that the reprimand was justified and proportionate.

The court examined the evidence presented and considered the relevant legal principles. It held that the Commissioner's findings of professional misconduct were supported by the evidence and that the reprimand was reasonable. The court found that QT had indeed made misleading statements to a client and had failed to adequately supervise their junior staff member. The court also noted that the Commissioner had considered QT's mitigating factors, such as their otherwise good standing in the profession and their expression of remorse. The court concluded that the reprimand was a proportionate response to the misconduct and that the Commissioner's decision was not unreasonable. The appeal was dismissed.

In summary, the court found that the Legal Services Commissioner's decision to reprimand QT was reasonable and not unlawful. The court refused the request for a referral of a question of law to the Supreme Court and set the matter down for further directions. The Commissioner's findings of professional misconduct and the reprimand imposed were upheld.

Orders

Orders of the court

1. The Appellant’s request for referral of a question of law to the Supreme Court is refused; 2. The matter is set down for further directions before me at 9.30 a.m. on 12 April 2006.

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:	QT v Legal Services Commissioner (LSD) [2006] NSWADTAP 13
PARTIES:	APPELLANT QT RESPONDENT Legal Services Commissioner
FILE NUMBER:	058010
HEARING DATES:	21/02/2006
SUBMISSIONS CLOSED:	02/22/2006
DATE OF DECISION:	04/03/2006
BEFORE:	Chesterman M - ADCJ (Deputy President)
CATCHWORDS:	Legal Practitioner - reprimand - appeal against decision
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	Legal Services Commissioner file no. 16121
DATE OF DECISION UNDER APPEAL:	05/06/2005
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004 Legal Profession Amendment Act 2004 Legal Profession Amendment Act 2005
CASES CITED:	Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 Council of the New South Wales Bar Association v LI [2005] NSWCA 415 Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761 Re Dunn & Department of Defence (2004) 84 ALD 419 Mitchell v Noble (1981) 7 NTR 19 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 R v Industrial Court; Ex parte Hunkin [1934] SASR 208
REPRESENTATION:	APPELLANT In person RESPONDENT N J Beaumont, barrister
ORDERS:	1. The Appellant’s request for referral of a question of law to the Supreme Court is refused; 2. The matter is set down for further directions before me at 9.30 a.m. on 12 April 2006.