Rider-Bell v Legal Services Commissioner
[2013] QCATA 191
•24 July 2013
| CITATION: | Rider-Bell v Legal Services Commissioner [2013] QCATA 191 |
| PARTIES: | Denise Marilyn Rider-Bell (Appellant) |
| v | |
| Legal Services Commissioner (Respondent) |
| APPLICATION NUMBER: | APL230-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 24 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for miscellaneous matters filed 4 July 2013 is dismissed. 2. The application for leave to appeal and appeal filed on 22 May 2013 is dismissed. |
| CATCHWORDS: | APPEALS – REVIEW – DECISION OF A REGISTRAR – where the Legal Services Commissioner brought an application against an Australian legal practitioner – where the Tribunal heard the application and made a final decision – where the legal practitioner filed an application for leave to appeal or appeal in the Appeal Tribunal – where a registrar of the Appeal Tribunal rejected the application under s 35 of the Queensland Civil and Administrative Tribunal Act on the basis the Appeal Tribunal did not have jurisdiction to hear the appeal – where the legal practitioner requested a review of the registrar’s decision – whether the registrar had the authority to reject the application APPEALS – where the Legal Services Commissioner brought an application against an Australian legal practitioner – where the Tribunal heard the application and made a final decision – where the legal practitioner filed an application for leave to appeal or appeal in the Appeal Tribunal – where the Tribunal did not have jurisdiction to hear the appeal – whether the proceeding should be dismissed or struck-out under s 47 of the Queensland Civil and Administrative Tribunal Act Legal Profession Act 2007 (Qld), s 452(1)(a), s 468, s 598(1)(a) Legal Services Commissioner v Rider-Bell [2013] QCAT 176, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The original proceedings
The Legal Services Commissioner applied to the Tribunal for an order against Mrs Denise Rider-Bell who was then an Australian legal practitioner.
The Commissioner’s application charged Mrs Rider-Bell with professional misconduct under the Legal Profession Act 2007 (Qld) (‘LPA’). The proceedings were brought under s 452(1)(a) of the LPA. In accordance with s 598(1)(a) of the LPA, the Tribunal was constituted by the President; a Judicial Member of the Tribunal who is a Supreme Court Judge.
By decision dated 16 April 2013 the Tribunal found that Mrs Rider-Bell had engaged in conduct which constituted professional misconduct. The Tribunal also determined that the serious nature of the misconduct, the extent of the overcharging involved, and the circumstances in which the offences occurred, warranted a finding that her name should be removed from the roll of legal practitioners.[1]
[1]Legal Services Commissioner v Rider-Bell [2013] QCAT 176 at [30].
The Tribunal ordered that Mrs Rider-Bell’s name be removed from the roll. It also ordered her to pay the Commissioner’s costs fixed in the amount of $8,000.00 and compensation in the sum of $7,500.00.
The purported application and its rejection
Mrs Rider-Bell purported to appeal, or to apply for leave to appeal, the decision of the Tribunal to the Appeal Tribunal. She did so in a standard Form 39 ‘Application for leave to appeal or appeal’. Form 39, as its name suggests, is the applicable form in respect of both applications to the Appeal Tribunal for leave to appeal a decision, where such leave is required, and appeals themselves where leave is not required.
Part E of Form 39 deals with the question of leave. Part E requires the person initiating the proceeding to indicate whether leave to appeal is being sought on the one hand, or, on the other hand, that leave to appeal is not required. However, in completing Part E of Form 39, Mrs Rider-Bell indicated both that leave to appeal was not required, but also that she was seeking such leave.
On 4 June 2013, a registrar of the Tribunal, acting under delegation from the Principal Registrar, rejected Mrs Rider-Bell’s application. He did so purportedly acting under powers conferred by s 35(2)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The Registrar did so on the grounds set out in s 35(3)(c) of the QCAT Act; that the application did not comply with the Act, an enabling Act or the QCAT Rules. The substantive basis for the rejection was that any appeal from the Tribunal’s decision of 16 April 2013, under s 468 of the LPA, lay to the Court of Appeal and not to the QCAT Appeal Tribunal.
Review of the rejection decision
In the decision of 4 June 2013 the registrar notified Mrs Rider-Bell, as he was required to do by s 35(4)(a) of the QCAT Act, that she could request the Principal Registrar to refer the decision rejecting her application to the Tribunal for review.
On 4 July 2013 Mrs Rider-Bell applied for a review of the registrar’s decision. In that review application Mrs Rider-Bell sought to have the original proceedings brought by the Legal Services Commissioner struck-out, and the decision of the Tribunal of 16 April 2013 set aside. She sought a new hearing date ‘in the interests of procedural fairness and natural justice’. Mrs Rider-Bell also raised a conflict of interest on the part of the President, and an ‘error of judgment’ on his part.
On 4 July 2013 Mrs Rider-Bell also filed extensive submissions in support of her application for a review of the Registrar’s decision. Those submissions address the grounds for review raised in the application, particularly that she was denied natural justice and procedural fairness with the Tribunal in the hearing of the proceedings brought by the Legal Services Commissioner.
As to the alleged conflict of interest, the submissions contend that this involved the President having presided in a matter in the Federal Magistrates Court of Australia on two occasions between 2007 and 2008 involving serious violence and a member of her family. It is a matter of public record, of which I can take judicial notice, that his Honour has never been a member of the Federal Magistrates Court of Australia. At the relevant time, his Honour was a Judge of the District Court of Queensland. The alleged conflict can have no substance.
The ‘error of judgment’ raised in the application for review is addressed as an error of law in the submissions and relates to what is said to be an inference drawn by his Honour at paragraph [22] of his reasons.
None of the grounds raised in the review application, or the submissions made by Mrs Rider-Bell in support of it, address the reason for rejection of the application for leave to appeal or appeal by the Registrar; that the Tribunal lacked jurisdiction.
The Registrar’s conclusion that the Tribunal lacks jurisdiction to hear the purported application for leave to appeal or appeal was undoubtedly correct. The application for leave to appeal or appeal purportedly brought by Mrs Rider-Bell could simply not be brought in the Tribunal. Section 468 of the LPA provided one avenue of appeal only; to the Court of Appeal.
Was the rejection authorised by s 35?
The question remains whether the registrar was authorised to reject the application under s 35 of the QCAT Act.
Chapter 2 of the QCAT Act deals with the Tribunal’s jurisdiction and procedure. Under s 9 of the QCAT Act, the jurisdiction conferred on the Tribunal consists of its original jurisdiction, its review jurisdiction, and its appeal jurisdiction. Chapter 2, Part 1, Divisions 2, 3 and 4 prescribe, respectively, each of the Tribunal’s original, review and appeal jurisdictions.
Chapter 2, Part 3 deals with commencing proceedings. Section 33 provides for the making of applications. It applies where the QCAT Act or an enabling Act provides that a person may apply to the Tribunal to deal with a matter: s 33(1). It clearly applies to the commencement of matters in the review jurisdiction of the Tribunal: s 33(3). It also clearly applies to the commencement of matters by application in the Tribunal’s original jurisdiction. It does not, in my view, apply to the commencement of appeals or applications for leave to appeal. The commencement of those matters is governed by s 143 of the QCAT Act which is located in Chapter 2, Part 8.
Section 33(2) contains procedural requirements for the making of an application. It must be in a form substantially complying with the Rules; it must state the reasons for the application; and it must be filed in the registry.
Section 34 deals with commencement by the referral of a matter to the Tribunal where an enabling Act provides for that to occur.
Section 35 applies where an application or referral has been made to the Tribunal. In my view, applications to which s 35 applies are those provided for by s 33, and the referrals to which s 35 applies are those provided for by s 34.[2]
[2]The Act provides for the referral of matters to the Tribunal other than under s 34. For example, these proceedings are brought by referral to the Tribunal under s 35(4)(b) of the QCAT Act. Referral can also be made under s 35(2)(d).
This construction of s 35 is supported by ss 36 and 38 of the QCAT Act. Section 36 provides that a proceeding starts when the Principal Registrar ‘accepts an application or referral’. However notwithstanding the proceeding having been started upon the Principal Registrar’s acceptance of the application or referral, s 38(2) provides that the Tribunal must not take any action on the proceeding until the prescribed fee is paid.
In Chapter 2, Part 8, s 143 deals separately with the procedural requirements for the commencement of an appeal or an application for leave to appeal. Section 143(2), like s 33, requires the application for leave or appeal to be in a form substantially complying with the Rules, and to state the reasons for the application for leave or appeal. Section 143(2) also requires the application for leave or appeal to be accompanied by any prescribed fee. These procedural requirements prescribed by s 143 would be unnecessary if those provided by ss 33 and 38 applied to applications for leave to appeal or an appeal.
Further support for this construction is found elsewhere in the QCAT Act. Section 145(1) provides for the effect of an appeal on a decision from which the appeal is brought. It provides:
The start of an appeal under this division against a decision does not affect the operation of the decision or prevent the taking of action to implement the decision. (emphasis added)
The reference to ‘The start of an appeal under this division’, that is Division 1 of Chapter 2, Part 8 of the QCAT Act, also supports the construction that the starting of a proceeding under Chapter 2, Part 3 of the Act, does not apply to appellate proceedings commenced under Chapter 2, Part 8.
For these reasons, the Principal Registrar is not authorised by s 35 of the QCAT Act to reject an application for leave to appeal or an appeal brought under Chapter 2, Part 8 of the Act. The registrar was not authorised to make the decision to reject the application.
Disposition
Section 35(6) provides that where the question of whether or not an application or referral should be rejected is referred to the Tribunal, the Tribunal must direct the Principal Registrar either to reject the application or referral, or accept it (with or without conditions). However, that injunction on the powers of the Tribunal can only apply to an application or referral properly within the jurisdiction to accept or reject. That is, an application or referral to which s 35 applies. For the reasons set out above, this is not such a case. Section 35 does not apply to Mrs Rider-Bell’s purported application for leave to appeal or appeal.
Section 47 of the QCAT Act provides that if the Tribunal considers a proceeding is misconceived or lacking in substance it may order the proceeding be dismissed or struck-out. Section 47 applies to an application for leave to appeal or an appeal.[3]
[3]See the definition of ‘proceeding’ in Schedule 3 of the QCAT Act.
Because no appeal lies to the Appeal Tribunal from the President’s decision in this case, the entire proceeding presently before the Tribunal is misconceived and lacks substance. The Tribunal has no jurisdiction to deal with any application for leave to appeal, or any appeal, purportedly brought from the Tribunal’s decision of 16 April 2013. Under s 468 of the LPA, any such appeal must be brought in the Court of Appeal.
For these reasons, matter number APL230-13 filed on 22 May 2013 and the application for miscellaneous matters filed on 4 July 2013 are dismissed.
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