Russell v Legal Practitioners Admissions Board
[2023] QCAT 226
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: Russell v Legal Practitioners Admissions Board [2023] QCAT 226 PARTIES: MELISSA AUDREY RUSSELL
(applicant)
v LEGAL PRACTITIONERS ADMISSIONS BOARD
(respondent)
APPLICATIONNO/S: OCR283-22 MATTERTYPE: Occupational regulation matters DELIVEREDON: 30 June 2023 HEARINGDATE: 28 June 2023 HEARDAT: Brisbane DECISION OF: Brown J ORDERS: The application filed 24 October 2022 is dismissed.
There be no order as to costs.
CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND
PROPER PERSONS – where the applicant applied for admission to the legal profession – where the Legal Practitioners Admissions Board issued a notice under s 87 of the Legal Profession Act 2007 (Qld) requiring the applicant to undergo a health assessment by a psychiatrist – where the Court of Appeal dismissed the applicant’s application for admission – where the applicant subsequently filed a second application for admission and applied and sought an extension of time to review the Board’s decision to issue a s 87 notice – where that extension of time was granted by the Tribunal – whether the Tribunal has jurisdiction to review the Board’s decision
Legal Profession Act 2007 (Qld)
Queensland Civil & Administrative Tribunal Act 2009
(Qld)
Supreme Court (Admission) Rules 2004 (Qld)In the Matter of an application by RBI for admission to the Legal Profession [2022] QCA 156
APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: P Morreau i/b Legal Services Commissioner
REASONS FOR DECISION
In the present application there is a threshold issue of whether the Tribunal has jurisdiction to review the Legal Practitioners Admissions Board’s (the Board) decision to issue a notice under s 87 of the Legal Profession Act 2007 (Qld) (LPA) on 31 May 2022, served on the applicant on 1 June 2022, requiring her to undergo a health assessment by a psychiatrist. The applicant seeks relief in her application that includes that the Board accept the evidence that she does not have any mental health concerns.
Section 87 of the LPA provides:
87 Health assessment
(1) This section applies if a relevant authority believes a subject person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.
(2) The relevant authority may require the subject person to undergo a health assessment by a person appointed by the relevant authority.
(3) If the relevant authority decides to require the health assessment, the authority must give the subject person an information notice about the decision to require the assessment that includes—
(a)the name and qualifications of the person appointed by the authority to conduct the assessment; and
(b)a stated date, and a stated time and place, for the assessment that must be reasonable having regard to the circumstances of the subject person as known to the relevant authority.
(4) The stated date must be no sooner than 28 days after the information notice is given to the subject person unless the person and the relevant authority agree, in writing, to an earlier date.
(5) The subject person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.
A decision to issue a notice under s 87 of the LPA is reviewable by the Tribunal pursuant to s 87(5).1 An application for a review must be made within 28 days of the
And s 17 of the Queensland Civil & Administrative Tribunal Act 2009 (Qld) (QCAT Act).
relevant day, which in the present case is 28 days after the applicant was notified of the decision to issue the s 87 notice, being 1 June 2022.2
The present application was not filed by the applicant until 24 October 2022. The Board neither consented nor opposed the extension of time. As a result, it appears that the matter was not the subject of any detailed argument. An extension of time to review the decision was granted by this Tribunal on 14 May 2023.3
The review of the decision is pursuant to s 20 of the Queensland Civil & Administrative Tribunal Act 2009 (Qld) (QCAT Act). The Tribunal is required to hear and decide the review by way of a fresh hearing on the merits, the purpose of which is to produce the correct or preferable decision.4 It is therefore a de novo hearing in which the Tribunal must decide the matter on the law and facts as at the date of the hearing.5 That requires the Tribunal to consider the fact that the admission application in relation to the s 87 notice issued by the Board has been determined.
No s 87 notice was issued by the Board in relation to the applicant’s second application for admission filed on 12 September 2022, in relation to which the Board pursuant to its role under s 39 of the LPA resolved on 4 October 2022 that it was not currently satisfied that the applicant was suitable for admission to the legal profession.
The history of the applicant’s application for admission dated 21 February 2022 was largely summarised by the Court of Appeal in In the matter of an application by RBI for admission to the Legal Profession.6 The Court of Appeal determined that the Court could not be confident that the applicant was at that time a fit and proper person to be admitted to the profession and dismissed her application.
After the Board issued the s 87 notice requiring the applicant to undergo the health assessment, the applicant after initially indicating that she would undertake the assessment changed her view and determined that she would proceed with her application for admission on 15 August 2022 which had been previously adjourned on at least two occasions. When the applicant determined to proceed, the Board
QCAT Act s 33.
Pursuant to s 61(1)(a) of the QCAT Act.
QCAT Act s 20(2).
Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99]–[101] per Hayne and Heydon JJ. See Rudge v Nursing and Midwifery Board of Australia [2014] QCAT 226 at [6].
[2022] QCA 156.
resolved on 9 August 2022 that it was not currently satisfied that the applicant “[was] suitable for admission to the legal profession”. On 9 August 2022, the Board informed the Registrar of the Supreme Court by letter that it recommended that the applicant not be admitted because she had failed to provide additional information and material, including a current report from a psychiatrist or psychologist addressing her “personality problem”7 which had been the subject of a request by the Board for further information under s 40 of the LPA and, further, a request under s 87 of the LPA in relation to which she had not applied to review the Board’s decision under s 87(5) of the LPA and had refused to undergo an assessment. Those matters were again set out in the Board’s submissions to the Court of Appeal on 15 August 2022.
In a further affidavit of 12 August 2022, the applicant relied on a letter from a general practitioner which she had provided in response to a s 40 notice issued by the Board and stated that “I wish for the Board to accept evidence that psychology or a psychiatrist has not been referred, therefore, either is not suitable”. The Board in its submissions to the Court of Appeal noted the applicant’s response to the s 87 notice, including that s 87(3)(b) of the LPA had not been complied with and the Board had not stated the grounds for the Board’s belief of her inability. Those matters were raised again by the applicant in the context of this application. In proceeding with her application for admission of 21 February 2022, the applicant’s solicitor sought to challenge the Board’s decision to require a psychiatric or psychological report as unreasonable. In particular, it was argued on behalf of the applicant that the Board was mistaken in its interpretation of the applicant’s remark about having a “personality problem” and, as such, it should not have been necessary for the Board to request that the applicant obtain a psychological or psychiatric report and that a letter from a general practitioner was capable of showing that the applicant was able to satisfactorily carry out the inherent requirements of practice.8 The submissions made reference to the Board’s letters of 7 July 2022 and 9 August 2022, particularly the request that the applicant undertake an assessment by a psychiatrist under s 87(2) of the LPA being on the basis “that the Board believed disclosure of a “personality
As described by the applicant in the Affidavit of Compliance filed alongside her initial application for admission.
[2022] QCA 156.
problem” made her unable to satisfactorily carry out the inherent requirements of practice. It was further submitted that:
“Ms Russell has refused to obtain a Psychological or Psychiatric report because in summary she believes that it is unreasonable to request such a report. She instructs she has never had a mental health diagnosis and nothing of her declared history is mental health related.”
While the s 87 notice was deficient, including because it failed to inform the applicant of her right of review,9 the applicant was informed by the Board that she had a right to review its decision through the Tribunal on 14 June 2022, in response to which she indicated “I would not prefer (sic) to seek a review through QCAT I also believe that is not required as an admission applicant.” 14 June 2022 was still within the time in which the decision could be reviewed.
The question of the validity of the request made by the Board to undertake an assessment by a psychiatrist under s 87 was therefore directly raised before the Court of Appeal at the time of the applicant’s application for admission. Further, whether the applicant met the suitability requirements for admission was a matter that was directly raised.
While the Court of Appeal made its finding on the broader requirements of suitability under s 31 of the LPA, rather than specifically deciding whether the applicant was unable to satisfactorily carry out the inherent requirements of practice, the validity of the request by the Board for an assessment in the s 87 notice by a psychiatrist report was directly in issue before the Court of Appeal.
The Court of Appeal made findings that the letter from the general practitioner was not sufficient to persuade the Court that it should not have concerns about the applicant’s mental functioning, personality, and suitability for admission to the legal profession.10 Further, the Court of Appeal in its reasoning as to why it could not be confident that the applicant “is at present, a fit and proper person to be admitted” stated:
“Further, the applicant’s attempts to explain her past behaviour give more reason to think that she is not a suitable candidate for admission. Even accepting that she did not mean to say she had a personality disorder when using
Under QCAT Act s 157(2)(c) and as candidly stated by the Board. It was also deficient insofar as it did not state reasons for the decision. Under s 157(4) of the QCAT Act, lack of compliance with the requirements does not affect the validity of a reviewable decision.
[2022] QCA 156 at [4].
the term “personality problem”, the affidavits she has sworn on this application, and her correspondence with the Board, reveal that she has had prejudicial events and vulnerabilities in her past, including her childhood, and that she has had difficulty coping with these things and their psychological sequelae. She blames them for her violent behaviours. The fact that she will not comply either with the s 40 notice or the s 87 notice issued by the Board gives cause for concern. Her affidavits, and correspondence with the Board, show inaccuracy and inconsistency in her approach, and an inability to deal in a mature, insightful or rational way with the issues her behaviour raises.”
Thus, the question of whether the s 87 notice was misconceived was a matter directly raised before the Court of Appeal by the applicant, albeit that it was only part of the Court’s consideration. In particular, the applicant sought to have the Court make a finding that there was no basis for the request for her to have a psychiatric assessment and that on that basis the Board had not raised any suitability matters as a barrier to admission.
In the application for review, the applicant states that “I want the LPAB to accept the evidence that I do not have any mental health concerns”. She therefore seeks the same finding she sought before the Court of Appeal. Implicitly, that was not accepted by the Court of Appeal. In those circumstances, the applicant seeks to revisit the matters she unsuccessfully raised before the Court of Appeal.
More fundamentally, the applicant seeks a review of the decision to issue a s 87 notice which is no longer extant. The power of the Board to determine to issue a s 87 notice exists in relation to the application for admission that it is considering.
When the Board was asked to identify how this matter was reviewable by the Tribunal, its counsel submitted it was not on the basis that the Board contends that the notice is a continuing notice, but rather on the basis that because the applicant has again applied for admission, she is again a “subject person” under s 87 of the LPA by reason of s
85. It was further submitted that there was utility in the Tribunal determining whether to confirm the notice or otherwise because, in the event the Tribunal determined to set aside the notice, there would be no failure of the applicant to have complied with the s 87 notice, which was a matter relied upon by the Board in resolving on 4 October 2022 under r 15(2) of the Supreme Court (Admission) Rules 2004 that it was not currently satisfied that the applicant was suitable for admission.
Counsel for the Board, however, stated that even if there was an adverse decision by the Tribunal, that would not prevent the Board from issuing a further s 87 notice in relation to the present application for admission filed 12 September 2022.
According to the Board, although not expressed in s 87, the clear purpose of the power is to assist the Board to fulfill its role in considering and making recommendations to the Court about an admission. That must be accepted and accords with the other provisions in the LPA.
Pursuant to s 39 of the LPA, the Board’s role is to assist the Supreme Court by making a recommendation about each application for admission. Amongst the matters the Board is required to consider is, under s 39(2)(c), whether “the applicant is a fit and proper person for admission to the legal profession under this Act, including having regard to all suitability matters in relation to the applicant to the extent appropriate”. Section 9(1) of the LPA sets out the suitability matters. Those matters include, in s 9(1)(o), “whether the person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.” (emphasis added)
Section 40 of the LPA empowers the Board to give notice to an applicant requiring the application give the Board stated documents and information “[t]o help the board to consider an application for admission”. Failure to comply with the notice is a ground for recommending to the Supreme Court that the applicant not be admitted to the legal profession.11
Part 2.5 of the LPA provides for the obtaining of suitability reports. The Board is included as a relevant authority for the purpose of that part and a “subject person” means amongst other persons “an applicant for admission”. Section 87 then provides for the obtaining of a health assessment “if a relevant authority believes a subject person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner”. In that context of the LPA and the defined role of the Board and the powers provided that must relate to the Board’s belief in relation to the applicant’s fitness at the time of the application for admission upon which it must make a recommendation. That demonstrates the correctness of the Board’s position that the notice is not a continuing notice which remains operative
LPA s 40(2).
after the Court has determined an admission application for which the s 87 report was requested. Thus, the decision by the Board under s 87 of the LPA was in respect of it undertaking its role in considering the application for admission by the applicant dated 21 February 2022.
The Board’s powers to consider the suitability matters and make the recommendation pursuant to s 39 LPA in respect of the application for admission dated 21 February 2022 came to an end when the Court of Appeal dismissed that application.
To the extent that the Board contends that the applicant was at the time of the decision and is now, by virtue of her second application for admission filed on 12 September 2022 and adjourned to be fixed, a “subject person”, that construction does not accord with the scheme of the LPA in relation to admission applications and the Board’s role.
That the meaning of words is to be determined in its context is settled. In R v A2:12
“[32]The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
[33]Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole.” (footnotes omitted)
It would be open to exercise the power to make a decision under s 87 as a fresh decision in the context of the Board considering a further application for admission.13 That would arise when the Board was considering the applicant’s suitability for admission under s 39 of the LPA, in respect of that application. The original power exercised and the decision made in relation to the application for admission dated 21 February 2022 would not be, however, re-enlivened. There is in relation to the 21 February 2022 application no power to be exercised by the Board under ss 39 or 87 of the LPA. The consideration of whether or not the Board believes that the applicant
(2019) 269 CLR 507 at [32]–[33].
In this case the application dated 22 September 2022.
is capable of satisfactorily carrying out the inherent requirements of practice only arises in the context of its consideration of the application for admission under s 39 of the LPA.
That the intention of the LPA is that the power to make the decision under s 87 only continues while the Board is considering the particular application for admission in question accords with the scheme of the LPA in relation to admission applications and the language used in the provisions which reflect the “currency” of the consideration in respect of the application.
In the present case, the consideration of the inherent requirements by the Board is in the context of it undertaking its role under s 39 of the LPA when it considers “each application” and in particular whether each applicant is a fit and proper person for admission. This includes consideration of the “suitability matters”, including the inherent requirements. The Board makes its recommendation to the Supreme Court in relation to that application. The Supreme Court determines whether the person is a fit and proper person to be admitted and considers each of the suitability matters in relation to the person under s 31 of LPA. The Court then determines in relation to that application whether the admission application should be allowed. It is at the time the Board makes its recommendation and the Court considers the application that the question of suitability matters is determined. The decision to issue a notice is reviewable in the context of the consideration of the particular application for admission in question. The reference to “subject person” in s 85 relevant to an “applicant for admission” and the Board’s belief in s 87, namely “a subject person currently is unable to satisfactorily carry out the inherent requirements of practice”, must be construed as the Board’s belief in relation to the particular admission application under s 39 LPA.
Upon the Board having considered the applicant’s admission application dated 21 February 2022 and whether she was fit and proper for admission, and the Court of Appeal’s dismissal of that application on 23 August 2022, the Board’s powers which could be exercised under s 40 or s 87 of the LPA in respect of that application ceased.
In reviewing a decision of the Board under s 20 of the QCAT Act, the Tribunal stands in the shoes of the Board. It stands in the position of the Board in making a fresh decision on the merits as to whether such decision should be confirmed, amended, set
aside or substituted.14 It can only exercise those powers available to the Board pursuant to the LPA in relation to the admission application pursuant to which the decision to issue the s 87 notice was made. That application has been dismissed by the Court. In those circumstances, the Tribunal cannot grant relief in relation to that s 87 notice where it is considering the notice afresh based on the law and facts as they exist now.
The Board’s powers in respect of the application for admission dated 21 February 2022 came to an end upon dismissal of that application by the Court of Appeal. A fresh hearing on the merits of a decision to issue a notice under s 87 would involve considering the question of whether “a person currently is unable to satisfactorily carry out the inherent requirements of practice as Australian legal practitioner” when there is no occasion to do so because the application has been determined.
The Tribunal therefore has no jurisdiction to grant the relief sought under s 24 of the QCAT Act. Even if there were such jurisdiction there would be no utility in it doing so. The application should therefore be dismissed.
Further, even if there was jurisdiction to grant the relief, the present case would be one where it would be open for the Tribunal to have dismissed the application under s 47 of the QCAT Act as misconceived or an abuse of process given that:
(a)the applicant raised the veracity of the request made by the s 87 notice in her submissions before the Court of Appeal;
(b)the applicant had been aware of the fact that she could have sought a review of the decision under s 87 requiring the assessment and explicitly stated that she did not wish to go down that path and wished to have her admission determined by the Court of Appeal which she then did;
(c)the Court of Appeal, the Board and the applicant proceeded on the basis that the validity of the decision to issue the notice under s 87 was not otherwise in issue;
(d)the Court of Appeal determined the application for the applicant’s admission, which includes the consideration of suitability matters as defined in s 9 of the LPA and dismissed the application; and
(e)there is no utility in the review of the decision as the exercise of the power by the Board under s 87 is spent in respect of the application for admission by the applicant dated 21 February 2022.
14 QCAT Act s 24.
However, given my finding above it is not necessary to consider that course any further.
The appropriate order is that the application should be dismissed. In pronouncing my orders earlier today and indicating that I would provide the written reasons, the Board indicated that it would not be seeking any costs from the applicant. I therefore made an order that there be no order as to costs.
Orders
The orders of the Tribunal are that:
(a)The application filed 24 October 2022 is dismissed.
(b)There be no order as to costs.
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