Smyth v Bar Association of Queensland
[2025] QCA 80
•23 May 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Smyth v Bar Association of Queensland [2025] QCA 80
PARTIES:
PETER SMYTH (A PSEUDONYM)
(applicant)
v
BAR ASSOCIATION OF QUEENSLAND
(respondent)FILE NO/S:
Appeal No 15682 of 2024
QCAT No 180 of 2024DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:
Queensland Civil and Administrative Tribunal at Brisbane – [2024] QCAT 487; [2024] QCAT 488 (Judicial Member Lyons KC)
DELIVERED ON:
23 May 2025
DELIVERED AT:
Brisbane
HEARING DATE:
20 May 2025
JUDGES:
Bond, Boddice and Bradley JJA
ORDER:
The Court makes the orders set out in Annexure 1 to these reasons.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – CONSENT JUDGMENTS AND ORDERS – where the applicant had sought review of a decision of the Bar Association of Queensland to refuse to renew his practising certificate before the Queensland Civil and Administrative Tribunal – where the applicant also made an application for a non-publication order before the Tribunal – where the non-publication order was granted by the Tribunal – where the applicant accepted that his appeal against the decision to dismiss his application for review ought to be dismissed – where the applicant submitted that a non-publication order ought to be made to avoid the likely further harm which would occur consequent upon further publication – where the respondent did not oppose the request for a non-publication order – whether a non-publication order would address the potential for further harm to be suffered by the applicant, operate to prevent the Bar Association of Queensland attending to compliance with s 98 of the Legal Profession Act 2007 (Qld) and permit the parties to comply with orders previously made
Legal Profession Act 2007 (Qld), s 98
COUNSEL:
A J H Morris KC for the applicant (pro bono)
P J McCafferty KC, with H E P Clift, for the respondentSOLICITORS:
No appearance for the applicant
Bartley Cohen for the respondent
THE COURT: The applicant seeks leave to appeal two related decisions by the Queensland Civil and Administrative Tribunal (QCAT) dated 13 November 2024.
The first decision dismissed the applicant’s application to review the respondent’s refusal to renew his practising certificate as a barrister. The second decision refused the applicant’s application for non-publication orders in relation to various documents connected with the first decision.
When the application first came before the Court, the matter was adjourned at the request of Senior Counsel representing the applicant on a pro bono basis to enable the applicant to consider obtaining medical opinion evidence which might sound upon the matters the subject of the application to this Court.
Thereafter the applicant sought and obtained evidence in the form of a written opinion dated 7 April 2025 from Dr Chalk, a psychiatrist. Amongst other things that report concluded:–
(a)the applicant had a chronic major depressive illness which needed treatment;
(b)with treatment the illness would likely improve;
(c)the symptoms of the illness were likely to have been causally significant to the nature and quality of the applicant’s response to inquiries made by regulatory authorities; and
(d)with appropriate treatment, the applicant’s difficulties would not of necessity impinge upon his professional judgement in acting for others.
When the application came on for determination, and with the consent of the respondent, the Court granted the applicant leave to rely on that fresh evidence.
The applicant, by his Senior Counsel, accepts that his appeal from the first QCAT decision should be dismissed. However, in reliance upon the fresh evidence and without seeking to demonstrate error on behalf of QCAT in relation to the second decision, the applicant submits that a non-publication order ought be made to avoid the further harm to him which would occur consequent upon further publication of the evidence. That submission was not opposed by the respondent.
The Court considered a draft form of order proposed by the applicant, by his Senior Counsel, to address non-publication issues. Having heard from both parties, the Court is satisfied that a form of order made generally in the terms proposed would –
(a)address the potential for further harm to be suffered by the applicant;
(b)not operate to prevent the Bar Association of Queensland attending to compliance with s 98 of the Legal Profession Act 2007 (Qld); and
(c)permit the parties to comply with orders previously made by Bond JA.
Accordingly, the orders of the Court are the orders set out in Annexure 1 to these reasons.
Annexure 1
1.The applicant have leave to rely upon fresh evidence, comprising the report dated 7 April 2025 of Dr John Chalk, MB, BS, BA, FRANZCP, Psychiatrist.
2.As to the application for leave to appeal the orders made by the Queensland Civil and Administrative Tribunal on 13 November 2024 in proceeding number OCR180 of 2024:
(a)leave to appeal is granted and the appeal allowed to the extent that the order of the Queensland Civil and Administrative Tribunal dismissing the applicant’s application for a non-publication order is varied by adding a further order in the terms set out in paragraph 3 of this order; and
(b) the application for leave to appeal is otherwise dismissed.
3.In any document filed or generated in connection with proceeding number OCR180 of 2024 in the Queensland Civil and Administrative Tribunal, and either published to or made available for search by the public at large:
(a)the true name of the applicant shall not be disclosed;
(b)for the purpose of avoiding disclosure of the true name of the applicant, the persons and entities listed in Schedule A to this order shall be referred to as follows:
(i) on the first occasion that the person or entity is mentioned, by the relevant pseudonym listed in Schedule A to this order, followed by the words “(a pseudonym)”; and
(ii) on each subsequent occasion that the person or entity is mentioned, by the relevant pseudonym listed in Schedule A to this order, or (as may be appropriate) the relevant abbreviated pseudonym listed in Schedule A to this order; and
(c)also for the purpose of avoiding disclosure of the true name of the applicant, all references to the following decisions shall be redacted, including the citations and court file number for each such case; namely-
(i) [Redacted]; and
(ii) [Redacted].
4.The Registrar is directed to write to the registrar of the Queensland Civil and Administrative Tribunal:
(a)furnishing a copy of this order; and
(b)requesting that the registrar of the Queensland Civil and Administrative Tribunal take such steps as are necessary or appropriate to give effect to paragraph 3 of this order, including in relation to the reasons for decision with the following citations:
(i) [2024] QCAT 487, to be known hereafter as “Smyth v Bar Association of Queensland”; and
(ii) [2024] QCAT 488, to be known hereafter as “Smyth v Bar Association of Queensland (No 2)”.
5.In any document filed or generated in connection with this appeal, and either published to or made available for search by the public at large:
(a)the true name of the applicant shall not be disclosed;
(b)for the purpose of avoiding disclosure of the true name of the applicant, the persons and entities listed in Schedule A to this order shall be referred to as follows:
(i) on the first occasion that the person or entity is mentioned, by the relevant pseudonym listed in Schedule A to this order, followed by the words “(a pseudonym)”; and
(ii) on each subsequent occasion that the person or entity is mentioned, by the relevant pseudonym listed in Schedule A to this order, or (as may be appropriate) the relevant abbreviated pseudonym listed in Schedule A to this order; and
(c)also for the purpose of avoiding disclosure of the true name of the applicant, any references to the following decisions shall be redacted, including the citations and court file number for each such case; namely–
(i) [Redacted]; and
(ii) [Redacted].
6.The Registrar is directed to write to the Librarian of the Supreme Court of Queensland Library:
(a)furnishing a copy of this order; and
(b)requesting that the Librarian take such steps as are necessary or appropriate to give effect to paragraphs 3, 5 and 8 of this order, including in relation to the reasons for decision with the following citations:
(i) [2024] QCAT 487, to be known hereafter as “Smyth v Bar Association of Queensland”; and
(ii) [2024] QCAT 488, to be known hereafter as “Smyth v Bar Association of Queensland (No 2)”.
7.As to question whether orders 1 and 2 of the orders made in this proceeding by Mullins P on 27 November 2024 ought to be set aside or amended:
(a)the applicant and the respondent must file and serve written submission on that question as soon as is practicable;
(b)the question will be dealt with on the papers on a date to be fixed not earlier than 14 days after the applicant and the respondent respectively notify in writing the applicant’s wife of their proposal in relation to those orders and provide her with copies of those submissions;
(c)to facilitate fixing the date mentioned in (b), the parties are required to notify the Court the date on which they have given the applicant’s wife the requisite notice.
8.Any publication to the public at large of the terms of these orders, should redact paragraphs 3(c)(i) and (ii) and 5(c)(i) and (ii) of this order and the names of the corporations mentioned in the first column of schedule A.
9.There be no order as to costs.
Schedule A
Person or Entity Pseudonym Abbreviated Pseudonym the Applicant Peter Smyth Mr Smyth the Applicant’s wife Julia Smyth Mrs Smyth [Redacted] Smythcoy One Pty Ltd Smythcoy One [Redacted] Smythcoy Two Pty Ltd Smythcoy Two [Redacted] Smythcoy Three Pty Ltd Smythcoy Three [Redacted] Smythcoy Four Pty Ltd Smythcoy Four [Redacted] Smythcoy Five Pty Ltd Smythcoy Five [Redacted] Smythcoy Six Pty Ltd Smythcoy Six [Redacted] Smythcoy Seven Pty Ltd Smythcoy Seven [Redacted] Smythcoy Eight Pty Ltd Smythcoy Eight
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