Warren v Legal Services Commissioner - [2014] QCA 150

SUPREME COURT OF QUEENSLAND

CITATION:

Warren v Legal Services Commissioner [2014] QCA 150

PARTIES:

ALEXIA MARGARET WARREN
(appellant/applicant)
v
LEGAL SERVICES COMMISSIONER
(respondent)

FILE NO/S:

Appeal No 8960 of 2013
QCAT No 47 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Application for Stay of Execution

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED EX TEMPORE ON:

20 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2014

JUDGES:

Fraser and Morrison JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The application is refused.

2.    The appeal is dismissed.

3.    The appellant is to pay the respondent’s costs of the application and the appeal.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the respondent started a discipline application against the appellant and subsequently sought an order for substituted service – where at the directions hearing the appellant opposed the making of that order but admitted she had a copy of the discipline application – where the tribunal avoided debating questions of service and made directions to progress the discipline application – where the appellant argues she has not been duly served – whether the tribunal erred in making directions to advance the discipline application instead of making directions to advance the respondent’s application for substituted service

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(d), s 37(2)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39, r 41

Hope v Hope (1854) 4 De G M & G 328; 43 ER 534; [1854] EngR 805, cited
Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2011] 2 Qd R 114; [2010] QCA 119, cited
Pino v Prosser and Hassan [1967] VR 835; [1967] VicRp 107, cited
Place Design Group Pty Ltd v Hassard [2013] QCAT 742, cited
United Group Resources Pty Ltd v Calabro (No 4) [2010] FCA 791, cited

COUNSEL:

A M Warren (sol) for the appellant
M D Nicolson, with S L Lane, for the respondent

SOLICITORS:

Lexie Warren Solicitor for the appellant
Legal Services Commissioner for the respondent

FRASER JA: The appellant solicitor is an Australian legal practitioner. On 12 February 2013 the respondent commissioner started a discipline application against the appellant under s 452 of the Legal Profession Act 2007 (Qld) by filing the application in the Queensland Civil and Administrative Tribunal. On 4 July 2013 the respondent filed an application in that tribunal seeking an order for substituted service. The tribunal subsequently convened a directions hearing for 27 August 2013. The respondent notified the appellant that the respondent would pursue the application for substituted service at the directions hearing. The appellant appeared at the directions hearing. She informed the tribunal that she had received a copy of the discipline application from the respondent but she argued that she had not been duly served in…

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: [2014] QCA 150
Decision Date: 20 June 2014

CaseChat Overview and Summary

In the case of Warren v Legal Services Commissioner, the appellant, a lawyer, was subject to disciplinary proceedings brought by the Legal Services Commissioner. The Commissioner filed an application for substituted service due to the appellant's failure to respond to the initial discipline application. At the directions hearing, the appellant contested the substituted service order but conceded she had a copy of the application. Rather than engaging in a debate over the service issue, the tribunal directed the advancement of the disciplinary application.

The central legal issue was whether the tribunal was correct in advancing the disciplinary application instead of focusing on the Commissioner’s application for substituted service. The appellant argued that she had not been duly served, and thus the tribunal should have prioritised the substituted service application. This raised questions about the tribunal's adherence to procedural fairness and its obligation to address jurisdictional preliminaries before progressing substantive matters.

The court found that the tribunal did not err in its approach. It reasoned that the appellant’s concession of receiving a copy of the application meant she was effectively served, and the tribunal was justified in proceeding with the substantive matters. The court further noted that the tribunal’s decision to progress the application did not prejudice the appellant’s right to challenge the validity of the service. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the application and appeal.

Orders

Orders of the court

1. The application is refused.

2. The appeal is dismissed.

3. The appellant is to pay the respondent’s costs of the application and the appeal.

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:	Warren v Legal Services Commissioner [2014] QCA 150
PARTIES:	ALEXIA MARGARET WARREN (appellant/applicant) v LEGAL SERVICES COMMISSIONER (respondent)
FILE NO/S:	Appeal No 8960 of 2013 QCAT No 47 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal Application for Stay of Execution
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED EX TEMPORE ON:	20 June 2014
DELIVERED AT:	Brisbane
HEARING DATE:	20 June 2014
JUDGES:	Fraser and Morrison JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application is refused. 2. The appeal is dismissed. 3. The appellant is to pay the respondent’s costs of the application and the appeal.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the respondent started a discipline application against the appellant and subsequently sought an order for substituted service – where at the directions hearing the appellant opposed the making of that order but admitted she had a copy of the discipline application – where the tribunal avoided debating questions of service and made directions to progress the discipline application – where the appellant argues she has not been duly served – whether the tribunal erred in making directions to advance the discipline application instead of making directions to advance the respondent’s application for substituted service Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(d), s 37(2) Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39, r 41 Hope v Hope (1854) 4 De G M & G 328; 43 ER 534; [1854] EngR 805, cited Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2011] 2 Qd R 114; [2010] QCA 119, cited Pino v Prosser and Hassan [1967] VR 835; [1967] VicRp 107, cited Place Design Group Pty Ltd v Hassard [2013] QCAT 742, cited United Group Resources Pty Ltd v Calabro (No 4) [2010] FCA 791, cited
COUNSEL:	A M Warren (sol) for the appellant M D Nicolson, with S L Lane, for the respondent
SOLICITORS:	Lexie Warren Solicitor for the appellant Legal Services Commissioner for the respondent