Warren v Queensland Law Society - [2016] QCA 262

[2016] QCA 262

COURT OF APPEAL

MARGARET McMURDO P
FRASER JA
McMEEKIN J

Appeal No 8073 of 2016
SC No 683 of 2015

ALEXIA MARGARET WARREN Appellant

QUEENSLAND LAW SOCIETY INC
SHERRY JANETTE BROWN
WILLIAM THOMAS HOURIGAN
GLENN ASHLEY FORSTER
MICHAEL CRAIG DRINKALL
DEBORAH YUMIN MOK Respondents

BRISBANE

TUESDAY, 18 OCTOBER 2016

JUDGMENT

THE PRESIDENT: This matter has a history. The appellant, Ms Alexia Warren, is a former solicitor. On 15 January 2016, a judge of the Trial Division dismissed her appeal against the appointment of receivers to her legal practice under s 531 Legal Profession Act 2007 (Qld) and granted the receivers’ application for orders requiring her to deliver up regulated property and information needed to access electronic devices. She filed an appeal from those orders in this Court. On 5 February 2016, she was declared bankrupt and on 18 March 2016 the trustee in bankruptcy indicated his intention to abandon that appeal.

The matter was mentioned before me on 22 March 2016 when Ms Warren stated that she was appealing the Federal Circuit Court’s sequestration order to the Federal Court of Australia. I stayed the appeal in this Court pending the outcome of her appeal from the sequestration order. The matter was next listed before me on 10 June 2016, when it became clear that Ms Warren had not complied with orders for progressing her appeal in the Federal Court and she remained an undischarged bankrupt. Over robust contrary submissions from Ms Warren, I dismissed her appeal with costs, relying on s 60 Bankruptcy Act 1966 (Cth): see Warren v Queensland Law Society Inc & Ors [2016] QCA 154.

That same day, Ms Warren applied to the Trial Division to have the order of 15 January 2016 set aside for fraud and, under r 72 Uniform Civil Procedure Rules 1999 (Qld), leave to proceed. On 12 July 2016, another Trial Division judge refused that application under s 60: see Warren v Queensland Law Society Inc & Ors [2016] QCA 154. After referring to Quazer v Secure Funding Pty Ltd [2010] QCA 251 [27]; s 60 Bankruptcy Act; and the trustees election not to prosecute the action, her Honour determined that, where litigation was stayed by Commonwealth legislation, it would not be appropriate to grant leave to Ms Warren to take further steps in the action. The judge also rejected the contention that her action was, under s 60(4) Bankruptcy Act, a “personal injury or wrong done to her”. Her Honour held that Ms Warren’s claim to have a judgment set aside for fraud, did not fall within the exception in s 60(4), relying on Dixon J’s observations in Cox v Journeaux [No 2] (1935) 52 CLR 713, 721. For those reasons, the judge refused the application for leave under r 72 and ordered that the entire proceeding be stayed unless and until Ms Warren’s trustees in bankruptcy elected to continue with it or filed a notice of discontinuance. The judge also ordered…

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: [2016] QCA 262
Decision Date: 18 OCTOBER 2016

CaseChat Overview and Summary

Alexia Margaret Warren, a former solicitor, appealed against the orders made by the Trial Division of the Supreme Court of Queensland, which dismissed her appeal against the appointment of receivers to her legal practice and granted the receivers' application for orders requiring her to deliver up regulated property and information needed to access electronic devices. The respondents to the appeal were the Queensland Law Society Inc, and others. The appeal was heard by the Court of Appeal, where the appellant sought orders allowing the appeal, setting aside the Trial Division orders of 12 July 2016, and granting her application for leave to take a step in the proceeding and her costs of the application below and of this appeal.

The primary legal issues in this case were whether the appellant had the right to proceed with the appeal despite being an undischarged bankrupt and whether the Queensland Law Society had the authority to defend the application under the Legal Profession Act 2007 (Qld). Additionally, the court had to consider whether the appointment of receivers to the appellant's legal practice was a valid exercise of power and a breach of statutory duty.

The Court of Appeal found that the appeal was incompetent as the appellant was an undischarged bankrupt and had not obtained leave to proceed under r 72 of the Uniform Civil Procedure Rules 1999 (Qld). The court held that the appellant's rights relating to her property were currently vested in her trustee, who did not wish to proceed with this appeal. Furthermore, the court found that the Queensland Law Society did have the authority to defend the application under the Legal Profession Act. The court also found that the appointment of receivers to the appellant's legal practice was a valid exercise of power and not a breach of statutory duty.

The Court of Appeal refused the application for leave to proceed and dismissed the appeal with costs. A transcript of the proceedings was required, and the court adjourned.

Orders