Di Carlo v Bar Association of Queensland [2025] QCA 143
SUPREME COURT OF QUEENSLAND
CITATION: Di Carlo v Bar Association of Queensland [2025] QCA 143
PARTIES: SALVATORE DI CARLO
(applicant)
v
BAR ASSOCIATION OF QUEENSLAND
(respondent)
FILE NO/S: Appeal No 60 of 2025
QCAT No 228 of 2024
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Queensland Civil and Administrative
Tribunal Act
ORIGINATING
COURT:
Queensland Civil and Administrative Tribunal – [2024]
QCAT 530 (Bradley J)
DELIVERED ON: 1 August 2025
DELIVERED AT: Brisbane
HEARING DATE: 4 June 2025
JUDGES: Boddice JA, Freeburn and Sullivan JJ
ORDERS: 1. Leave to appeal granted.
2. The appeal is dismissed.
3. There be no order as to costs.
CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS –
PRACTISING CERTIFICATES – REFUSAL TO ISSUE –
where the applicant was a barrister of over 30 years’
experience – where the respondent is responsible for the
issuing of local practising certificates – where the applicant
was bankrupt – where the respondent gave the applicant an
information notice advising that the respondent had decided to
refuse to renew the applicant’s practising certificate for the
2024/2025 practising year – where the applicant applied to the
Queensland Civil and Administrative Tribunal (QCAT) for
a review of the decision to refuse to renew his practising
certificate – where QCAT ordered that the respondent’s
decision to refuse to renew the applicant’s practising certificate
be confirmed, that the applicant’s application for review be
dismissed and that there be no order as to costs – whether
QCAT erred in confirming the respondent’s decision to refuse
to renew the applicant’s practising certificate
PROFESSIONS AND TRADES – LAWYERS –
PRACTISING CERTIFICATE – GENERALLY – where the
-- 1 of 34 --
2
applicant had been punished for contempt of the Magistrates
Court of Queensland and did not disclose it in his application
to renew his practising certificate on 1 June 2018 – where the
applicant was a defendant in civil proceedings, the trial of
which had been adjourned by reason of the applicant
experiencing mental health difficulties – where the applicant
did not disclose mental health difficulties in his application to
renew his practising certificate on 28 May 2023 – where
a client had lodged a complaint against the applicant – where
the applicant did not disclose that complaint in his application
to renew his practising certificate on 28 May 2023 – where
a summons was issued by the District Court on 24 July 2024 –
where the summons required the applicant to attend an
enforcement hearing in the District Court on 22 August 2024
– where the applicant departed Australia on 17 August 2024
and travelled to the People’s Republic of China, where he
intended to stay past the date of the enforcement hearing –
where the applicant was bankrupt – where the applicant had
not paid any substantial amount of tax for at least two years
and had an outstanding debt to the Australian Tax Office of
$398,392 – where the respondent opined that the applicant was
not a fit and proper person to hold a practising certificate –
where the respondent gave the applicant an information notice
advising that the respondent had decided to refuse to renew the
applicant’s practising certificate for the 2024/2025 practising
year – where QCAT confirmed the respondent’s decision –
whether the applicant is a fit and proper person to hold
a practising certificate
Bankruptcy Act 1966 (Cth), s 58(3)
Legal Profession Act 2007 (Qld), s 9, s 46, s 51(5)
Queensland Civil and Administrative Tribunal Act 2009
(Qld), s 20(1), s 153, s 154
Reef House Property Pty Ltd v Commissioner of Liquor and
Gaming Regulation [2024] QCA 121, applied
Wang v Hur [2024] QCA 126, applied
Wardell v New South Wales Bar Association [2002]
NSWSC 548, applied
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9,
applied
COUNSEL: L F Kelly KC, with A R Hughes, for the applicant
P J McCafferty KC, with H E P Clift, for the respondent
SOLICITORS: Potts Lawyers for the applicant
Bartley Cohen Law for the respondent
[1] THE COURT: The applicant seeks leave to appeal a decision of the Queensland
Civil and Administrative Tribunal (QCAT) confirming the decision of the respondent
to refuse to renew the applicant’s practising certificate.
-- 2 of 34 --
3
[2] The applicant submits that leave ought to be granted, having regard to the
consequences to the applicant’s ability to practice and what are said to be errors of
fact and law, warranting intervention by this Court.
Background
[3] The applicant was admitted as a barrister in 1991. He practised that profession, at the
private Bar, continuously from 1991 until 28 August 2024.
[4] The respondent is the local regulatory authority under the Legal Profession Act 2007
(Qld) (LPA). Relevantly, it has responsibility for the issuing of local practising
certificates. A legal practitioner must be the holder of such a certificate in order to
practise as a barrister. A practising certificate must be renewed for each financial year.
[5] On 28 August 2024, the respondent gave the applicant an information notice advising
that the respondent had decided to suspend the applicant’s practising certificate, after
being advised of the applicant’s bankruptcy.
[6] On 2 October 2024, the respondent gave the applicant an information notice advising
that the respondent had decided to refuse to renew the applicant’s practising
certificate for the 2024/2025 practising year.
[7] On 14 October 2024, the applicant applied to QCAT for a review of the decision to
refuse to renew his practising certificate. At issue, on that review, was whether the
applicant remained a fit and proper person to hold a practising certificate, and whether
an order should be made requiring the respondent to issue the applicant with
a practising certificate.
[8] On 9 December 2024, a Judicial Member of QCAT found that there could be no
confidence that the applicant would follow the appropriate course of action in the
future, nor that he could properly be entrusted to undertake the tasks that attach to the
practice of a barrister in accordance with the demanding requirements under the LPA.
[9] QCAT ordered that the respondent’s decision to refuse to renew the applicant’s
practising certificate be confirmed, that the applicant’s application for review be
dismissed and that there be no order as to costs.
Leave to appeal
[10] Section 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
provides for an appeal to this Court from a decision of a Judicial Member of QCAT,
in respect of errors of law. Leave to appeal is required if the error asserted is an error
of fact or an error of mixed fact and law.
[11] The applicant seeks leave to appeal on 12 grounds. Some of those grounds assert
errors of law only, others rely on errors of fact and/or errors of mixed fact and law.
[12] Having regard to the consequences of the decision to the applicant’s ability to practice
as a barrister, in circumstances where he has been a practising barrister for in excess
of three decades, the Court grants leave to appeal.
Grounds of appeal
[13] The applicant’s grounds of appeal are:
-- 3 of 34 --
4
“1. Ground one: the Tribunal erred in law in failing to carry out its
statutory duty under section 20(2) of the Queensland Civil and
Administrative Tribunal Act 2009 (QCAT Act) which was to
conduct a review of the decision of the Respondent by way of
a fresh hearing on the merits. The Tribunal failed to properly
carry out a fresh hearing on the merits for three reasons:
(i) the Tribunal’s reasoning is wrong with respect to the
relevant period of time during which the Applicant’s
impugned conduct is said to have occurred;
(ii) the personal situation of the Applicant did not receive any
adequate or rigorous analysis in the reasons for the
purpose of examining circumstances of mitigation, and,
indeed, explanation for errors made by the Applicant;
(iii) the Tribunal failed to consider much of the
uncontradicted evidence that supported the case of the
Applicant. This overlaps with ground two.
2. Ground two: the Tribunal erred in law in failing to conduct the
proceedings fairly, and thus failed to discharge its duty pursuant
to s 28(2) of the QCAT Act. The lack of fairness arises from
the failure of the Tribunal to consider important and relevant
unchallenged evidence. The Tribunal’s reasoning is also wrong
in important respects and contrary to uncontradicted evidence.
3. Ground three: the Tribunal denied the Applicant procedural
fairness and thereby failed to discharge its duty under s 28(3)(a)
of the QCAT Act. This relates to the making of adverse and
serious findings against the Applicant which he had no
opportunity to deal with either in cross-examination, or by his
being examined by the Tribunal (which had this power). This
failure is particularly significant in circumstances where the
Tribunal made adverse findings about the integrity and sincerity
of the Applicant which are matters which assume particular
significance in disciplinary proceedings.
4. Ground four: the Tribunal erred in law by failing to give proper
consideration to whether conditions proposed by the Applicant,
which were not before the Respondent on its original decision,
would have been adequate to overcome alleged problems with
granting him a practising certificate. This was a serious error.
It also underscores the fact that the Tribunal did not conduct
a rehearing on the merits.
5. Ground five: the Tribunal erred in law in its application of the
principle from Wardell v the New South Wales Bar Association
[2002] NSWSC 548 at [52] in its limited reference to a ‘right
thinking’ person. The Tribunal adopted the notion of a ‘right
thinking’ person who would look at fault but would not take
a fair look at the circumstances in which faults occurred,
contrary to the authorities. In so doing, the Tribunal failed to
take proper account of the Applicant’s exculpating features and
his personal circumstances.
-- 4 of 34 --
5
6. Ground six: the Tribunal’s reasoning about the Applicant’s trip
to the People’s Republic of China (China) just before he filed
for bankruptcy is wrong in fundamental ways. This episode
attracted serious censure from the Tribunal but its reasons about
it were wrong, in not just one, but several key respects. The
Tribunal erred in finding:
(i) at [64] of the Tribunal’s reasons that the Applicant never
explained the purpose of his travel;
(ii) at [72] of the Tribunal’s reasons that the Applicant
represented that he had filed an application for
bankruptcy before he flew out of Australia on 17 August
2024;
(iii) at [80] of the Tribunal’s reasons that even by the end of
the hearing before the Tribunal, ‘it seems to have escaped
the Applicant’s attention that what he did was wrong’.
7. Ground seven: the Tribunal erred in its approach to the
Applicant’s evidence concerning his previous contempt
conviction by:
(i) misrepresenting the Applicant’s written submission
at [40] that his failure to disclose his conviction and
punishment for contempt was of no significance;
(ii) rejecting the Applicant’s evidence that the conviction and
punishment for contempt ‘slipped his mind’ at the time of
applying to renew his practising certificate, or, in the
alternative, finding that the fact that it had ‘slipped his
mind’ was evidence of a ‘staggering lack of regard for the
significance of the conviction’.
8. Ground eight: The Tribunal’s rejection of the Applicant’s
submission that the hospitalisation did not ‘cross his mind’
when he was applying for his practising certificate was unfair
for three reasons:
(i) the evidence gave rise to a number of explanations for
why the matter may have in fact did not cross his mind.
(ii) The Tribunal gave no regard to the Applicant’s unsworn
evidence that it was not intentional and that due to his
health issues he found it difficult to concentrate on his
own personal affairs and prioritised his client’s interests.
(iii) The Tribunal made a finding that there was a ‘continuing
lack of candour’ by the Applicant concerning the hospital
confinement but the Applicant was not cross-examined
about his evidence and he was therefore not afforded an
opportunity to respond to this assertion.
9. Ground nine: the Tribunal erred in its approach to the
Applicant’s failure to pay tax in that the Tribunal:
-- 5 of 34 --
6
(i) adopted an unfair and overly simplistic approach to this
matter which ignored the Applicant’s personal
circumstances, the fact that he was not evading tax but
had numerous voluntary interactions with the Australian
Tax Office (ATO) seeking temporary relief from
payment, and that he was spending a lot of money on
serious criminal charges that had been brought against
him, including a trial of eight days which miscarried and
is in the process of being heard again. The other charges
were not proceeded with against him, but it was an
expensive exercise for the Applicant to defend himself;
(ii) gave insufficient weight to the repeated, genuine, and
unchallenged steps taken by the Applicant to engage with
the ATO.
10. Ground ten: The Tribunal erred when it found at [106] that the
Applicant ‘was more fortunate than others. He did not have to
deal with adversity alone’.
11. Ground eleven: the Tribunal erred at law and fact in both
misconstruing and giving insufficient weight to the Applicant’s
apology.
12. Ground twelve: the Tribunal erred in failing to give proper
analysis to the character references filed in support of the
Applicant.”
Tribunal hearing
[14] The hearing was conducted on the basis that the facts were set out in extensive
affidavit material. No deponent was required for cross-examination. The parties
agreed that at issue was the applicant’s reasons for having engaged in the conduct set
out in the second information notice, which formed the basis for the respondent’s
decision to refuse to renew the applicant’s practising certificate.
[15] It was agreed that the base facts were not in contest with the applicant’s explanation
to be “examined in light of the evidence and it can be determined whether the
explanation is consistent with the evidence, is contradicted by the evidence or is not
supported by the evidence …”.1
[16] It was also agreed that QCAT’s role was to review the respondent’s decision and to
make the correct and preferable decision. Central to that decision was whether the
applicant remained a fit and proper person to hold a practising certificate.
A practising certificate is not to be renewed unless the holder of that practising
certificate is a fit and proper person to continue to hold the practising certificate.
Information notice
[17] The information notice given on 2 October 2024 stated that, in the opinion of the
respondent, a number of matters, when viewed together, compelled the conclusion
that the applicant was not a fit and proper person within the meaning of s 51(5) of the
LPA. Those matters were:
1 AB 1391/10–40.
-- 6 of 34 --
7
(a) On 29 August 2017, the applicant had been punished for contempt of the
Magistrates Court of Queensland, a fact that was a suitability matter within the
meaning of s 9 of the LPA, but the applicant did not disclose it in his application
to renew his practising certificate on 1 June 2018.
(b) The applicant was a defendant in civil proceedings, the trial of which had been
adjourned by reason of the applicant experiencing mental health difficulties
which had led to his hospitalisation on 11 May 2023, but the applicant did not
disclose mental health difficulties in his application to renew his practising
certificate on 28 May 2023.
(c) When the respondent became aware of the applicant’s mental health
difficulties, it required the applicant to attend a health assessment by
a psychiatrist who reported, among other things, that the applicant had stated
that he had not had negative feedback from clients, solicitors or the judiciary,
that the applicant was unaware that he had to report an episode of ill health and
that his application for renewal was managed by his wife as he had been too
unwell in May 2023. The respondent recorded that the statement that the
applicant had not had negative feedback from clients was inaccurate, as he had
been the subject of a complaint; that the statement that the applicant was
unaware that he had to report an episode of ill health was difficult to accept,
given the seriousness of his ill health and the fact that every barrister is asked
every year, as part of the renewal process, to state any matters which may affect
their fitness; that the statement that his wife had managed his application raised
whether the statutory declaration given as part of the renewal process, was in
fact given by him; and that if the applicant in fact remained incapacitated at the
date of applying for renewal, that itself should have been disclosed.
(d) The applicant had been notified, on 19 January 2023, by the Legal Services
Commission, that a client had lodged a complaint against the applicant, but the
applicant did not disclose that complaint in his application to renew his
practising certificate on 28 May 2023.
(e) The applicant, on 12 September 2023, was informed by the Legal Services
Commission of its intention to commence a disciplinary procedure in relation
to that complaint, but the applicant did not disclose to the respondent that he
had received such notice, in breach of an undertaking the applicant had given
by email on 21 July 2023, to inform the respondent of the status of the
complaint against him “when requested to do so, and upon any event that would
reasonably prompt an update”.
(f) As a result of a judgment given against the applicant in the civil proceeding, a
summons was issued on 24 July 2024, requiring the applicant to attend an
enforcement hearing in the District Court on 22 August 2024. Despite the
applicant knowing that he was obliged by summons to appear, the applicant
departed Australia on 17 August 2024 and travelled to the People’s Republic
of China, where he intended to stay past the date of the enforcement hearing.
(g) As a result of becoming bankrupt, the applicant had provided to the respondent
a statement as to why he remained fit and proper despite bankruptcy. That
statement brought to the respondent’s attention that the applicant had not paid
any substantial amount of tax for at least two years and had an outstanding debt
to the Australian Tax Office of $398,392.
-- 7 of 34 --
8
[18] The information notice recorded the respondent’s conclusions:
“45. On the basis of the above matters, the Association is satisfied
that you are not a fit and proper person to hold a practising
certificate and that it is therefore bound to refuse to renew your
practising certificate. In particular, the Association notes that,
in the period since you last made an application to renew your
practising certificate (on 28 May 2023, for the 2023/24
practising year):
(a) you failed to disclose the fact that the LSC had informed
you of its intention to commence a disciplinary
proceeding against you to the Association, in breach of
your undertaking to the Association, and against
a backdrop of several previous disclosure failures;
(b) you failed to comply with your obligations regarding the
statement of financial position;
(c) you failed to comply with the summons to attend the
Enforcement Hearing and produce documents; and
(d) you entered into bankruptcy and you informed the
Association of your failure to pay:
(i) all but a nominal contribution to historical tax debts
due as at August 2022; and
(ii) make any payment of income tax in the 2022 and
2023 financial years despite having been assessed
as owing amounts of $37,059.45 and $45,037.45.
respectively in those years.
46. The Association considers that the conduct surrounding the
various Disclosure Failures indicates that you have not treated
your disclosure obligations under the Act with the seriousness
required of a barrister. When they occur, you express contrition
and explain those failures by reference either to forgetfulness or
by reference to the various stressors present in your professional
and personal life (or some combination of those). You do not
appear to have been able to re-arrange your affairs so as to be
able to comply with those various obligations.
47. Of particular concern with respect to the Disclosure Failures are
the most recent ones. Disclosure Failure 4 occurred in
circumstances where you had led evidence in the Civil
Proceeding that you were probably cognitively unfit to give
instructions to defend that proceeding. Disclosure Failure 5
occurred less than two months after you had given a written
undertaking to keep the Association informed of developments
with respect to the Habchi Complaint, the very subject matter of
Disclosure Failure 5.
48. As to the failure to appear at the Enforcement Hearing,
submissions made on your behalf are to the effect that you had
-- 8 of 34 --
9
an honest belief that you did not need to attend because you
accepted the advice of Mr Dimond that the debtor’s petition, if
lodged online, would be processed within 48 hours, and you
believed that once the petition had been accepted, that would
bring the enforcement proceedings to an immediate end and
relieve you of the obligation to answer the summons.
49. As to the advice from Mr Dimond, we note that you are a very
experienced barrister and it must surely have occurred to you
that, regardless of what are the usual times for processing
debtors’ petitions online, there must have remained the risk that
yours would not be processed in time.
50. As to the belief that, if the petition was processed in time, you
would not be required to appear and the enforcement
proceedings would be at an immediate end, it is to be noted that:
(a) you make no direct submission that you in fact received
legal advice to that effect;
(b) it is difficult to accept that a competent legal advisor
would have informed you that it was sensible to travel
overseas rather than take the less risky approach of
attending at the Enforcement Hearing;
(c) it is submitted by Potts Lawyers on your behalf that you
had no real familiarity with the Bankruptcy Act 1966;
(d) there was therefore no basis for you to be confident that
your bankruptcy would have the effect you assumed; and
(e) it cannot be accepted that an experienced, competent
barrister would think it appropriate to travel overseas and
ignore an extant summons in those circumstances.
51. Further, it cannot be accepted that a competent legal practitioner
would think it appropriate to travel overseas and essentially run
the risk of not appearing in answer to the summons (and not
producing the documents required to be produced under the
summons) if the debtor’s petition was not processed prior to the
time you were required to appear, or if it were not accepted.
52. This failure to appear in answer to the summons has occurred
consequently upon your:
(a) failure to provide a completed statement of financial
position within 14 days of being served on 25 June 2024,
as required by rule 807 of the UCPR; and
(b) provision of only an unsigned statement of financial
position on 15 August 2024.
53. The Association also notes that there is no suggestion that your
travel to China was urgent. Potts Lawyers submits on your
behalf that you took the caution of arranging plane tickets that
would allow you to cancel and obtain a refund if necessary so
-- 9 of 34 --
10
that ‘you could appear in Court if [your] bankruptcy was not to
proceed for any reason’. It is difficult to see how this
ameliorates the position at all. You waited until two days after
you had departed to lodge the petition, and, on your submission,
you were acting on the assumption that the petition would be
processed by 21 August 2024.
54. Your conduct of your taxation affairs is considered to be
unacceptable. Barristers are officers of the Court. They are
expected to comply with the law, including laws in relation to
the payment of tax. Whilst the various stresses you have
experienced are severe and unusual, their existence does not
relieve a barrister of such basic obligations. Of particular
concern is your decision to eschew an offer from the ATO to
enter into what appears, considering the size of your debt, to
have been an eminently reasonable payment plan. The
Association notes your explanation in your statement that you
did not want to set yourself up for failure, but does not consider
that this is a sufficient excuse simply to refuse to enter into such
a plan, much less to fail to engage in such circumstances to see
if some more lenient plan could be achieved.
55. Further, the failure by you to pay any tax at all for the 2022 and
2023 financial years, in the Association’s view, reflects an utter
disregard on your behalf for the requirement to comply with
fundamental tax obligations.
56. In the Association’s view, your conduct in connection with the
Disclosure Failures, the Enforcement Hearing, your taxation
affairs, and your bankruptcy demonstrates a poor attitude
towards your responsibilities as a citizen and as an officer of the
Court. When taken together, that conduct, and the disrespect to
the Court, the profession, and the community that it entails,
demonstrates that you are no longer ‘able to command the
confidence and respect of the court, of [your] fellow counsel and
of your professional and lay clients’.”
Applicant’s evidence
[19] The applicant filed three affidavits. Relevantly, he deposed to the following matters.
Bankruptcy
[20] The applicant deposed that certain written representations made on his behalf to the
respondent, concerning his bankruptcy, were true and correct.
[21] The first written representation was a letter to the respondent, from the applicant’s
solicitor, dated 23 August 2024. In that letter it was stated that the judgment that had
been entered against the applicant in the District Court was under appeal.
[22] The letter further stated:
“An Enforcement Summons was served on [the applicant] to produce
documentation. Without prejudice negotiations then ensued and these
-- 10 of 34 --
11
failed and accordingly [the applicant] filed an Application for
Bankruptcy.
[The applicant] departed Australia on Saturday 17 August, 2024. At
that time he was suffering a great deal of stress because of all of these
economic matters and his pending criminal proceedings of which you
are aware and has been visiting his psychiatrist Dr Khoo.
When he departed he was of the honest belief that the Certificate of
Appointment of a Trustee would be issued well prior to the
Enforcement Proceedings on 22 August, 2024 and that they would be
stayed.
We requested an adjournment prior to that date and that was rejected
and [the applicant’s solicitor] appeared before the Registrar in the
District Court on 22 August to advise the Registrar and at that stage it
was understood that [the applicant] would be returning on 29 August
and the hearing was adjourned to that date.
On the same day, 22 August 2024 the Certificate of Appointment was
issued and we promptly gave notice to the solicitors for the
enforcement creditor. There was no intention by [the applicant] to
abuse the process or not respect his obligations but that has to be
understood in the context of all of the matters with which he is now
dealing.
We cannot see that the proceedings can now continue because of
Section 58(3) of the Bankruptcy Act.”2
[23] The second written representation, from a different firm of solicitors, was a letter
dated 16 September 2024, in response to the respondent’s information notice dated
28 August 2024. This letter stated that the communication would provide the
applicant’s “detailed explanation and accompanying evidence with respect to how it
came to be that the Registrar of the District Court of Queensland issued an arrest
warrant for him failing to attend an enforcement hearing and his compliance with the
Bankruptcy Act 1966 (Cth)”. The letter referred expressly to the earlier
communication dated 23 August 2024, repeating its content as set out above.
[24] The letter stated that the applicant, via his solicitor, was at all times cooperative and
courteous when dealing with the court and the other party; that the applicant and his
solicitor genuinely thought that the applicant’s bankruptcy would be made official
prior to the enforcement hearing; that the applicant by his solicitor, went to
appropriate lengths to notify the other party of the pending bankruptcy; that the
applicant’s solicitor attempted to adjourn the hearing by consent; that there were
genuine attempts to resolve the debt; and that the applicant’s location and pending
bankruptcy were explained truthfully and frankly to the court and the other party.
[25] The letter further stated that there was only a period of 2.5 hours between an arrest
warrant being issued for failing to appear at the enforcement hearing and the
applicant’s bankruptcy being made official, which had the effect of staying the
enforcement proceedings pursuant to s 58(3) of the Bankruptcy Act.
2 AB 312.
-- 11 of 34 --
12
[26] The letter continued:
“By way of further explanation as to why [the applicant] held a
reasonable belief that his bankruptcy would be made official prior to
the enforcement hearing, we are instructed that:
a. [The applicant] held a reasonable belief that the acceptance of
his bankruptcy petition took between 24 and 48 hours after
being told this timeframe by Mr Jake Dimond who worked with
the incoming trustee in bankruptcy.
b. The debtor’s petition was lodged electronically on 19 August
2024, and prior to leaving Australia on 17 August 2024 [the
applicant] understood from his discussions with the trustee and
Mr Dimond from the trustee’s office that the petition could be
lodged electronically whilst he was overseas and it would take
24 to 48 hours from lodgment for the bankruptcy to begin. As
discussed below, he had originally intended to lodge the petition
on the 13th or 14th of August 2024, whilst still in Australia.
c. [The applicant] honestly believed, based on the fact that the
petition had been electronically lodged on 19 August 2024 and
he had been told that the processing time would be between 24
and 48 hours by Mr Dimond at the trustee’s office that his
bankruptcy would be official prior to the enforcement hearing
on the morning of 22 August 2024, clearly removing the need
to attend.
D. [The applicant] was originally planning to electronically lodge
his debtor's petition on either the 13th or 14th of August 2024
when he completed the necessary AFSA documentation. He did
not lodge his petition then as a mutual friend of his and the
Plaintiff in the debt matter had advised him that the Plaintiff was
considering his offer to settle for $200,000 and suggested that
he may want to give her more time to consider her position
before he lodged the petition. If he had lodged his petition when
he originally planned to do so, it is extremely likely that his
bankruptcy would have been official prior to the enforcement
hearing.
e. [The applicant] had arranged plane tickets that would allow him
to cancel and obtain a refund for the tickets, if necessary, so that
he could appear in Court if his bankruptcy was not to proceed
for any reason. He was under the impression that by having
submitted his petition to AFSA on 19 August 2024, he had
properly and lawfully avoided the need to appear in Court on
22 August 2024 as his bankruptcy would be official and the
proceedings automatically stayed. He would not have sought
refundable flights if he was not planning to comply with his
obligations.
f. There is commentary available online which states that AFSA
takes between 1 and 2 days to process a debtor’s petition
(although [the applicant] did not refer to this at the time, and
-- 12 of 34 --
13
simply accepted the advice of the employee at the trustee’s
office). It appears that that the 1 to 2 day time frame advised to
[the applicant] is generally accurate. For example, the
publication Dealing with Debt – A legal guide to Personal
Bankruptcy in NSW is available free online via the State Library
of New South Wales and provides:
‘You must lodge your completed forms with AFSA within
28 days of signing. AFSA usually takes 1-2 days to
process voluntary bankruptcy. If accepted, you will
receive a letter containing your bankruptcy number and
outlining your duties and obligations, while bankrupt.’
(underlining added)”.3
[27] The letter dealt with other aspects of the applicant’s bankruptcy, asserting that the
applicant’s trustee in bankruptcy had met with the applicant and was aware that he
was planning to travel overseas and was considering filing for bankruptcy; that the
trustee had no intention of holding the applicant’s passport upon being appointed as
trustee; that the trustee no longer requires bankrupts to surrender their passports; and
that on 29 August 2024, the trustee provided the applicant with a letter confirming
that he did not object to him travelling overseas until 2 September 2024.
[28] The letter stated that there was no plan on the applicant’s part to take any unethical
course to avoid the judgment debt or circumvent his restrictions on travel. The
applicant sought appropriate advice from solicitors and a registered trustee. The
applicant accepted that his failure to appear was a very unfortunate error and
regrettable circumstance of his own making and apologised for that error. The
applicant said that he had incorrectly assumed that his bankruptcy would be processed
before the enforcement hearing, with the consequence that the enforcement hearing
would be stayed and he would not be required to personally appear in court.
[29] The letter further stated that the bankruptcy, in part, had been caused by the
substantial judgment debt. The costs of the applicant’s ongoing criminal defence, the
civil debt matter and medical expenses, among other matters, had also led him to fall
behind in his payments to the ATO, such that he had a sizeable tax debt of
approximately $400,000 at the time of his bankruptcy.
[30] The letter stated that the applicant was lawfully entitled to utilise the bankruptcy laws
to reset his financial position, that there was no evidence of dishonesty or
incompetence and that in the event that his practising certificate was restored, the
applicant was confident that he would earn significantly more than the bankruptcy
threshold, such that money would be distributed to his creditors.
[31] In his third affidavit, the applicant addressed concerns that he had failed to sign the
Statement of Financial Position in respect of the enforcement proceeding. The
applicant deposed that at the time the statement was due, he and his solicitors were
desperately attempting to engage in fruitful negotiations about the judgment debt, as
that was his only chance of avoiding bankruptcy. An unsigned statement was
provided, together with an offer to settle, part of which included providing a signed
Statement of Financial Position. There was no dishonesty in providing the statement
3 AB 195.
-- 13 of 34 --
14
unsigned; it was completed truthful. The applicant said that he and his solicitor had
a concern that if they provided a signed statement, it would be handed to the media
and published in whole or part.
[32] The applicant also deposed to having taken the judgment debt and enforcement
proceedings very seriously. He repeated the timeline set out in the communication
dated 23 August 2024. The applicant said that he sought the opinion of his trustee
and another trustee in bankruptcy as to the effect of bankruptcy on the enforcement
proceeding, wanting to satisfy himself that if he was a bankrupt, the enforcement
hearing could not proceed. He also sought confirmation from his solicitor that if he
was a bankrupt, he would not be required to attend the enforcement hearing. The
applicant denied that he was flagrantly ignoring his responsibility to the court to
appear. The applicant said he was very stressed at this time:
“I felt that I may be close to a psychiatric break given the stress. One
thing that I have found that settles down my mind is being in another
location where I cannot simply ruminate on my thoughts. I have found
that travelling helps my mind relax completely as in places such as
China, when you are there, your attention is immediately drawn to the
most mundane tasks such as directing a taxi driver who does not speak
English, crossing the street, ordering food and the like. In this way,
my mind gets a break from negative thoughts and it helps me to find
a way to avoid my mental health reaching very low points. Whilst it
might seem strange to others for me to travel overseas at this juncture,
at the time I felt I needed to do so for my mental health and my wife
agreed that I should go.”4
[33] The applicant further stated that he did not leave for overseas thinking that he would
be in breach of the summons to appear at the enforcement hearing; and that he felt
terribly embarrassed and distraught when it was relayed to him what had occurred at
the hearing. The applicant said that when he first booked his tickets, he purchased
flexible ones in case he had to remain in Australia, but that by the time he left for
overseas, the arrangements to become a bankrupt had been made with the incoming
trustee and he was able to submit his debtor’s petition from overseas, so he thought
it was safe to travel. The applicant deposed that he had prepared the petition between
13 and 14 August 2024, but did not file it until 19 August 2024, due to ongoing
attempts to negotiate a resolution of the judgment debt.
[34] In that affidavit, the applicant also said that he had lodged his tax returns and business
activity statements in a generally timely manner, but not always on time; that he had
notes going back to around 2021/2022 with respect to attempts to defer and agree
a repayment schedule with the ATO; that over a period of some 18 months, he spoke
to a number of people relating to entering into a payment plan; that due to the
pressures associated with criminal matters, medical conditions and the ongoing
effects of missed income during the COVID period, his communications lapsed, such
that around December 2022, he stopped contacting the ATO except for occasional
calls, in an attempt to remove penalties due to his unique circumstances; that at one
stage he had asked his accountant to prepare a payment plan, but he was unable to
meet those proposed payments, as it was too onerous; and that he continued to contact
the ATO in 2023 and 2024, but only to get out of penalties and interest amounts. The
4 AB 1145 at [26].
-- 14 of 34 --
15
applicant said that but for the judgment debt, he believed he would be in a position to
trade out of his tax debts.
Contempt
[35] The applicant deposed that he notified the respondent of the contempt proceedings
when applying for his practising certificate in June 2016 and June 2017.
Mental health difficulties
[36] In his second affidavit, the applicant acknowledged that he had failed to disclose his
mental health difficulties but said it was not intentional. The applicant said he had
been able to recognise he needed help and treatment and voluntarily ceased work. By
the time the disclosure was required he had been released from hospital and had to
a large extent recovered from the psychological injury. However, the mental health
issues made it particularly difficult for him to concentrate on his own personal affairs
and he placed his clients’ interest above his own, such that he regretfully did not
mention his hospitalisation at the time of the application to renew his practising
certificate.
[37] The applicant denied that he remained incapacitated at the time of making his
application for renewal. The applicant was following doctor’s advice in relation to a
gradual return to work. When the applicant completed the online renewal form for
the first time it did not cross his mind that he should disclose his recent mental health
episode as he was in the recovery phase. He was not experienced using computers to
complete these types of forms and was assisted by his wife, also a barrister. However,
when it came to the declaration, the applicant confirmed it himself. His wife just
assisted him to navigate the process.
Client complaint
[38] The applicant said he had engaged solicitors to make submissions to the Legal Service
Commission.
Undertaking
[39] The applicant referred to his solicitor’s response, by letter dated 24 June 2024. In
that response, the applicant accepted that he had been notified of a complaint by the
Legal Services Commission on 19 January 2023; that on 21 July 2023 he provided an
undertaking to the respondent to keep it advised as to the status of that complaint; that
on 12 September 2023 the Legal Services Commission wrote advising that they
intended to start a proceeding against him; that he did not advise the respondent of
that correspondence, as required by the undertaking; and that he apologised for his
failure to comply with the undertaking. That failure was a reflection on the
applicant’s lack of personal administration and individual personal circumstances at
the time rather than any deliberate disrespect towards the respondent.
[40] That letter recorded that the applicant was at the time facing criminal charges, had
been the subject of distressing medical complications, was in the middle of personal
civil litigation, was subject to processes in regard to his fitness to practice, including
a direction to attend upon a psychiatrist, and was suffering other personal medical
issues. All of these factors had a significant compounding effect. The letter stated
that although the applicant was unable to provide a definitive explanation as to how
-- 15 of 34 --
16
the failure occurred, the applicant believed it arose due to confusion in
communications with his then solicitor. The applicant accepted that the undertaking
was a personal obligation and again apologised for the oversight.
Other evidence
[41] Affidavits were filed by the applicant’s solicitor (multiple), the applicant’s wife,
several solicitors who briefed the applicant as a barrister and a businessman who acted
as an intermediary in negotiations about the judgment debt.
[42] The solicitors’ affidavits annexed relevant correspondence, including correspondence
from the trustee in bankruptcy as well as references from barristers, solicitors and
former clients of the applicant. All attested to the applicant’s competence as
a barrister. Two barristers, both King’s Counsel, gave detailed reasons for their views
as to the applicant’s competence and fitness to practice as a barrister. One offered to
be the applicant’s mentor, as part of suggested conditions. The Queensland Law
Society also offered to modify its ethics course to allow the applicant to participate
as part of suggested conditions.
Expert reports
[43] Dr Khoo, who had been consulting with the applicant since 7 February 2017, opined
that the applicant suffered from major depressive disorder, panic disorder and post-
traumatic stress disorder (PTSD). The depression and anxiety are chronic and
relapsing. The PTSD is chronic and residual which could be aggravated by exposure
to cues indicative of his traumatic exposures in the past. The applicant’s longitudinal
course is characterised by intermittent discrete syndrome or mood episodes on
a background of chronic residual sub-syndromal symptoms. Whilst usually managed
well, the applicant had experienced chronic, moderately severe major depression in
recent years due to the cumulative effects of various stressful life events.
[44] Dr Khoo further opined that the applicant’s health conditions did not adversely impact
his intellect or professional performance; that the applicant had good insight and
remained actively engaged in his treatment, demonstrating good judgment in
identifying early warning symptoms and taking appropriate interventions; and that
the applicant’s medical status did not impose any substantial risk to the general public
and was unlikely to bring the Bar Association of Queensland into disrepute.
[45] Dr Kingswell, who examined the applicant at the request of the respondent, opined
that the applicant suffered from major depressive disorder (in remission), post-
traumatic stress disorder (chronic residual features) and panic disorder (in remission).
Notwithstanding those conditions and what was a long history of psychiatric illness,
Dr Kingswell opined that the applicant had demonstrated an episodic disorder with
excellent recovery of function between episodes with an ability to comply with
treatment and seek additional assistance when there was a worsening of his condition.
As such, it was very unlikely that the applicant would continue to practice when unfit
to do so. Accordingly there was no psychiatric cognitive or substance use disorder
that would prevent the applicant from making satisfactory disclosures to the
respondent in the future.
QCAT decision
[46] Relevantly, QCAT found:
-- 16 of 34 --
17
(a) When the applicant applied for renewal of his practising certificate for the
2018/2019 year, he was required to answer a question to the following effect:
“In the past 12 months have you been or are you currently subject to any of the
suitability matters listed in sections 9 and 46 of the LPA which may affect your
eligibility or fitness to hold a practising certificate”, in response to which the
applicant did not disclose his conviction and punishment for contempt on
2 August 2017. QCAT had been told that it “slipped his mind”. QCAT said,
“If this was true, it evidenced a staggeringly lack of regard for the significance
of the conviction”.
(b) In written submissions for the applicant it had been contended that the omission
was of no importance because the applicant had disclosed the fact of a contempt
charge when he applied for renewal of his practising certificate in 2017 and
2018. That submission reflected “a failure to take the contempt conviction
seriously. It was also misleading and disingenuous”. In 2017, the applicant
had disclosed the contempt charge telling the respondent that he intended “to
vigorously defend this matter” and in 2018 he had informed the respondent that
the matter was “still before the courts” and that “the date for the final resolution
of the matter is yet to be made”. QCAT said that as a barrister of many years’
experience, the applicant appreciated the significant difference between being
charged with an offence, which one intends to vigorously defend and being
convicted and punished for committing the offence and that a conviction for
contempt of court, for a barrister, is a serious matter.
(c) It had also been submitted for the applicant that there was “no attempt to hide”
the fact that he was convicted of contempt. However, when the applicant
completed each application to renew his practising certificate in each of the
following five years, he never disclosed the conviction for contempt. If the
applicant did not intentionally leave the contempt conviction out of his answer
to the direct question in 2019 and did not intentionally omit to disclose it, it
was more likely than not “he continued to treat it with the same lack of regard”.
(d) That on or about 28 May 2023, when the applicant applied to the respondent
for renewal of his practising certificate for the 2023/2024 year, the applicant
did not disclose that in the opinion of the treating medical specialist placed
before the District Court, his mental health difficulties had made him so unwell
that he could not defend a civil proceeding in which he was a party and that he
had been hospitalised with that condition for nine days from 11 to 19 May
2023. Although the applicant later relied on these mental health difficulties to
explain his failure to disclose another matter in the same renewal application,
the applicant did not contend they were an explanation for the non-disclosure
of an apparently acute mental health situation and hospitalisation, less than two
weeks before his renewal application. The applicant, in the review application,
denied that he remained incapacitated at the time he applied for renewal of his
practising certificate, stating that he was in recovery and following medical
advice in relation to a gradual return to work, such that there was no current
incapacity that he had failed to disclose.
(e) The applicant’s submission that the apparently acute medical episode had
passed from his memory, could not be accepted as the applicant had been
discharged from hospital only eight days before he submitted the renewal
application, having spent nine days in hospital. In the circumstances, the
-- 17 of 34 --
18
applicant displayed a lack of candour in his explanation for his failure to
disclose this relevant matter and the applicant did not rectify this lack of
candour during the hearing.
(f) Also on about 28 May 2023, in answer to the same question, the applicant did
not disclose that on 19 January 2023, he had been advised by the Legal Services
Commission that a client had lodged a complaint about the applicant’s conduct
as a legal practitioner, a disclosable suitability matter.
(g) On 21 July 2023, the respondent wrote to the applicant requesting an
explanation for not disclosing the complaint in his renewal application. On the
same day, the applicant had replied that the complaint had completely slipped
his mind; that nothing had occurred with respect to the complaint; and there
was no follow up from the Legal Services Commission. The applicant
undertook to inform the respondent of the status of the new complaint, “when
requested to do so, or upon any event that would reasonably prompt an update”.
(h) This was not a trivial complaint. The client had alleged that the applicant had
demanded to be paid $5,000 in advance for professional work as a barrister,
had been paid that sum, had not performed the work and had refused to refund
the payment. The applicant’s apparent disregard of the complaint indicated an
inappropriate attitude towards complaints about his professional conduct and
the processes of the Legal Services Commission. Due to the applicant’s
disregard, he had misled the respondent by answering the renewal question as
if there was no such complaint. If the complaint had not come to the attention
of the respondent in some other timely way, the applicant’s practising
certificate renewal would have been decided on that false basis.
(i) On 12 September 2023, the applicant received a letter from the Legal Services
Commission setting out its intention to commence a disciplinary proceeding in
relation to that complaint. Whilst that letter was received about eight weeks
after the applicant had given the undertaking to inform the respondent, the
applicant did not inform the respondent of this letter, in breach of that
undertaking. The applicant was in breach of his undertaking for about eight
and a-half months, until 27 May 2024 when the respondent wrote to the
applicant, having become aware of the matters by other means. This lengthy
period of default was more remarkable because the respondent on 9 February
2024, wrote to the applicant seeking his confirmation that the undertaking
continued for the duration of his 2023/2024 practising certificate and the
applicant, by his solicitors on 20 February 2024, had confirmed his obligation.
(j) On 27 May 2024, the respondent wrote to the applicant inviting him to provide
reasons as to why he had failed to comply with his undertaking. On 28 May
2024, the applicant replied advising that he was seeking legal advice and stating
that he was not a person who intentionally ignores undertakings, “either to the
courts my colleagues the Bar Association or for that matter anyone”.
(k) On 28 May 2024, the respondent replied, referring to the exchange of
correspondence in February 2024 and stating that it was imperative that the
respondent be provided with a clear explanation as to his reasons for not
informing it of the change in status in respect of the complaint matter. The
applicant did not respond until 24 June 2024 when, through a new firm of
-- 18 of 34 --
19
solicitors, he confirmed that he did not advise the respondent of the
correspondence from the Legal Services Commission as required by the
undertaking and further, disclosed for the first time that he had, through other
solicitors, “filed a submission with the Legal Services Commission in response
on 31 October 2023”. The applicant’s response included an apology for his
failure to comply with the undertaking, stating that the failure was a reflection
upon the applicant’s lack of personal administration and his individual
distressed personal circumstances, rather than any deliberate disrespect or
malfeasance directed towards the respondent. The applicant had been facing
criminal charges since 2017, there had been media publications about him in
August 2023, there was a personal civil trial on 23 October 2023 and there was
a direction from the respondent on 30 October 2023 that the applicant attend
an independent medical specialist to assess his ability to perform as a barrister
and “personal medical issues”. Those factors had a significant compounding
effect from a personal health perspective and also from a professional
administrative perspective.
(l) By 31 October 2023, the applicant had given his solicitors instructions to make
a written submission to the Legal Services Commission about its intention to
commence disciplinary proceedings, based on the client’s complaint and that
when his attention was focussed on that change of status of the complaint, the
applicant ought to have honoured his undertaking to the respondent. By then,
the civil trial had been adjourned, the media publications about him were some
months in the past, and the respondent had directed the applicant to attend an
assessment by an independent medical specialist, for advice on his contention
that he had fully recovered from his May 2023 acute mental health episode.
(m) The independent specialist who saw the applicant on 4 December 2023,
diagnosed the applicant with two disorders in remission and residual features
of a third; opined that the applicant had recovered almost completely from the
acute episode in May 2023 and opined that the applicant had shown an ability
to comply with treatment and seek additional assistance when there was
a worsening; and that by his account, there were no other issues threatening his
psychiatric health, such as substance abuse or cognitive decline in the absence
of active psychiatric symptoms. The independent specialist further opined that
the applicant “does not currently have a psychiatric, cognitive or substance use
disorder that would prevent him from satisfactorily carrying out” the work of
a barrister, or that would prevent the applicant from “making satisfactory
disclosures” to the respondent.
(n) In the all now known circumstances, the applicant had capacity to receive and
understand the Legal Services Commission’s 12 September 2023
communication and to give instructions to respond with a submission on
31 October 2023, such that he did not lack capacity to honour his undertaking
to update the respondent in either respect for more than eight months and that
the applicant’s lengthy breaches of his undertaking indicated that he continued
to give little respect to the complaint and that he gave even less respect to his
undertaking to the respondent.
(o) On 24 June 2024, the District Court gave judgment against the applicant in an
amount of $240,000 and made directions for the parties to seek agreement on
the interest to be included in the judgment. After judgment was entered, the
-- 19 of 34 --
20
plaintiff as enforcement creditor, had given written notice to the applicant
requiring him to complete and return a Statement of Financial Position as an
enforcement debtor, which the applicant was obliged to complete and return
within 14 days, but did not do so. Although the applicant sought an extension
of time, he never completed and returned the signed Statement of Financial
Position as an enforcement debtor.
(p) When the time for its return had lapsed, the enforcement creditor applied to the
District Court for an enforcement hearing. An enforcement hearing summons
in the approved form was issued by the Registrar, with the applicant’s solicitors
accepting service of the summons on his behalf on 24 July 2024. By the
summons, the District Court required the applicant to attend an enforcement
hearing on 22 August 2024, to provide information, answer questions and to
produce documents before the Registrar in Brisbane.
(q) On 29 July 2024, the applicant sent an email to his solicitor stating that, should
he decide to go bankrupt before the enforcement hearing, an issue was whether
the bankruptcy would put an end to that hearing, which would involve the
applicant’s wife as well. Whilst the applicant later told the respondent that he
was “made aware” of the summons “around early August”, as the applicant had
been communicating with his solicitor about putting an end to the enforcement
hearing as early as 29 July 2024, it seems likely that the applicant was aware
of the summons closer to the date it was served, 24 July 2024, and had given
the solicitor instructions to accept service.
(r) On 4 August 2024, the applicant sent his solicitor an unsigned incomplete draft
of the Statement of Financial Position, instructing that he wanted to go ahead
with the plan “that we made”. The solicitor replied on 5 August 2024, “will
do”.
(s) On 9 August 2024, the applicant purchased plane tickets to travel out of
Australia. The applicant had sworn that he arranged tickets that “would have
allowed me to cancel and obtain a refund for the tickets, if necessary, so that
I could appear in Court if my bankruptcy was not to proceed for any reason”.
(t) On 15 August 2024, the applicant’s then-solicitor sent the enforcement
creditor’s solicitors a copy of the unsigned Statement of Financial Position with
supporting material on a without prejudice basis, making an offer to
compromise the judgment debt which was open for acceptance until 4.00 pm
that day, after which the offer was withdrawn completely.
(u) On 17 August 2024, the applicant left Australia for China, remaining there until
he returned on 2 September 2024. QCAT said the applicant “never explained
the purpose of this travel”.
(v) On 23 August 2024, the applicant, through his solicitors, wrote to the
respondent to give notice of his bankruptcy. The solicitors confirmed that
judgment had been entered against the applicant and that the decision was
under appeal. The letter further stated:
“An Enforcement Summons was served on [the applicant] to
produce documentation. Without prejudice negotiations then
-- 20 of 34 --
21
ensued and these failed and accordingly [the applicant] filed an
Application for Bankruptcy.
[The applicant] departed Australia on Saturday 17 August,
2024. At that time he was suffering a great deal of stress
because of all of these economic matters and his pending
criminal proceedings of which you are aware and has been
visiting his psychiatrist … .
When he departed he was of the honest belief that the Certificate
of Appointment of a Trustee would be issued well prior to the
Enforcement Proceedings on 22 August, 2024 and that they
would be stayed.
We requested an adjournment prior to that date and that was
rejected and [the solicitor] appeared before the Registrar in the
District Court on 22 August to advise the Registrar and at that
stage it was understood that [the applicant] would be returning
on 29 August and the hearing was adjourned to that date.
On the same day, 22 August 2024 the Certificate of
Appointment was issued and we promptly gave notice to the
solicitors for the enforcement creditor. There was no intention
by [the applicant] to abuse the process or not respect his
obligations but that has to be understood in the context of all of
the matters with which he is now dealing.”5
(w) The applicant’s solicitors adopted the same sequential description of the events
in correspondence on 16 September 2024, as had the applicant in his affidavit
sworn 4 August 2025. Each of these narratives represented that the applicant
had filed an application for bankruptcy before he flew out of Australia on
17 August 2024, when the applicant had in fact agreed not to file it, to allow
time to reach a settlement. These misrepresentations made more plausible,
assertions that at the time he left Australia, the applicant was of the honest
belief that a certificate of appointment of a trustee would be issued well prior
to the enforcement proceedings on 22 August 2024 and that his bankruptcy
would be processed prior to that enforcement hearing.
(x) Whilst the applicant had, in his affidavit, later sworn that the debtor’s petition
was lodged electronically on 19 August 2024; that he had taken the
enforcement proceedings very seriously and was not careless or reckless with
respect to his obligations; and that he had erred in assuming that his bankruptcy
would be made official before the enforcement hearing, “a person served with
a summons to appear can hardly have been less cautious or more reckless than
to purchase an airline ticket 16 days after service of the summons and fly out
of Australia to China three days before the date they are commanded to appear,
intending to be absent from the country on that date”.
(y) Whilst the applicant seemed to accept, on the final day of the hearing, this
proposition, telling the Tribunal in a voluntary, unsworn statement from the
Bar table that he had acted “cavalierly” in leaving Australia whilst the
enforcement summons was pending, the applicant said:
5 AB 58 at [67].
-- 21 of 34 --
22
“I have always had respect for the courts, my colleagues, and
will always have respect for the courts, the colleagues, the
clients. I’ve never made, in my life, a misrepresentation to the
court or to misled colleague or a court, and I pride myself in
that. What I’ve done though is that I stupidly went to China.
I have no idea what I was thinking at that particular time. I can’t
even comprehend the nature of my thought. It was – to say it
was cavalier is being generous to me in those circumstances. It
was wrong and I apologise sincerely for that conduct. It was an
affront to the court. I accept that. And one of the things I’ve
learnt is that it doesn’t matter who’s on the bench, our duty is to
the court, because that is justice and that’s what we’re looking
at.”6
(z) Even by the end of the Tribunal hearing, it seemed to have escaped the
applicant’s attention that what he did was wrong:
“The steps he took to prepare to lodge a bankruptcy application
(and apparently lodge it electronically from outside Australia)
were expressly aimed at preventing the judgment creditor (…)
from taking further steps against him consequent upon his
failure to comply with the summons. Simply put, the applicant
planned and intended to disobey the summons issued by the
District Court on 24 July 2024: a command that he appear and
produce material to the Court on 22 August 2024. The
discussions he had with his proposed trustee, with other
accountants and advisers, with a colleague, and with his
solicitor, were about how he might immunise himself from any
ill-effect of his defiance of the Court’s summons.”7
(aa) The applicant was not a teenager, unfamiliar with the role and authority of a
court. By leaving the country shortly before the enforcement hearing, he
showed a public disrespect for the District Court and its processes. His
apparent lack of understanding and appreciation of the nature and effect of his
conduct, marks his character.
(bb) Whilst the applicant had stated to the respondent that the reason he went
bankrupt was because he could not afford to pay the judgment debt, such
a subjective reason for filing a bankruptcy application, overlooked the other
significant liabilities that had been accruing over the preceding five years, with
the applicant’s taxation returns produced on the last day of the Tribunal
hearing, making it likely he was unable to meet his debts as and when they fell
due, long before that judgment debt.
(cc) Those returns revealed that the applicant had not paid any income tax, or
remitted any GST he had collected to the ATO, since 1 August 2022 and likely
not since 2019. Whilst in the review application the applicant stated that he
had maintained constant contact with the ATO and was endeavouring to enter
into an achievable payment plan, the applicant’s sworn evidence and the
documents he produced, did not make good that contention. The applicant was
6 AB 60 at [78].
7 AB 60 at [80].
-- 22 of 34 --
23
behind in the payment of his taxation liabilities since about 2019. His
accountant had negotiated two payment plans, counselling the applicant to pay
them on time, but the applicant rejected both payment plans. The applicant
also accepted that since December 2022, he had made only occasional contact
with the ATO by telephone.
(dd) Although the applicant did not consciously decide to cease paying tax or
remitting GST indefinitely, he knew he was not paying those sums and he knew
the money he spent on any other thing was money he was denying to the ATO.
That was at best irresponsible and reckless, as “[m]ost right-thinking members
of the community expect people to honour their obligations to meet their debts,
if they can. The applicant’s failure to do so, over a long period, would lead
most people to conclude he was not a fit and proper person to hold a [practising
certificate]”.
(ee) References supportive of the applicant continuing to hold a practising
certificate contained opinions expressed by solicitors, which were confined to
the applicant’s work and that the matters going to the applicant’s fitness to
practise, did not concern in any substantial way, his ability to act as
a representative of persons before the courts, charged with offences. They were
character matters, rather than competency issues.
(ff) Weight was to be given to the opinions expressed by two King’s Counsel, but
QCAT’s decision must be the correct and preferable decision based on all of
the evidence before it. QCAT concluded:
“[106] A person’s initial response to an adverse event (or a series
of adverse events) likely indicates something of the
person’s character. Due allowance should be made for
the rawness of an initial reaction. It is likely to be more
driven by emotion than by reason. The course a person
has adopted with the benefit of time and professional
advice is likely more representative of their character.
The applicant was more fortunate than others. He did not
have to deal with adversity alone. He had representatives
and advisers for each of his various fields of tribulation.
His conduct over time, with the benefit of professional
advice, is likely a better gauge of his character than his
initial untutored responses.
[107] The Tribunal has evidence of the applicant’s conduct over
a reasonable period of recent time. This covers the period
from August 2017, when he was convicted of and
punished for contempt, from 2019, when he seems to
have stopped paying income tax and ceased remitting
GST to the ATO, from 2023, when he was less than frank
with the Association about his mental health, failed to
disclose a formal professional complaint, and breached
his undertaking to the Association for an extended period,
to August 2024, when he defied the enforcement
summons.
-- 23 of 34 --
24
[108] There was a pattern to the applicant’s conduct. It has
marked his responses from the contempt in 2016 to the
Association’s decision to suspend his practising
certificate in August 2024. With the contempt charge, he
retained leading counsel and was to vigorously defend
himself. At the hearing, he admitted his guilt and
submitted to the penalty.
[109] In the most recent iteration of this cycle, the applicant
began the hearing on 2 December 2024 denouncing the
Association’s decisions. His failure to disclose the
contempt conviction was ‘of no significance’. The
Association’s concern that he may have remained
incapacitated nine days after being discharged from
hospital for an acute mental health episode ‘cannot be
sustained.’ His failure to disclose a complaint about his
professional conduct and his subsequent breach of the
related remedial undertaking did not reflect upon his
fitness to practise law. His failure to appear in response
to a court summons was ‘regrettable’, but not ‘careless’
or ‘reckless’. It was due to his ‘honest and mistaken
belief’. By 5 December 2024, he was proposing to submit
to five conditions if granted a PC. These included
12 months’ mentoring under a leading counsel, three-
monthly reporting by his trustee in bankruptcy, six-
monthly reporting from his private accountant,
completing a Queensland Law Society Legal Ethics
Course, and an additional five hours of professional
development focussed on tax accounting and
management.
[110] In his voluntary unsworn statement to the Tribunal, the
applicant said it was only in the ‘last 90 days’ when he
had been unable to practise as a barrister that he came to
realise ‘it was also important that [he] look after [his] own
affairs.’ Even so, the applicant was unable to explain his
conduct or identify what he would actually do differently
in the future. He offered nothing in respect of his history
of failures to disclose suitability matters to the
Association. He had ‘no idea’ what he was thinking when
he flew to China a few days before the summons required
him to appear in the District Court. He could not ‘begin
to think’ why he did not make a payment arrangement
with the ATO. In the end, the applicant described his
conduct as ‘stupidity’. He concluded:
“And so essentially, what I want to do is apologise
to the court and just put on the record that … I’d
like to think I’m not bad intentioned, but I made
bad mistakes and I apologise to the court and to the
Bar Association and my colleagues and to the
public at large for my stupidity. And I don’t know
that I can say much more, your Honour. That is my
-- 24 of 34 --
25
apology. If I could be excused. … that’s all I have
to say.”
[111] The applicant continues to be subject to criminal charges,
which were first pressed against him in 2017. So, he
continues to be on the ‘rollercoaster’ he has been riding
for about seven years.
[112] The courts are experienced in assessing the genuineness
of human sentiments including remorse and resolutions to
make amends. The courts make these assessments every
day in sentencing offenders. The conduct of a person is
the surest guide. Words unsupported by action leave
unproven the genuineness of an expressed desire to
change. The applicant’s recent remorse has this
difficulty.
[113] Considering the matter afresh, on the merits, and using
the evidence before it of the applicant’s previous
behaviour and its causes, so far as is reasonably possible,
the Tribunal cannot be confident the applicant will follow
the appropriate course of action in the future, nor that he
could properly be entrusted to undertake the tasks that
attach to the practise of a barrister in accordance with the
demanding requirements under the LPA.
[114] By this conduct, he showed himself unsuitable to share
what Kitto J called the privilege of the delicate
relationship and intimate collaboration with the courts
and with fellow members of the Bar.”8
Consideration
[47] The appeal is a rehearing to which the correctness standard applies.9 The relevant
principles were summarised in Wang v Hur:10
“[23] The principles governing the circumstances in which an
appellate court should be prepared to interfere with the fact
finding made by a primary judge are settled. The leading High
Court authorities are Warren v Coombes; Allesch v Maunz; Fox
v Percy; Robinson Helicopter Company Incorporated v
McDermott; and Lee v Lee.
[24] The relevant passages from those authorities were recently
examined at length in this Court in Sutton v Hunter. To
summarise further, but retaining the language used by the High
Court authorities referred to in the previous paragraph:
(a) On an appeal by way of rehearing, it is for the appellant
to satisfy the appellate court that the order that is the
subject of appeal is the result of some legal, factual or
discretionary error.
8 AB 36–38.
9 Warren v Coombes (1979) 142 CLR 531 at 551.
10 [2024] QCA 126 at [23] – [24].
-- 25 of 34 --
26
(b) On such an appeal, the appellate court is bound to conduct
a ‘real review’ of the evidence given at first instance and
of the judge's reasons for judgment to determine whether
it should be so satisfied.
(c) If the appellate court concludes that the judge has erred in
fact, it is required to make its own findings of fact and to
formulate its own reasoning based on those findings.
(d) When determining whether a judge has erred in fact, in
general an appellate court is in as good a position as the
trial judge to decide on the proper inference to be drawn
from facts which are undisputed or which, having been
disputed, are established by the findings of the trial judge.
(e) However, in determining whether the judge has erred in
fact, an appellate court is required to exercise restraint
when invited to interfere with a primary judge’s findings
of fact, at least where those findings are likely to have
been affected by impressions about the credibility and
reliability of witnesses formed by the trial judge as
a result of seeing and hearing them give their evidence.
Such appellate restraint applies not merely to findings of
primary facts but also applies to findings of secondary
facts which are based on a combination of these
impressions and other inferences from primary facts.
(f) In such cases, a finding of fact is not to be set aside
because an appellate court thinks that the probabilities of
the case are against – even strongly against – that finding
of fact. The finding must stand unless it can be shown
that the trial judge ‘has failed to use or has palpably
misused [his or her] advantage’ or has acted on evidence
which was ‘inconsistent with facts incontrovertibly
established by the evidence’, or which was ‘glaringly
improbable’, or which was ‘contrary to compelling
inferences’.”
Ground 1
[48] The applicant submits that QCAT failed to conduct a fresh hearing on the merits, as
was its statutory duty under s 20(1) of the QCAT Act, for three reasons. First, QCAT
wrongly defined the relevant period of time during which the applicant’s impugned
conduct was said to have occurred. Second, the personal situation of the applicant
did not receive any adequate or rigorous analysis in the reasons. Third, QCAT failed
to consider much of the uncontradicted evidence that supported the applicant’s case
that he should be permitted to practise and in some respects QCAT made findings
that were contradicted by unchallenged evidence.
[49] The applicant accepts that the question for the determination of QCAT was whether
the decision not to renew the applicant’s practising certificate was the “correct or
preferable one on the material”.11 That was the test expressly adopted by QCAT.
11 Reef House Property Pty Ltd v Commissioner of Liquor and Gaming Regulation [2024] QCA 121
at [63], citing Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419.
-- 26 of 34 --
27
[50] Further, a consideration of the record supports a conclusion that QCAT did carry out
a fresh hearing on the merits, in accordance with that test.
[51] First, the reference to the relevant period relates to the applicant’s impugned conduct.
That was a period from August 2017 to August 2024, as recorded by QCAT. Aspects
of the applicant’s conduct post that period, insofar as it was relevant to an assessment
of whether a refusal to renew the practising certificate was the correct or preferable
decision on the material before QCAT, was considered by QCAT. Such conduct
included the information notice issued by the respondent on 2 October 2024, the offer
of conditions in order to obtain a practising certificate (expressly referred to in the
reasons), the evidence adduced by the applicant by way of affidavits, evidence
adduced by other witnesses, and the applicant’s apology.
[52] Second, QCAT expressly considered the personal situation of the applicant. QCAT
was not satisfied that those personal circumstances provided a satisfactory
explanation for the applicant’s repeated non-compliance with his disclosure
obligations, his non-attendance at the enforcement hearing in accordance with the
summons served upon his solicitors, of which he had due notice, and the non-payment
of the taxation obligations for several years. QCAT gave reasons for those
conclusions, consistent with its obligations.
[53] Nothing in those reasons supports a conclusion that QCAT disregarded aspects of
those personal circumstances when considering the ultimate question. Having regard
to the nature of the decision to be reached by QCAT, it is unsurprising that the reasons
only referenced the aspects of the evidence relevant to the determination ultimately
reached by QCAT.
[54] Third, there is also no merit in the applicant’s contention that QCAT failed to consider
important and relevant evidence, for the reasons expressed under ground 2.
Ground 2
[55] The applicant submits that QCAT failed to conduct the hearing fairly, failing to
consider relevant evidence and making findings contrary to unchallenged evidence.
However, a consideration of the record does not support that contention.
[56] At the hearing, there was no dispute as to the applicant’s pre-existing mental health
conditions, his acute mental health episode in 2023, and the circumstances in which
the applicant had obtained his wife’s assistance to complete the renewal application.
The issue was whether those circumstances provided a satisfactory explanation for
the applicant’s non-disclosure of the mental health difficulties.
[57] Unsurprisingly, QCAT found an assertion that the applicant’s hospitalisation had
“slipped his mind” unpersuasive. His release from a not insignificant nine day period
in hospital had occurred but days before his application was completed. As the
applicant was asserting that by that stage he had recovered and was undertaking, on
doctor’s advice, a gradual return to work, memory loss and confusion did not provide
a satisfactory explanation. The explanation consistent with the evidence as a whole,
was that the applicant chose not to disclose it on an incorrect belief that there was no
obligation to do so. Importantly, QCAT made no adverse finding in relation to the
circumstances in which the renewal application had been completed with the
assistance of the applicant’s wife.
-- 27 of 34 --
28
[58] There was also no dispute that the applicant had taken steps to avoid bankruptcy by
entering into negotiations with the judgment creditor. The involvement of others in
those negotiations was specifically referred to in the judgment, albeit by reference to
that person as an intermediary.
[59] The issue was whether those circumstances provided an explanation for the
applicant’s failure to comply with his obligations in relation to the provision of
a signed Statement of Financial Position and attendance at the enforcement hearing.
It was in that context that QCAT made the observation that the applicant had
overlooked other significant liabilities if the judgment debt was the applicant’s
subjective reason for filing bankruptcy. That observation was consistent with the
evidence. The applicant had significant other liabilities. His taxation liabilities had
accumulated over extended periods. No payments toward those taxation liabilities
had been made by the applicant over that period and no payment plan was in place.
Ground 3
[60] The applicant submits that the proceeding was conducted unfairly as QCAT’s finding
cast doubt on the applicant’s honesty and candour in circumstances where the case to
be met did not have allegations of dishonesty, the applicant was not cross-examined
and that process was in fact suggested by the judicial member.
[61] The contention that the proceeding was conducted unfairly is not established for two
reasons.
[62] First, the transcript reveals that the judicial member expressly raised at the outset what
appeared to be the ultimate issue and that resolution of the proceeding was to be
determined by a consideration of whether the evidence was consistent with the
applicant’s explanation for his impugned conduct, or that the explanation was
inconsistent with the evidence or not supported by the evidence.
[63] The transcript also reveals that senior counsel appearing for the applicant expressly
agreed with that proposed course. No unfairness arises from a process undertaken
with due notice and the express concurrence of the applicant’s senior counsel.
[64] Second, there is no substance in the applicant’s contention that the proceeding was
conducted unfairly because the respondent had conceded that there was no allegation
of dishonesty, but QCAT made findings impugning the applicant’s honesty.
[65] Whilst there was no allegation of dishonesty, there were allegations of a lack of
candour. That was apparent from the detailed written submissions of the respondent.
Those were the findings made by QCAT. Against that background, there was no
unfairness in the hearing of the application.
[66] The applicant equates honesty with candour. However, the authorities expressly refer
to “honesty and candour”, consistent with the concepts being different. Whilst a lack
of candour can also involve deliberate dishonesty, a lack of candour can involve a
lack of frankness in circumstances where there is an obligation for frank disclosure.
[67] The determination of whether a legal practitioner is a fit and proper person to either
be admitted as a legal practitioner or to be the holder of a practising certificate to
allow practise as a legal practitioner, either as a barrister or solicitor, does involve an
-- 28 of 34 --
29
obligation of frank disclosure. A failure to disclose consistent with that obligation
can evidence a lack of candour which does not amount to deliberate dishonesty.
[68] The applicant’s failures to disclose fell within those categories. Having regard to the
nature of the disclosures, those failures supported a conclusion that the applicant
evidenced a lack of candour. That was the conclusion reached by QCAT. It was
a conclusion consistent with the evidence.
[69] There was no unfairness in the conducting of the hearing or in the findings made in
circumstances where the applicant was on notice that there was a contention that the
applicant’s impugned conduct involved a lack of candour supporting a finding that
he was not a fit and proper person to hold a practising certificate as a barrister.
Ground 4
[70] The applicant submits that QCAT erred in law by failing to give adequate
consideration to whether the applicant should be granted a practising certificate,
subject to conditions.
[71] QCAT expressly referred to the proposed conditions in the judgment. There is no
basis to conclude that QCAT failed to give proper consideration to those conditions,
in those circumstances.
[72] Further, there was no necessity to analyse those conditions. The issue was whether
the circumstances warranted a finding that whatever conditions be imposed, the
applicant’s conduct was consistent with a conclusion that he was not a fit and proper
person to hold a practising certificate. QCAT’s conclusion that he was not, was
consistent with the evidence. The applicant repeatedly failed to disclose relevant
suitability matters in circumstances where his explanation was not consistent with the
evidence. In addition, his personal circumstances remained with the same significant
stressors, consistent with a conclusion that the applicant was not a fit and proper
person to hold a practising certificate.
Ground 5
[73] The applicant submits that QCAT erred in applying a test of “what most right thinking
members of the community expect”.
[74] The reference to that test related to the applicant’s failure to meet his taxation
obligations. As QCAT explicitly acknowledged, the expectation was “one of meeting
debts, if they can”.
[75] Contrary to the applicant’s contentions, QCAT did give consideration to the
circumstances in which the applicant had not met his taxation obligations. Those
circumstances included significant other financial obligations. As was observed by
QCAT, the applicant chose to spend his available money on those other obligations
rather than meet any of his taxation obligations over a number of years.
[76] There is no inconsistency between the test as applied by QCAT and the totality of the
test enunciated in Wardell v New South Wales Bar Association.12 The applicant had
failed to meet any of his taxation obligations for a number of years. He had not made
12 [2002] NSWSC 548 at [42].
-- 29 of 34 --
30
any payments despite the advice of his accountant to enter into a payment plan. His
explanation was consistent with “the money being spent elsewhere” such that even
though there were reasons for the spending of that money “right-thinking people in
our community [would conclude] that that person was not a fit and proper person to
hold a practising certificate”.
Ground 6
[77] The applicant submits that QCAT’s reasoning about his trip to China, just before he
filed for bankruptcy, was wrong as QCAT erred in finding that the applicant never
explained the purpose of his travel; that he had represented that he had filed an
application for bankruptcy before he flew out of Australia on 17 August 2024; and
that even by the end of the hearing, it had seemed to escape the applicant’s attention
that what he did was wrong.
[78] QCAT’s findings in respect of the applicant’s conduct in travelling to China, whilst
subject to a formal notice requiring his attendance in court, but a few days after his
departure from Australia, was entirely consistent with the evidence.
[79] First, although the applicant had sworn that he had travelled to China in circumstances
where he was suffering extreme stress and he had found travel had relieved stress in
the past, the applicant had expressly stated, in his apology to QCAT, that he did not
know why he travelled to China, knowing that he was subject to an upcoming
enforcement hearing. That inconsistency supported an observation that the applicant
had not explained the purpose of the travel.
[80] Second, the initial representation made on the applicant’s behalf to the respondent,
specifically outlined a chronology of events that conveyed a factual scenario of the
applicant having filed for bankruptcy prior to leaving Australia. The applicant
submitted that the correspondence did not specifically state that an application had
been filed. However, the only rational inference from that chronology was that the
applicant had filed for bankruptcy prior to his departure, particularly as the
chronology was being provided to support an assertion that the applicant had an
honest belief, at the time of his departure, that the enforcement hearing would not
proceed because of his bankruptcy.
[81] Such a chronology was a misrepresentation of what the applicant knew to be the true
position, namely, that at the time of his departure from Australia, he had deliberately
refrained from lodging a bankruptcy petition as he was continuing efforts to negotiate
a resolution of the judgment debt.
[82] The misrepresentation was particularly significant. Once consideration was given to
the true position namely, that the applicant knew at the time of his departure from
Australia that he was not bankrupt and that the enforcement hearing would still be
proceeding, absent his bankruptcy, the applicant swore a different honest belief
namely, that by the time of the enforcement hearing he would be bankrupt, as he could
submit the petition online and it would be processed in 24 to 48 hours.
[83] In circumstances where the applicant, an officer of the court, knowing that he was
required to appear in court, had left Australia without any plans to return so that he
could appear in accordance with that notice, QCAT rightly concluded that the
applicant’s conduct was worthy of serious censure.
-- 30 of 34 --
31
[84] QCAT’s reference to it having escaped the applicant’s attention, even by the end of
the hearing, that what he did was wrong, was made specifically after QCAT recorded
the applicant’s apology in which the applicant expressly said that it was wrong and
that he apologised sincerely for that conduct. In context, the observation was apt.
The applicant’s apology and acknowledgment of wrongness related to the travel to
China. However, the relevant impugned conduct was the applicant’s placement of
himself out of the jurisdiction with the consequence he disobeyed a summons that
had been issued by a court. That was not conduct to be adopted by an officer of the
court. Such an officer would be expected by right thinking people to attend the court
hearing. That would show the appropriate degree of respect for the court process.
[85] Once QCAT’s observations are understood in this way, there is also no substance in
the applicant’s criticism that QCAT inferred an improper motive in the applicant’s
conduct, by observing that the applicant’s discussions with the proposed trustee, his
accountants and advisers, another barrister and his solicitor, were “about how he
might immunise himself from any ill-effect of his defiance of the Court’s summons”.
That observation was consistent with the evidence. The applicant’s discussions with
each of those persons was about steps he could take which would prevent action being
taken as a consequence of his non-appearance at court, in accordance with the terms
of the enforcement summons.
[86] The gravity of the applicant’s conduct was not answered by a submission that the
applicant was entitled to utilise the bankruptcy laws, having regard to his financial
circumstances. The impugned conduct was the applicant’s actions in leaving the
country, such that he could not comply with a summons of which he had due notice.
An officer of the court, who was a fit and proper person to hold a practising certificate,
would not show such disrespect to a court order.
Ground 7
[87] The applicant submits that there were fundamental errors in QCAT’s analysis of the
applicant’s omission to reveal his conviction for contempt. The errors are said to be
a finding that submissions made on the applicant’s behalf reflected a failure to take
the contempt conviction seriously with the submission being misleading and
disingenuous and a rejection of the applicant’s explanation in circumstances where
there was uncontested and unchallenged evidence that the applicant could be prone
to disturbances in concentration, memory, processing capacity and cognitive speed.
[88] QCAT’s reference to a failure to take the contempt charge seriously concerned a
submission on behalf of the applicant that the omission to disclose the previous
contempt conviction was of no importance. That submission was not corrected on
the first day of the hearing by senior counsel appearing for the applicant. The
correction made by senior counsel was to an interpretation of the submission to the
effect that there was no need to disclose the fact that the applicant had been punished
for contempt as it was “so notorious that he had been punished for contempt”.13 That
was a different contention to the omission being “of no importance”.
[89] As QCAT found, a conviction for contempt by a barrister is of great significance.
Further, the non-disclosure occurred in circumstances where the applicant’s
disclosure that he had been charged with contempt was in the context of it being
challenged by the applicant. QCAT rightly observed that type of disclosure as vastly
different to disclosing that a practising barrister had been convicted of contempt.
13 AB 1437/38–46.
-- 31 of 34 --
32
[90] Finally, disturbances in memory and concentration provided no satisfactory
explanation for the failure to disclose that fact over several years. The applicant had
continued throughout that time to practise successfully as a barrister.
Ground 8
[91] The applicant submits that QCAT’s rejection of his submission that his hospitalisation
did not “cross his mind”, when applying for renewal of his practising certificate, was
unfair as the evidence gave rise to a number of explanations for why that matter did
not in fact cross his mind; the Tribunal gave no regard to the applicant’s unsworn
evidence that it was not intentional and occurred in circumstances where it was
difficult for him to concentrate on his own personal affairs; and where the applicant
was not cross-examined about his evidence, or afforded an opportunity to respond to
an assertion that there was a continuing lack of candour.
[92] QCAT’s rejection of the applicant’s submission that the hospitalisation did not “cross
his mind”, was consistent with the evidence. The applicant applied to renew his
practising certificate days after his release from hospital, after a nine day period as an
inpatient. The applicant’s stated reason for non-disclosure of this fact was that he
was recovering and had commenced a gradual return to work in accordance with
doctor’s advice, such that there was no need to disclose that hospitalisation. The
applicant’s belief in that respect was wrong, having regard to the nature of the
question and the circumstance that the deterioration in his mental health had been
a basis for the adjournment of civil proceedings.
[93] Those circumstances amply supported QCAT’s conclusion that an assertion that the
hospitalisation did not cross the applicant’s mind was implausible and consistent with
a continuing lack of candour in relation to his obligation to disclose. Candour is being
used in the sense of a lack of frankness, not deliberate dishonesty. The applicant was
on notice of a contention that this conduct evidenced a continuing lack of candour.
No unfairness arises in those circumstances.
Ground 9
[94] The applicant submits that QCAT erred in its approach to the applicant’s failure to
pay tax, in that QCAT ignored the applicant’s personal circumstances and the fact
that he was not evading tax. The applicant had significant other demands for funds.
Further, it is submitted that QCAT gave insufficient weight to the repeated genuine
and unchallenged steps taken by the applicant to engage with the ATO.
[95] A consideration of the evidence supports a conclusion that QCAT’s finding in respect
of the applicant’s failure to pay tax was consistent with the evidence. Whilst the
applicant was having ongoing interactions with the ATO over some of the period, the
applicant had made no payment towards his taxation obligations, had declined to enter
into payment plans prepared by his own accountants in respect of which he was
counselled to make such payments and his later interactions were only in relation to
seeking relief from penalties rather than any steps to meet his taxation obligations.
That is not conduct supportive of a conclusion that the applicant was undertaking
voluntary interactions to meet his taxation obligations.
[96] QCAT also did not disregard the fact that the applicant had significant financial
demands on his available resources. QCAT accepted the existence of those demands,
but properly observed that the applicant chose to meet those demands in preference
-- 32 of 34 --
33
to meeting any of his taxation obligations since 2019. That conduct was not
consistent with the expectations of right thinking members of the community. It was
also not conduct consistent with the applicant being a fit and proper person to hold
a practising certificate as a barrister.
Ground 10
[97] The applicant submits that QCAT erred when it found that the applicant “was more
fortunate than others” in that he did not have to “deal with adversity alone”. That
observation was consistent with evidence which established that the applicant had
significant support. Further, nothing in the reasons supports a conclusion that QCAT
erred in its ultimate conclusions by reason of that observation.
Ground 11
[98] The applicant submits that QCAT erred at law and in fact in misconstruing and giving
insufficient weight to the applicant’s apology. That submission is to be rejected for
two reasons.
[99] First, QCAT specifically referred to the applicant’s apology. The weight to be given
to it was a matter for QCAT.
[100] Second, in circumstances where the applicant had been found to have repeatedly, over
a number of years, failed to comply with his obligation of disclosure and the applicant
at the time of the QCAT decision, was still under the same stressors said to be the
reason for his chaotic life and those non-disclosures and the other circumstances of
his impugned conduct, it was open to QCAT to conclude that notwithstanding that
apology, there could be no confidence that the applicant would follow the appropriate
course of action in the future, consistent with the applicant then being a fit and proper
person to hold a practising certificate.
[101] Such a conclusion was consistent with the evidence as a whole.
Ground 12
[102] The applicant submits that QCAT erred in failing to give proper analysis of the
character references filed in support of the applicant.
[103] There is no substance to this submission. QCAT rightly observed that the character
references provided by solicitors and clients related to the applicant’s competence.
However, the impugned conduct went to character, not competence. Those
references were to be considered in that light.
[104] The references provided by two King’s Counsel, were expressly treated differently
by QCAT. However, their contents were to be weighed in the context of the evidence
as a whole. Once QCAT had made its findings, there was no error in QCAT’s
conclusion that notwithstanding the opinions expressed by those two King’s Counsel,
the applicant was not a fit and proper person to hold a practising certificate.
Conclusions
[105] The applicant has not established any error of fact or law in QCAT’s decision.
-- 33 of 34 --
34
[106] Further, a consideration of the evidence as a whole supports a conclusion that
QCAT’s decision that the applicant was not a fit and proper person to hold a practising
certificate as a barrister, was the correct and preferable decision.
[107] As no error has been shown and a real review of the record as a whole supports a
conclusion that QCAT’s decision was correct, the appeal must be dismissed.
[108] The applicant submits that having regard to the evidence that since QCAT’s decision,
the applicant’s serious outstanding criminal charges have been resolved either by
acquittals, or withdrawal of the charges, this Court ought to find that the applicant is
now a fit and proper person to hold a practising certificate, as the stressors said by
QCAT to still exist in the applicant’s life, now no longer exist.
[109] Whilst this Court can receive and act on that evidence,14 it is not appropriate for this
Court to determine that the change of circumstances supports a conclusion that the
applicant is now a fit and proper person to hold a practising certificate.
[110] The change of circumstances, although significant and resulting in the removal of
what were significant stressors said to have led to the applicant having such a chaotic
personal and professional life, does not mean automatically that the applicant would
now be found to be a fit and proper person to hold a practising certificate as a barrister.
[111] Such a conclusion is properly to be made by the respondent, upon application in the
approved form and having regard to the disclosure of any relevant suitability matters.
One such suitability matter may be the outcome of any report by the applicant’s
trustee in bankruptcy, as to the circumstances of that bankruptcy.
Orders
[112] The Court orders:
1. Leave to appeal granted.
2. The appeal be dismissed.
3. There be no order as to costs.
14 QCAT Act ss 153, 154.
-- 34 of 34 --
Official source: https://www.sclqld.org.au/caselaw/QCA/2025/143