Di Carlo v Bar Association of Queensland [2024] QCAT 530

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Di Carlo v Bar Association of Queensland [2024] QCAT 530 PARTIES: SALVATORE DI CARLO (applicant) v BAR ASSOCIATION OF QUEENSLAND (respondent) APPLICATION NO/S: OCR 228-24 MATTER TYPE: Occupational regulation matters DELIVERED ON: 9 December 2024 HEARING DATE: 2 and 5 December 2024 HEARD AT: Brisbane DECISION OF: Justice Bradley ORDERS: The respondent’s decision to refuse to renew the applicant’s practising certificate is confirmed. The application for review is dismissed. 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, in applying to renew his practising certificate on several occasions, the applicant failed to disclose various suitability matters under s 9 of the Legal Profession Act 2007 (Qld) to the respondent – where the respondent refused to renew the applicant’s practising certificate (the decision) – where the applicant seeks a merits review of the decision – whether the applicant is a fit and proper person to hold a practising certificate – whether the respondent’s refusal to renew the applicant’s practising certificate is the correct and preferable decision Legal Profession Act 2007 (Qld) s 9, s 51, s 63 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 19 Attorney-General for the State of Queensland v Di Carlo [2017] QSC 171 Lee v Di Carlo (No 3) [2024] QDC 97 Zeims v Prothonotary of Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46 -- 1 of 20 -- 2 APPEARANCES & REPRESENTATION: Applicant: D O’Gorman SC instructed by Potts Lawyers Respondent: P McCafferty KC, with H Clift, instructed by Bartley Cohen REASONS FOR DECISION [1] This decision concerns whether a barrister is a fit and proper person to hold a local practising certificate. It turns on whether, at present, the barrister is demonstrably worthy of public confidence and trust, and whether, so far as is reasonably possible, one may be confident the barrister will follow the appropriate course of action in the future, can properly be entrusted to undertake the tasks that attach to the practise of his profession in accordance with the demanding requirements under the Legal Profession Act 2007 (Qld) (LPA), and so is relevantly suitable to engage in practice as a barrister in Queensland. This assessment of the barrister’s estimated quality is made by reference to his previous behaviour and its causes, considering them as a predictor of his likely future conduct. The Tribunal is to make this decision afresh, on the merits, and using the evidence before it. The Tribunal is to do so for the purpose of the proper administration of justice and the protection of consumers of legal services and the public generally.1 The parties [2] Salvatore Di Carlo (the applicant) was admitted as a barrister on 20 May 1991. He practised his profession for more than 33 years, until late August 2024. [3] The Bar Association of Queensland (the Association) is the local regulatory authority under the LPA. It is responsible for the issuing of local practising certificates (PCs), without which a legal practitioner may not practise as a barrister. [4] Each year financial year from 2004 until 2022, the Association issued the applicant with a PC as a barrister. [5] The PC issued to the applicant for the 2022/23 year continued in force for an additional period from 1 July 2023 to 28 August 2024, pursuant to s 47(3) of the LPA. This occurred because the Association had not made a decision in respect of the applicant’s renewal applications lodged on 28 May 2023 (for the 2023/24 year) and 5 June 2024 (for the 2024/25 year). [6] On 28 August 2024, the Association gave the applicant an information notice about a decision of the Association to suspend the applicant’s PC.2 [7] On 2 October 2024, the Association decided to refuse to renew the applicant’s PC for the 2024/2025 practising year (the decision). [8] On 14 October 2024, the applicant applied to the Tribunal for a review of the decision (the review application).3 By the review application, he sought a finding that he 1 A main purpose of the LPA s 3(a), and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 19. 2 Pursuant to LPA s 63(6)(b), the suspension decision lapsed after 56 days on 23 October 2024. 3 The applicant was entitled to make the review application under LPA s 51(9). The Tribunal has jurisdiction, and the decision is a reviewable decision, pursuant to QCAT Act s 17. -- 2 of 20 -- 3 remains a fit and proper person to hold a PC, and an order requiring the Association to issue him a PC. The two types of relief are related. The Tribunal must not renew the applicant’s PC if it is satisfied that the applicant is not a fit and proper person to continue to hold a PC. [9] The parties are agreed that the Tribunal is to review the decision and make the correct and preferable decision. If the Tribunal finds that the applicant remains a fit and proper person to hold a PC, then the Tribunal should set aside the decision and order the Association to issue him a PC. If the Tribunal finds he is not a fit and proper person to hold a PC, then the Tribunal should confirm the decision and dismiss the review application.4 The agreed facts [10] At the commencement of the hearing, the parties advised the Tribunal that the basic facts relevant to the Tribunal’s decision were not in contest. It is convenient to set these out. Failure to disclose conviction and punishment for contempt [11] On 2 August 2017, the Supreme Court of Queensland found that the applicant had committed a contempt in the face of the Magistrates Court and imposed a penalty on the applicant in the form of a fine of $4,000. [12] In reasons given ex tempore at the end of the hearing, the then Chief Justice explained: “The significance of this contempt is not just that it was an unseemly insult to the individual judicial officer. It was an affront to the court which he represents. … The particularly reprehensible aspect of this contempt is that it came from an officer of the court and one of very considerable experience. It requires deterrence. The suggestion that an actual fine might produce deterrence of fearless advocacy, I find unconvincing, I must say, because there is such a clear line between behaviour of this kind and proper advocacy, however powerful that advocacy might have to be. … In the respondent's favour, I note his apology, which was not as prompt as it should have been, and his cooperation, which is very significant, by the admission of the contempt, which has saved of course the applicant having to prove the contempt. I accept there is genuine contrition. It is pointed out to me that the respondent is now 60 years of age and has been 26 years at the bar. Of course, that cuts both ways. It means that, of all people, he should certainly, with that level of experience, have known much better than this.”5 [13] On about 1 June 2018, when the applicant applied to the Association for renewal of his PC for the 2018/19 year, the applicant was required to answer a question to the following effect: 4 QCAT Act s 24(1). The Tribunal may set aside the decision and remit the matter to the BAQ with instructions to make a decision on the renewal application, but no party sought such relief. 5 Attorney-General for the State of Queensland v Di Carlo [2017] QSC 171 at [7], [10] and [12]. -- 3 of 20 -- 4 “In the past 12 months have you been, or are you currently, subject to any of the suitability matters listed in ss 9 and 46 of the Legal Profession Act 2007 which may affect your eligibility or fitness to hold a practising certificate?” [14] In his answer, the applicant did not disclose his conviction and punishment for contempt. [15] The relevant suitability matters included whether the applicant had been convicted of an offence in Australia, the nature of the offence, how long ago it was committed, and the person’s age when the offence was committed.6 [16] The Tribunal was told that, when he applied to renew his PC, it “slipped his mind” that he had been convicted and punished for contempt. If this was true, it evidenced a staggeringly lack of regard for the significance of the conviction. [17] In written submissions for the applicant, it was contended that this omission was of no importance, because he had disclosed the contempt charge in his previous PC renewal applications in 2017 and 2018. This submission reflected a failure to take the contempt conviction seriously. It was also misleading and disingenuous. [18] In 2017, the applicant had disclosed the contempt charge, telling the Association that he intended “to vigorously defend this matter.” In 2018, he informed the Association that the matter was “still before the courts”, that “both parties” had filed material, and that the “date for the final resolution of the matter is yet to be made.” [19] 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. For a barrister, a conviction for contempt of court is a serious matter. [20] For the applicant it was also submitted that there was “no attempt to hide” the fact that he was convicted of contempt. Yet when he completed each application to renew his PC in each of the following five years, he never disclosed it to the Association. If he did not intentionally leave the contempt conviction out of his answer to the Association’s direct question in 2019, and he did not intentionally omit to disclose it to the Association thereafter in 2020, 2021, 2022, 2023 and 2024, then more likely than not he continued to treat it with the same lack of regard. Failure to disclose health matters affecting his abilities [21] On about 28 May 2023, the applicant applied to the Association for renewal of his PC for the 2023/24 year. The form included a question to the same effect as set out in paragraph [13] above. [22] Whether a person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner is among the suitability matters referred to in the question.7 [23] In his answer to the question, the applicant did not disclose that, in the opinion of his 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 6 LPA s 9(1)(e). 7 Ibid s 9(1)(o). -- 4 of 20 -- 5 which he was a party, and that he had been hospitalised with that condition for nine days from 11 to 19 May 2023. The District Court had adjourned a civil trial in which the applicant was the defendant, apparently on the strength of this evidence. [24] Although he would later rely on these mental health difficulties to explain his failure to disclose another matter in the same renewal application (see paragraph [31] below), 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. [25] In his review application to the Tribunal, the applicant denied that he remained incapacitated at the time he applied for renewal of his PC. He stated he was in recovery and was following medical advice in relation to a gradual return to work. So, he contended there was then no current incapacity that he failed to disclose. The Tribunal was told that the applicant had recovered from his mental health difficulties and returned to work by the time he applied for renewal of his PC. It was submitted that his health difficulties and hospitalisation did not “cross his mind” when he was completing and submitting the renewal form. [26] In December 2023, an independent medical specialist reported that the applicant had said he was unaware that he had to report his episode of ill-health in May 2023, and that his wife had managed his PC renewal application as he was too unwell. The applicant disputed saying this to the specialist. I have formed no view about whether this was said or not. [27] I do not accept the applicant’s submission that the apparently acute medical episode had passed from his memory with the completeness contended. The applicant had been discharged from hospital only eight days before he submitted the PC renewal application. He had spent nine days in hospital. He had relied on the acute episode and the pending hospitalisation to seek an adjournment of a civil trial. From his hospital discharge until well after he submitted his renewal application, the applicant was undertaking a graduated return to work on the advice of his treating specialist. He had retained the assistance of another barrister to reduce the burden of his professional work during this extended period. In the circumstances, the applicant displayed a lack of candour in his explanation for his failure to disclose this relevant matter in his PC renewal application. He did not rectify this lack of candour during the Tribunal hearing. Failure to disclose a complaint to the LSC about payment of professional fees [28] Also on about 28 May 2023, in his answer to the same question, the applicant did not disclose that on 19 January 2023, he had been advised by the Legal Services Commissioner (LSC) that Habib Habchi (Mr Habchi) had lodged a complaint under the LPA about the applicant’s conduct as a legal practitioner.8 [29] The then unresolved complaint under the LPA was a disclosable suitability matter.9 It follows that the applicant ought to have disclosed the complaint to the Association. [30] On 21 July 2023, the Association wrote to the applicant requesting: an explanation for why he did not disclose the complaint in his renewal application; details of the 8 Ibid s 429. 9 Ibid s 9(1)(h). -- 5 of 20 -- 6 circumstances leading to the complaint; the current status of the complaint; and an undertaking to keep the Association informed of the status of the complaint. [31] The same day, the applicant replied: “With respect to the complaint dated 19 January 2023, this occurred quite close to my own trial in the District Court. It arrived during a period of significant preparation with my solicitors and counsel for my trial. I was also hospitalized for a short period of time in May. The complaint completely slipped my mind. In fact, when I got this letter, I was in shock, and I called you to find out what the complaint was about. However, in the time before you called me back, I was able to find the complaint. There has been nothing that has occurred with respect to this complaint on my end. I have not received any follow-up from the legal services commission. This is also why it completely slipped my mind. … I undertake to inform the Association of the status of the new complaint against me (as advised by the Legal Services Commission on or about 19 January 2023) when requested to do so, and upon any event that would reasonably prompt an update.” [32] Mr Habchi 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.10 This was not a trivial complaint. The LSC was investigating it. The applicant’s apparent disregard of Mr Habchi’s complaint indicated an inappropriate attitude towards complaints about his professional conduct, and the processes of the LSC. [33] Due to his disregard, the applicant had misled the Association by answering the renewal question as if there was no such complaint. If the complaint had not come to the attention of the Association in some other timely way, the applicant’s PC renewal would have been decided on that false basis. Breach of the undertaking to the Association [34] On 12 September 2023, the applicant received a letter from the LSC setting out the LSC’s intention to commence a disciplinary proceeding against the applicant in relation to Mr Habchi’s complaint.11 This was about eight weeks after 21 July 2023, when the applicant had given the Association the undertaking noted in the extract from his letter at paragraph [31] above. [35] The applicant did not inform the Association that the LSC had formed this intention. This was a breach of the undertaking he had given the Association. [36] The applicant was in breach of his undertaking for about eight and a half months, between 12 September 2023 and 27 May 2024. On the latter day, the applicant did not remedy his breach by notifying the Association. Rather, the Association wrote to the applicant, having become aware of the matter by other means. 10 The applicant had contested the complaint, on the basis that he had applied the payment towards a debt owed to him by Mr Habchi in respect of earlier professional work. 11 Pursuant to LPA s 447. -- 6 of 20 -- 7 [37] This lengthy period of default is more remarkable because: (a) on 9 February 2024, the Association wrote to the applicant seeking his confirmation that the undertaking to keep it updated about the complaint continued for the duration of his 2023/24 PC; and (b) on 20 February 2024, the applicant, by his solicitors, confirmed his obligation. [38] Even this interaction did not cause the applicant to update the Association in accordance with his undertaking to do so. [39] On 27 May 2024, the Association wrote to the applicant: “It has come to the Association’s attention that on 12 September 2023, you were notified of the Legal Services Commissioner’s decision to commence a discipline application against you pursuant to section 447 of the Legal Profession Act 2007 (Qld) in respect of a complaint made by Mr Habib Habchi. … We invite you to provide any reasons as to why you have failed to comply with your undertaking, for the Association’s consideration.” [40] On 28 May 2024, the applicant replied, advising he was seeking legal advice, and stating: “I am certainly not a person who intentionally ignores undertakings either to the courts my colleagues the Bar Association or for that matter anyone.” [41] On 28 May 2024, the Association responded, referring to the exchange of correspondence in February 2024, and stating that: “… it is now imperative that the Association be provided with a clear explanation as to your reasons for not informing it of the change in status in respect of this complaint matter.” [42] The applicant did not respond until 24 June 2024. Then, through a new firm of solicitors, the applicant confirmed that he did not advise the Association of the “correspondence from the LSC as required by the undertaking.” He disclosed, for the first time, that the applicant, through other solicitors, had “filed a submission with the LSC in response on 3l October 2023.” [43] The applicant’s response included the following apology: “From the outset our client apologises to the BAQ for his failure in complying with the undertaking. It will be explained that this failure was a reflection of our client’s lack of personal administration and his individual destressed personal circumstances of the time rather than any deliberate disrespect or malfeasance directed towards the BAQ.” [44] The response offered as “an explanation for the non-compliance” were the criminal charges the applicant had been facing since 2017, media publications about him in August 2023, a personal civil trial on 23 October 2023, a direction from the Association 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.” [45] According to the applicant’s solicitors: -- 7 of 20 -- 8 “All these factors had a significant compounding effect on our client from a personal health perspective and also from a professional administration perspective. The BAQ correspondence dated 27 May 2024 was an absolute surprised [sic] to our client. He could not understand how this was overlooked whilst appreciating the importance of his compliance with the undertaking. Although unable to provide a definitive explanation as to how this failure occurred, in hindsight our client believes he has confused his communication with Mr Barbi about keeping the BAQ updated with a communication with Mr Cranny. As stated earlier our client did advise Mr Barbi to keep the BAQ updated however he never advised Mr Barbi about the l2 September 2023 LSC correspondence because he engaged Mr Cranny for that purpose. Our client accepts the undertaking was a personal obligation he agreed to with the BAQ and again apologises for his oversight. It is respectfully submitted this was a situation when our client had numerous competing and compounding stressful events occurring in his life, personally and professionally. It is respectfully submitted, despite the seriousness of the failure it is an instance were understanding, compassion and leniency would be afforded to our client given the specific circumstances.” [46] The evidence before the Tribunal shows that, by 31 October 2023, the applicant had given one of his solicitors (Mr Cranny) instructions to make a written submission to the LSC about its intention to commence disciplinary proceedings based on Mr Habchi’s complaint. At this time, when his attention was focused on the change in the status of the complaint, the applicant ought to have honoured his undertaking to the Association. By then the civil trial had been adjourned, and the media publications about him were some months in the past. [47] By that time, the Association 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. [48] The independent specialist saw the applicant on 4 December 2023. The specialist diagnosed the applicant with two disorders in remission and residual features of a third. In the specialist’s view, the applicant had recovered almost completely from a severe episode in May 2023. He described the applicant’s historical disorder as: “… an episodic disorder with excellent recovery of function between episodes. He has shown an ability to comply with treatment and seek additional assistance when there is a worsening. There is by his account no other issues threatening his psychiatric health such as substance abuse or cognitive decline in the absence of active psychiatric symptoms.” [49] Based on his cross-sectional assessment and reports from the applicant’s treating specialist, the independent specialist expressed the view 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, namely appearing in court, preparing, negotiating, representing, mediating, advising, or preparing -- 8 of 20 -- 9 documents.12 The specialist expressed a similar view about compliance, namely that “there is no psychiatric, cognitive or substance use disorder that would prevent [the applicant] making satisfactory disclosures” to the Association. [50] In all the now known circumstances, it is clear that the applicant had capacity to receive and understand the LSC’s 12 September 2023 communication and to give instructions to his lawyers to respond with a submission on 31 October 2023. He did not lack capacity to honour his undertaking to update the Association in either respect for more than eight months. [51] I am satisfied that the applicant’s lengthy breaches of his undertaking indicated that he continued to give little respect to Mr Habchi’s complaint and that he gave even less respect to his undertaking to the Association. Failure to appear in accordance with a summons [52] On 24 June 2024, the District Court gave judgment for Choonhwa Lee against the respondent in the amount of $240,000, being the outstanding principal of four cash loans Ms Lee made to the applicant between 2 July 2015 and 23 December 2015, and the Court made directions for Ms Lee and the applicant to seek to agree on the interest to be included in a judgment.13 [53] Ms Lee had commenced her claim against the applicant on 31 March 2021. The trial was listed for May 2023. At that time, the applicant had succeeded in having the trial date vacated on the basis of evidence from his treating medical specialist (see paragraph [23] above). This had deferred the trial until 23 October 2023. It was the personal civil trial the applicant pointed to as part of the explanation for not honouring his undertaking to the Association: see paragraph [44] above. On 23 October 2023, the trial had been adjourned, part heard, to March 2024. During the three years the proceeding was on foot, the applicant pleaded a defence. When Ms Lee closed her case, the applicant called no evidence. [54] By the judgment date, the principal sums Ms Lee loaned to the applicant had been outstanding for between seven and eight years. Later, the applicant told the Association he had estimated the sum owing in accordance with the judgment to be over $600,000, including interest and costs. [55] After the judgment for the principal sum of $240,000 was entered, Ms Lee, as enforcement creditor, gave written notice to the applicant requiring him to complete and return a statement of financial position as an enforcement debtor (SOFP). The applicant was obliged to complete and return the SOFP within 14 days.14 He did not do so. Although he sought an extension of time, he never completed and returned a signed SOFP. [56] When the time had expired for the applicant to return the SOFP, Ms Lee applied to the District Court for an enforcement hearing.15. The registrar issued an enforcement 12 The Association had instructed the specialist that this work “requires a sound, clear and stable mind, sound judgement and clear decision-making ability and the ability to attend to that work punctually and reliably.” 13 See Lee v Di Carlo (No 3) [2024] QDC 97. The Court found the applicant was liable for interest at 12% per annum on the outstanding principal for each loan from time to time until judgment. 14 See Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 807(3). 15 Ibid r 808. -- 9 of 20 -- 10 hearing summons in the approved form (the summons). On 24 July 2024, the applicant’s solicitors accepted service of the summons on his behalf. [57] 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 certain documents stated in the summons. He was commanded to do this before the registrar in Brisbane. [58] On 29 July 2024, the applicant sent an email to his solicitor, Mr Barbi. It began: “The issue that will come up should I decide to go bankrupt before the enforcement hearing is weather [sic] gong [sic] bankrupt will put an end to that hearing which would involve [Ms Di Carlo] as well.” [59] The balance of the email had contained cut and pasted excerpts from case notes about the enforcement of remedies against undischarged bankrupts,16 which another barrister had prepared and sent to the applicant earlier that day. [60] The applicant later told the Association he was “made aware” of the summons “around early August”. As the applicant was communicating with his solicitor about putting an end to the enforcement hearing as early as 29 July 2024, it seems likely he was aware of the summons closer to the date it was served, 24 July 2024. Indeed, it is likely he gave his solicitor instructions to accept service. [61] On 4 August 2024, the applicant sent Mr Barbi an unsigned, incomplete draft of an SOFP. In his covering email, he told Mr Barbi, “I want to go ahead with the plan that we made.” On 5 August 2024, Mr Barbi replied, “Will do.” [62] On 9 August 2024, the applicant purchased plane tickets to travel out of Australia. He swore that he arranged the tickets so that they “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.” [63] On 15 August 2024, at 11:11 am, Mr Barbi sent Ms Lee’s solicitors a “copy of an unsigned statement of financial circumstances with supporting material” on a “without prejudice” basis. The letter included an offer to compromise the judgment debt. The offer was “open for acceptance until 4:00pm on Today after which … our client[’]s offer is withdrawn completely.” [64] On 17 August 2024, the applicant left Australia for China. He remained there, returning on 2 September 2024. The applicant never explained the purpose of this travel. [65] Relevant parts of rules 813(1), 815(2)(b) and (3), and 816(1)–(5) of the UCPR provide: “813 Enforcement hearing (1) A person to whom an enforcement hearing summons is directed must attend before the court issuing the summons, including the court as constituted by a 16 The notes were on Pepper Finance Corporation Limited v Edwards & Anor [2018] QSC 152, and Burhala v Commissioner of Taxation [2020] FCA 1854. -- 10 of 20 -- 11 registrar, at the time and place stated in the summons— (a) to give information and answer questions; and (b) to produce the documents or things stated in the summons. 815 Failure or refusal in relation to statement of financial position or enforcement hearing (2) This rule applies if a person summoned or subpoenaed to attend an enforcement hearing— (b) fails or refuses to attend at the time and place stated in the summons or subpoena. (3) The court may treat the person’s refusal or failure as a contempt of court. 816 Enforcement hearing warrant (1) A court may issue a warrant in the approved form ordering an enforcement officer to arrest a person and bring the person before the court … to be examined if the issuing court— (a) is satisfied that the person was personally served with, or otherwise received, a summons to attend an enforcement hearing; and (b) considers the person failed to attend the enforcement hearing without sufficient cause. (2) The power under this rule may only be exercised by a judge, … or the registrar conducting the enforcement hearing. (3) An enforcement officer may ask a police officer to help in the exercise of the enforcement officer’s powers under the warrant. (4) The police officer must give the enforcement officer the reasonable help the enforcement officer requires, if it is practicable to give the help. (5) The enforcement officer or a police officer may deliver the person to the person in charge of any prison or watchhouse and the person in charge must receive and keep the person delivered in custody until the court or the enforcement officer directs otherwise.” [66] When the applicant did not attend the enforcement hearing, the registrar issued a warrant for his arrest. Wisely, the registrar directed that the warrant was to lie in the registry for some days. -- 11 of 20 -- 12 [67] On 23 August 2024, the applicant, through his solicitors, wrote to the Association, to give notice of his bankruptcy. The solicitors confirmed that judgment had been entered against the applicant by Ms Lee in the District Court. They told the Association: “That decision is under appeal and a Notice of Appeal was filed and an Outline of the appeal is being delivered today. Our client proposes to continue with the prosecution of that Appeal. … An Enforcement Summons was served on our client to produce documentation. Without prejudice negotiations then ensued and these failed and accordingly our client filed an Application for Bankruptcy. He 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 Mr Barbi appeared before the Registrar in the District Court on 22 August to advise the Registrar and at that stage it was understood that Mr Di Carlo 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 Mr Di Carlo 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.” [68] On 16 September 2024, another firm of solicitors wrote to the Association on the applicant’s behalf. Relevantly, they described their letter as providing: “Mr Di Carlo'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 for failing to attend an enforcement hearing and his compliance with the Bankruptcy Act 1966 (Cth).” [69] They assured the Association that: “… Mr Di Carlo wishes to cooperate with the Association with the upmost frankness and candour so that the Association is therefore better equipped to determine his current fitness to practice.” [70] In paragraph 10 of this letter, the applicant’s solicitors adopted the same sequential description of the events between the service of the enforcement summons and the issue of the warrant as in his other solicitors’ letter at paragraph [67] above, which had been sent to the Association 24 days earlier. -- 12 of 20 -- 13 [71] On the first day of the hearing, the applicant’s counsel took the Tribunal to paragraphs 12-15 of the applicant’s third affidavit (sworn 4 November 2024). In paragraph 13, the applicant gave the following similar sequence of events: “An enforcement summons was served on me (via Mr Barbi) following the judgment being entered against me in the District Court of Queensland (the Court) (of which the respondent had already been made aware). I participated in ‘without prejudice’ negotiations to attempt to resolve the issues of the judgment debt and my appeal. Those negotiations failed and I filed for bankruptcy. I had been under significant stress (as the Respondent was already aware) and was and am consulting with [a] psychiatrist. I left Australia on 17 August 2024 under the honest belief that my bankruptcy would be processed prior to the enforcement hearing that I was compelled to attend on 22 August 2024 (the acceptance of the debtor’s petition by [the Australian Financial Security Authority] would have brought an immediate end to the enforcement proceedings and the need for me to personally attend Court on 22 August 2024.)” [72] Each of these narratives represented that the applicant had filed an application for bankruptcy before he flew out of Australia on 17 August 2024. The applicant had not filed his application before he departed. Indeed, he had agreed not to file it, to allow an intermediary further time to reach a settlement about the judgment debt. [73] These misrepresentations made more plausible the assertions that, at the time he left Australia, the applicant “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 the applicant’s evidence that he was “under the honest belief” that his bankruptcy “would be processed prior to the enforcement hearing”. [74] Later in his third affidavit, the applicant swore that his “debtor’s petition was lodged electronically on 19 August 2024”. That was two days after he left Australia. [75] In the same affidavit, the applicant also swore: “I took the judgment debt and enforcement proceedings very seriously and I was not reckless or careless with respect to my obligations.” [76] He said he “erred in assuming [his] bankruptcy would be made official before the enforcement hearing” and “this error was due to an honest and mistaken belief about the timing of when my bankruptcy was to be made official.” He also said: “I do not agree that my conduct was reckless nor was I careless with respect to my obligations of responding to the summons to appear, but I do agree that I should have been even more cautious.” [77] Frankly, 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. -- 13 of 20 -- 14 [78] On the final day of the hearing, the applicant seemed to accept this, telling the tribunal in a voluntary unsworn statement from the bar table that he had acted “cavalierly” in leaving Australia while the enforcement summons was pending. The applicant said: “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.” [79] One might gain some idea of what the applicant was thinking from the more contemporaneous events in which he played a role and the explanations he offered closer in time to the relevant events. [80] 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 (Ms Lee) 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. [81] The applicant was not a teenager, unfamiliar with the role and authority of a court. As he said in his affidavit: “In total I have been involved in the legal system for 48 years, 12 years as a policeman, 3 years as a managing law clerk and 33 years as a barrister.” [82] I am satisfied that, by leaving the country shortly before the enforcement hearing, the applicant 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. Bankruptcy [83] In a statement to the Association, the applicant said, “the reason I went bankrupt was because I could not afford to pay the judgment debt (including the interests and costs)” owed to Ms Lee. If this was the applicant’s subjective reason for filing a bankruptcy application in August 2024, it overlooked other significant liabilities he had been accruing over the preceding five years. The taxation returns the applicant produced on the last day of the Tribunal hearing make it likely he was unable to meet his debts as and when they fell due long before Ms Lee obtained judgment against him in the District Court. -- 14 of 20 -- 15 [84] The documents the applicant produced showed that he lodged annual income tax returns over the period from 30 June 2017 to 30 June 2023, and lodged business activity statement (BAS) forms from September 2019 to June 2024. They also show that he had not paid any income tax or remitted any GST he had collected to the Australian Taxation Office (ATO) since 1 August 2022 and likely not since 2019. [85] Over the seven financial years from 2017 to 2023, the applicant’s income tax returns reported total business income of $1,894,371, total business expenses of $1,167,539, and total assessable income of $682,992. Over the same period, the Taxation Commissioner’s assessments of the income tax payable totalled $185,040.91, before any interest or penalties for late payment. It appeared that the applicant paid some income tax to the ATO before 2019, because the income tax now owing (including interest and penalties) is less than the total sum for the whole period. However, he has paid none since August 2022, and there is no evidence he paid any since 2019. [86] Over the five financial years 2020 to 2024, the applicant reported to the ATO total sales of $1,675,449. For this period, the total net GST the applicant owed to the ATO was $93,270, before any interest or penalties for late payment. He has paid none of this amount to the ATO. [87] The applicant’s counsel, Mr O’Gorman SC, identified that the current debt the applicant owes to the ATO is $398,392.19. This includes income tax, interest and penalties of $158,274.56, and GST, interest and penalties, of $178,914.11. It does not include any income tax for the 2023/24 year, as no annual return has been lodged and no assessment has been issued. [88] In his review application, the applicant stated that he had maintained constant contact with the ATO, and had completed and lodged with the ATO all taxation returns and BAS forms, and was endeavouring to enter into an achievable payment agreement (presumably with the ATO). Mr O’Gorman told the Tribunal: “When one looks at the whole of the dealings with the ATO they show a continued effort to engage with the ATO and try to come up with some means to deal with it.” [89] The applicant’s sworn evidence and the documents he produced did not make good that contention. [90] The applicant was behind in the payment of his tax liabilities since about 2019. By 15 December 2021, his accountant had negotiated two payment plans with the ATO, one for the outstanding income tax, and the other for the outstanding GST. Each plan required an initial payment of about 4.7% to 5% of the outstanding balance owed followed by fixed monthly payments of 4.5% of the same balance. The income tax then owed was $66,323.01. The GST was about $92,000. The ATO produced written statements of each plan. The applicant’s accountant counselled him, “Please make sure [to] pay these on time.” The applicant rejected these payment arrangements. He accepted before the Tribunal that, since December 2022, he had made only occasional contact with the ATO by telephone. In his affidavits, the applicant also contended that his insolvency was attributable to the legal expenses he had incurred since 2017 in defending himself in the Magistrates Court and the District Court against several charges of alleged criminal offences. Many of these have resolved, some by the Crown not proceeding further. The remainder are to be tried early next year. In the interim, the applicant is applying for a permanent stay of some charges this month. -- 15 of 20 -- 16 [91] In the income tax returns produced, the applicant claimed a total of $539,858 in legal fees as expenses over the seven years from 2017 to 2023. According to the evidence before the Tribunal, this amount exceeds the legal fees he incurred ($314,600) and those he paid ($255,270). I express no view about whether the applicant is entitled to a deduction for legal expenses incurred in defending against the criminal charges. [92] The applicant also said medical expenses associated with fertility treatment were a cause of his impecuniosity. At the hearing, it was common ground that this treatment ended in 2017. Happily, a child was born in 2018, and no doubt other expenses then loomed larger. He was diagnosed with a serious physical condition in late 2019 and had surgery in April 2020. It was not submitted this was expensive. Rather that it was another distraction among many others. It was also a source of ongoing mental stress. [93] I accept that the applicant did not consciously decide to cease paying tax or remitting GST indefinitely. The applicant knew he was not paying any income tax and was not even remitting the GST others had paid to him to remit to the ATO. He knew the money he spent on any other thing was money he was denying the ATO. This was wrong. At best this was irresponsible or reckless. To describe it as an administrative failure is inadequate. Most 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 PC. References [94] The applicant also relied on references. [95] Mr Morris KC reviewed the information notices issued by the Association, the responses to them on behalf of the applicant, and the outlines of submissions exchanged about an application to stay the Association’s decision. Mr Morris did not intend to minimise the seriousness of the matters alleged against the applicant or to make any comment on whether, if established to the relevant standard, they could or would support a particular conclusion on whether the applicant was a fit and proper person to hold a PC. Based on his professional dealings with the applicant, Mr Morris regarded the applicant as “a competent, industrious and capable barrister, and a talented advocate”, who had shown himself “to be a person of honesty and integrity” in all his dealings with Mr Morris. If the allegations before the Tribunal were substantially true, Mr Morris could not and did not condone the applicant’s conduct. He regarded the alleged conduct as “entirely inconsistent with the character of the man with whom I have had fairly extensive professional dealings.” Mr Morris found it “difficult to imagine” that the applicant “could or would have engaged in such conduct except as a result of extreme and debilitating pressure of a personal, medical and/or financial nature.” [96] Mr Savage KC reviewed the applicant’s response to the information notices issued by the Association, the applicant’s three affidavits filed in the Tribunal, and the outlines of submissions exchanged about an application to stay the Association’s decision. Mr Savage identified that he had not engaged in a fact-finding exercise. Accepting as true the applicant’s evidence and the responses and submissions made on his behalf, Mr Savage expressed the view that, while the applicant’s conduct “in some respects was not ‘best practice’”, the applicant was a fit and proper person to hold a practising certificate. -- 16 of 20 -- 17 [97] Craig Leonard Stevenson, a solicitor of A Ace Solicitors swore that the applicant was: “… a competent, experienced barrister who both myself and my clients are able to rely upon. In my view, he should be allowed to continue practicing.” [98] In a partly redacted reference, Mr Stevenson wrote: “I generally instruct Mr Di Carlo in about a dozen or more matters at any one time. Many of the cases I instruct him in were referred to me by Mr Di Carlo however I brief him in other cases as well and have done so for around 2 decades[.] Due to his hands-on nature of dealing with clients, this makes it very difficult for the clients to understand when try to change them to a barrister and tell them they cannot contact the barrister outside office hours and as regularly as they are used to with Mr Di Carlo if at all it creates significant difficulties[.] Further there are of course the usual difficulties with increased costs[.] Mr Di Carlo more often than not will moderate his fee’s [sic] for the benefit of clients that are less fortunate than others some of my clients would have to outlay significantly more fees just in the change over process for the new Barrister to get up to speed. They will be significantly disadvantaged.” [99] Alfio Michele Romano, a solicitor of Grasso Searles Romano Lawyers, swore that over several years he had a “first hand view of how Mr Di Carlo practices” and that: “Mr Di Carlo is a competent, experienced barrister with a particular expertise in criminal law matters who myself, colleagues at my firm and my clients are able to rely upon. In my view, he should be allowed to continue practicing.” [100] Mr Romano exhibited a written reference concerning three clients, two referred to Mr Romano’s firm by the applicant. [101] Jacob Michael Luhrs, a solicitor employed by Jones + Associates Lawyers swore that: “For the past two years I have had a first hand view of how Mr Di Carlo practices. In my view, Mr Di Carlo is a competent, experienced barrister who myself and my clients are able to rely upon. Mr Di Carlo has been very engaged in all previous matters, building strong rapport with clients. I believe these clients would not have achieved the results they did had Mr Di Carlo not put as much time and effort into the files as he did. … In my view, Mr Di Carlo should be allowed to continue practicing.” [102] Kristie Horne is a solicitor employed by Jurgensen Home Lawyers. In an email reference relied on by the applicant, Ms Horne wrote: “I first came to brief Mr Di Carlo when one of my clients, …, requested that Mr Di Carlo was engaged In his matters. … After conferencing with Mr Di Carlo in relation to this matter, Mr Di Carlo contacted me and requested that I instruct in relation to matters where he had been contacted directly by clients. … -- 17 of 20 -- 18 Mr Di Carlo also referred two other matters to me. … I have taken instructions from a client who is currently in custody and serving a sentence at present. … The client is a former client of Mr Di Carlo and has briefed him already in relation to this mater and will be at a significant disadvantage and likely to suffer financial distress in the event that alternative Counsel is briefed. Finally, a former client of Mr Di Carlo was referred to me by Mr Di Carlo … . The client does not wish to brief any Counsel other than Mr Di Carlo due to the trust and faith she has in the expertise of Mr Di Carlo. In each of these matters, the clients have a special rapport with both myself and Mr Di Carlo. They trust in his ability and expertise and will be at a significant disadvantage in the Justice system if Mr Di Carlo is prevented from acting on their behalf. In the current matters before the Courts, the client will be disadvantaged financially if we now need to brief alternative Counsel, particularly given the complexity and volume of material in respect of [one matter] proceeding to trial on 25 November 2025. We sincerely support the reinstatement of Mr Di Carlo’s certificate to practice and look forward to Mr Di Carlo recommencing his work on behalf of the clients with whom he had built a special rapport and trusted relationship.” [103] The opinions expressed by the solicitors are confined to the applicant’s work with them for shared clients. With respect, the matters going to the applicant’s fitness to practise do not concern, in any substantial way, his ability to act as a representative of persons before the courts charged with offences. These are character matters rather than competency issues. [104] The opinion of Mr Morris KC was grounded in his own knowledge of and professional dealings with the applicant. By the conclusion of the hearing, there was no factual contest about the applicant’s relevant conduct. In issue was the conclusion the Tribunal should draw based upon those facts. With respect, Mr Morris’s reaction to the allegations was considered and appropriate. The cause or causes of the applicant’s conduct is a material consideration for the Tribunal. An assessment of the pressures on the applicant is a necessary element of that consideration. [105] I give weight to the view of Mr Savage KC. He offered reasons for his opinion, identified its evidentiary basis, and appropriately qualified his conclusion. With respect correctly, he noted that each individual issue considered by the Association (and now by the Tribunal) might not be a sufficient cause to refuse to renew a PC. I note he did not have the benefit of all the material and submissions considered by the Tribunal. The Tribunal’s decision must be the correct and preferable decision, based on all the evidence before it. Assessment of the applicant’s character [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 -- 18 of 20 -- 19 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. [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 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. -- 19 of 20 -- 20 [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.17 [115] Accordingly, the Tribunal orders that: (a) The respondent’s decision to refuse to renew the applicant’s practising certificate is confirmed. (b) The application for review is dismissed. (c) No order as to costs. 17 Zeims v Prothonotary of Supreme Court of NSW (1957) 97 CLR 279, 298. -- 20 of 20 --