Di Carlo v Bar Association of Queensland [2024] QCAT 515

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Di Carlo v Bar Association of Queensland [2024] QCAT 515 PARTIES: SALVATORE DI CARLO (applicant) v BAR ASSOCIATION OF QUEENSLAND (respondent) APPLICATION NO/S: OCR228-24 MATTER TYPE: Occupational regulation matters DELIVERED ON: 4 November 2024 (order) 30 November 2021 (reasons) HEARING DATE: 31 October 2024 HEARD AT: Brisbane DECISION OF: Justice Mellifont, President ORDERS: The application by Mr Di Carlo for an order staying the operation of the decision of 2 October 2024 by the Bar Association of Queensland refusing the renewal of his practising certificate pursuant to section 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is refused. CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – PRACTISING CERTIFICATES – CANCELLATION AND SUSPENSION – where the applicant was a barrister – where the respondent refused to renew the applicant’s practising certificate – where the applicant has applied for a review of that refusal – where the applicant has applied for a stay of that refusal pending determination of the review – whether the stay is desirable having regard to the factors under s 22(4) of the Queensland Civil and Administrative Act 2009 (Qld) and the conventional curial principles relating to stay applications Bankruptcy Act 1966 (Cth) s 58 Legal Profession Act 2007 (Qld) s 9, s 19, s 46, s 47, s 49, s 51, s 63, s 68 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 22 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Bui v Queensland Law Society Incorporated [2017] QCAT 441 -- 1 of 20 -- 2 King v Queensland Law Society Incorporated [2012] QCAT 489 Legal Services Board v Francis McGrath (2010) 29 VR 325 Legal Services Commissioner v Baker (No 1) [2005] QCA 482 Legal Services Commissioner v Madden [2008] QCA 52 Legal Services Board v Francis McGrath [2010] VSC 266 Magill v Queensland Law Society Inc [2019] QCAT 392 Merlo v Queensland Law Society Inc [2023] QCAT 205 New South Wales Bar Association v Cummins (2010) 52 NSWLR 279 Pope v Bar Association of Queensland [2015] QCAT 305 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 APPEARANCES & REPRESENTATION: Applicant: O’Gorman D instructed by Potts Lawyers Respondent: Clift H instructed by Bartley Cohen REASONS FOR DECISION Introduction [1] Mr Di Carlo has practised as a barrister since May 1991. [2] On 5 June 2024, he applied for renewal of his barrister's practising certificate. The Bar Association of Queensland (‘Association’) had not made a decision on that application before 1 July 2024. As Mr Di Carlo had lodged his application for renewal before the time stated in the regulatory authority's administration rules for applying for a renewal, his practising certificate continued in force until the Association refused his renewal application on 2 October 2024.1 The refusal was on the basis that the Association formed the view that he was not a fit and proper person to continue to hold a barrister's practising certificate. An information notice was provided to Mr Di Carlo in respect of this refusal decision on the same day. [3] Mr Di Carlo has filed an application to review that decision in the Queensland Civil and Administrative Tribunal (‘QCAT’). The substantive hearing of that review application is listed to proceed on 2 and 5 December 2024. [4] Mr Di Carlo has applied for an interlocutory order staying the operation of the refusal decision. If that order is granted, Mr Di Carlo's practising certificate will continue to operate pending the determination of the review.2 That application is opposed by the Association. 1 Legal Profession Act (2007) (Qld) s 47(3)(a)(i) (‘LPA'). 2 LPA s 47(3). -- 2 of 20 -- 3 Suspension decision [5] On 28 August 2024, the Association made a decision to immediately suspend Mr Di Carlo’s practising certificate under s 63(3) of the Legal Profession Act (2007) (Qld) (‘LPA’) on the basis that there were two show cause events in respect of Mr Di Carlo. Those show cause events were that: (a) on 18 August 2024, Mr Di Carlo presented a debtor’s petition under the Bankruptcy Act 1966 (Cth); and (b) on 22 August 2024, a trustee in bankruptcy was appointed. [6] The Association gave Mr Di Carlo an information notice dated 28 August 2024. The effect of the decision was that Mr Di Carlo was immediately suspended, without notice, from practising as a barrister pursuant to s 63(1) of the LPA. [7] Submissions in respect of the suspension were made by Mr Di Carlo’s solicitors in mid-September. On 2 October 2024, the Association then decided to refuse to renew Mr Di Carlo’s practising certificate, and an information notice (‘October information notice’) in respect of the decision was provided to Mr Di Carlo. Requirements of a barrister on a show cause event [8] Section 68 of the LPA sets out the requirements imposed on practitioners in response to a show cause event. It provides as follows: 68 Requirement if show cause event (1) If a show cause event happens in relation to a local legal practitioner, the practitioner must give to the relevant regulatory authority both of the following— (a) within 7 days after the date of the event—notice, in the approved form, that the event happened; (b) within 28 days after the date of the event—a written statement explaining why, despite the event, the practitioner continues to be a fit and proper person to hold a local practising certificate. (2) The regulatory authority must give a copy of the notice and the statement under subsection (1) to the commissioner. (3) However, if a written statement is given after the 28 days mentioned in subsection (1)(b), the regulatory authority may accept the statement and take it into consideration. Jurisdiction to review and power to grant a stay [9] Section 51(9) of the LPA provides that an applicant for a local practising certificate may apply to the Tribunal for a review of a decision to refuse to renew a local practising certificate.3 A decision to refuse to renew the practising certificate is therefore a reviewable decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). [10] Section 20 of the QCAT Act provides that the purpose of a review of a reviewable decision is to produce the correct and preferable decision. Under that section, the 3 See generally Merlo v Queensland Law Society Inc [2023] QCAT 205, [2]. -- 3 of 20 -- 4 Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.4 [11] Section 22 of the QCAT Act is the source of power to order a stay of a decision under review. Section 22(3) provides that the Tribunal may make an order to stay all or part of a reviewable decision if a proceeding for the review has commenced under the QCAT Act. [12] Section 22(4) of the QCAT Act provides that the Tribunal may only order a stay if it considers such an order desirable having regard to: (a) the interests of any person whose interests may be affected by the making of the order or the order not being made; (b) any submission made to the tribunal by the decision-maker for the reviewable decision; (c) the public interest.5 In making an order under to stay a decision, the Tribunal: (a) may require an undertaking, including an undertaking as to costs or damages, it considers appropriate; or (b) may impose conditions on the order it considers appropriate; or (c) may provide for the lifting of the order if stated circumstances occur.6 [13] The Tribunal is empowered by s 22(3) of the QCAT Act to stay decisions of a relevant regulator not to renew a practising certificate in circumstances where a person’s practising certificate was in continued operation pursuant to s 47(3) of the LPA, as is the case here.7 [14] The effect of a stay on the decision would be to return Mr Di Carlo to the position he was in before the decision was made. At that stage, he was subject to a suspended practising certificate. However, that decision only operated until 20 October 2024.8 As the suspension has lapsed, the effect of a stay would mean Mr Di Carlo would continue to hold a practising certificate pursuant to s 47(3) of the LPA, and thus entitled to practise, pending the result of the review. Statutory scheme for the grant and renewal of practising certificates [15] Section 49 of the LPA provides that an Australian lawyer may apply to a regulatory authority, here the Association, for the renewal of a local practising certificate if eligible to do so. Section 49(2) sets out the eligibility requirements. Mr Di Carlo was eligible to apply for renewal of his local practising certificate. 4 Cf Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 (Brennan J). 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22(4)(a)-(c) (‘QCAT Act’). 6 QCAT Act s 22(6)(a)-(c). 7 Cf the position if Mr Di Carlo had not lodged his application for renewal before the time stated in the regulatory authority's administration rules for applying for a renewal. 8 LPA s 63(6)(b). -- 4 of 20 -- 5 [16] Section 51(1) of the LPA provides that the regulatory authority must consider the application and may renew or refuse to renew the certificate. If renewing the certificate, this can be with or without conditions.9 [17] Section 51(5)(a) of the LPA provides that the regulatory authority must not renew a local practising certificate if it is satisfied that the applicant is not a fit and proper person to continue to hold the certificate. Thus, the state of satisfaction which triggers the mandate not to renew a practising certificate is that the applicant is not a fit and proper person. Under s 19(2) of the LPA, to be satisfied of a particular matter under the LPA, the person must be satisfied ‘on grounds that are reasonable in the circumstances’. [18] In Ziems v Prothonotary of the Supreme Court of New South Wales, Kitto J said: The Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.10 [19] Section 46 of the LPA provides that for the purposes of s 51, on the question of whether or not a person is a fit and proper person to continue to hold a practising certificate, the regulatory authority may take into account any suitability matter, and any of the matters enumerated in s 46(2). [20] The matters set out in s 46(2) are as follows: (2) A regulatory authority of this jurisdiction, in considering whether a person is, or is no longer, a fit and proper person to hold a local practising certificate, may take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section— (a) whether the person obtained an Australian practising certificate because of incorrect or misleading information; (b) whether the person has contravened a condition of an Australian practising certificate held by the person; (c) whether the person has contravened a relevant law or a corresponding law; (d) whether the person has contravened— (i) an order of a disciplinary body or the Supreme Court; or 9 LPA s 51(2). 10 (1957) 97 CLR 279, 288. See also New South Wales Bar Association v Cummins (2010) 52 NSWLR 279, [19]-[22]. -- 5 of 20 -- 6 (ii) an order of a corresponding disciplinary body, or of a court or tribunal of another jurisdiction exercising jurisdiction or powers by way of appeal or review of an order of a corresponding disciplinary body; (e) without limiting any other paragraph, whether the person has failed to pay an amount for which the person is or was liable under a relevant law or a corresponding law, including, for example, an amount payable to the fidelity fund or other costs or expenses for which the person is liable under a relevant law; (f) whether, without limiting paragraph (e), the person has contravened a provision of a relevant law or a corresponding law about professional indemnity insurance; (g) whether the person is or was a legal practitioner director of an incorporated legal practice while the practice is or was insolvent; (h) whether the person is or was a director of a corporation while the corporation is or was insolvent; (i) other matters the authority thinks are appropriate. [21] Section 9 sets out suitability matters. They are: 9 Suitability matters (1) Each of the following is a suitability matter in relation to a natural person— (a) whether the person is currently of good fame and character; (b) whether the person is or has been an insolvent under administration; (c) whether the person is or has been a legal practitioner director of an incorporated legal practice while the practice is or was a chapter 5 body corporate; (d) whether the person is or has been a director of a corporation while the corporation is or was a chapter 5 body corporate; (e) whether the person has been convicted of an offence in Australia or a foreign country, and if so— (i) the nature of the offence; and (ii) how long ago the offence was committed; and (iii) the person’s age when the offence was committed; (f) whether the person engaged in legal practice in Australia— (i) when not admitted to the legal profession, or not holding a practising certificate, as required under a relevant law or a corresponding law; or (ii) if admitted to the legal profession, in contravention of a condition on which admission was granted; or (iii) if holding an Australian practising certificate, in contravention of a condition applicable to the certificate or while the certificate was suspended; -- 6 of 20 -- 7 (g) whether the person has practised law in a foreign country— (i) when not permitted under a law of that country to do so; or (ii) if permitted to do so, in contravention of a condition of the permission; (h) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following— (i) a relevant law; (ii) a corresponding law; (iii) a corresponding foreign law; (i) whether the person— (i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or (ii) has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt; (j) whether the person’s name has been removed from— (i) a local roll but has not since been restored to or entered on a local roll; or (ii) an interstate roll, but has not since been restored to or entered on an interstate roll; or (iii) a foreign roll; (k) whether the person’s right to engage in legal practice has been suspended or cancelled in Australia or a foreign country; (l) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts; (m) whether, under a relevant law, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person; (n) whether the person is or has been subject to an order under this Act, a previous Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice; (o) whether the person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner; (p) a matter declared under an Act to be a suitability matter. -- 7 of 20 -- 8 Approach to stay – generally [22] As outlined in paragraph 12 above, s 22(4) of the QCAT Act provides when the Tribunal may order a stay. In Legal Services Commissioner v Baker (No 1) [2005] QCA 482 (‘Baker’), Chesterman J discusses the principles relevant to the grant of a stay pending an appeal to the Court of Appeal against a decision of QCAT recommending Mr Baker’s name be removed from the roll after having found him guilty of five charges of professional misconduct and three charges of unprofessional conduct.11 [23] In addition to the three factors set out in s 22(4), the standard curial tests relating to stays pending appeal are also applicable.12 The matters considered under those tests will include the applicant’s prospects of success in the review proceeding, the effect of any stay on the proceeding, and whether irremediable harm might be suffered by the applicant if the stay is not granted.13 [24] Both parties agree that, in the context of legal disciplinary proceedings, a stay should not be granted lightly. In cases involving lawyers and their right to practice, the factors that would justify a stay must be such as to outweigh the public interest, which is to be afforded particular significance.14 Background and antecedents [25] Mr Di Carlo was admitted to the profession on 20 May 1991 and has practised as a barrister since then.15 The events that led to the giving of the October information notice to Mr Di Carlo commenced in early 2016. In May that year, the Attorney- General for Queensland commenced an action for contempt against Mr Di Carlo in respect of conduct which occurred on 25 January 2016.16 [26] Apart from a finding of contempt in 2017 (referred to below), no court or tribunal has made a disciplinary finding against Mr Di Carlo, and he does not have a criminal history. [27] The matters which the Association has had regard to in coming to the decision to refuse the renewal of the practising certificate do not involve any allegation that: (a) Mr Di Carlo exhibited a lack of competence in his practise as a barrister; (b) Mr Di Carlo’s competence as a barrister of over thirty years standing present a risk to his clients; or 11 At [18]-[31] discussing Robb v Law Society of the Australian Capital Territory, unreported, Federal Court, No ACT G34 of 1996, 21 June 1996 and New South Wales Bar Association v Stevens (2003) 52 ATR 602. Baker has been referred to on numerous occasions in QCAT, including Legal Services Commissioner v Madden [2008] QCA 52, King v Queensland Law Society Incorporated [2012] QCAT 489, Bui v Queensland Law Society Incorporated [2017] QCAT 441, Magill v Queensland Law Society Inc [2019] QCAT 392. 12 Magill v Queensland Law Society Inc [2019] QCAT 392, [4]; King v Queensland Law Society Incorporated [2012] QCAT 489, [11]-[15]. 13 King v Queensland Law Society Incorporated [2012] QCAT 489, [12] (Wilson J), citing Cook’s Construction v Stork Food Systems (Aust) Pty Ltd [2008] 2 Qd R 453; Legal Services Commissioner v Madden [2008] QCA 52, [5]-[6]; Bui v Queensland Law Society Incorporated [2017] QCAT 441, [8]. 14 Legal Services commissioner v Baker (No 1) [2005] QCA 482, [28] (Chesterman J). 15 Affidavit of Salvatore Di Carlo sworn 14 October 2024, [1]-[2] (‘First Di Carlo affidavit'). 16 Hearing Book filed 29 October 2024 in the matter of OCR228-24, vol 1, 44 [7] (‘HB – OCR228-24’). -- 8 of 20 -- 9 (c) Mr Di Carlo was dishonest, at all. [28] Mr Di Carlo has cooperated with the Association, providing extensive written material to the Association in the course of his dealings with them. [29] He has not delayed in bringing the application for stay. [30] These background features are all relevant, and weigh in Mr Di Carlo’s favour. Chronology 2017 to 2022 [31] On 29 August 2017, Holmes CJ found Mr Di Carlo guilty of contempt and ordered that he pay a fine of $4,000. Mr Di Carlo failed to disclose to the Association that he had been punished for contempt when he next applied to renew his practising certificate in June 2018. In both of his previous two applications for renewal, he disclosed the existence of the contempt proceedings, stating that he was contesting the contempt proceeding. The October information notice refers to this as ‘Disclosure Failure 1’. [32] In respect of this matter, Mr Di Carlo states that the statement in the October information notice did not accurately state his primary contemptuous statement. The October information notice recorded Mr Di Carlo made the following statement ‘the magistrate did not apply the law and generally did not apply the law in accordance with his judicial oath’. Mr Di Carlo says he said to a magistrate ‘that is why you don't do things according to law’. Mr Di Carlo expresses regret at making the statement. [33] In about March 2021, Ms Choonwha Lee commenced proceedings against Mr Di Carlo to recover a loan (‘the Lee proceeding’). 2023 [34] The Lee proceeding was set down for trial on Thursday, 11 May 2023,17 but on the Monday of that week, Mr Di Carlo’s psychiatrist gave an opinion that, by reason of mental health difficulties, Mr Di Carlo had to be hospitalised and would be unable to participate in the trial.18 Mr Di Carlo was admitted to hospital on 11 May 2023. [35] A few weeks later, on 28 May 2023, when Mr Di Carlo applied to renew his practising certificate, he did not disclose in that application the mental health difficulties that caused him to be hospitalised.19 The October information notice refers to this as ‘Disclosure Failure 2’. [36] Mr Di Carlo says that the disclosure failure is acknowledged, but was unintentional. He submits that the mental health issues were the cumulative effect of an eight-day criminal trial together with the preparation for the civil proceeding and medical conditions. It is submitted that he has shown full insight into his plight by seeking treatment and voluntarily ceasing work and that by the time disclosure was required, he had been released from hospital and to a large extent recovered from the psychological injury. It is submitted that the mental health issues made it particularly 17 HB – OCR228-24, vol 1, 143 [25]. 18 HB – OCR228-24, vol 1, 143 [25]. 19 HB – OCR228-24, vol 1, 143 [26]. -- 9 of 20 -- 10 difficult for Mr Di Carlo to concentrate on his own affairs, and he placed the interests of those for whom he was acting before his own personal affairs. [37] If Mr Di Carlo remained incapacitated at the time of his renewal, he ought to have disclosed that too, but didn’t. The October information notice refers to this as ‘Disclosure Failure 3’. Mr Di Carlo disputes that he was incapacitated at the time of his renewal. [38] On 19 January 2023, the Legal Services Commissioner (‘LSC’) notified Mr Di Carlo that a complaint had been lodged by one of his clients, Mr Habib Habchi (‘the Habchi complaint’).20 The complaint concerned the alleged receipt and misuse of trust money by Mr Di Carlo. Referred to as ‘Disclosure Failure 4’, it occurred when Mr Di Carlo failed to disclose that complaint in his application to renew his practising certificate on 28 May 2023.21 Mr Di Carlo disputes there was any trust money. [39] The Association subsequently became aware of the Habchi Complaint and wrote to Mr Di Carlo to ask for an explanation of his failure to disclose it in the relevant renewal application. In response to that correspondence, Mr Di Carlo provided an undertaking in the following terms: 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.22 That undertaking was provided in an appeal from Mr Di Carlo to the Association on 21 July 2023. [40] Mr Di Carlo acknowledges Disclosure Failure 4 but says that it was unintentional. [41] On 12 September 2023, Mr Di Carlo was informed by the LSC of her intention to commence a disciplinary proceeding against him in respect of the Habchi Complaint. Referred to as ‘Disclosure Failure 5’, it occurred when, in breach of his undertaking, Mr Di Carlo failed to disclose to the Association that he had received notice of the intention to commence a disciplinary proceeding.23 [42] By about this time, Mr Di Carlo’s mental health difficulties had come to the attention of the Association and been the subject of correspondence between it and his then- solicitor, Mr Barbi. Those matters had led the Association to decide, on 18 September 2023, to require Mr Di Carlo to undertake a health assessment under s 87(2) of the LPA, by a person appointed by the Association.24 Accordingly, Mr Di Carlo attended upon Dr Kingwell, a psychiatrist, for a health assessment. Dr Kingwell produced a report following that attendance on 4 December 2023.25 [43] Meanwhile, on 23 October 2023, the trial in the Lee proceeding commenced and was heard for one day. It was then adjourned part-heard to March 2024. 20 HB – OCR228-24, vol 1, 143 [27]. 21 HB – OCR228-24, vol 1, 143 [27]. 22 HB – OCR228-24, vol 1, 143-144 [28]. 23 HB – OCR228-24, vol 1, 144 [30]. 24 HB – OCR228-24, vol 1, 144 [31]. 25 HB – OCR228-24, vol 1, 144 [31]. -- 10 of 20 -- 11 2024 [44] The Lee proceeding resumed in mid-March 2024 for two days.26 [45] On 27 May 2024, the Association wrote to Mr Di Carlo to seek an explanation from him for Disclosure Failure 5. He responded the next day to say that he was seeking advice from his solicitors.27 [46] On 24 June 2024, Mr Di Carlo’s then solicitors wrote to the Association about Disclosure Failure 5. By that letter, Mr Di Carlo apologised for the failure and explained that it occurred as a result of several sources of stress including, criminal charges against him, namely the Lee proceeding, media publications about him in August 2023, and the health assessment in December 2023 as well as other personal medical issues.28 Mr Di Carlo submits that the disclosure failure was unintentional, and arose in the context of confusion with respect to properly advising the correct solicitor. [47] Judgment was delivered in the Lee proceeding 24 June 2024. In that judgment, Sheridan DCJ found Mr Di Carlo liable to pay Ms Lee $240,000. In September 2024, Mr Di Carlo told the Association that, with interest and costs, the amount he would have to pay Ms Lee would be in the vicinity of $650,000.29 [48] The next day Ms Lee’s solicitors asked Mr Di Carlo to provide a statement of financial position pursuant to r 807 of the Uniform Civil Procedure Rules 1999 (Qld). His response to that was required by 9 July 2024. On 15 July 2024, Mr Di Carlo’s solicitors sought an extension of time to provide the statement of financial position until 22 July 2024. When that day arrived and no statement had been provided by Mr Di Carlo, Ms Lee’s solicitor wrote again to complain that it had not been provided.30 [49] By about 24 July 2024, Ms Lee’s solicitors obtained a summons for Mr Di Carlo to attend an enforcement hearing at the District Court of Queensland on 22 August 2024. That summons required production of a range of documents relevant to Mr Di Carlo’s financial affairs. It was served on his solicitor, Mr Barbi, on 24 July 2024.31 [50] An unsigned statement of financial position was provided to Ms Lee’s solicitors by Mr Barbi (along with supporting documents) on 15 August 2024 with no explanation as to why it was unsigned. The next day, Ms Lee’s solicitors wrote to Mr Barbi to complain about the failure to comply with the rules by providing a complete and signed statement of financial position.32 [51] On 17 August 2024, Mr Di Carlo travelled to China where he intended to stay until past the date of the enforcement hearing.33 [52] Two days later, Mr Di Carlo lodged a debtor’s petition on the online portal maintained by the Australian Financial Security Authority (‘AFSA’). At about the same time his 26 HB – OCR228-24, vol 1, 144 [33]. 27 HB – OCR228-24, vol 1, 144 [34]. 28 HB – OCR228-24, vol 1, 144 [35]. 29 HB – OCR228-24, vol 1, 145 [36]. 30 HB – OCR228-24, vol 1, 145 [37]. 31 HB – OCR228-24, vol 1, 145 [38]. 32 HB – OCR228-24, vol 1, 145 [39]. 33 HB – OCR228-24, vol 1, 145 [40]. -- 11 of 20 -- 12 solicitors sought an adjournment of the enforcement hearing. The day after that adjournment was sought, 20 August 2024, it was refused.34 [53] When, two days later on 22 August 2024, Mr Di Carlo failed to appear as required for the enforcement hearing, the Registrar of the District Court ordered that a warrant be issued for his arrest and that it lie in the registry. That afternoon, the AFSA issued a certificate of appointment of Mr Di Carlo’s trustee in bankruptcy.35 Mr Di Carlo subsequently explained, in submissions made on his behalf by his solicitor, that he intended to lodge a debtor’s petition shortly after arriving in China and that he understood that it would be processed within 24 to 48 hours after lodgement.36 As a consequence, he thought the enforcement hearing would be at an end by operation of s 58(3) of the Bankruptcy Act 1966 (Cth) and it was for that reason he thought he would not appear.37 Mr Di Carlo submits that his belief was held honestly, having obtained advice from his solicitor and his trustee. He was also having discussions with a friend, who was also a friend of Ms Lee, who had advised he should postpone filing because of negotiations that were underway. He submits that had he filed at the time he had initially intended to file, and not accepted his friend’s suggestion to postpone, the certificate formalising Mr Di Carlo’s bankruptcy would have been issued prior to the enforcement hearing; in fact, the certificate did arrive, some two and half hours after the warrant was issued. Taxation matters [54] A consequence of Mr Di Carlo becoming bankrupt (which is a show cause event) was that he was required to provide a statement to the Association within 28 days of the event to explain why he remained a fit and proper person despite the bankruptcy.38 The documents accompanying Mr Di Carlo’s statement to the Association demonstrate that he failed to pay a substantial amount of tax for at least two years and that he has an outstanding debt to the Australian Taxation Office (‘ATO’) of $398,329.39 [55] In respect of Mr Di Carlo’s taxation affairs, he submits that he maintained constant contact with the ATO, he completed and lodged with the ATO all taxation returns and business activity statements, that he was endeavouring to enter into an achievable arrangement, and that his issues with the ATO did not involve a flagrant disregard of his taxation obligations as is sometimes the position in reported cases involving other lawyers. The information notice [56] The October information notice for the renewal refusal set out the Association's reasons in concluding that it was satisfied that Mr Di Carlo is not a fit and proper person to hold a practising certificate. Of particular concern to the Association was Mr Di Carlo’s failure to treat disclosure obligations under the LPA with the seriousness required of a barrister. 34 HB – OCR228-24, vol 1, 145 [41]. 35 HB – OCR228-24, vol 1, 145 [42]. 36 HB – OCR228-24, vol 1, 145 [42]. 37 HB – OCR228-24, vol 1, 145-146 [42]. 38 LPA s 68(1)(b). 39 HB – OCR228-24, vol 1, 146 [43]. -- 12 of 20 -- 13 Is there an arguable case [57] Mr Di Carlo submits, and the Association accepts, that there is an arguable case. The Association submits that the prospects are limited, at best. Mr Di Carlo disagrees. I need make no finding as to who is correct in this regard. I do not consider it appropriate to speculate on the prospects of success, particularly given that the final hearing before the Tribunal is a fresh hearing on the merits, and not limited to the evidence which was before the Association at the time of the decision not to renew, or before the Tribunal at the time of the stay application. As such, I have taken the approach adopted by Fraser JA in Legal Services Commissioner v Madden40 and by President Daubney in Magill v Queensland Law Society Inc.41 The effect of any stay on the proceeding [58] The material before me does not indicate that a stay will have any effect on the final hearing. Whether irremediable harm might be suffered [59] Mr Di Carlo submits that, absent a stay, irremediable harm will be caused, in various respects. He submits that: (a) he has already been unable to practise for some six weeks since his practising certificate was suspended on 24 August 2024; (b) he is incurring business expenses that he will never be able to recover, even if successful in the review application; (c) he does not have any other skills he can readily use to earn an income; and (d) he will be unable to provide financially for his young son for whom he has financial responsibilities. (He deposes to this issue at paragraphs 38 to 40 of his first affidavit). [60] While submissions (b)-(d) in the above paragraph are relevant features, they are not determinative of the outcome of the stay application. Collectively, these features are practical consequences suffered by many, if not most practitioners whose practising certificates have been cancelled, suspended or not renewed. Something more must be shown that prejudice of this kind in order to warrant the granting of a stay.42 As Chesterman J stated in Baker: In particular it should be accepted that an applicant…should show a cogent reason for the stay, and he will not do so merely by showing that he will be unable to practice his profession until his appeal is heard and allowed. Every practitioner who is suspended from practice or whose name is removed from the roll suffers that prejudice but it is clearly not right to say that a stay is, or should be, granted as a matter of course. Something more must be shown than ‘prejudice’ of this kind. The additional factors which would justify a stay must be such as outweigh the public interest in having unfit practitioners debarred from practice. That interest is to be afforded particular significance.43 40 [2008] QCAT 52, 6. 41 [2019] QCAT 392, [11]. 42 Magill v Queensland Law Society Inc [2019] QCAT 392, [18]; Legal Services Commissioner v Baker [2005] QCA 482, [28] (Chesterman J). 43 Legal Services Commissioner v Baker [2005] QCA 482, [28]. -- 13 of 20 -- 14 [61] Mr Di Carlo submits that more has been shown than prejudice of that kind. He submits: (a) if a stay is granted, any income that he receives above the relevant bankruptcy threshold will be shared with his creditors via his trustee in bankruptcy, and this is a feature in the public interest; (b) there will be adverse impacts on his clients, financially and psychologically; (c) he has a “unique referral network” which he fears will quickly disappear if he is unable to accept matters referred to him; (d) there will be further adverse impacts on his clients, by way of his inability to transfer knowledge Mr Di Carlo has in respect of them to the relevant solicitors; and (e) his ability to defend himself in the criminal proceedings will be adversely affected if he is not able to earn income. Potential prejudice to creditors if stay not granted [62] It is relevant to take into account the public interest in money being able to be distributed to creditors via Mr Di Carlo’s trustee in bankruptcy. This was a factor taken into account in Pope v Bar Association of Queensland by President Wilson in concluding that a stay should be granted.44 Mr Di Carlo expects that if he is able to return to practise, he will earn an income commensurate to the immediate past financial year. If he is correct in that expectation, then some tens of thousands of dollars might be distributed to his creditors. I say might in the absence of any precise evidence of the amount which would probably be earned between the time of stay and time of decision. I nonetheless progress on the basis that the prospect of distributions to creditors if a stay is granted is a feature in favour of a stay. Psychological and financial adverse impact on Mr Di Carlo’s clients if he is not permitted to practise pending determination of the review [63] Mr Di Carlo submits that various clients will be significantly affected if a stay is not granted. In this regard, Mr Di Carlo points specifically to the following: (a) His clients include a psychologically vulnerable client, a client who has a complex trial set down for 25 November 2024, clients for whom he is acting at a reduced rate who may struggle to replace him with other counsel for financial reasons, clients who have developed significant trust in him and rely upon him including two clients for whom Mr Di Carlo is negotiating their return from overseas as they are wanted by authorities in Australia. (b) Four solicitors from different law firms who state that their clients will be disadvantaged if he cannot return to practice, who state inter alia: (i) ‘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.’ 44 [2015] QCAT 305, [18]. -- 14 of 20 -- 15 (ii) ‘The client is very anxious and very much guided by the advice of Mr Di Carlo. It would cause the client great anxiety, as well as cause him further financial burden, if Mr Di Carlo is unable to remain involved in the matter.’ (iii) ‘Mr Di Carlo has built a relationship with this client who was showing suicidal tendencies and Mr Di Carlo assisted him to obtain psychiatric help. Again, if Mr Di Carlo could not further represent him, this could create psychological trauma to this client who is already in a vulnerable state.’ (iv) There are two particular cases in which one of the solicitors feels his clients ‘will be significantly disadvantaged’. The solicitor opines that the prejudice could not be cured if Mr Di Carlo cannot continue to act. One of those matters concerns a client charged with attacking a lady at knifepoint. The other is a child safety matter. The solicitor sets out his particular concerns if Mr Di Carlo were not to continue to act in the matter, including, in respect of the second, that if Mr Di Carlo is not able to assist him going further, he is ‘greatly concerned that [he] will be unable to deal with [his] obligations and that [he] may even end up abandoning this matter, which would be against the public interest.’ [64] As to this last matter, there are other competent barristers who do child protection matters. If the difficulty is that funding would prevent another counsel being briefed, so as to ensure that the legal team of solicitor and counsel are able to provide competent correspondence, then the solicitor, who has expressed the view that he may not be able to discharge his obligations, should abandon the matter. Doing so, that is, not continuing to act in a matter in which the solicitor is not able to discharge his obligations, is not, as the solicitor opines, contrary to public interest. It is precisely the opposite. [65] I accept that if Mr Di Carlo is not granted a stay, the fact that Mr Di Carlo is not able to act for those clients pending the determination of his review, will likely cause some (if not all) clients a greater financial burden to engage replacement counsel, and that some, for whom Mr Di Carlo has been acting at a reduced rate, may not be able to find replacement counsel. I accept that these features create some prejudice of an irremediable kind (that is, financial loss) which would flow to those clients. However, that is an unfortunate and not uncommon consequence of decisions not to renew practising certificates of legal practitioners. It carries some, but not great weight, in the overall consideration of the stay application. [66] I also accept that some clients may be anxious about not being able to be represented by Mr Di Carlo. It may be that Mr Di Carlo has a special rapport or relationship of trust with particular clients. That, however, alone or with other facts, does not in this case outweigh the public interest in ensuring that only fit and proper persons are certified to practise.45 I do not say this lightly. Clients who have built up a relationship of trust with their counsel may naturally be concerned if replacement counsel needs to be briefed. Such concern, and the possibility of psychological trauma to particularly vulnerable clients, must be taken seriously. The evidence of the 45 See Magill v Queensland Law Society Inc [2019] QCAT 392; See King v Queensland Law Society Incorporated [2012] QCAT 489, [29]. -- 15 of 20 -- 16 likelihood of psychological trauma, in this case, however, is very thin and not supported by medical evidence. It is not uncommon for solicitors to need to brief new counsel in matters, and experienced and skilled solicitors should be able to handle this even for clients who are anxious, including those who are under psychiatric or psychological care. I am not satisfied that there would be irremediable harm to clients. Fear that Mr Di Carlo’s ‘unique referral network’ will disappear [67] Mr Di Carlo submits that his unique direct referral network (in which clients approach Mr Di Carlo and he then introduces the client to an instructing solicitor who briefs the matter to Mr Di Carlo) provides a significant portion of his work and he fears that his referral network of current and former clients will quickly disappear if he is unable to accept matters referred to him.46 [68] On this issue, Mr Di Carlo's evidence is as follows: I fear that if I am not able to work whilst the application to review the Respondent’s decision is determined, I will lose my sources of work and will be unable to regain them if my application to review is successful. My fear is based on the fact that the work I receive is often from referrals from other clients to me and if I am unable to assist clients for an extended period of time that referral will be lost to me. Since the 28th of August 2024, when my practising certificate was suspended, I have already lost significant income which has led to significant financial difficulties, compounding my situation. If my practising certificate was returned in the near future, I anticipate having a significant amount of paid work to undertake. My practice is somewhat unique as most of the matters I am briefed on are via initial contact with me, after which I introduce those clients to instructing solicitors with whom I regularly work in order to formalise my engagement. Those solicitors, having been introduced to the clients by me, then usually proceed to brief me (unless it’s an area of law in which I do not practice and then I encourage those solicitors to brief colleagues). As a result, a significant portion of my practice depends on my own referral efforts rather than on instructing solicitors introducing clients I haven’t met and/or previously dealt with (although that does occur). My direct referral network, which I have worked hard to build over the past 15 years, is now at serious risk. If I am unable to accept matters referred by my current and former clients, this vital source of work will quickly disappear. [69] In the course of the oral hearing, I described this arrangement as ‘curious’. I do not propose to comment further on this in this stay application, but for the sake of transparency, I make it clear that I have not proceeded in this application on the basis that this arrangement is a feature adverse to Mr Di Carlo. [70] I do not consider the evidence is sufficient to warrant the inference that Mr Di Carlo’s ‘unique’ practise will be irremediably harmed by not granting a stay. Mr Di Carlo has built up this practise over 15 years. He has adduced evidence in this application from solicitors who speak highly of his skill as a barrister, describing Mr Di Carlo as a competent experienced barrister who they are able to rely on. It seems unlikely that solicitors who are prepared to go on affidavit as character referees in this stay application are unlikely to stop briefing Mr Di Carlo in the future if he prevails at the 46 First Di Carlo Affidavit, [42] and [43]. See also Affidavit of Stevenson, Exhibit ‘CLS-1’ [3]; Affidavit of Ms Horne, Exhibit ‘KMH-1’. -- 16 of 20 -- 17 final hearing which is listed in early December 2024. While it is possible that some clients may go elsewhere if they are not able to engage Mr Di Carlo, and not return in the event Mr Di Carlo is successful in the substantive review application, I do not consider that the matter rises to the level of irremediable prejudice to Mr Di Carlo in the way contended by Mr Di Carlo. Adverse impact on Mr Di Carlo’s clients – inability to transfer accrued knowledge [71] Mr Di Carlo submits that not being able to practise will have an irremediable adverse effect on his clients. He submits that because of his unique way of practise, he is in possession of knowledge about his clients that his solicitors aren’t, and that because he was suspended without notice, he did not have the opportunity to transfer this accrued knowledge to the solicitors. He further submits that he is concerned to do so for fear he may fall foul of the rules prohibiting the giving of legal advice. The Association submits that he can simply provide his files to the solicitors. [72] The extent to which there are in fact ‘files’ capable of being provided to solicitors is unknown. There may be, or it may be accrued knowledge Mr Di Carlo has simply retained without written record. In any event, I am not satisfied that there would be irremediable damage to his clients. Competent solicitors should be able to obtain all relevant instructions from the client. A solicitor following an orthodox means of preparing a matter for a client should be able to properly prepare the matter. Further, I have a concern about the notion that the barrister is privy to information about clients, which may be relevant to the client’s matter, that is not provided to a solicitor once a solicitor is engaged and the solicitor briefs the barrister. [73] I am not satisfied that there will be irremediable prejudice to clients because of an inability of Mr Di Carlo to convey information to the relevant solicitors. Impact on Mr Di Carlo’s ability to defend himself in the criminal proceedings if he is not able to earn income [74] Mr Di Carlo submits that if he is unable to resume work as a barrister, his ability to defend himself in shortly upcoming criminal proceedings will be seriously compromised. In that respect, Mr Di Carlo deposes that: I need to continue to earn income so that I may defend myself against the criminal charges I am facing … I am innocent of those charges and have been working with my legal team including Mr Saul Holt KC for many years to have the charges resolved in my favour. If I cannot earn income, I am not sure I will be able to maintain the team that has been defending those charges for me. The charges have been on foot and unresolve for approximately 7 years. Whilst my brothers have been able to loan my [sic] money which I have put towards legal fees in the past, it was always on the understanding that the money would be repaid to them. If I am unable to practise as a barrister, I am unsure if my brothers would be willing to continue to pay legal fees on my behalf. [75] That is as high as the evidence goes. There is no evidence from the brothers that they would not be prepared to continue to pay legal fees on his behalf. I am certainly satisfied that if Mr Di Carlo is unable to continue to fund or have funded his existing legal representatives, that is solicitor, and an eminent Senior Counsel, that having to change legal teams or apply for legal aid, no doubt causes him significant prejudice, particularly at this late stage of the criminal proceedings. I am not, however, satisfied on the basis of the evidence adduced that it has been established that Mr Di Carlo’s brothers will not continue to pay legal fees on his behalf. -- 17 of 20 -- 18 Mr Di Carlo is prepared to accept and abide by any conditions the Tribunal may deem fit to impose up until the determination of the review application [76] Mr Di Carlo submits that he is prepared to accept and abide by any conditions the Tribunal may deem fit to impose up until the determination of the review application. In the course of the oral hearing, I asked whether Mr Di Carlo offers any undertaking. The response, on behalf of Mr Di Carlo was that the legal representatives and Mr Di Carlo had given a great deal of thought to potential conditions and they: saw flaws in all of them in that [Mr Di Carlo] was running risks that … could be said against him. However, having said that, if the Association was to come up with conditions, we would genuinely look at them, but we just cannot figure any conditions that wouldn’t be of concern from the point of view of potentially being in breach of those conditions. The Association’s response was that it was Mr Di Carlo’s application. [77] In the circumstances, there is no proffered undertaking or proposed conditions that would militate against the public interest factor. Conclusion [78] I proceed on the basis that: (a) there is an arguable case; (b) the substantive hearing will not be adversely effected if a stay is not granted; (c) some prejudice in respect of some of the asserted aspects has been demonstrated; and (d) although the defalcations alleged by the Association do not go to Mr Di Carlo’s competence as a barrister, or allege dishonesty, that the public interest, in particular, the need to maintain public confidence must be afforded significant weight. [79] In respect of the latter matter, I note the observation by Warren CJ in Legal Services Board v Francis McGrath: Discussing that concept in the context of a different form of accreditation, Walters J saw it as requiring technical and moral aptitude sufficient to meet the demands of the role in question: The issue whether an appellant has shown himself to be ‘a fit and proper person’, within the meaning of s 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an plaintiff must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf. Ex parte Meagher (1919) 19 SR(NSW) 433).47 47 (2010) 29 VR 325, [12] quoting Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 76. -- 18 of 20 -- 19 The High Court has described the enquiry in the widest terms: The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty, knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ — Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.48 Finally, the courts have drawn a distinction between conduct occurring outside a practitioner’s professional life, and conduct in the course of their professional obligations and responsibilities. Misconduct in the course of both may be indicative of whether a person is fit to remain on the Roll, but the enquiry into how such conduct affects that fitness is, in each case, necessarily different: Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practice as a barrister … But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking the latter must have a much more direct bearing on the question of a man’s fitness to practice than the former.49 [80] Although there is no allegation of lack of competence as a barrister, nor allegation of a risk to clients in connection with the question of competency, or any allegation of dishonesty, they are only some of the matters relevant to the consideration of whether a person is fit and proper to be a barrister; and of the public interest in upholding the reputation of the profession. The alleged non-disclosures, and the matters relied upon by the Association in respect of the bankruptcy and taxation issues, are connected with Mr Di Carlo’s profession as a barrister. They are relevant to the issue of public confidence in the integrity of the disciplinary process and the reputation of the profession. Some of them fall within the definition of ‘suitability matters’ in the LPA. They are serious matters. No means of mitigation of the risk of prejudice to public confidence is proffered nor otherwise apparent on the material before me. The substantive review application will be heard shortly. While this can be a factor both for and against a stay in given circumstances, the concerns that Mr Di Carlo expresses about loss of work carry less magnitude than if it were the case that he needed to wait months before a final hearing. Mr Di Carlo has not presented a cogent reason for a stay. 48 (2010) 29 VR 325, [13] quoting Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, 156-7. 49 (2010) 29 VR 325, [14] quoting Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 290. -- 19 of 20 -- 20 [81] I conclude that Mr Di Carlo has not demonstrated sufficient factors that would outweigh the public interest such as to justify the granting of a stay. The application for a stay is refused. -- 20 of 20 --