Carlyle v Queensland Law Society [2022] QCAT 208

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Carlyle v Queensland Law Society [2022] QCAT 208 PARTIES: ALEXANDRA CARLYLE (applicant) v QUEENSLAND LAW SOCIETY (respondent) APPLICATION NO/S: GAR606-21 MATTER TYPE: General administrative review matters DELIVERED ON: 21 July 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Mellifont, President ORDERS: 1. Leave is granted to the Queensland Law Society to be represented by in-house practitioner, briefing external Counsel. 2. Leave is granted to the Applicant to be represented by solicitors and/or counsel. 3. Directions 6 to 9 of the directions issued 8 February 2022 are vacated. 4. The Applicant is to file and serve her written submissions by: 4 pm on 19 August 2022. 5. The Respondent is to file and serve its written submissions by: 4 pm on 2 September 2022. 6. The Applicant is to file and serve any reply to the respondent’s submissions by: 4 pm 16 September 2022. 7. The matter is listed for a short directions hearing on 27 September 2022. 8. The matter is to be listed for a tribunal hearing at a time and date to be fixed upon consultation with parties and the registry, not before 27 September 2022. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – where the Queensland Law Society applied to be legally represented by a barrister – where the application was -- 1 of 12 -- 2 opposed on various grounds – where the party seeking leave is a State agency – whether there are complex questions of fact and law involved – whether it is in the interests of justice for leave to be granted Legal Profession Act 2007 (Qld), s 359, s 381(1), s 382(1), s 383 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 29(1)(a), s 29(2)(3)(a), s 43, s 43(3)(a), s 43(3)(d) Litherland v Sunshine Coast Regional Council [2019] QCAT 75 Chaudhary v Medical Board of Queensland [2012] QCAT 172 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] On 20 May 2022, I made a decision granting leave for the Queensland Law Society to be represented to by Counsel, instructed by in-house Counsel. [2] That decision was made to consequent upon an application for leave to be represented made by the Queensland Law Society (‘the Society’), who is the respondent in the principal proceedings, to be represented by: a) Ms Hunt, Senior In-House Legal Counsel; and b) Mr Somers, Barrister-at-Law, from the private bar. [3] The decision was made after having considered all relevant circumstances, the written application by the Society, and the submissions in response by the Applicant. [4] A request for reasons for that decision has since been received by the Tribunal. [5] These are my reasons for that decision. THE NATURE OF THE SUBSTANTIVE PROCEEDINGS [6] The Applicant seeks a review by the Tribunal of a decision of the Committee of Management, a statutory committee and delegate of the Council of the Society, made under s 381(1) of the Legal Profession Act 2007 (Qld) (‘LPA’), to disallow their claim on the Legal Practitioners Fidelity Fund Guarantee Fund, as defined under section 359 of the LPA (Ms Carlyle made the claim in her own right, and as director of Alexandra Johns Pty Ltd and Medical Intelligence Australia Pty Ltd. Ms Carlyle is referred to as the ‘claimant’ in the decision of the Society.) [7] The Applicant also seeks a costs order under section 383 of the LPA. -- 2 of 12 -- 3 [8] The Tribunal’s function on the review application is to produce the correct and preferable decision.1 GROUNDS UPON WHICH THE APPLICANT SAY SHE SHOULD PREVAIL IN QCAT AGAINST THE SOCIETY’S DECISION TO DISALLOW HER CLAIM [9] The Applicant set out the grounds upon which she says she should prevail in QCAT against the Society’s decision to disallow her claim in her Form 23, Application to review a decision filed in QCAT and Annexure A thereto. I will not here repeat the details, or set out the material in the various annexures to the application, but rather provide a snapshot summary: a) The Applicant made a claim against the Fidelity Fund on the basis that the settlement funds of $365,000 for purchase of the business, Price Attack, Robina, was paid into the bank account of the registered practice Phoenix Lawyers Pty Ltd, upon the written direction of the Principal, Ms Juliette Wright, acting for the Vendor Brabus; b) The Queensland Police Service Financial Cyber Crime group notified the claimant2 (who I take to be the Applicant) that the actual purchase price was $281,054.09, and as a result the Applicant was a victim of fraud as the remaining $115,450 of the funds was misappropriated by Phoenix Lawyers Pty Ltd, which Ms Wright used for her own purposes; c) The Applicant claimed this amount of $115,450 as compensation from the Fidelity Fund; d) The Applicant submits that the decision by the Society is unsustainable. In that respect, the Applicant submits that: (i) The decision is not consistent with current law; (ii) The committee considered irrelevant material not pertinent to the claim; (iii) Relevant material pertinent to the claim was omitted; (iv) Factual inaccuracies were included in an agenda paper; and (v) The claim relates to a default of a law practice. [10] The Society’s reasons for decision are contained within an Information Notice attached to the decision. [11] The Society’s response to the Applicant’s QCAT application is that the application to QCAT should be dismissed as the Society’s decision was the correct and preferable decision because: a) The Applicant did not suffer a pecuniary loss as a result of the default of Juliette Wright and/or Phoenix Lawyers and as such the application did not meet the requirements of section 374 of the Act; b) Further, there was no default as defined in section 356 of the Act in respect of the monies the Applicant paid to the Solicitors to complete a contract for the 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20. 2 The term used by the Society to describe Ms Carlyle. -- 3 of 12 -- 4 purchase of a business, because those monies were not trust money or trust property; c) Further, any loss the Applicant may have suffered has been resolved by a settlement the Applicant reached with Barbus; d) The Society’s decision was consistent with the current law; e) The decision-maker considered all relevant material, and the decision was not based on irrelevant matters or factual inaccuracies. [12] The Response provides further details as to why the Society submits their decision was the correct and preferable decision. Legislative provisions with respect to legal representation in this matter [12] Section 43 of the Queensland Civil and Tribunal Act 2009 (Qld) (‘QCAT Act’) provides: (1) The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise. (2) In a proceeding, a party— (a) may appear without representation; or (b) may be represented by someone else if— (i) the party is a child or a person with impaired capacity; or (ii) the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or (iii) an enabling Act that is an Act, or the rules, states the person may be represented; or (iv) the party has been given leave by the tribunal to be represented. (3) In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave— (a) the party is a State agency; (b) the proceeding is likely to involve complex questions of fact or law; (c) another party to the proceeding is represented in the proceeding; (d) all of the parties have agreed to the party being represented in the proceeding. (4) A party can not be represented in a proceeding by a person— (a) who, under rules made under section 224(3), is disqualified from being a representative of a party to a proceeding; or (b) who is not an Australian legal practitioner or government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the party. (5) A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give -- 4 of 12 -- 5 the tribunal a certificate of authority from the party for the representation if— (a) the party is a corporation; or (b) the tribunal has asked for the certificate. (6) The tribunal may appoint a person to represent an unrepresented party. (7) In this section— Australian legal practitioner see the Legal Profession Act 2007. Government legal officer see the Legal Profession Act 2007. [13] It is clear that the statutory intent is that parties are to represent themselves unless the Tribunal is satisfied that ‘the interests of justice require otherwise’. [14] Section 43(3) set out some circumstances which the Tribunal may consider supports the giving of leave. Request that leave be granted to be represented by Ms Hunt [15] The Applicant does not oppose the Respondent being represented by Ms Hunt. [16] Ms Hunt is an Australian legal practitioner and holds a current unrestricted practising certificate for the purposes of providing in-house legal services to the Society (exclusively). [17] She is the Senior in-house Legal Counsel, litigation, in the Society, Office of General Counsel. [18] In these proceedings, she is a deponent. In her role, she has access to the books and records kept by the Society in the usual and ordinary course of its operation. Her affidavit attaches the Applicant’s claim for compensation, the documents which were before the Committee in coming to its decision,3 the letter of decision and information notice in respect of that decision. [19] Rule 53 of the QCAT Rules provides that: a) A State agency may appear in a proceeding through an employee, officer or member of the agency who is authorised by the agency to act for it in the proceeding. b) However, the State agency may appear through an Australian legal practitioner or a government legal officer only with the tribunal’s leave. c) In this rule – government legal officer see the Legal Profession Act 2007. [20] It is not in issue between the parties that the Society is a state agency. [21] Given Ms Hunt is an Australian legal practitioner, rule 53 prescribed that she may only appear in these proceedings with the Tribunal’s leave. [22] In all the circumstances, I am satisfied that leave should be granted. [23] In that respect, I take into account that: 3 The Agenda Paper, pages 3 – 590 of the Annexures of Ms Hunt’s affidavit. -- 5 of 12 -- 6 a) The Respondent is a State agency; (discussed further below) b) The proceeding is likely to involve complex questions of fact or law; (discussed further below); c) Both parties have agreed to the Society being represented by Ms Hunt. Request that leave be granted to be represented by Mr Somers of Counsel [24] As stated above, the Society seek leave to be represented by Ms Hunt and external Counsel, Mr Somers. [25] The Respondent relies on the following s 43(3) matters in supports of its application for leave to be represented by external Counsel: a) The Respondent is a State agency; and b) The proceeding is likely to involve complex questions of fact or law. [26] I shall turn to these issues shortly. [27] Before doing so, I turn to some ancillary submissions made by the parties. Submission by the Society as to the usual course undertaken by it in respect of its representation [28] The Society must be represented by someone independent of the Committee, relying on the proposition that although made up of individual legal practitioners (not employed by the Society), the Committee, being the decision-maker, cannot represent the Society in legal proceedings about their conduct or decision. [29] The Society goes on to submit that ‘this is usually an independent in-house practitioner employed by the Society or an external third-party legal advisor (such as solicitors and/or counsel).’ The Applicant argues that the usual routine of the Society is not a valid ground to be granted leave to be legally represented. In that respect, I agree. Each case must be considered on its own circumstances, with the Tribunal deciding whether or not the interests of justice require that a party be represented. Applicant’s submission that the ‘totality of section 43 is not met’ [30] Ms Carlyle submits that the Society’s reliance on section 43(3)(a) and (b), ‘ignores’ section 43(3)(c) and (d), meaning the ‘totality’ of the section 43 ‘is not met’.4 [31] However, there is no ‘totality’ of the section to be met, as such. Section 43(3) states the Tribunal ‘may consider the following as circumstances supporting the giving of leave’. It does not require that all of the circumstances in (a) through (d) must exist in order for leave to be granted. They are not cumulative requirements. [32] Were it otherwise, a party could scupper all prospects the other party has of leave being granted by choosing not to be represented5 (thus section 43(3)(c) would not 4 Respondent’s Annexure A, paragraph 6. 5 Here, I note in passing that the Applicant sought and obtained legal advice from Linda Phelps of Linda Phelps & Co, who instructed Mr Peter Wood, Barrister-at-law for an opinion, but has not sought additional legal advice regarding the application for QCAT review, nor, I infer, have they retained legal representation for the QCAT review or, at this stage, made application for leave to be represented. -- 6 of 12 -- 7 exist) and/or not agreeing to the party being represented (thus section 43(3)(d) would not be met). [33] That is not to say that the mere existence of a factor, or factors, will be determinative of the giving of leave,6 but rather that the existence of a factor, of factors, are to be regarded, in the exercise of the discretion, as weighing in the balance in favour of giving leave.7 Submission by the Applicant that the Society has the capacity to represent itself, and so should not be permitted leave to be represented by external Counsel [34] The Applicant submits that the Society employs legal practitioners who have the skill and expertise to conduct the Applicant’s review of the decision,8 and submits that the Society has shown so far that they have in-depth knowledge of the law relating to the fund in question.9 [35] The Applicant also submits that the Society’s website described its employees as having ‘amazing legal minds’ but that this was edited out of the website within 12 hours of a directions hearing about the matter.10 No evidence was filed to support this proposition. [36] The Applicant submits that she does not oppose the Society being represented by its employees, but does oppose the Society being represented by legal practitioners not employed by the respondent.11 [37] The Applicant submits that: If the Applicant can represent themselves against the QLS, then likewise QLS has the capacity to represent itself.12 [38] In respect of these submissions: a) I do not find that the fact that the Applicant can represent themselves as a disqualifying feature of the Society being represented by external Counsel; b) I find that it is in the interests of justice that the Society be represented, and thus grant leave to it to be represented, and that can occur by: (i) Representation through in-house Counsel; (ii) With or without the assistance of external counsel. [39] Section 43 does not establish additional criteria that need to be established before a grant of leave to be represented can extend to the briefing of Counsel. It speaks of parties representing themselves, unless the interest of justice require otherwise. In this case, I have formed the view that the ‘interests of justice require otherwise’. Having formed that view, the precise make up of the legal representation is a matter 6 See Chaudhary v Medical Board of Queensland [2012] QCAT 172, [6] per Kingham DP, as her Honour then was: ‘The fact that a party is a State agency does not, of itself, justify representation; otherwise, leave of the Tribunal would not be required.’ 7 Ibid. 8 Applicant’s Annexure A, paragraph 7. 9 Applicant’s Annexure A, paragraphs 9 and 10. 10 Applicant’s Annexure A, paragraph 7. 11 Applicant’s Annexure A, paragraph 8. 12 Applicant’s Annexure A, paragraph 11. -- 7 of 12 -- 8 for the Society; whether that be in-house counsel alone, in-house counsel briefing external counsel, external solicitors, without or without briefing counsel, is not a matter into which the legislation descends. [40] I turn now to the two specific circumstances the Society relies upon in its application to be represented. Stage Agency [41] I accept the Society’s submissions that it is a State agency pursuant to section 43(3)(a). While this does not, of itself, justify representation,13 this is a consideration in support of the Tribunal granting leave in this circumstance. [42] As Traves M stated in Litherland v Sunshine Coast Regional Council [2019] QCAT 75, [6]: It is important to appreciate that the circumstances in s 43(3) are not merely circumstances to consider in exercising the discretion as to whether to give leave, they are factors which, if applicable, support the giving of leave. [43] The Applicant submits that by seeking representation through outside Counsel, the Society is seeking an unfair advantage of the Applicants, and that the grant of leave to be presented by Counsel ‘with considerable skills, experience and expertise in the arguing of these matters to disadvantage the other Party. This is what the repeated sections of the QCAT Act expressly tries to counter.’ [44] I do not accept the Society is seeking to disadvantage the Applicant by briefing external Counsel. Nor do I accept that granting leave to the Society to be represented by Counsel will have that effect. [45] As Kingham DP stated in Chaudhary:14 It is for the Tribunal to ensure that it acts fairly and observe the rules of natural justice.15 It has a responsibility to ensure that all parties understand the practices and procedures of the Tribunal, the nature of any assertions made and their legal implications, and any decision of the Tribunal.16 This obligation is owed to all parties, represented or not. [46] Further, as a State agency, the Society has a responsibility to act as the model litigant. The Model Litigant principles state:17 The State and all agencies must conduct themselves as model litigants in the conduct of all litigation by adhering to the following principles of fairness: • acting consistently in the handling of claims and litigation • dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation • endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to 13 Chaudhary v Medical Board of Queensland [2012] QCAT 172, [6]. 14 Ibid. 15 QCAT Act s 28(2)(3)(a). 16 QCAT Act s 29(1)(a). 17 https://www.justice.qld.gov.au/justice-services/legal-services-coordination-unit/legal-service- directions-and-guidelines/model-litigant-principles. -- 8 of 12 -- 9 alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate • where it is not possible to avoid litigation, keeping the costs of litigation to a minimum • paying legitimate claims without litigation, including making partial settlements of claims, or interim payments, where liability has been established and it is clear that the State’s liability is at least as much as the amount to be paid • not seeking to take advantage of an impecunious opponent • not contesting matters which it accepts as correct, in particular by: • not requiring a party to prove a matter which the State knows to be true • not relying on purely technical defences where the State will suffer no prejudice by not doing so • not contesting liability if the State knows that the dispute is really about quantum • not instituting and pursuing appeals unless the State believes that it has reasonable prospects for success, or the appeal is otherwise justified in the public interest. The State must behave as a model litigant in the conduct of all litigation, including significant litigation, by adhering to the following principles of firmness: • appropriately testing all claims • contesting all spurious or vexatious claims • claiming legal professional privilege where appropriate • claiming public interest immunity to protect confidential information such as Cabinet papers in appropriate cases • seeking security for costs where appropriate and pursuing costs when it is successful in litigation, which will assist in deterring vexatious proceedings from being instituted against it • not seeking to take advantage of an impecunious opponent • relying on available statutes of limitation, which have been enacted to protect a defendant from unfair prejudice • acting properly to protect the State’s interests. [47] The Society must provide instructions to any external Counsel briefed in accordance with these principles. And Counsel must act according to instructions so given. [48] Further, Counsel are required to comply with the Barristers Rules (Queensland), which upholds the independence of the bar, and the requirement for Barristers briefed to provide frank and fearless advice to those who brief them, as to the conduct of matters. In an area which involves public interest, that is, given it relates to funds held in the Fund, which is raised by levies paid by solicitors in Queensland, the Society -- 9 of 12 -- 10 being represented by independent Counsel is a matter which I find supports the grant of leave, and goes to the interests of justice. [49] Before moving from this topic, I observe that the Society submitted that: The matter is within the Tribunal’s review jurisdiction pursuant to Division 3 of the QCAT Act. It is the Tribunal’s role to reach the correct and preferable decision on the hearing of the review application and, as such, given the proceeding is not a traditional adversarial proceedings, the Applicants are not at such a forensic disadvantage by leave being granted to the Society. [50] The Society does not elaborate on what it means by ‘traditional adversarial proceedings’, or why the ‘applicants are not at such a forensic disadvantage by leave being granted to the Society.’ The Applicant submits that the Society’s submissions that the matter is complex but not adversarial is conflicting. [51] While I think it likely that the Society was seeking to convey that these are not proceedings in which the Applicant must discharge an onus of proof, but rather it falls to the Tribunal to come to the correct and preferable decision, I did not find that the Society’s submissions on this matter18 weighed in its favour in my decision to grant leave. Rather, the reasoning process I adopted in respect of the question of disadvantage is that as set out above at paragraphs 30 to 33. Complex questions of fact and law [52] As set out above, the substantive proceedings in this matter concern an application, made by the Applicant, Ms Carlyle, for the Tribunal to review a decision made by the Queensland Law Society, namely, the Society’s decision to deny Ms Carlyle the opportunity to claim compensation from the Legal Practitioners Fidelity Fund. [53] Ms Carlyle submits that the matter is simple and not complex.19 She submits that the Applicant filed 90 pages of material, which was weighed at 493 grams, while the Society filed 597 pages, which weighs 3 kilograms.20 [54] As to the question of complexity, size matters sometimes, and other times, does not. Here, I do not find that the total number of pages of material filed is of any weight in considering the application of section 43(3)(b). [55] Rather, I looked to the content of the material, and the issues in dispute. What is clear from the issues articulated by the Applicant in her application, and the Society, in its response, and the material filed by the Applicant and the Society in respect of the substantive proceedings, is that there are complex questions for determination here, including the question of whether the Applicant suffered a pecuniary loss, whether there was a relevant default as that term is defined in section 356 of the LPA, and whether the amount sought to be recovered is not reasonably available from other sources.21 [56] In my view, the determination of these proceedings is likely to involve complex questions of fact or law. 18 That is, as set out in paragraph 7 of the Society’s submissions. 19 Applicant’s Annexure A, paragraph 14. 20 Respondent’s Annexure A, paragraph 14. 21 See LPA s 382(2). -- 10 of 12 -- 11 [57] This is a factor I find that supports the grant of the application for leave to be represented. Considerations of efficiency, cost and public interest [58] The Applicant submits that the Tribunal must deal with matters economically, informally and quickly, and ensure proceedings are conducted in an informal way to minimise cost to parties.22 [59] The Society submits that there is a public interest in trust fund matters, so it is appropriate for the Respondents, who hold and distribute the trust fund raised by levies of solicitors in Queensland, to be legally represented.23 The Society submits that, if leave is granted, counsel with experience in administrative review matters will handle proceedings and ensure the orderly conduct, effective management and presentation of voluminous evidence at oral hearing.24 [60] I accept the submissions of the Society in this respect, and that these are features which point to the conclusion that the interests of justice in this matter are such as that the grant of leave is required. [61] In all of the circumstances of the case, I have formed the view that the interests of justice require that the Society be granted leave to be represented. Orders [62] Leave is granted to the Queensland Law Society to be represented. Further matter for determination [63] By email to the Tribunal from Ms Carlyle, dated 27 June 202225 the Applicant states, amongst other things: …The Applicant consents to us being represented. … Please advise if we are required to make formal application for Representation … [64] In the circumstances, the Tribunal does not require a formal application to be filed for leave to be represented. The Tribunal will act on the basis that the email communication operates as a request for leave. [65] Leave is granted for the Applicant to be represented in these proceedings by solicitor/s and/or Counsel. [66] For the sake of clarity, this grant of leave does not require the Applicant to be represented, but they may be so represented if they choose.26 22 Applicant’s Annexure A, paragraphs 1-5. 23 Respondent’s Annexure A, paragraph 8. 24 Respondent’s Annexure A, paragraph 9. 25 11.06 am. 26 The reason that I perceive that this statement of clarification might be of assistance to the parties is the email of the Applicant to the Tribunal of 17 June 2021, 1.59 pm that ‘In view of the fact of the Tribunals decision to allow the society to be represented, we have yet to see the Tribunal’s reasoning and thus we cannot make a decision whether to Appeal that decision before making a decision for representation. However, I do anticipate we will seek leave to be represented in light of the Tribunals decision.’ -- 11 of 12 -- 12 Further scheduling of the proceedings [67] I order that: 1. Directions 6 to 9 of the directions issued 8 February 2022 are vacated. 2. The Applicant is to file and serve her written submissions by: 4 pm on 19 August 2022. 3. The Respondent is to file and serve its written submissions by: 4 pm on 2 September 2022. 4. The Applicant is to file and serve any reply to the respondent’s submissions by: 4 pm 16 September 2022. 5. The matter is listed for a short directions hearing on 27 September 2022. 6. The matter is to be listed for a tribunal hearing at a time and date to be fixed upon consultation with parties and the registry, not before 27 September 2022. -- 12 of 12 --