Bui v Queensland Law Society Incorporated [2017] QCAT 441

CITATION: Bui v Queensland Law Society Incorporated [2017] QCAT 441 PARTIES: An Bui (Applicant) v Queensland Law Society Incorporated (Respondent) APPLICATION NUMBER: OCR259-17 MATTER TYPE: Occupational regulation matters HEARING DATE: 4 December 2017 HEARD AT: Brisbane DECISION OF: Justice Daubney, President DELIVERED ON: 18 December 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for a stay is refused. CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – PRACTISING CERTIFICATES – REFUSAL TO ISSUE – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – OTHER MATTERS – where the Queensland Law Society (‘the Society’) issued a show cause notice to the applicant following the results of a Trust Account Investigation Report – where the Society determined that the applicant was not a fit and proper person to continue to hold an unrestricted principal practising certificate – where the applicant filed in the Tribunal an application for review of the Society’s decision – where the applicant also applied for a stay of the decision – where the applicant argues that he will suffer extreme prejudice if a stay is not granted, that he is willing to take steps to remedy his default and that his clients will suffer prejudice – whether the prejudice to the applicant and his clients is outweighed by the public interest – whether a stay ought be granted -- 1 of 8 -- 2 King v Queensland Law Society Incorporated [2012] QCAT 489 Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107 Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 33, 22 Legal Profession Act 2000, s 61 APPEARANCES and REPRESENTATION: APPLICANT: P L Hanlon, instructed by Benson Lawyers RESPONDENT: G Hartridge, instructed by M Novakov of the Queensland Law Society REASONS FOR DECISION The applicant, Mr An Bui, was admitted as a solicitor in July 2000. He had completed a Practice Management Course in February 2000. After his admission, he worked for some 10 years as an employed solicitor for a firm in Inala, practising mainly in criminal and family law matters. In May 2010, he started a practice on his own account under the name “Benson Lawyers”. He has, since then, practiced as a sole practitioner, and held an unrestricted principal practising certificate. He describes his practice as consisting of “conveyancing for buyers and sellers of properties, conveyancing for buyers and sellers of businesses, preparation of leases for shops, criminal law, appearing in the Magistrates Court of Queensland, appearing in the District Court of Queensland, family law children’s matters and divorces in the Federal Circuit Court of Australia, including representation and appearances in Legal Aid matters”. He says that he provides free legal advice to the Vietnamese community on Saturday mornings and is a valuable member of that community. He also says that many of his clients are referred to him because of his reputation in the community, particularly within the Vietnamese community. The applicant’s wife is employed in his practice as a receptionist. On 2 November 2017, the Executive Committee of the respondent Queensland Law Society (“QLS”) determined that the applicant was not a fit and proper person to continue to hold an unrestricted principal practising certificate but that he may be a fit and proper person to hold a restricted employee practising certificate. Consequently, pursuant to s 61(2)(a) of the Legal Profession Act 2000 (“LPA”), the QLS decided to amend the applicant’s practising certificate by applying specified conditions in addition to those ordinarily applied to a restricted employee practising certificate (“the QLS decision”). In summary, the special conditions imposed were that the applicant must: -- 2 of 8 -- 3 (a) Provide monthly statements concerning progress of a payment plan the applicant had entered into with the Australian Taxation Office (“ATO”); (b) Correct issues in the practice concerning financial irregularities and report on those corrections to the QLS; (c) Complete the QLS Ethics course by 31 March 2018. The QLS decision was communicated to the applicant on 13 November 2017 by an Information Notice issued pursuant to s 61(3) of the LPA. On 14 November 2017, the applicant filed in the Tribunal an application for review of the QLS decision. The application was filed within the time prescribed by s 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). The applicant has now applied under s 22(3) of the QCAT Act for a stay of the QLS decision. If granted, the stay would permit the applicant to continue practising as the principal of Benson Lawyers pending the Tribunal’s review of the QLS decision. In relation to such a stay application, s 22(4) of the QCAT Act provides: “(4) The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following— (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.” Those enumerated matters are, clearly enough, factors to which I must have regard. But the authorities make it clear that, in considering the present application, it is also appropriate to consider the conventional curial principles relating to stay applications. I respectfully adopt the following observations by Wilson J in King v Queensland Law Society Incorporated1 (omitting references and citations): “The Society’s decision is what the QCAT Act calls a ‘reviewable decision’ – meaning that the Tribunal may review it, by way of a fresh hearing on the merits, to produce the correct and preferable decision. Under s 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) the Tribunal may make an order staying the operation of a reviewable decision but only if it considers the order is desirable having regard to the interests of any person whose interests may be affected by 1 [2012] QCAT 489. -- 3 of 8 -- 4 making of the order; any submissions made to the Tribunal by the decision makers; and, the public interest. As the Honourable James Thomas AM QC has observed in this Tribunal, s 22(4) of the QCAT Act spells out three particular factors the Tribunal must consider before granting a stay but, in doing so, does not exclude the application of standard principles, procedures and tests to be applied in applications for stays. The matters to be considered under those tests will include the applicant’s prospects of success in the review proceedings, the effect of any stay on them, and whether irremediable harm might be suffered by the applicant if a stay is not granted.” In that judgment, Wilson J also noted at [14] the authorities which support the propositions that in cases involving lawyers and their right to practice, factors that will justify a stay must be such as to outweigh the public interest, which is to be afforded particular significance, and that an applicant must show a cogent reason for a stay but will not do so merely by showing that the applicant would be unable to practice until the appeal is heard. It is sufficient in that regard to refer to the judgment of Chesterman J (as he then was), with whom McMurdo P and Helman J agreed, in Legal Services Commissioner v Baker (No 1),2 and the authorities cited by His Honour in that judgment. The relevant background of the applicant’s conduct which led to the QLS decision is largely undisputed. The Legal Services Commissioner has separately instituted disciplinary proceedings against the applicant in the Tribunal, and again the conduct under consideration there is largely the same conducted as was relied on by the QLS in making its decision. Whilst those disciplinary proceedings have not yet been determined, the applicant has indicated that there is little, if any, factual dispute in those disciplinary proceedings. The relevant conduct of the applicant was summarised in the Show Cause Notice which the QLS issued to him on 3 August 2017. This effectively called on him to show cause while the QLS ought not find him to be not a fit and proper person to hold an unconditional, unrestricted principal practicing certificate, having regard to a number of “suitability matters” which can be summarised as follows:3 (a) Repeated failure (despite numerous reminders and requests), to honour undertaking given on 18 June 2015 to the QLS to provide a report monthly to the QLS regarding progress against an ATO payment plan, other than reports provided on 31 March 2016; (b) Contraventions of the LPA and the Legal Profession Regulation 2007 (LPR), as found and advised to the applicant in the Trust Account Investigation Report dated 17 January 2017, in respect of which the applicant did not provided any explanation or response, or any confirmation that the conduct 2 [2006] 2 Qd R 107, particularly at [18] – [28]. 3 As defined in section 9 LPA. -- 4 of 8 -- 5 that led to the contraventions has been rectified. Such contraventions were as to: (i) Failing to have a trust account in which to receive trust money (contrary to s 247 LPA and s 33 of the LPR); and (ii) Failing to deposit trust monies into a trust account (contrary to s 261 of the LPA) and failing to keep trust records. (c) Contraventions of the Duties Act 2001, in endorsing instruments without first having received the amount of duty, interest and penalty tax or such amounts having been paid to the Commissioner of State Revenue. (d) That the applicant was currently subject to an application by the Legal Services Commissioner to QCAT under s 452 of the LPA. (e) That the applicant did not provide complete substantive responses to seven letters from the QLS. The Show Cause Notice called for written representations by 1 September 2017, and advised the applicant that, after that date, the QLS may take action to suspend, cancel or amend his practicing certificate. The only response from the applicant, however, was a letter dated 22 September 2017, attaching an integrated payment plan from the ATO. On 2 November 2017, then, the Executive Committee made the QLS decision and the Information Notice was issued. As I have said, there is little, if any, factual dispute. Some further observations are appropriate: (a) It is clear on the material that the applicant comprehensively failed to comply with a written undertaking he had volunteered to the QLS on 18 June 2015 to provide monthly progress reports about his ATO debt. He reported only once, on 31 March 2016, but otherwise did not provide the information he had undertaken to give. This failure occurred notwithstanding the QLS writing numerous letters to him in 2016 and 2017 chasing the information. Otherwise, the only time he provided information was his bare response to the Show Cause Notice. Prima facie, the applicant’s conduct in failing to adhere to his undertaking amounts to a breach of rule 6 of the Australian Solicitors Conduct Rules. In any event, it is a fundamental tenet of the profession that a solicitor’s word is his or her bond, and a failure to adhere to an undertaking is a matter which will be regarded seriously. (b) Consequent upon an investigation, the QLS issued a Trust Account Investigation Report (“TAI Report”) dated 17 January 2017 which detailed serious issues with respect to the applicant’s handling of monies. Not the least of these was his failure to keep and maintain a trust account. No explanation for this rather startling failure has been provided, notwithstanding the fact that the applicant clearly conducted a conveyancing practice for which a trust account would have been a necessity. Of a similar level of objective concern was the fact that the -- 5 of 8 -- 6 applicant, contrary to the Duties Act 2001, endorsed instruments for stamping without first having received the amount of duty, interest and penalty tax or without such amounts having been paid to the Commissioner of State Revenue. The applicant provided no explanation of excuse for any of this conduct either in response to the TAI Report or in his material in support of the present application. In his material filed in support of the present application, the applicant volunteered to provide the ATO reports and to address and correct issues which had been identified in the TAI Report. He also volunteered to enrol in a number of courses in ethics and practice management, and to seek counselling and professional mentoring. He said, amongst other things, that it was now clear to him that he needed assistance in improving his practice generally, including file creation, file maintenance and other associated things. The application for review filed by the applicant himself barely disclosed proper grounds for review. What was filed amounted to no more than an assertion that the QLS decision was unjust. On the hearing of the present application, counsel for the applicant was granted leave to give notice on behalf of the applicant of the following amended grounds of review: 1. “The decision was an improper exercise of power. 2. Taking an irrelevant consideration into account in the exercise of the power. 3. Failing to take a relevant consideration into account in the exercise of the power. 4. An exercise of a power that is so unreasonable that no reasonable person could have so exercised the power. 5. That the decision involved an error of law, whether or not the error appears on the record of the decision. 6. The decision is manifestly unreasonable, because there is no evidence of misconduct involving a client or member of the public. 7. The decision is manifestly unreasonable, because conditions could have been imposed on the Applicant’s unrestricted principal practising certificate, to protect the public in a serious risk were found to exist and it was necessary to take action to protect the public, 8. The decision that the Applicant is not a fit and property [sic] person to continue to hold an unrestricted principal practising certificate, is manifestly unreasonable.” Counsel for the applicant freely and properly conceded that the first five of these were merely statements of “very broad and generic grounds”, but asserted that grounds 6, 7 and 8 were “good and arguable”. There was, however, no elucidation as to why these grounds were “good and arguable”, nor to give any substance ot any of the amended grounds of appeal. -- 6 of 8 -- 7 In the uncontested factual context of this case, to describe these grounds as “good and arguable” is charitable, at best. In respect of ground 6, the inherent proposition in that ground that a decision as to a solicitor’s fitness and propriety cannot be determined without reference to conduct or misconduct involving a client or a member of the public is patently wrong. A solicitor’s paramount duty to the administration of justice incorporates elements which are completely subjective and fundamental to a person’s fitness and propriety to qualify for membership of the profession e.g. the duty of honesty. A solicitor’s capacity to observe and abide by an undertaking is clearly a matter which goes to the person’s fitness and propriety to practise, regardless of whether any third party is adversely affected by a breach of the undertaking. Ground 7 suffers from the same false premise. And, in any event, the applicant did not identify any of the conditions which the ground suggests ought reasonably have been imposed on an unrestricted practicing certificate in order to protect the public. Ground 8, which is patently unparticularised, is a general catchall. The applicant did not advance any, let alone any remotely tenable, argument in support of this ground. On the application of conventional curial principles, therefore, the application for a stay fails in limine. The arguments advanced by the applicant amounted to this: (a) If the QLS decision is not stayed, he will suffer extreme prejudice. His sole source of income will be denied to him. He is the principal breadwinner in his family. His wife, who works as the firm’s receptionist, will lose her job; (b) This experience has been a “wake up call” and he is now prepared to do whatever it takes to put his house in order; (c) His clients will suffer prejudice, particularly the Vietnamese clients. As to argument (b), it is notable that the seriousness of the conduct in which he was engaged apparently became evident to the applicant only after it became obvious that his unrestricted practicing certificate was to be taken away from him. That, of itself, bespeaks a concerning lack of insight on the part of a professional person. As to argument (a), the situation of potential prejudice in which the applicant finds himself is that of many practitioners who are placed in like situation. Yet, as Chesterman J said in Legal Services Commissioner v Baker (No 1), a person in this applicant’s position who seeks a stay must show a cogent reason for the stay “and he will not do so merely by showing that he will be -- 7 of 8 -- 8 unable to practise his profession until his appeal is heard and allowed”. His Honour continued:4 “Every practitioner who is suspended from practice or whose name is removed from the roll suffers that prejudice but it is clearly not right 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.” Beyond the usual prejudice suffered by persons in his position, the applicant has not pointed to any factor which outweighs the public interest. Moreover, the QLS has not moved to bar the applicant completely from practice. The effect of the QLS decision is to permit him to continue to practise, albeit in an employed capacity and subject to compliance with the stated conditions. No evidence at all was advanced as to any inability or incapacity on the part of the applicant to obtain employment as a solicitor with these conditions. In relation to argument (c), evidence has been adduced from the QLS to the effect that, if a stay is not granted and the QLS decision takes effect, the QLS will move to appoint a receiver to Benson Lawyers pursuant to Part 5.5 of the LPA. That appointment will result in the interests of current clients being protected. Additionally, the QLS has adduced evidence of there being several other law firms with Vietnamese speaking lawyers in the vicinity of Benson Lawyers. Arrangements can therefore be made to protect the particular interests of those clients. In those circumstances, the potential for prejudice to the applicant’s clients does not outweigh the public’s interest. These considerations also answer the requirement that I must have regard to the matters enumerated in s 22(4) of the QCAT Act. The applicant has failed to demonstrate that it is appropriate, in the circumstances of this case, for me to exercise the discretion to stay the QLS decision. Accordingly, the application for a stay is refused. 4 [2006] 2 Qd R 107 at [28]. -- 8 of 8 --