Bradshaw v Bar Association of Queensland [2009] QSC 226

SUPREME COURT OF QUEENSLAND CITATION: Bradshaw v Bar Association of Queensland [2009] QSC 226 PARTIES: JAMES TODD BRADSHAW (applicant) v BAR ASSOCIATION OF QUEENSLAND (respondent) FILE NO/S: Cairns Registry107/09 DIVISION: Trial PROCEEDING: Originating application ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 13 August 2009 DELIVERED AT: Supreme Court, Brisbane HEARING DATE: 9 July 2009 JUDGE: Justice J S Douglas ORDER: Application dismissed with costs. CATCHWORDS: JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant seeks an order for judicial review of a decision of the respondent not to renew his practising certificate, and of the respondent’s failure to make a decision in respect of another application of the applicant for a practising certificate and of the effect of the resolution of the defendant to seek a report from senior counsel about the conduct of the applicant in arguing his own appeal in a matter before the Court of Appeal – whether the respondent was making unwarranted demands of the applicant, imposing conditions on his application to renew his practising certificate which were unreasonable and using its powers for an unlawful purpose and, in seeking an outside opinion from senior counsel, was seeking to delegate non-delegable functions. Legal Profession Act 2007 s 46(2), s 68(1)(a), s 68(1)(b), s 69(1), s 69(3)(b) Taxation Administration Act 1953 (Cth) s 8C(1) Legal Services Commissioner v. Bradshaw [2009] QCA 126, referred -- 1 of 10 -- 2 COUNSEL: Mr J T Bradshaw in person Mr B Bartley (solicitor) for the respondent SOLICITORS: Brian Bartley & Associates for the respondent [1] Douglas J: This is an application for judicial review covering three separate matters. The first is the review of a decision of the respondent, the Bar Association of Queensland, made 6 October 2008 not to renew the applicant, Mr Bradshaw’s, practising certificate. The second is of its failure to make a decision on 16 February 2009 in respect of another application by Mr Bradshaw for a practising certificate and the third is of the effect of its resolution of 22 May 2009 to seek a report from a senior counsel about the conduct of the applicant in arguing his own appeal in a matter before the Court of Appeal. [2] Mr Bradshaw is a barrister who has practised as such for many years. His amended application for a statutory order of review claims he is aggrieved because the respondent is making unlawful, unjustified and unwarranted demands of him, imposing conditions on his application to renew his practising certificate which are unreasonable and using its powers for an unlawful purpose and, in seeking an outside opinion from senior counsel, is seeking to delegate its duties and responsibilities where its function is not delegable. [3] His application was not supported by much of the documentary evidence showing what had occurred in his dealings with the respondent but that gap was filled by the material filed on its behalf. There was a variety of other factual matters referred to by Mr Bradshaw in his affidavit and written submissions but few of relevance to the issues actually raised by his application. Much of what he submitted related to his views of the merits of his application for a practising certificate rather than to the legality of the processes adopted by the respondent. [4] The matter proceeded by consent without substantial oral argument and on the basis of the written submissions filed by the parties. Mr Bradshaw had prepared his own submissions while the respondent’s were prepared by Mr Clothier of counsel. Mr Bradshaw consented to my deciding his application in spite of my status as a current associate member of the respondent and a former president. The evidence was summarised in the submissions filed on behalf of the respondent, a summary I have generally adopted in the next section of these reasons. Relevant Facts [5] On 4 April 2008, Mr Bradshaw was convicted before a magistrate of seven offences under s 8C(1) of the Taxation Administration Act 1953 (Cth) for failing to lodge income tax returns for the 1999 to 2005 financial years.1 He was fined $5,000.00. He was ordered to lodge his 1999 tax return within 3 months and his 2000 to 2005 tax returns within 6 weeks. [6] Information provided to the Bar Association showed that: 1 Affidavit of Daniel Leonard O’Connor filed 1 December 2008 in BS 10774 of 2008 (“O’Connor 1”), ex DLO-12 (pp.36-47). -- 2 of 10 -- 3 (a) Mr Bradshaw’s 1999 tax return had been prepared by accountants but, without his knowledge, had not been lodged. The reasons for this were unclear; (b) Mr Bradshaw was well aware that he did not lodge tax returns for the 2000 to 2005 financial years. He deliberately decided not to lodge returns for those years because he considered that he would not be liable to pay tax and, in those circumstances, did not regard it as important to lodge returns; (c) Mr Bradshaw received a notice from the Australian Taxation Office dated 26 June 2006 requiring him to attend to lodging his 1999 to 2005 tax returns by 21 August 2006. He did not comply with this notice; (d) By complaint and summons dated 6 December 2006, the Australian Taxation Office prosecuted Mr Bradshaw for failing to lodge his 1999 to 2005 returns; (e) By the time of Mr Bradshaw's conviction on 4 April 2008, he had not attended to lodging his 1999 to 2005 returns. This is apparent from the order made upon conviction requiring him to do so; (f) Mr Bradshaw later attended to lodging at his 2000 to 2005 tax returns. It is unclear whether he has lodged his 1999 tax return. [7] Mr Bradshaw notified the Bar Association of his convictions by letter dated 7 April 2008 which was received on 15 May 2008.2 He was obliged to do so pursuant to s 68(1)(a) of the Legal Profession Act 2007 within seven days because his convictions for tax offences constituted a show cause event. Pursuant to s 68(1)(b) of the LPA, Mr Bradshaw was obliged, within 28 days, to provide the Bar Association with a written statement explaining why, notwithstanding his convictions, he continued to be a fit and proper person to hold a practising certificate. [8] By operation of s 69(1) of the LPA the Bar Association was entitled to refuse to renew Mr Bradshaw's practising certificate if Mr Bradshaw either did not provide the required statement or if the Bar Association did not consider that Mr Bradshaw had shown in the statement that he was a fit and proper person to continue to hold a practising certificate. [9] Mr Bradshaw did not comply with his obligations under s 68(1)(b) by providing a written statement within 28 days of his convictions.3 The respondent contends justifiably, judging by the correspondence, that obtaining relevant information from Mr Bradshaw has been a continuing issue. [10] Mr O’Connor, the chief executive officer of the respondent, wrote to Mr Bradshaw by letter dated 30 May 2008.4 The letter was headed “Show Cause Event under the Legal Profession Act 2007”. The letter stated that the contents of Mr Bradshaw's 2 O’Connor 1, ex DLO-1 (p.1). 3 O’Connor 1, para 5. 4 O’Connor 1, ex DLO-2 (p.2). -- 3 of 10 -- 4 letter dated 7 April 2008 “will need to be put to the Council on the consideration of [his] application for renewal of a practising certificate for 2008/2009”. [11] The letter stated that the information contained in Mr Bradshaw's letter dated 7 April 2008 was insufficient and required Mr Bradshaw to provide further information by 16 June 2008. The further information included: (a) Documents in relation to the conviction proceedings; (b) A statement from Mr Bradshaw’s accountant as to whether or not he had put in place appropriate procedures to ensure that he remained tax compliant in the future; (c) A written response containing a detailed explanation for his failure to lodge the tax returns in question and any other statement he wished to make “concerning the above matters or otherwise relevant to the consideration of this matter”. [12] On 16 June 2008, the Bar Council resolved that as a show cause event had occurred in relation to Mr Bradshaw it would not make any decision about the renewal of his practising certificate until a response had been received from him and the matter properly investigated. 5 [13] Mr Bradshaw responded to Mr O’Connor’s letter of 30 May 2008 by letter dated 12 June 2008 received on 25 June 2008.6 He did not provide any information about steps taken to ensure future tax compliance. Apart from a statement prepared by Mr Bradshaw, documents relating to the conviction proceedings were not provided. Mr Bradshaw provided some assessment notices (incorrectly described as tax returns). [14] The respondent contends that Mr Bradshaw's response demonstrated a less than satisfactory attitude to what was a serious matter. He contended that his circumstances did not come within the “scope or intention” of the requirement to lodge tax returns because he did not owe any tax.7 He referred to the “irony... that this self-righteous assessment will be made by barristers no doubt indulging in fancy schemes to minimise taxation obligations”. [15] Mr Bradshaw made an application for renewal of his practising certificate dated 23 June 2008, which was also received by the Bar Association on 25 June 2008.8 In response to the question whether he was aware of any facts or circumstances in the past 12 months which might affect his fitness or practice or be likely to adversely affect his good name and character, he answered “no”. [16] On 21 July 2008, the Bar Council discussed the question of Mr Bradshaw's eligibility and fitness to apply for a renewal of his practising certificate. 9 It was resolved to accept Mr Bradshaw's application and to adjourn the further 5 O’Connor 1, ex DLO-3 (p.3). 6 O’Connor 1, ex DLO-5 (pp.5-18). 7 The respondent contended that it was notable that in this proceeding Mr Bradshaw still appeared not to regard his obligation to lodge tax returns as serious and drew attention to alleged statements that the process is obsolete; see amended application, ground 4(a) and Mr Bradshaw’s submissions, 3rd (para 6, last sentence), 6th page (para 3, third sentence). 8 O’Connor 1, ex DLO-6 (pp.19-24). 9 O’Connor 1, ex DLO-8 (p.26-28). -- 4 of 10 -- 5 consideration of the matter. It was resolved that a member of the Bar Council, Mr O'Gorman SC, would contact Mr Bradshaw to discuss relevant matters, including whether he needed assistance. [17] Mr O’Gorman SC did that. He wrote to Mr Bradshaw by letter dated 6 August 2008.10 The letter again adopted the heading “Show Cause Event under the Legal Profession Act 2007”. The letter set out the Bar Council's resolutions. It clearly identified that Mr O'Gorman SC's approach was made in relation to the consideration of his application to renew his practising certificate. Mr O'Gorman SC requested that Mr Bradshaw provide an affidavit confirming some matters he had been told and also confirm by 15 August 2008 that there was nothing further Mr Bradshaw wished to place before the Bar Council in relation to the matter. [18] Mr Bradshaw responded by providing an affidavit to Mr O'Gorman SC under cover of a letter dated 12 August 2008.11 The affidavit was unsigned and did not take matters further. Mr Bradshaw was further advised of information required from him by letter from Mr O’Connor dated 21 August 2008. 12 However, he did not respond to that letter.13 [19] On 6 October 2008, the Bar Council resolved to refuse to renew Mr Bradshaw's practising certificate for the reasons set out in an information notice which was tabled. 14 The information notice identified that it was given under s 69(3) of the LPA and identified Mr Bradshaw's convictions and his failure to provide an adequate explanation for his failure to lodge tax returns as the reasons for its decision. Mr O’Connor provided Mr Bradshaw with the information notice under cover of a letter dated 7 October 2008.15 [20] Correspondence ensued in which Mr Bradshaw's solicitors asked whether he had been charged with a disciplinary offence and suggested that he had not been given the opportunity to respond to a specific charge. 16 The respondent submitted that this misconceived its decision. It did not purport to charge or convict Mr Bradshaw of a disciplinary offence. It decided to refuse his application to renew his practising certificate. [21] Mr Bradshaw appealed against the Bar Association's decision not to renew his practising certificate pursuant to s 69(3)(b) of the LPA. The appeal was heard before Fryberg J on 9 December 2008. Mr Bradshaw represented himself. [22] In this proceeding Mr Bradshaw has expressed views, apparently based on his understanding of the proceedings, that Fryberg J indicated that he should withdraw his appeal, that he should apply for a new practising certificate and that his application should be granted. The transcript makes it clear that he misunderstood the course of those proceedings. [23] At the commencement of proceedings, Mr Clothier for the Bar Association objected to Mr Bradshaw's attempt to introduce further evidence on the ground that the 10 O’Connor 1, ex DLO-13 (p.49-50). 11 O’Connor 1, ex DLO-13 (pp.55-57). 12 O’Connor 1, ex DLO-16 (pp.67-69). 13 O’Connor 1, para 24. 14 O’Connor 1, ex DLO-21 (pp.106-108). 15 O’Connor 1, ex DLO-22 (p.109-111). 16 O’Connor 1, exs DLO-23-28 (pp. 112-123). -- 5 of 10 -- 6 appeal was an appeal in the strict sense and not a hearing de novo.17 Because the Bar Association made the objection, it addressed first on the nature of the appeal. 18 In the course of legal argument on the point it became relevant to consider whether the LPA contained any restriction on a person in Mr Bradshaw's position making a fresh application for a practising certificate. Mr Clothier submitted that there was no such restriction and stood the matter down for a short period to confirm that was the Bar Association's position. Those instructions were obtained and the position was conveyed to Fryberg J. It was expressly stated that no representation was made that any further application would be successful and Fryberg J acknowledged this.19 [24] Fryberg J ruled in favour of the Bar Association on the nature of the appeal. 20 As Mr Bradshaw was not prepared to deal with his appeal on this basis, counsel for the Bar Association addressed first in order to give Mr Bradshaw time to prepare.21 [25] At the conclusion of submissions, Fryberg J offered Mr Bradshaw the opportunity to withdraw his appeal. Mr Bradshaw decided to withdraw the appeal. It was struck out and an adverse costs order was made against Mr Bradshaw.22 At no point did Fryberg J express a view about whether any further application Mr Bradshaw might make was likely to be granted. [26] An application for a new practising certificate was received by the Bar Association on 11 December 2008 under cover of a letter from Mr Bradshaw dated 10 December 2008.23 The letter identified that in contravention of the order made against him on 4 April 2008 Mr Bradshaw had still not lodged his 1999 tax return. The application identified that complaints had been made, or were currently being made, against Mr Bradshaw. However, contrary to the requirements of the application form, no details were provided. Mr Bradshaw’s application was considered at a meeting of the Bar Council on 16 February 2009.24 This was the first meeting held after the application was received. [27] On 20 February 2009, Mr O’Connor wrote to Mr Bradshaw requesting further information, including information about his tax compliance, details of any finalised complaint against him, details of any unresolved complaint against him and his proposal to satisfy the costs order made by Fryberg J.25 [28] Mr Bradshaw responded by letter dated 3 March 2009.26 He did not provide the requested information and expressed indignation at being asked about unresolved complaints against him and what he characterised as the demand for payment of the costs order made by Fryberg J. He then commenced this proceeding on 5 March 2009. 17 Affidavit of Daniel Leonard O’Connor filed 22 June 2009 in this proceeding Cairns No. 107 of 2009 (“O’Connor 2”), ex A, p.2 l.50. 18 O’Connor 2, ex A, p.3 l.40. 19 O’Connor 2, ex A, pp.23 l.20-25 l.60. 20 O’Connor 2, ex A, pp.26 l.25-29 l.30. 21 O’Connor 2, ex A, pp.30 l.20-32 l.30. 22 O’Connor 2, ex A, pp.71 l.10-72 l.40; 74/75. 23 O’Connor 2, ex A, pp.76-83. 24 O’Connor 2, ex A, p.84. 25 O’Connor 2, ex A, pp.85-86. 26 O’Connor 2, ex A, pp. 87-89. -- 6 of 10 -- 7 [29] Mr O’Connor wrote to Mr Bradshaw on 2 April 2009 giving him another opportunity to provide the information requested in the letter dated 20 February 2009.27 Mr Bradshaw responded by letter dated 13 April 2009 accusing the Bar Association of being determined to find an excuse to get rid of him and encouraging delays to build up a case against him. 28 Again the requested information was not provided. Instead, Mr Bradshaw indicated that he would see the Bar Association in court. [30] Subsequent investigations by the Bar Association disclosed the existence of unresolved complaints to the Legal Services Commissioner that Mr Bradshaw had not notified to the Bar Association, possibly because he believed that it would have received that information from the Legal Practice Tribunal.29 [31] The Bar Council met again on 20 April 2009.30 The minutes noted that the costs order made by Fryberg J was to be excluded from consideration. It was resolved to give Mr Bradshaw a further opportunity to provide information and this was again requested of him in a letter dated 22 April 2009.31 Some additional information was provided by Mr Bradshaw in a letter dated 8 May 2009.32 [32] On 15 May 2009, the Court of Appeal delivered judgment in the matter of Legal Services Commissioner v. Bradshaw.33 The Court of Appeal dismissed an application by Mr Bradshaw for an extension of time to appeal against orders of the Legal Practice Tribunal and to adduce further evidence. Mr Bradshaw represented himself before the Court of Appeal and the judgment raised concerns about Mr Bradshaw's competence in several respects. [33] The judgment was noted by the Council in its meeting held on 18 May 2009. 34 It was noted that careful consideration would need to be given to the issues raised. The Council resolved to obtain a copy of the transcript of hearing and appoint a senior counsel to “prepare a report for the consideration of the Bar Council”. It was noted that any such report would have to be provided to Mr Bradshaw for comment. Mr Bradshaw was notified of these matters by a letter from Mr O’Connor dated 22 May 2009.35 Mr Bradshaw responded by letter dated 27 May 2009 and by filing an amended application in this proceeding. [34] More recently, before the hearing of this application, Mr Bradshaw was notified that the Bar Council intended to determine his application at its next meeting on 20 July 2009.36 Nature of the application [35] The Bar Association makes the point that this is not a merits review of any decisions made by it about Mr Bradshaw’s application for a practising certificate. 27 O’Connor 2, ex A, pp.90-91. 28 O’Connor 2, ex A, pp.94-96. 29 O’Connor 2. ex A, pp.102-106. 30 O’Connor 2, ex A, pp.107. 31 O’Connor 2, ex A, pp.108-111. 32 O’Connor 2, ex A, pp.112-115. 33 [2009] QCA 126. 34 O’Connor 2, ex A, pp.144-145. 35 O’Connor 2, ex A, pp.146-148. 36 O’Connor 2, ex A, pp.149-150. -- 7 of 10 -- 8 Rather Mr Bradshaw needs to show that a decision has been made or conduct has been engaged in which is reviewable under the Judicial Review Act 1991 and to show that any such decision or conduct was affected by relevant legal error. The decision of 6 October 2008 [36] Any review of the decision of 6 October 2008 refusing a practising certificate is resisted by the respondent on the basis that any proceeding for a statutory order of review had to be made within 28 days of the decision. No such application was made and Mr Bradshaw instead elected to exercise his appeal rights under the LPA and then to withdraw that appeal. In those circumstances the Bar Association submitted that there are no conceivable grounds for an extension of time to review the decision in circumstances where Mr Bradshaw withdrew his appeal at the conclusion of a full hearing. Nor do Mr Bradshaw’s submissions or the evidence identify any reviewable error in the making of that decision by the Bar Association. His lodging of a fresh application that can be considered on its own merits makes any further review of the earlier decision pointless. There is no reason now to review that decision. The meeting of 16 February 2009 [37] The failure of the Bar Association to make a decision to grant a practising certificate at its meeting on 16 February 2009 appears to be criticised by Mr Bradshaw because there was delay. That date was the first meeting of the Bar Council after his application for a new practising certificate was received. The Bar Association’s submission is that it was reasonable for it not to decide the application then because of what it submitted was Mr Bradshaw’s persistent failure to provide information and because of its failure to contain details of previous and current complaints against him. Nor was his application accompanied by a statement in accordance with s 67(2) of the LPA explaining why, in spite of his convictions, which constituted a show cause event, he considered himself to be a fit and proper person to hold a practising certificate. [38] Consequently the Bar Association submitted that it did not unreasonably delay the determination of Mr Bradshaw’s application of 16 February 2009 but merely sought to afford him another opportunity to provide relevant information in the face of his own failure to do so. That seems to me to be correct and Mr Bradshaw has now been told that the Bar Association intends to decide his application in the near future. The imminence of such a decision renders theoretical Mr Bradshaw’s concerns that no decision has yet been made. Alleged delegation [39] The Bar Council’s resolution to refer the issues raised by the decision of the Court of Appeal 37 to another counsel for a report is not an impermissible delegation of the Bar Association’s obligation to decide Mr Bradshaw’s application for a practising certificate. It is clear from the material exhibited to Mr O’Connor’s affidavit that it wished a Queen’s Counsel or Senior Counsel to consider that decision and the record of the proceedings before the Court of Appeal and to report on matters dealing with Mr Bradshaw’s conduct in the matter and whether his conduct fell short of the standard of competence and diligence that a member of the public 37 Legal Services Commissioner v Bradshaw [2009] QCA 126. -- 8 of 10 -- 9 would be entitled to expect from a reasonably competent Australian legal practitioner. That does not amount to a delegation of the Bar Association’s decision making power but simply amounts to a decision by it to inform itself in a particular way as to matters which have been drawn to its attention as relevant to the substance of Mr Bradshaw’s application. [40] Rather than it being an impermissible delegation of its role it would have been a dereliction of its duty to ignore the comments made by the Court of Appeal. It was relevant for it to review the transcript of the argument before that Court and if it could be assisted in those tasks by a report from a senior counsel there was no reason why it could not take that step. That course of action does not mean that the Bar Association is delegating its function to decide Mr Bradshaw’s application. Relevant and irrelevant considerations [41] Otherwise Mr Bradshaw’s argument did not describe the grounds on which he relied coherently in terms familiar to administrative lawyers. It does seem clear, however, that he expects that the Bar Association may take into account irrelevant considerations or not take into account what he regards as relevant considerations, such as, for example, the length and nature of his career as a barrister. [42] For example, Mr Bradshaw contends that the Bar Association is taking into account complaints not substantiated or charged let alone proven. 38 These concerns of his appear to relate to litigation involving his wife where complaints have been made to the Legal Services Commissioner that he was practising law while not the holder of a current practising certificate. The Bar Association has requested information with respect to those complaints and has statutory authority to take into account a very wide range of matters in connection with this application pursuant to s 46(2) of the LPA, including “any suitability matter relating to the person”. There seems to me to be no reason why any order should issue from this Court preventing the Bar Association from considering such unresolved complaints in its exercise of that jurisdiction. [43] As the Bar Association also submitted, it is required to provide Mr Bradshaw with an information notice if it decides unfavourably to him which, among other things, states the reasons for the decision and would allow him then to consider whether it had failed to adhere to the standards required by the Judicial Review Act 1991. [44] Mr Bradshaw also contends that the respondent is using his application for a practising certificate as an impermissible attempt to obtain satisfaction of the costs order made by Fryberg J. It is apparent from the minutes of the Bar Council’s meetings that it is not considering the issue of the costs order in the context of Mr Bradshaw’s application. Although Mr O’Connor’s letter of 20 February 2009 asked for information about his proposal to satisfy that costs order he did not, on my construction of the letter, attempt to link that to the merits of his application for a new certificate. No occasion arises to require that that issue be excluded from the respondent’s consideration of his application. It has already decided not to do so itself. 38 Amended application grounds 1(b), 2(a) and 3(a). -- 9 of 10 -- 10 Conclusion and orders [45] Mr Bradshaw appears to contend that the Bar Association is illegitimately expanding and enlarging its inquiry into irrelevant matters. That does not seem to me to be correct. As the Bar Association submitted, where Mr Bradshaw is in a show cause situation and is required to demonstrate that he is a fit and proper person to hold a practising certificate, it is entitled to seek information with respect to all matters of potential relevance to the issue in order to advance its consideration of the application. [46] This seems to be me to be correct and I am not satisfied that Mr Bradshaw has established any ground to review the conduct of the respondent in its consideration of his application for a practising certificate. His application should be dismissed. [47] I proposed to hear the parties as to costs on the delivery of these reasons. There was no appearance for Mr Bradshaw, however, and the Bar Association asked for its costs of the application. There seemed no reason why I should not make such an order. Accordingly the application is dismissed with costs. -- 10 of 10 --