CITATION:	Legal Services Commissioner v XKR [2015] QCAT 469	

PARTIES:	Legal Services Commissioner (Applicant/Appellant)	
	v	
	XKR 
(Respondent)	

APPLICATION NUMBER:	OCR341-12	

MATTER TYPE:	Occupational regulation matters	

HEARING DATE:	On the papers	

HEARD AT:	Brisbane	

DECISION OF:	Justice DG Thomas, President
Assisted by:
Mr Thomas Bradley QC, Practitioner panel member
Dr Margaret Steinberg, Lay panel member
	
DELIVERED ON:	19 October 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The affidavit and submissions of the Respondent, as well as any parts of these reasons which relate to the family of the Respondent, are not to be published or made available to any person other than the Respondent and the Legal Services Commissioner. Publication of any of that information to persons other than the Legal Services Commissioner and the Respondent is prohibited.
2.	The Respondent’s conduct amounts to unsatisfactory professional conduct.
3.	The Respondent is to be publicly reprimanded.
4.	The Respondent is to pay the Applicants costs, fixed at $4,000.00, by monthly instalments over a period of 24 months from the date of this order, commencing on 30 October 2015.	
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where practitioner charged with two charges of breaching s 443(3) of the Legal Profession Act 2007 and three charges for conduct prejudicial to the administration of justice – where practitioner experienced unique and extreme personal circumstances at the time of the relevant conduct – where personal circumstances are subject to non-publication order – whether professional misconduct or unsatisfactory professional conduct

Barristers’ Conduct Rules 2011 r 12
Legal Profession Act 2007 ss 418, 419, 443(3), 456, 462, 656D
Queensland Civil and Administrative Tribunal Act 2009 ss 32, 66, 66(2), 107

Legal Services Commissioner v Madden [2008] QCA 301	

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION 
[1]	The Legal Services Commissioner alleges as follows:
Charge 1 – Breach of s 443(3) of the Legal Profession Act 2007
[2]	XKR failed to comply with a written notice issued on 28 June 2012 by the Legal Services Commissioner pursuant to s 443(3) of the Legal Profession Act 2007 (the Act).
Charge 2 – Breach of s 443(3) of the Legal Profession Act 2007
[3]	XKR failed to comply with a written notice issued on 28 June 2012 by the Legal Services Commissioner pursuant to s 443(3) of the Act.

Charge 3 – conduct prejudicial to the administration of justice
[4]	XKR failed to comply with QCAT Practice Direction Number 2 of 2010 by failing to file a response to the disciplinary application by the due date.
Charge 4 – conduct prejudicial to the administration of justice
[5]	XKR failed to comply with the directions of a Senior Member of the Tribunal made at a compulsory conference on 26 November 2013.
Charge 5 – conduct prejudicial to the administration of justice
[6]	XKR failed to comply with the directions of the President of the Tribunal made on 24 March 2014, requiring XKR to file and serve a response to the disciplinary application by 14 April 2014.
Background
[7]	XKR has sworn an affidavit dated May 2015 which deposes to the background circumstances which he submits are relevant to the charges.  His evidence in this respect is unchallenged.  
[8]	During the period from 2008 to 2013 his step-children were complainant’s in criminal proceedings. Charges of rape and indecent dealing against the children were brought against associates of their biological father.  At the time the offences were committed against them, the children were minors.
[9]	Convictions were obtained against the father’s associates.  
[10]	XKR and his family were greatly traumatised by the trial and the biological father’s efforts to gain access to the children and their mother, XKR’s wife, during the course of the investigation and subsequent trial.
[11]	During the ongoing trauma, due to fears for the safety of the family it was necessary, in consultation with the Queensland Police Service, to move the family to various places which included towns in New South Wales, and north Queensland.  
[12]	During these moves, communications with XKR’s chambers became very limited and sporadic.  XKR acknowledged that the ad hoc collection of his mail was not a suitable arrangement having regard to his professional obligations, but at the time saw there was no alternative. The safety of the family was the overriding and primary objective.
[13]	It was during this time that the events which lead to the first three charges occurred.  
[14]	The fourth charge related to compliance with an order following a compulsory conference.  XKR deposes to a misunderstanding as to the approach which was being taken by the Legal Services Commissioner after the conference and the recollection of Ms Cuthbert, the barrister who represented XKR at the conference, is similar to that of XKR.  
[15]	Whilst the Legal Services Commissioner has filed an affidavit by Darielle Glenna Campbell, no affidavit has been filed which deals with the assertions made by XKR, supported by Ms Cuthbert, in relation to the matters reviewed and agreed at the compulsory conference.  It follows that XKR’s evidence is unchallenged.
[16]	The final charge relates to an order made on 24 March 2014 which required XKR to file a response by 14 April 2014.  
[17]	XKR deposes to the fact that in April 2014 his step-son was almost killed as a result of an accident and, consequently, his family travelled to New South Wales to be with his step-son in the critical days following the accident when it was not known whether he would live or die.
[18]	His step-son was in a coma for several weeks and, at the date of swearing the affidavit, remained in need of constant care.
[19]	Because of the fact that XKR was in New South Wales maintaining a vigil for his step-son, he did not comply with the order made by the Tribunal.  
[20]	XKR filed a letter dated 7 April 2014 from Dr Pierre Janin of the NSW Hospital, in which reference is made to the injury and the need for XKR to be at hospital providing “much needed practical and emotional support”.
[21]	XKR deposes to the fact that the cost of this hospitalisation was in excess of $100,000.00, none of which was recoverable by insurance.  Moreover, following the acute phases of the post-accident treatment, ongoing costs of therapy and care are approximately $16,000.00 per month, again not covered by insurance.
[22]	Following the trauma associated with the criminal proceedings, XKR is now endeavouring to rebuild his practice and at present has receipts from his practice which average $22,000.00 per month.  He is the sole breadwinner for his family.
Non publication
[23]	On application by XKR an order was made that his affidavit and his submissions be kept on the file of the Tribunal in a sealed envelope and that the envelope not be opened by any person other than with the leave of the Tribunal or the express written consent of the respondent.
[24]	The order was sought to protect the family from having the details of their circumstances become available to persons who may have an interest in XKR by reason, for example, of an association with those mentioned in the affidavit, and also having regard to the ordeal suffered by XKR’s family, which heavily contextualises the conduct which is the subject of the proceedings.
[25]	Pursuant to s 656D of the Act, the Tribunal may make an order prohibiting the publication of the information stated in the order that relates to the discipline application, the hearing or an order of the Tribunal.
[26]	Pursuant to s 66 of the QCAT Act, the Tribunal may make an order prohibiting the publication of the contents of a document or other thing produced to the Tribunal, evidence given before the Tribunal or information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified.
[27]	The ability of the Tribunal to make such an order is constrained by reference to the factors outlined in s 66(2).  Relevantly for this purpose, s 66(2) allows the Tribunal to make such an order “to avoid endangering the physical or mental health or safety of a person”.
[28]	In all the circumstances, I am satisfied that publication of information relating to the step-children and family of XKR may endanger their physical safety and, in those circumstances, it is appropriate to make an order that the affidavit and submissions of XKR, as well as any parts of these reasons which relate to the family of XKR, are to not be published or made available to any person other than XKR and the Legal Services Commissioner. 
Discussion
[29]	Unsatisfactory professional conduct includes conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.  Professional misconduct includes unsatisfactory professional conduct if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence.  
[30]	Section 443 of the Act is to the effect that if a practitioner fails to comply with a requirement under s 443, the practitioner may be dealt with for professional misconduct.
[31]	The Legal Services Commissioner refers to rule 12 of the Barristers’ Conduct Rules 2011 which states that a barrister must not engage in conduct which is, among other things, prejudicial to the administration of justice.  The Legal Services Commissioner submits that there is a requirement for lawyers to act professionally with scrupulous fairness and integrity, and to aid the Court in promoting the course of justice and that, as a barrister with more than 20 years’ experience, XKR must have known that he must comply with directions of the Tribunal in relation to the filing of documents.
[32]	XKR accepts that charges 1 and 2 expose him to a finding of professional misconduct.  However, as to the latter charges of conduct prejudicial to the administration of justice, XKR suggests that, to the extent they are made out, the conduct would be characterised less as professional misconduct and more as unsatisfactory professional conduct, as the conduct lacks a flavour of deliberation or wilfulness and is more characterised by the failure of XKR to appreciate and cope with all that was required of him in the particular circumstances.  XKR urges that the Tribunal view his conduct “through the lens of his personal circumstances and those of his family at the relevant time”.
[33]	The conduct of XKR fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.  As to charges 1 and 2, cooperation by the legal profession with the professional associations and also the Legal Services Commission is essential to the proper administration of the profession, and so is a matter of extreme importance.  With that, and s 443(3) in mind, the conduct which is the subject of charges 1 and 2 is professional misconduct.
[34]	As to charges 3, 4 and 5, whilst there are a number of incidences of similar conduct, these charges largely arose out of one matter and against the background of the extreme circumstances, out of the control of XKR, in which he found himself.
[35]	Whilst that is the case, his conduct did fall short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, and so amounts to unsatisfactory professional conduct.
Penalty 
[36]	Section 456 of the Act deals with decisions of the Tribunal about an Australian legal practitioner.  
[37]	It is well established that disciplinary penalties are not imposed as punishment but rather for the protection of the community.  In considering the disciplinary order, regard must be had primarily to the protection of the public and maintenance of proper professional standards.
[38]	The Legal Services Commissioner does not submit that the conduct of XKR demonstrates unfitness to practice.  However, the Commissioner submits that XKR ought to satisfy the Commissioner that he is now able to cope with the stresses of legal practice, with which he has had difficulty in the past.
[39]	As a condition of issue of the 2014/2015 Practising Certificate to XKR, the Bar Association of Queensland imposed conditions designed to ensure that he maintains appropriate contact with the Bar Association.  In particular, XKR agreed to participate in a mentoring program with the mentors being Mr Fleming QC and Mr Plunkett.
[40]	The Commissioner submits that, having regard to the authorities and XKR’s personal and financial circumstances, the order should be:
•		a public reprimand, and
•		a pecuniary penalty between $2,000.00 and $5,000.00.
[41]	In his submissions concerning penalty, XKR referred to the high level of expense due to his step-son’s hospitalisation, and the continuing expenses which will be incurred.  XKR seeks that any pecuniary penalty be payable by him over a lengthy period of no less than 12 months.
[42]	It is unlikely that other practitioners will find themselves in the same situation as has faced XKR, particularly the extreme circumstances he confronted as to the criminal proceedings and the need to relocate his family, compounded by the near fatal injury suffered by his stepson which led to substantial financial commitments where, because of the issues to do with the criminal proceedings, XKR had not been generating income at significant levels for some years.
[43]	As observed, the aim of the orders in disciplinary proceedings is not to punish the practitioner but to protect the public. Relevant to that issue is the deterrent effect that any order will have upon other practitioners.  
[44]	In terms of the protection of the public the particular circumstances involving the criminal proceedings are now in the past and the Bar Association of Queensland imposed conditions concerning XKR’s practice.
[45]	Rather than impose similar conditions in the order made in these proceedings, that matter can be dealt with on a year by year basis by the Bar Association of Queensland, which will be in a position to make a decision based upon the then current position.
[46]	In the particular circumstances, the Tribunal is satisfied that the necessary aim of deterrence will be achieved by publicly reprimanding XKR but imposing no pecuniary penalty.
[47]	The Tribunal therefore orders that XKR be publicly reprimanded.
Costs
[48]	Section 462(1) of the Act entitles the Commissioner to costs unless the Tribunal is satisfied that exceptional circumstances exist.  As to charges 1 and 2, the Commissioner seeks an order for costs fixed in the amount of $2,500.  The respondent consents to this order.
[49]	As to charges 3 to 5, the Commissioner seeks an order that the costs be assessed.  XKR submits that the costs be fixed and would not disagree with a similar level of cost to that which was sought by the Commissioner for charges 1 and 2.
[50]	In relation to the costs issue, s 107 of the QCAT Act provides that if the Tribunal makes a costs order under the QCAT Act or an enabling Act, the Tribunal must fix the costs if possible.
[51]	The Legal Services Commissioner has made separate submissions in relation to charges 1 and 2 and charges 3 to 5.  Additional allegations and particulars are, as would be expected, provided as to the additional charges but, in each case, an affidavit (such as the affidavit of Ms Campbell) would be required, and the section in each submission on the disciplinary orders sought is identical.  The costs in relation to the additional charges would certainly be no more than double the costs associated with the first of the charges and from the document, it would seem that the figure would be less than double.
[52]	In those circumstances, the Tribunal orders that the respondent pay the applicants costs fixed at $4,000.00 and that such sum be paid by monthly instalments over a period of 24 months from the date of this order, commencing on 30 October 2015.