Queensland Law Society

Legal Practitioners Admissions Board v RFJ Doolan [2016] QCA 331

Legal Practitioners Admissions Board v RFJ Doolan [2016] QCA 331

Catchwords

PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION

Executive Summary

The Legal Practitioners Admissions Board (‘the Appellant’) appealed the decision made by the Queensland Civil and Administrative Tribunal (‘the Tribunal’) on 28 April 2016.

Mr. RFJ Doolan (‘the Respondent’) had sought an early declaration that he was a fit and proper person to be admitted to the legal profession under s32 of the Legal Profession Act 2007 (Qld) (‘the Act’).

The Appellant alleged that the Tribunal, in making a direction, erred in law by:

  1. making orders inconsistent with its factual finding
  2. venturing beyond matters for direction which the Tribunal had been referred to; and
  3. misapprehending that suitability matter s9(1)(m) could and ought be dealt with at the stage of issue of a practising certificate.[1]

By reason of these legal errors the Court of Appeal allowed the appeal, setting aside the decision of the previous appeal and making an order for the Appellant to properly refuse the declaration sought by the Respondent.[2]

Background

Among the suitability matters contained in the Act, which the Court must consider,[3] is the matter of whether an applicant for admission “currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner”.[4]

In December 2011, the Appellant refused the Respondent’s third application for early consideration of suitability. This was due to conflicting medical opinions regarding the Respondent’s mental health.[5]

In March 2016, the Respondent’s appeal to the Court of Appeal was allowed. The Board’s refusal to make the relevant declaration was set aside, and under Section 32(3)(b) of the Act the matter was referred by the Court of Appeal to the Tribunal for the making of two directions with regards to:

  1. whether, in light of the Respondent’s mental health, he was able to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner, with or without conditions attached to his admission as a legal practitioner and, if with conditions, what their nature would be.
  2. whether the declaration sought by the Respondent under Section 32 ought to be made.[6]

In February 2016, the Tribunal were presented with 5 medical reports dating between April 2011 and May 2015 prepared by two different psychiatrists.[7]

However, the psychiatrists were unable to reach any agreement on the Respondent’s particular psychiatric disorder.[8]

The gravest diagnosis proffered by the psychiatrist responsible for the three earlier reports was mild Asperger syndrome.[9]

However, the psychiatrist responsible for the two latter reports diagnosed the Respondent as suffering from “chronic moderately severe paranoid type schizophrenia”.[10] This psychiatrist also noted the Respondent’s “lack of insight into his condition and record of non-compliance with adequate treatment or medication regimes” which had made the Respondent “prone to impulsive and inappropriate behaviours”.[11]

The judicial member who comprised the Tribunal preferred the opinion of the latter psychiatrist,[12] and found the Respondent to be “probably unable to satisfactorily carry out the inherent requirements of legal practice”.[13]

However, the Tribunal merely acknowledged this finding as indicative of “partial incapacity for practice”,[14] and ultimately decided that it would not bar the Respondent’s admission into practice.[15] This decision was based on the Tribunal’s belief that suitability matter (m) was best considered by the regulatory authority in deciding whether conditions were to be imposed on the Respondent’s practicing certificate.[16]

This belief was justified by the Tribunal’s mistaken belief that admission without a practising certificate would not entitle the Respondent to communicate with clients,[17] given that much of the concern regarding the Respondent’s mental health pertained to his ability to interact with clients.[18] This was thus mistaken because an admitted practitioner may engage in legal practice as an employee in a legal practice or as a government legal officer.[19]

The Tribunal also reasoned that suitability matter (m) did not have sufficient weight “in the circumstances” to of itself justify refusal of the declaration sought under Section 32.[20]

The Tribunal decided that the Respondent’s “mental health (in its current state) will not, without more, adversely affect [the Appellant’s] assessment as to whether [the Respondent] is a fit and proper person to be admitted to the legal profession”. Thus, the Tribunal ordered the Appellant to make a declaration to this effect.[21]

Issues

The appeal concerned whether the Tribunal:

  • “effectively sought to usurp the role of the admitting court” by venturing beyond the directions it was ordered to consider by the Court of Appeal and “by reaching its own determination of the weight that ought to be accorded to suitability matter (m).
  • “misapprehended” that suitability matter (m) was not a matter that would carry weight at the stage of issue of a practising certificate.

Issues Considered

The Court found that the Tribunal had not given direction with respect to a matter referred to it for direction.[22] Ultimately the Tribunal had only given direction regarding whether the declaration sought by the Respondent ought to be made, without a discrete direction related to suitability matter (m).[23]

Whilst the Tribunal’s direction did account for suitability matter (m), the ultimate finding of the Tribunal did not conform to the findings concerning the Respondent’s mental health.[24] For this reason the Tribunal erred by not giving a direction that conformed to the finding, and conversely erred by giving a direction that did not conform to the finding.[25]

The Supreme Court of Queensland is the admitting authority under the Act. The Supreme Court must be satisfied that an applicant for admission is a fit and proper person to be admitted to the legal profession[26] and is statutorily required to consider each suitability matter in making a decision.[27] As such, it was not for the Tribunal to adjust the weight given to a particular suitability matter.[28]

The Tribunal’s direction was “infected by legal error”,[29] and would give rise to irreversible consequences if not set aside, given that:

  1. under s32 of the Act, the Appellant is statutorily empowered to make recommendations concerning applications for admission, but if the declaration was made pursuant to the Tribunal’s direction, its recommendation could not be qualified on account of matters considered in making the declaration because an early declaration given by the Appellant is also binding on itself.[30]
  2. under Section 46(4) of the Act, if the Supreme Court were then to decide a matter related to suitability to not be sufficient for refusing admission to legal practice, this same matter cannot be used to justify the refusal to grant a practicing certificate by the regulatory authority.

The “potentiality for that eventuality”[31] led the Court of Appeal to set aside the Tribunal’s direction under Section 153(2)(d) of the QCAT Act, and order the refusal of the declaration as sought by the Appellant.

Harrison Lee

Ethics Clerk

As approved by Stafford Shepherd, Director, QLS Ethics Centre



[1] Legal Practitioners Admissions Board v Doolan [2016] QCA 331, [32].

[2] Ibid [51].

[3] Legal Profession Act 2007 (Qld), s31(2).

[4] Legal Profession Act 2007 (Qld), s9(1)(m); the matters listed under s9(1) must each be considered by the Supreme Court as the admitting authority for Queensland legal practitioners in considering an applicant’s suitability for admission under s31.

[5] Legal Practitioners Admissions Board v Doolan [2016] QCA 331, [15].

[6] Ibid [16].

[7] Ibid [18].

[8] Ibid [18].

[9] Ibid [21].

[10] Ibid [21].

[11] Ibid [22].

[12] Ibid [24].

[13] Ibid [26].

[14] Ibid [28].

[15] Ibid [29].

[16] Ibid [29].

[17] Ibid [28].

[18] Ibid [25].

[19] Legal Profession Act 2007 (Qld), s44(2).

[20] Legal Practitioners Admissions Board v Doolan [2016] QCA 331, [28].

[21] Ibid [19].

[22] Ibid [39].

[23] Ibid [38].

[24] Ibid [41].

[25] Ibid [42].

[26] Legal Profession Act 2007 (Qld), s35(2)(a)(ii).

[27] Legal Profession Act 2007 (Qld), s31(2).

[28] Legal Practitioners Board v Doolan [2016] QCA 331, [45].

[29] Ibid [51].

[30] Legal Profession Act 2007 (Qld), s32(3)(a).

[31] Legal Practitioners Admissions Board v Doolan [2016] QCA 331, [50].