Queensland Law Society

Legal Services Commissioner v PS Merkin [2017] QCAT 440

Legal Services Commissioner v PS Merkin [2017] QCAT 440

Catchwords

Whether the Legal Services Commissioner complied with s 449 Legal Profession Act 2007 (Qld) –whether compliance with s 449 is a jurisdictional requirement of bringing disciplinary proceedings under s 452.

Executive summary

Ms M (‘the applicant’) sought to strike out a disciplinary proceeding brought against her by the Legal Services Commissioner (‘the respondent’) on grounds the respondent breached s 449 Legal Profession Act 2007 (Qld) (‘LPA’) and as a result, the disciplinary proceedings were ‘infected with jurisdictional error, is a nullity and ought to be dismissed’.[1]

Orders made:

  1. The application to strike out disciplinary proceedings is dismissed.
  2. The applicant is to pay the respondent’s costs of the application to strike out to be assessed and paid at a time to be specified at the completion of the hearing of this discipline application.

Background

The applicant was a practising barrister whose conduct, on two separate occasions, caused concern to the Full Court of the Family Court of Australia which resulted in the Court forwarding their reasons for judgment to the Bar Association of Queensland to take whatever action was considered appropriate.

Both matters were brought to the attention of the respondent. The respondent gave the applicant notice of investigations into both matters.

The applicant applied to strike out disciplinary proceedings brought by the respondent against herself under s 47(1) QCAT Act where the alleged error of the respondent is said to be non-compliance of s 449 LPA. The applicant maintains that s449 LPA requires the respondent to provide her with his decision and reasons for the decision and the respondent failed to do so.[2]

In the alternate, the applicant submitted the respondent breached a duty to provide a written statement of reasons for a decision as provided for by s 158 QCAT Act.[3]

Issues

Did the respondent fail to comply with the requirements of s 449 LPA? And if so, whether the respondent was precluded from proceeding further with the disciplinary application against the respondent?[4]

Issues considered

Section 449 LPA does not require a record of a decision together with reasons be sent to any person or party, it only requires the making of such a record.

The Court determined s 449 LPA required an internal record be made to record the steps by which the Commissioner decides to go ahead with a disciplinary application, however, it does not consider this as a required step inter parties.[5]

The Court noted that the consequences of noncompliance with these internal requirements of s 449 LPA are not specified and the question was hypothetical in the present case, as there did not appear to be any evidence pointing to a breach. 

Further, it was asserted by the Court that when bringing disciplinary proceedings against a practitioner, ‘strict compliance with the requirements of s 449 LPA is not made a jurisdictional prerequisite’.[6]

In response to the applicant’s alternate submission, the Court held s 158 QCAT Act was not applicable to the proceedings as obligations under the section exist only in respect to ‘reviewable decisions’ and are for the benefit  of ‘a person who may apply to the Tribunal for a review of a reviewable decision’.[7]

Liam O’Shaughnessy

Ethics Clerk

As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics Centre



[1] Legal Services Commissioner v Merkin [2017] QCAT 440, [3].

[2] Ibid [14].

[3] Ibid [38].

[4] Ibid [4].

[5] Ibid [34].

[6] Ibid [36].

[7] Ibid [39].