Queensland Law Society

Legal Services Commissioner v MA Fellows [2017] QCAT 337

Legal Services Commissioner v MA Fellows [2017] QCAT 337

Catchwords

PROFESSIONAL MISCONDUCT – TAX OFFENCES – PUBLIC REPRIMAND AND PECUNIARY PENALTY

Executive Summary

The Respondent had contravened tax laws no less than 8 times over a 12 year period. The Tribunal determined that his omissions amounted to professional misconduct.

However, due to mitigating factors, including the Respondent complying with conditions imposed by the Bar Association of Queensland (‘BAQ’) over a 5 year period, the Tribunal ordered the Respondent to pay a $6,000 fine, the Applicant’s costs and be publicly reprimanded.

Background Facts

The Respondent is a barrister, and has been a member of the legal profession since 1980. The Respondent had been convicted of tax offences in 2001 (Charge 1), 2006 (Charge 2) and 2011 (Charge 3).

The Respondent had contravened s 8C(1)(a) of the Taxation Administration Act by failing to lodge an income tax or GST return at least 8 times over a 12 year period.[1]

The Respondent was involved in a busy regional practice and travelled extensively.[2]

The Applicant commenced disciplinary proceedings in 2014.[3]

After the Respondent’s 2011 conviction, the BAQ imposed conditions on the Respondent’s practising certificate.[4] Though these conditions were intended to remain in force until July 2014, the Respondent proposed that they continue until the discipline application brought by the Applicant was determined.[5] Over the last 5 years the Respondent has fully complied with these conditions.[6]

The Respondent disclosed that 30 years ago he was subject to another disciplinary proceeding,[7] concerning 5 charges of misappropriation, to which the Respondent pleaded guilty.[8] The misappropriation was not for personal gain and was categorised by the Tribunal as “maladministration”.[9]

Issue

The Tribunal had to determine whether the Respondent’s convictions for tax offences, and the related omissions over a 12 year period (which spanned three successive disciplinary regimes) amounted to professional misconduct. The Tribunal also had to consider whether mitigating factors could impact on sanctions to be imposed upon the Respondent.

Issue Discussed

The Respondent “readily accepted” that his conduct had been “unprofessional” and he “did not cavil with the [Applicant’s] submissions regarding the appropriate sanction or as to the question of costs”.[10] The Tribunal found that the Respondent’s repeated conduct could “only be categorised as professional misconduct”.[11]

The Tribunal found that the Respondent’s conduct constituted professional misconduct under all three Acts.[12] The Tribunal stated: “The failure to comply with such an important statutory obligation, shared as it is by all income-earning members of society, comfortably meets the common law definition… It also involved… a substantial failure to maintain a reasonable standard of competence and diligence. The feature that the practitioner in this case was guilty of repeated defaults of the same type only reinforces the conclusion that he consistently failed to maintain that standard.”[13]

The Tribunal found that the Respondent being busy afforded “no warrant for neglecting his statutory obligations on so many occasions”.[14]

The Applicant did not submit that the Respondent’s repeated omissions were deliberate.[15] The Respondent’s conduct was more akin to that of Cain,[16] Laurie[17] and Lee[18] in that the Respondent’s conduct is explained by an administrative breakdown or extraneous factors, rather than dishonesty or fraud.[19]

The Court found that three factors might inform the appropriate sanction to be imposed upon the Respondent:

1)    The Applicant’s delay in bringing the application;

2)    The period the Respondent has already served under the conditions imposed by BAQ;

3)    The Respondent’s previous disciplinary history.[20]

The Tribunal found the delay, both in the Applicant commencing disciplinary proceedings against the Respondent and the application coming before the Tribunal, to be “extraordinary”,[21] and not at all attributable to the Respondent.[22] The Tribunal found that the delay operated in the Respondent’s favour, not because he had been “under a cloud for so long”, but because the Applicant has had the opportunity to observe how the Respondent had modified his professional behaviour.[23]

The Tribunal found that the Respondent’s invitation to BAQ to extend the regime of conditions “reflects well on him”.[24] The Respondent’s full compliance with all conditions was found to be “a significant mitigating feature”.[25] The Tribunal therefore found that there was no longer any need for conditions to be imposed on the Respondent’s practising certificate.[26]

The Respondent made full disclosure about the previous disciplinary proceeding although the Applicant was unaware of it.[27] The Tribunal found that the Respondent’s prior disciplinary history was “of no great relevance to the present charges” because the prior conduct was “so dated”.[28]

Because of these three mitigating factors the Tribunal found a suspension of the Respondent’s practising certificate was not necessary.[29] However, because of “the gravity of the conduct underlying the charges”, the Tribunal held that a pecuniary penalty and public reprimand were required in order to denounce the conduct and personally deter the Respondent from such conduct.[30] Given that the Respondent had already been fined $22,000 as a result of his convictions, the Tribunal ordered the Respondent to pay the Applicant’s costs of $4,000 and a $6,000 fine,[31] having been satisfied that the Respondent did engage in professional misconduct.[32]

 

Harrison Lee

Ethics Clerk

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



[1] Legal Services Commissioner v Fellows [2017] QCAT 337, [20].

[2] Ibid [21].

[3] Ibid [25].

[4] Ibid [28].

[5] Ibid [29].

[6] Ibid [30].

[7] Ibid [31].

[8] Ibid [32].

[9] Ibid [33].

[10] Ibid [2].

[11] Ibid [17].

[12] Ibid [18].

[13] Ibid [18].

[14] Ibid [21].

[15] Ibid [23].

[16] [2009] LPT 19.

[17] [2011] QCAT 335.

[18] [2013] QCAT 335.

[19] Legal Services Commissioner v Fellows [2017] QCAT 337, [22].

[20] Ibid [24].

[21] Ibid [25]-[26].

[22] Ibid [26]-[27].

[23] Ibid [27].

[24] Ibid [29].

[25] Ibid [30].

[26] Ibid [30].

[27] Ibid [33].

[28] Ibid [34].

[29] Ibid [35].

[30] Ibid [38].

[31] Ibid [38]-[39].

[32] Ibid [40].