Professional Misconduct in Non-Disclosure of Traffic Infringements in Practising Certificate Renewal
In Legal Services Commissioner v O’Brien [2025] QCAT 190 (17 June 2025), a solicitor who harboured a longstanding traffic history failed – in his application to renew his practising certificate – to disclose two recent traffic infringements. He had a history of failing to disclose traffic offences and had previously been issued a practising certificate on condition he undertook an ethics course because of failure to disclose those offences. QCAT – by Justice Williams – found he had thereby engaged in professional misconduct. A significant pecuniary penalty and other conditions were imposed. Justice Williams wrote:
[1] This is a discipline application by the Legal Services Commissioner (LSC) under s 452 of the Legal Profession Act 2007 (Qld) (LP Act) for disciplinary orders pursuant to s 456 of the LP Act. The discipline application includes four charges against the Respondent, Benjamin O’Brien (Respondent), being:
(a) two charges of failing to disclose a suitability matter within the meaning of s 9(1)(a) of the LP Act when applying to renew his practising certificate; and
(b) two charges of having made a false declaration in his applications to renew his practising certificate submitted to the Queensland Law Society (QLS).
[2] The key facts and characterisation of the conduct are not in dispute between the LSC and the Respondent.
[3] At the hearing of the discipline application, several concessions were made in respect of matters that were in dispute between the parties. Consequently, the hearing of the disciplinary application proceeded on the basis that:
(a) Charges 1 and 2 were limited to the second limb set out in the charge.1 That is, that the Respondent engaged in conduct in the course of practice or otherwise which is likely, to a material degree, to bring the profession into disrepute.
(b) The Respondent’s conduct underlying the charges was not deliberate and, in particular, that the Respondent did not make the declarations knowing them to be false.2
(c) The LSC did not press the particulars at [1.19], [1.21], [2.5] and [2.7] of the discipline application.3
(d) The Respondent accepts that, in the particular context that arises here, the additional traffic offences were suitability matters that he was obliged to disclose on the renewal applications.
[4] Both the LSC and the Respondent agree on the following matters:
(a) Taking a global approach, it is open for the Tribunal to be satisfied that the charges are proven and that the conduct is properly characterised as professional misconduct.
(b) The sanction should be:
(i) a public reprimand;
(ii) the Respondent undertake and successfully complete the QLS Remedial Ethics Course at his own expense; and
(iii) a pecuniary penalty.
(c) There are no exceptional circumstances justifying an order departing from s 462(1) of the LP Act and the Respondent should pay the LSC’s costs of and incidental to the discipline application.
…
[10] In considering the conduct, it is relevant that, pursuant to s 420(1)(a) of the LP Act, conduct consisting of a contravention of a relevant law,4 which includes the Australian Solicitors Conduct Rules 2012 (ASCR),5 is conduct capable of constituting unsatisfactory professional conduct or professional misconduct.
[11] The LSC alleges the Respondent contravened Rule 5.1.2 of the ASCR and the conduct is capable of being unsatisfactory professional conduct or professional misconduct.
[12] Rule 5 of the ASCR states as follows:
Dishonest and disreputable conduct
5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or
5.1.2 bring the profession into disrepute.
[13] Further, in determining whether the relevant conduct amounts to unsatisfactory professional conduct or professional misconduct, the following authorities considering the general principles are of some assistance.
[14] In Legal Services Commissioner v Laylee [2016] QCAT 237, the Tribunal states the test required to establish unsatisfactory professional conduct as follows:
The test required to determine whether conduct is unsatisfactory professional conduct is such that the relevant ‘falling short’ does not embrace all cases of error but must be sufficiently substantial. There must be an appreciable departure from the standard for the conduct to be unsatisfactory professional conduct. An isolated instance, not involving unethical conduct, and more in the nature of conduct which might give rise to an assertion of negligence, is less likely to amount to unsatisfactory professional conduct. Serious, or repeated instances, are more likely to amount to unsatisfactory professional conduct or professional misconduct.6
[15] In Legal Services Commissioner v Bradshaw [2009] QCA 126, McMurdo P considered what must be demonstrated by the applicant to establish whether conduct falls within the statutory definition of unsatisfactory professional conduct and stated as follows:
In establishing whether conduct is unsatisfactory professional conduct, the commissioner is not required to prove what a member of the public expects of a reasonably competent Australian legal practitioner. This is not something easily capable of direct proof. But in any case, s 418 refers to what ‘a member of the public is entitled to expect of a reasonably competent Australian legal practitioner’. This is a standard to be determined by the tribunal after considering all the relevant circumstances pertaining in each case.7
[16] The test for professional misconduct was described by Thomas J in Adamson v Queensland Law Society Inc (1990) 1 Qd R 498 as follows:
The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.8
…
[19] The charges in the discipline application are as follows:
(a) Charge 1: “On 12 May 2021 the Respondent engaged in conduct, in the course of practice or otherwise, … which is likely, to a material degree, to bring the profession into disrepute”.9
(b) Charge 2: “On 25 May 2022, the Respondent engaged in conduct, in the course of practice or otherwise, … which is likely, to a material degree, to bring the profession into disrepute”.
(c) Charge 3: “On or about 12 May 2021, the Respondent made false declarations in his application to renew his practising certificate submitted to the QLS”.
(d) Charge 4: “On or about 25 May 2022, the Respondent made false declarations in his application to renew his practising certificate submitted to the QLS”.
[20] The particulars in respect of each of the charges can be considered together. The relevant facts include:
(a) At all material times the Respondent was an Australian legal practitioner pursuant to s 6(1) of the LP Act, having been admitted as a lawyer in the Supreme Court of Queensland on 13 July 2015.
(b) Between 24 June 2015 and on or about 3 April 2019 the following occurred (Historical Context):
(i) On 24 June 2015, the Respondent exceeded the speed limit by at least 13km per hour but not more than 20km per hour, the penalty being a $227 fine and accumulation of 3 demerit points (June 2015 Traffic Infringement).
(ii) On 17 July 2015, the Respondent exceeded the speed limit by at least 13km per hour but not more than 20km per hour, the penalty being a $235 fine and accumulation of 3 demerit points (July 2015 Traffic Infringement).
(iii) On 13 August 2015, the Respondent applied to the QLS for a practising certificate for the 2015/16 financial year and declared that he had not been subject to any suitability matters within s 9 and s 46 of the LP Act and did not disclose the June 2015 Traffic Infringement and the July 2015 Traffic Infringement.
(iv) On 19 May 2016, the Respondent exceeded the speed limit by at least 13km per hour but not more than 20km per hour, the penalty being a $235 fine and accumulation of 3 demerit points (May 2016 Traffic Infringement).
(v) On 31 August 2016, the Respondent used a handheld mobile phone while driving, the penalty being a $365 fine and accumulation of 3 demerit points (August 2016 Traffic Infringement).
(vi) On 26 September 2016, the Respondent became subject to a 1-year good behaviour period (Good Behaviour Period).
(vii) On 18 October 2016, the Respondent exceeded the speed limit by at least 13km per hour but not more than 20km per hour, the penalty being a $243 fine and accumulation of 3 demerit points (October 2016 Traffic Infringement).
(viii) On 23 November 2016, the Respondent used a handheld mobile phone while driving, the penalty being a $365 fine and accumulation of 3 demerit points. He received a further penalty of an accumulation of 3 demerit points for having more than two mobile phone offences within 12 months (November 2016 Traffic Infringement).
(ix) On 21 December 2016, the Respondent’s drivers’ licence was suspended for accumulating 3 demerit points during the 1-year Good Behaviour Period (Suspension).
(x) On 4 July 2017, the Respondent applied to the QLS to renew his practising certificate for the 2017/18 financial year and declared that he had not been subject to any suitability matters in s 9 and s 46 of the LP Act and did not disclose the June 2015 Traffic Infringement, the July 2015 Traffic Infringement, the May 2016 Traffic Infringement, the August 2016 Traffic Infringement, the Good Behaviour Period, the October 2016 Traffic Infringement, the November 2016 Traffic Infringement and the Suspension (together, the 2015 to 2016 Traffic History).
(xi) On 29 May 2018, prior to submitting an application to renew his practising certificate for the 2018/19 financial year, the Respondent sent an email to the QLS and disclosed that:
A. His licence was suspended due to an accumulation of demerit points on or about 22 February 2017; and
B. He breached a good behaviour bond on or about 23 November 2017 (29 May 2018 Disclosure).
(xii) On 1 June 2018, the Respondent provided a copy of his traffic history which outlined the 2015 to 2016 Traffic History.
(xiii) On or about 6 August 2018, as a result of the failure to disclose the 2015 to 2016 Traffic History, the Respondent’s practising certificate was renewed with the condition that the Respondent undertake the next available QLS Ethics Course.
(xiv) On or about 3 April 2019, the Respondent undertook the QLS Ethics Course.
(c) In respect of Charge 1:
(i) On 27 March 2021, the Respondent exceeded the speed limit by less than 11km per hour, the penalty being a $177 fine and accumulation of 1 demerit point (2021 Traffic Infringement).
(ii) On 12 May 2021, the Respondent applied to the QLS to renew his practising certificate and declared that he had not been subject to any suitability matters within s 9 and s 46 of the LP Act in the previous 12 months “which may affect [his] eligibility or fitness to hold a practising certificate”.
(iii) In making the application to renew his practising certificate, the Respondent:
A. did not disclose the 2021 Traffic Infringement; and
B. was aware or ought to have been aware that he was required to disclose the 2021 Traffic Infringement having regard to:
I. the Historical Context; and
II. the fact that the Respondent accepts that the 2021 Traffic Infringement should have been disclosed.
(d) In respect of Charge 2:
(i) On 21 March 2022, the Respondent exceeded the speed limit by less than 13km per hour, the penalty being a $183 fine and accumulation of 1 demerit point (2022 Traffic Infringement).
(ii) On 25 May 2022, the Respondent applied to the QLS to renew his practising certificate and declared that he had not been subject to any suitability matters within s 9 and s 46 of the LP Act in the previous 12 months “which may affect [his] eligibility or fitness to hold a practising certificate”.
(iii) In making the application to renew his practising certificate, the Respondent:
A. did not disclose the 2022 Traffic Infringement; and
B. was aware or ought to have been aware that he was required to disclose the 2022 Traffic Infringement having regard to:
I. the Historical Context; and
II. the fact that the Respondent accepts that the 2022 Traffic Infringement should have been disclosed.
(e) In respect of Charge 3:
(i) On or about 12 May 2021, the Respondent applied to the QLS for renewal of his practising certificate by completing the approved form published by the QLS (Approved Form) and submitting the Approved Form to the QLS before 31 May 2021.
(ii) The Approved Form required the Respondent to:
disclose whether he had been subject to any of the suitability matters mentioned in sections 9 and 46 of the [LP Act] within the 12 months before the lodgement of his application to renew his practising certificate which may affect his eligibility or fitness to hold a practising certificate.10
(iii) The Respondent falsely declared in the Approved Form that:
A. he had not been subject to any of the suitability matters mentioned in s 9 and s 46 of the LP Act within the last 12 months which may affect his eligibility or fitness to hold a practising certificate; and
B. all information and particulars in the Approved Form were complete and accurate in every detail.
(iv) The statements were false because in the 12 months before the Respondent completed the Approved Form, he had been subject to a suitability matter within the meaning of s 9 of the LP Act.
(f) In respect of Charge 4:
(i) On or about 25 May 2022, the Respondent applied to the QLS for renewal of his practising certificate by completing the Approved Form and submitting the Approved Form to the QLS before 31 May 2022.
(ii) The Approved Form required the Respondent to:
disclose whether he had been subject to any of the suitability matters mentioned in sections 9 and 46 of the [LP Act] within the 12 months before the lodgement of his application to renew his practising certificate which may affect his eligibility or fitness to hold a practising certificate.11
(iii) The Respondent falsely declared in the Approved Form that:
A. he had not been subject to any of the suitability matters mentioned in s 9 and s 46 of the LP Act within the last 12 months which may affect his eligibility or fitness to hold a practising certificate; and
B. all information and particulars in the Approved Form were complete and accurate in every detail.
(iv) The statements were false because in the 12 months before the Respondent completed the Approved Form, he had been subject to a suitability matter within the meaning of s 9 of the LP Act.
[21] The Respondent admits:
(a) the relevant facts and the Historical Context;
(b) that the 2021 Traffic Infringement in conjunction with the Historical Context is a suitability matter within s 9(1)(a) of the LP Act; and
(c) that the 2022 Traffic Infringement in conjunction with the Historical Context is a suitability matter within s 9(1)(a) of the LP Act.
…
In respect of Charges 1, 2, 3 and 4, is the Respondent’s conduct properly characterised as professional misconduct?
[26] The parties contend that considering the Respondent’s conduct globally, the proper characterisation of the conduct is professional misconduct.
[27] A failure to declare a suitability matter and making a false declaration as to a suitability matter as part of an application to renew a practising certificate is serious. It goes to the very heart of the regulatory regime and the ability of a legal practitioner to practise as a solicitor.
[28] The characterisation exercise is done by a consideration of the seriousness of the conduct itself. Subsequent events, such as rehabilitation and reaffirmation of character, are to be considered at the sanction stage and not as part of the characterisation exercise.13
[29] The characterisation exercise requires consideration of whether the conduct fell short of, or substantially departed from, the accepted standard of competence and diligence expected of a lawyer.
[30] Relevant considerations include:
(a) Section 9 of the LP Act outlines suitability matters, including whether the person is currently of good fame and character.
(b) Section 46 of the LP Act deals with suitability to hold a practising certificate, including consideration of any suitability matter, the identified matters, and “other matters the authority thinks are appropriate” in respect of whether a person is, or is no longer, a fit and proper person to hold a practising certificate.
(c) A central component of the practising certificate regime is the candour of legal practitioners in disclosing matters for consideration by the QLS.
(d) The online application for a renewal of a practising certificate asks the question:
Have you been subject to any of the suitability matters mentioned in ss 9 and 46 of the [LP Act] within the last 12 months which may affect your eligibility or fitness to hold a practising certificate? (emphasis added)
(e) This question requires the legal practitioner to actively engage in a consideration of their own conduct and potential suitability matters to satisfy themselves of whether any matters need to be disclosed.
(f) The online application for a renewal of a practising certificate requires a solemn and sincere declaration by the legal practitioner, including that the information and particulars are “complete and accurate in every detail”.
(g) The declaration requires the legal practitioner to reflect on the completeness and accuracy of the information being provided and to actively engage with what is required by the LP Act, the ASCR, and any other matters relevant to the regulatory regime.
(h) The standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner includes an understanding of the suitability factors in the LP Act, the importance of candour in disclosing matters, and the ability to self-assess.
(i) The online renewal application for a practising certificate consists of a number of dialogue boxes to be completed and the insertion of the legal practitioner’s name to complete the declaration. It appears similar to many other online forms of a general administrative nature. However, the completion of an online renewal application for a practicing certificate is not a simple “tick and flick” exercise.
(j) The online renewal application for a practising certificate requires the legal practitioner to personally engage with the requirements of the application and to apply intellectual rigour to what is required.
[31] The obligation to make candid and comprehensive disclosure of matters was described in Heffernan v Law Society (NT) by Grant CJ, Blokland and Brownhill JJ as follows:
The duty of candour applies to each of the suitability matters … If one of those suitability matters applies to an applicant for a practising certificate, or the holder of a practising certificate, the duty of candour obliges them to disclose it to the Law Society in comprehensive fashion. That, however, is not the limit of the duty of candour. It also obliges such a person to disclose to the Law Society any circumstances which might reasonably be considered to bring such a person within one of those suitability matters or otherwise to bear or reflect adversely on an assessment of fitness. It is then for the Law Society to determine, with all of the relevant information, whether the person is a fit and proper person to hold a practising certificate.14
[32] In Prothonotary (NSWSC) v Montenegro, the New South Wales Court of Appeal in a joint judgment of Meagher JA, Leeming JA and Emmett AJA found that the practitioner in that case had “no appreciation of the content and importance of his obligation of candour”.15 The obligation required disclosure of:
… all of the circumstances of his past misconduct which were likely to reflect adversely on his character and fitness to practise as a lawyer …in making disclosure he was required to focus on and disclose the aspects of his past misconduct that involved dishonesty or revealed a disrespect for the rule of law or otherwise affected his suitability to engage in the activities and enjoy the privileges [of the legal profession].16
[33] The Queensland Court of Appeal in Legal Services Commissioner v Scott considered a potential failure to disclose relevant information in an application for admission. In that case the non-disclosure was admitted, and steps were taken to remedy it which were accepted by the QLS.17 The question on the application concerned what should be done about the admission and continuing practice as a lawyer in light of the non-disclosures. Relevantly to this matter Alan Wilson J, with whom Fraser JA and Atkinson J agreed, stated:
… it is critical that all practitioners understand that the burden of full and frank disclosure is extremely onerous and must be met in full and with all necessary particulars, regardless of an individual applicant’s circumstances.18
[34] The Tribunal accepts the submission by the LSC that members of the public are entitled to expect that a reasonably competent Australian legal practitioner would:
(a) understand their disclosure obligations;
(b) understand the content and importance of the duty of candour;
(c) undertake adequate due diligence to satisfy themselves that they do, or do not, have any suitability matters to disclose;
(d) if already censured for non-disclosure, appreciate that matters of a similar nature would need to be disclosed in the future; and
(e) otherwise comply with their disclosure obligations.
[35] In respect of the solemn declaration, it is clear that the making of a false declaration by a legal practitioner is a serious matter. A legal practitioner is expected to carefully consider the questions asked on an application to renew a practising certificate and to take steps to satisfy themselves that any declaration made is true and correct. Making a false declaration is conduct which goes to the integrity of the legal practitioner and would involve a significant departure from accepted standards of competence.
[36] In Legal Services Commissioner v Telehus (Legal Practice), the Tribunal considered a false statutory declaration in support of an application for the issuing of a practising certificate and found that the seriousness of the conduct was “magnified by the circumstances in which [the] false statements were made”.19Whilst the declarations here were not statutory declarations, they were solemn declarations made to the QLS as part of the regulatory scheme for the issuing of practising certificates “whereby a solicitor is granted the privileges and takes on special responsibilities to the courts, clients and the community generally”.20 Accordingly, the seriousness of the conduct in the present case is similarly “magnified”.
[37] In Legal Profession Board of Tasmania v Haque, Blow CJ considered the conduct of a barrister providing false information in an application to renew a practising certificate.21 The conduct was found to be unsatisfactory professional conduct in that the conduct fell short of the standard of diligence to be expected of a reasonably competent Australian legal practitioner in the sense that:
practitioners must be expected to be diligent in providing accurate information, as distinct from misleading information, to the bodies that issue practising certificates.22
[38] In that case the legal practitioner contended that he was under a misapprehension of what was required to be disclosed. The LSC contends that here no such misapprehension could arise given the Historical Context. Accordingly, the conduct in the current case is more serious than in Legal Profession Board of Tasmania v Haque.
[39] Similarly, in Council of the Law Society (NSW) v Nguyen the Tribunal found the legal practitioner’s conduct in making a false declaration in applications for renewal of a practising certificate by failing to disclose disciplinary proceedings to be unsatisfactory professional conduct.23 The conduct was admitted and was not deliberate. The matter proceeded by way of consent order and the Tribunal noted that:
this case demonstrates the need for practitioners to be diligent, conscientious and careful with the documents they handle during the course of their practice, especially a document so fundamental to legal practice as the Application [for] renewal of a Practising Certificate.24
[40] It appears from that case that a considerable amount of leniency was extended to the legal practitioner in the particular circumstances. In contrast, here it is submitted that the Respondent had already been granted leniency in regard to his earlier non-disclosures which are part of the Historical Context. Accordingly, the conduct in the current case is more serious than in Council of the Law Society (NSW) v Nguyen.
[41] The Tribunal accepts the submission by the LSC that members of the public are entitled to expect that a reasonably competent Australian legal practitioner would make appropriate and diligent inquiries to ensure they do not make false declarations.
[42] A competent and diligent legal practitioner would:
(a) be mindful in making disclosures and solemn declarations that information provided to the QLS was “complete and accurate in every detail”, particularly in relation to an application to renew a practising certificate to be able to undertake work as a solicitor; and
(b) take steps to check whether they had any suitability matters to declare when applying to renew their practicing certificate.
[43] Considering the Respondent’s conduct:
(a) The Respondent’s conduct “strikes at the heart” of the Respondent’s entitlement to practice as a solicitor. It occurred as part of the Respondent’s application to renew his practising certificate which increases the seriousness of the conduct.
(b) The conduct goes to a legal practitioner’s ability to hold themselves out and to practice as a lawyer and has the potential to damage the public’s trust in the legal profession.
(c) The failures to disclose and the false declarations impacted the ability of the QLS to make a proper assessment of whether he was, at the relevant time, a fit and proper person to hold a practising certificate.
(d) The failures to disclose and false declarations occurred after the Respondent completed the QLS Remedial Ethics Course on or about 3 April 2019 as a condition of his 2017/2018 practising certificate (being the Historical Context outlined above).
(e) The conduct involved a significant departure from accepted standards of competence and diligence.
…
[49] The discretion to make any order the Tribunal thinks fit is a wide discretion and is exercised primarily in the protection of the public.25 Principles of personal and general deterrence are also relevant.26
[50] The LSC concedes that the following matters, including mitigating factors, are relevant to the appropriate sanction:
(a) General and personal deterrence remain of paramount importance.
(b) An aggravating feature is that the Respondent has previously been dealt with by the QLS for identical conduct. As a consequence, specific deterrence remains an important factor.
(c) In shaping the orders, the Tribunal should have regard to the protection of the public by the maintenance of proper professional standards.27 The protection of the public includes both the protection of the public against further misconduct of the Respondent and also similar conduct by other practitioners.28
(d) Mitigating factors include:
(i) The Respondent admitted the facts establishing the charges.
(ii) The Respondent cooperated with the Legal Services Commission through the investigation and the proceedings.
(iii) The Respondent has developed insight and currently acknowledges that disclosure of the 2021 Traffic Infringement and the 2022 Traffic Infringement should have been at the forefront of his mind.
(iv) The Respondent has implemented reminders in both the firm bring up system and on his mobile phone to obtain a traffic history report prior to renewing his practising certificate in the future.
(v) The Respondent has shown remorse and is sorry and embarrassed by his conduct the subject of the charges.
(vi) The Respondent self-reported his non-disclosures to the QLS and, on his 2023 application for renewal of his practising certificate, he was granted an unconditional practising certificate.
(vii) The Respondent has positive references and support from more senior practitioners. The character references speak of the Respondent being full and frank about the matters the subject of the charges, the Respondent being remorseful, and the Respondent otherwise being an ethical lawyer.29
[51] An order publicly reprimanding the practitioner may be imposed pursuant to s 456(2)(e) of the LP Act. The Respondent concedes that a public reprimand is an appropriate order.
[52] The impact of a public reprimand has been recognised previously by the Tribunal. In Legal Services Commissioner v Cruise, the Tribunal30 referred to the observations made in Council of the New South Wales Bar Association v Lott as follows:
A reprimand is a serious matter. It marks the disgrace of a member of an honourable profession inherent in the misconduct.31
[53] Further, the Tribunal in Legal Services Commissioner v Challen, recognised the seriousness of a public reprimand as follows:
[39]First, there will be an order that the respondent be publicly reprimanded. The respondent conceded that this was an appropriate order in this case. The impact of such an order being made cannot be understated, particularly when it is made against a practitioner of significant seniority and an otherwise unblemished professional record. As this Tribunal has previously said:
The making of a public reprimand is a serious step by the Tribunal and not one which should be taken or regarded lightly. The public reprimand is and will continue to be a permanent public blemish on the respondent’s professional record. It is and will continue to stand as a permanent reminder to the respondent, to the profession and to the public at large that there are adverse personal consequences when one engages in professional misconduct of this kind.32
…
Orders
[77] For the reasons stated above, the Tribunal orders that:
1. The Respondent’s conduct identified in respect of each of Charges 1, 2, 3 and 4 in the discipline application is proved and is found to constitute professional misconduct.
2. The Respondent is publicly reprimanded.
3. The Respondent pay a pecuniary penalty in the sum of $4,000 within three months of these orders being made.
4. The Respondent successfully complete the next available QLS Remedial Ethics Course at his own expense and provide to the Applicant, within a month of having completed the course, evidence of his successful completion of the course.
5. The Respondent pay the Applicant’s costs of and incidental to the discipline application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.
(emphasis added)
A link to the full decision is here.
1 T1-7 lines 10 to 42. In the circumstances where the Respondent was granted a practising certificate in 2023/2024 without conditions and it could be inferred that the Respondent was a fit and proper person to hold the certificate, and the LSC was not contending that the Respondent should be found to be, at the date of the hearing, permanently or temporarily unfit to practise.
2 T1-5 line 47 to T1-6 line 3 and T1–20 line 41 to T1-21 line 8.
3 T1-10 lines 8 to 9 (noting that the transcript incorrectly references [1.9] rather than [1.19]). That is, the LSC did not press for consideration and determination in this matter that a single traffic infringement was a suitability matter pursuant to s 9(1)(a) of the LP Act, or that a traffic infringement was a suitability matter pursuant to s 9(1)(e) of the LP Act as it constituted a conviction of an offence in Australia.
4 The term “relevant law” is defined in Schedule 2 of the LP Act to mean “this Act”. See also s 1 of the LP Act.
5 Being the version of the ASCR in force at the time of the Respondent’s conduct. Section 420(1)(a) of the LP Act includes a note that a contravention in relation to the LP Act includes a contravention of a regulation or legal profession rules.
6 At [43] per Thomas J.
7 At [54].
8 At 507.
9 Given the concession outlined at 3(a) above, the first limb of Charges 1 and 2 (being “the Respondent engaged in conduct, in the course of practice or otherwise, demonstrating that the Respondent is not a fit and proper person to practise law”) is not considered.
10 Application for Disciplinary Proceedings filed 28 June 2024, at 3.3.
11 Ibid at 4.3.
…
13 Legal Services Commissioner v Munt [2023] QCAT 479 at [105] and Legal Services Commissioner v Kirin [2024] QCAT 489 at [15].
14 [2023] NTCA 10 at [67].
15 [2015] NSWCA 409 , at [76].
16 At [77], citing the comments of Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284 at [19] –[20].
17 [2014] QCA 266 at [56].
18 At [56].
19 [2013] VCAT 2185 , at [115].
20 At [115].
21 [2015] TASSC 5.
22 At [31].
23 [2010] NSWADT 128.
24 At [9].
25 Legal Services Commissioner v Madden [2009] 1 Qd R 149 , 186 [122].
26 Attorney-General v Bax [1999] 2 Qd R 9 , 22.
27 Legal Services Commissioner v Munt [2019] QCAT 160 at [43]; Legal Services Commissioner v Madden [2009] 1 Qd R 149 , 186 [122].
28 Law Society (NSW) v Walsh [1997] NSWCA 185 at page 40 per Beazley JA.
29 See Affidavit of Martin Daniel affirmed 20 November 2024 at [14] to [15]; Affidavit of the Respondent at [21] and pages 1 to 11 of the exhibits.
30 Constituted by Daubney J (President), Mr Michael Meadows and Dr Margaret Steinberg AM.
31 [2019] QCAT 182 at [116], citing Council of the New South Wales Bar Association v Lott [2018] NSWCATOD 99 at [35].
32 [2019] QCAT 273, citing Legal Services Commissioner v Brown [2018] QCAT 263 at [42].
