Application for Renewal of Legal Practising Certificate Refused by the Respondent
Castle v Queensland Law Society [2021] QCAT 300 (22 September 2021)
The applicant was a legal practitioner director of an incorporated legal practice. He applied for a renewal of his practising certificate. The respondent refused his application on the ground that he may not be a fit and proper person to hold an unrestricted employee practising certificate. The Court, in ruling on this dispute, relied largely upon the Legal Profession Act 2007 (Qld) (“LPA”).
Facts:
The Applicant, Davin Mark Castle, was admitted as a legal practitioner in Queensland on 12 July 2007. He held practising certificates issued by the Queensland Law Society (“QLS”) in accordance with the requirements of the LPA. The Applicant was the legal practitioner director of an incorporated legal practice, DMC Legal Services Pty Ltd trading as Brereton Lawyers (“Brereton Lawyers”). He did not hold a practising certificate because of his failure to renew during 1 July 2016 – 22 September 2016; and 1 July 2017 – 18 July 2017.
On 24 May 2019, the Applicant applied to the QLS for renewal of his practising certificate as an employee rather than as a principal. On 15 November 2019, the QLS wrote to the Applicant setting out its concerns that he may not be a fit and proper person to hold an unrestricted employee practising certificate and asking him to respond (“the Show Cause Letter”). The Applicant provided a number of written responses to the Show Cause Letter, on 15, 16 and 17 November 2019. On 20 February 2020, the Executive Committee of the Council of the QLS determined that the Applicant was not a fit and proper person to hold a practising certificate and decided not to renew the Applicant’s practising certificate (“the Refusal Decision”). The Applicant has applied under s 51(9) of the LPA for a review of the Refusal Decision.
The QLS asserts that the Applicant failed to fulfill his obligations because the external examiner’s report for the year ending 31 March 2017 was not given to the QLS until 29 November 2017, which was well beyond the prescribed 60-day period. In early 2016, Brereton Lawyers closed a trust account it had held with Bank of Queensland, but the Applicant failed to provide the QLS with the requisite bank statement showing closure or the external examiner’s report. In late 2017, the QLS wrote twice to the Applicant seeking an explanation for a trust account anomaly of $15,916 which had been identified in the external examiner’s report. The Applicant failed to respond to those requests for information.
DMC Legal Services Pty Ltd was deregistered by the Australian Securities and Investment Commission on 13 April 2018. The Applicant sent the QLS an undated letter, received on 26 April 2018, advising that the company had been deregistered and that Brereton Lawyers would cease trading at the close of 27 April 2018. Then, on 14 June 2018, the Applicant wrote to the QLS advising that Brereton Lawyers had ceased practising on 13 April 2018 and enclosed the Notice of Cessation of Legal Practice. After the QLS conducted a trust account examination (compliance review) into Brereton Lawyers revealing a number of trust account breaches, the Applicant failed to furnish a trust account reconciliation for the period under examination within seven days and investigate the reported discrepancies as requested by QLS.
Issue:
Whether or not the applicant is a fit and proper person to hold a practising certificate.
Applicable law:
Legal Profession Act 2007 (Qld) - imposes a strict regime for the maintenance of trust accounts in order to reinforce the ethical obligations on solicitors to treat trust money and property entrusted to them with absolute probity.
Legal Profession Act 2007 (Qld) s 46 - enumerates a range of matters relevant to the question of whether or not a person is a fit and proper person to continue to hold a local practising certificate.
Legal Profession Act 2007 (Qld) s 51 - provides that a regulatory authority must consider an application that has been made to it for the grant or renewal of a local practising certificate.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 - provides that:
(a) the purpose of this review is to produce the correct and preferable decision; and
(b) this review must be heard and decided by way of a fresh hearing on the merits.
Purdie v Queensland Law Society [2021] QCAT 291 - set out a number of propositions relevant to whether or not a person is a fit and proper person to continue to hold a local practising certificate, namely:
(a) the relevant question is whether the QLS would be justified in holding out the Applicant as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor; and
(b) whether a person is of “good fame and character” involves, amongst other things, the acceptance of high standards of conduct and acting in accordance with them under pressure.
Analysis:
The trust fund anomaly cannot be explained because the Applicant failed to obtain a final examiner’s report; and he threw away the server on which the firm’s trust account records were stored. The refusal of the grant of practising certificate was based on the Applicant's own advice to the QLS, that he practised without a practising certificate and without holding the necessary professional indemnity insurance. The QLS also identified, in its Refusal Reasons, numerous instances of communications by the Applicant to QLS officers which were inappropriate, insulting, and frankly, unprofessional. The Applicant on several occasions in his affidavits made generalised bald statements about having held a practising certificate during periods when he patently did not. In the cross examination of the Application, it was shown from his answers that he had little idea of the nature and seriousness of a solicitor’s obligations concerning the integrity of trust accounts and trust property.
Conclusion:
The Court concluded that the application to review a decision filed on 26 March 2020 should be dismissed. The Applicant's conduct point to a character which is not presently suited for practice in the legal profession. The Court further concluded that the Applicant was not then a fit and proper person to hold a practising certificate.
