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Queensland solicitor refused practising certificate over trust account anomaly and inappropriate storage of trust property
The Queensland Civil and Administrative Tribunal has approved the Law Society’s decision not to renew a practising certificate after finding that the solicitor in question had poorly responded to a trust account anomaly, had been “insulting” towards the society’s officers, and had left trust property to become “infected with cockroaches”.
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The executive committee of the Queensland Law Society’s (QLS) council wrote to solicitor Davin Castle in February 2020 to refuse the application to renew his practising certificate based on its findings that he was not a fit and proper person. Following Mr Castle’s request for a review of this decision, the Queensland Civil and Administrative Tribunal (QCAT) recently confirmed that the Law Society was correct.
“The assertion was palpably wrong,” QCAT heard. “The anomaly had, in fact, been identified in the external examiner’s report supplied by the application to QLS. He also badly asserted that the sum in question was ‘simply ludicrous on any level’ and had to be an error. Despite the bluster, the applicant never explained the anomaly.”
QCAT also heard that the anomaly could never be explained because Mr Castle had failed to obtain a final examiner’s report, had thrown away the server that stored the trust account records and closed the trust account without first providing QLS with the requisite bank statements showing closure or providing the examiner’s report.
In January 2018, another trust account examination was carried out, and Mr Castle was asked to respond by mid-February but did not do so and failed to respond to follow-up emails in late February and early March. In April, when he finally responded, Mr Castle “belligerently queried the powers of the QLS” to investigate.
QLS discovered that a few weeks in July 2017, Mr Castle did not hold a practising certificate, nor did his firm carry professional indemnity insurance. In mid-July, Mr Castle communicated with QLS that the firm was still trading and had not ceased and submitted his application for the granting of a practising certificate.
In its refusal reasons, QLS identified “several other periods” during which Mr Castle practised without a certificate and without holding the necessary insurance. QLS also indicated numerous instances of communications by Mr Castle towards QLS officers, which were deemed “inappropriate, insulting and, frankly, unprofessional”.
At the hearing of the review application, QLS relied on three further circumstances that had come to light since it gave the refusal reasons. The first concerned the storage of safe custody documents – namely wills – which Mr Castle submitted was either not his problem or that he did not possess in any of his files.
“In fact, these, and many of the safe custody documents from [the firm] were sitting in boxes in an unsecured storage cage in the basement car park of an apartment complex where the applicant’s father lived,” QCAT heard. “The boxes did not have lids, were infested with cockroaches and were situated under a fire sprinkler. At least one of the wills the applicant had claimed was not in his possession was found.”
During cross-examination, Mr Castle conceded that he had placed the safe custody documents in the storage cage while knowing that other people had access to the same cage and understood that, “as a solicitor, this was not an appropriate repository”. He admitted ignorance of the availability of depositing the documents with QLS.
QLS also alleged that Mr Castle had sworn affidavits for the review hearing that contained untrue statements. QCAT said it was sufficient to note in judgment that Mr Castle had made “generalised bald statements “in the affidavits about having held a practising certificate “during periods when he patently did not”.
The judgment can be read on AustLII or JADE: Castle v Queensland Law Society [2021] QCAT 300 (22 September 2021).
