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A Queensland solicitor facing disciplinary action over comments made on his firm’s Facebook page tried to have it struck out due to defects in the Legal Services Commissioner’s application.
An experienced solicitor and founder of a Queensland law firm attempted to have the Legal Services Commissioner’s disciplinary complaint tossed from the Queensland Civil and Administrative Tribunal (QCAT) over several errors in its application.
In the first, only realised after the disciplinary action was filed, the commissioner mistakenly referred to a comment made on a former client’s personal Facebook page, when in fact it was the firm’s page.
At the time of this first notice, the alleged conduct was also confined to the solicitor’s sending of emails to the complainant.
It was only after the solicitor raised the Facebook comments in explanation of the conduct that the commissioner alleged the comments “failed to maintain courtesy, integrity and professional independence” and engaged in “intimidating behaviours”.
The solicitor sought to have the application struck out on the grounds that the Facebook complaint was not the subject of a notice pursuant to section 437 of the Legal Profession Act, which requires the commissioner to give notice of the making or investigation of a complaint.
By not giving him the opportunity to answer the Facebook allegations, the solicitor claimed the disciplinary action was commenced in breach of the act, and therefore, the jurisdiction of QCAT was not engaged.
Alternatively, the solicitor submitted that the decision to file the application was made in breach of the natural rules of justice.
In response, the commissioner submitted that there was no breach. In the alternative, she sought to amend the application.
The submission that she was only obliged to give notice of the nature of the complaint or investigation matter and not a precise description was accepted, but the notice itself was not given, Justice Peter Davis said.
“It is obvious from the exchange of the correspondence between the commission and [the solicitor] that the commissioner did not initially understand that [the solicitor] had made a Facebook entry.
“Given that the commissioner did not, as at 1 December 2023, realise that [the solicitor] had posted on Facebook and therefore made representations to the world at large, it is very difficult to see how the nature of that conduct could have been the subject of the letter of 1 December 2023,” Justice Davis said.
However, it did not follow that because section 437 was not complied with, “that the disciplinary proceedings, which has been instituted in this case, has not enlivened the jurisdiction of the QCAT”.
In this case, there is one charge and two streams of particulars: one concerning the emails and one concerning the Facebook posts.
The charge concerns “written communications”, which is a description that Justice Davis found “easily fits the sending of the emails than it does the posting on Facebook. However, he added that one of the streams of particulars does include the Facebook post.
“The investigation proceedings are defective in that they contain an investigation matter (posting on the Facebook page) which has not been the subject of a notice under section 437.
“However, there are particulars that have been the subject of a notice under section 437. The charge is supported by those particulars and is therefore valid,” Justice Davis said.
Justice Davis added he would not identify real prejudice to the solicitor if the amendments were allowed, “and it is in the public interest for the entirety of the episode to be ventilated”.
