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A disciplined solicitor, whose income would be considered “substantial” by many in the community, failed to convince a tribunal that his financial position should spare him a fine or costs order.
Submissions by solicitor Bradley Jason Mifsud that a $5,000 pecuniary penalty would be “catastrophic” and “contrary to the interests [of] justice” have been dismissed by the Queensland Civil and Administrative Tribunal (QCAT) as “ludicrous”.
Justice Duncan McMeekin KC, alongside practitioner panel member Geoffrey Sinclair and lay panel member Keith Revell, were also critical of Mifsud’s submissions that his expenses left him nothing to pay the penalty, particularly because he currently has an income “that many in the community would consider to be substantial”.
“With respect again, it may be that he will need to alter his lifestyle and that of his family, and his expectations of his retirement needs, all of which are detailed, in order to meet the fine imposed.
“Again, we are sceptical of the premise. However, it has no impact on the appropriate sanction,” Justice McMeekin said.
Last month, Mifsud agreed with the Queensland Legal Services Commissioner that he engaged in unsatisfactory professional conduct by having two of his non-legally qualified paralegals act against each other during a 2019–20 conveyancing transaction.
Mifsud and the commissioner jointly submitted he should be publicly reprimanded and fined $5,000, but Justice McMeekin was unconvinced.
“Mifsud will have a costs order imposed against him and so some further monetary discouragement of such conduct. Nevertheless, we hold serious concerns as to the level of the fine proposed,” they said.
After being invited to make further submissions on the financial penalty, Mifsud sought that he receive a nominal penalty or have it waived entirely “on compassionate and equity grounds”. He also asked that no costs order be made in light of his potential insolvency.
In the alternative, Mifsud asked for a stay of a minimum of 12 months, pending formal statutory insolvency proceedings.
Of significance to him is that a pecuniary penalty would not be provable in bankruptcy, meaning his liability to meet the fine would continue after being discharged from bankruptcy if he entered that state.
Mifsud told the tribunal that he – and the young family he supports – could face a “permanent, lifelong debt trap that cannot be resolved through insolvency” should the court impose the financial burden.
In making these costs submissions, Mifsud has ignored “the protective effect of the making of the order and that it is a pronouncement to the community of the disapprobation of the tribunal and some measure of that”. In these circumstances, a nominal fine – a small, symbolic penalty – would be “inappropriate”.
Further, in the context of Mifsud’s debts, which the tribunal found to be “longstanding and many multiples of this fine”, the additional amount imposed by the penalty would be “hardly of significance”.
The tribunal did accept the commissioner’s submissions that the originally proposed $5,000 fine was well within range.
Justice McMeekin also accepted the commissioner’s submissions that, by resiling from his previous position in the July judgment, Mifsud has demonstrated “a lack of insight into his offending (and perhaps a previous disingenuous expression of insight)”.
Mifsud’s application for a stay was dismissed because it would be “tantamount to no order at all”, and – as submitted by the commissioner – inappropriate where there are no exceptional circumstances in play.
“The usual reasons to stay the effect of an order to temporarily pause enforcement or implementation include preventing irreversible harm not otherwise justified, for example, in respect of an interlocutory injunction, maintaining the status quo while an appeal is considered, or allow a party reasonable time to comply with complex terms or secure funds.
“No such considerations are present here,” Justice McMeekin said.
Mifsud is to pay the $5,000 pecuniary penalty before 14 September and to pay costs as agreed or assessed on a standard basis as if the matter were heard in the Supreme Court of Queensland.
