In Di Carlo v Bar Association of Queensland [2025] QCA 143 (1 August 2025), the Queensland Court of Appeal upheld the decision of the Judicial Member of the Queensland Civil and Administrative Tribunal which confirmed a decision of the respondent to refuse to renew the applicant’s practising certificate as a barrister. The court wrote:
[1] The applicant seeks leave to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) confirming the decision of the respondent to refuse to renew the applicant’s practising certificate.
[2] The applicant submits that leave ought to be granted, having regard to the consequences to the applicant’s ability to practice and what are said to be errors of fact and law, warranting intervention by this Court.
Background
[3] The applicant was admitted as a barrister in 1991. He practised that profession, at the private Bar, continuously from 1991 until 28 August 2024.
[4] The respondent is the local regulatory authority under the Legal Profession Act 2007 (Qld) (LPA). Relevantly, it has responsibility for the issuing of local practising certificates. A legal practitioner must be the holder of such a certificate in order to practise as a barrister. A practising certificate must be renewed for each financial year.
[5] On 28 August 2024, the respondent gave the applicant an information notice advising that the respondent had decided to suspend the applicant’s practising certificate, after being advised of the applicant’s bankruptcy.
[6] On 2 October 2024, the respondent gave the applicant an information notice advising that the respondent had decided to refuse to renew the applicant’s practising certificate for the 2024/2025 practising year.
[7] On 14 October 2024, the applicant applied to QCAT for a review of the decision to refuse to renew his practising certificate. At issue, on that review, was whether the applicant remained a fit and proper person to hold a practising certificate, and whether an order should be made requiring the respondent to issue the applicant with a practising certificate.
[8] On 9 December 2024, a Judicial Member of QCAT found that there could be no confidence that the applicant would follow the appropriate course of action in the future, nor that he could properly be entrusted to undertake the tasks that attach to the practice of a barrister in accordance with the demanding requirements under the LPA.
[9] QCAT ordered that the respondent’s decision to refuse to renew the applicant’s practising certificate be confirmed, that the applicant’s application for review be dismissed and that there be no order as to costs.
Leave to appeal
[10] Section 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides for an appeal to this Court from a decision of a Judicial Member of QCAT, in respect of errors of law. Leave to appeal is required if the error asserted is an error of fact or an error of mixed fact and law.
[11] The applicant seeks leave to appeal on 12 grounds. Some of those grounds assert errors of law only, others rely on errors of fact and/or errors of mixed fact and law.
[12] Having regard to the consequences of the decision to the applicant’s ability to practice as a barrister, in circumstances where he has been a practising barrister for in excess of three decades, the Court grants leave to appeal.
Grounds of appeal
[13] The applicant’s grounds of appeal are:
1. Ground one: the Tribunal erred in law in failing to carry out its statutory duty under section 20(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) which was to conduct a review of the decision of the Respondent by way of a fresh hearing on the merits. The Tribunal failed to properly carry out a fresh hearing on the merits for three reasons:
(i) the Tribunal’s reasoning is wrong with respect to the relevant period of time during which the Applicant’s impugned conduct is said to have occurred;
(ii) the personal situation of the Applicant did not receive any adequate or rigorous analysis in the reasons for the purpose of examining circumstances of mitigation, and, indeed, explanation for errors made by the Applicant;
(iii) the Tribunal failed to consider much of the uncontradicted evidence that supported the case of the Applicant. This overlaps with ground two.
2. Ground two: the Tribunal erred in law in failing to conduct the proceedings fairly, and thus failed to discharge its duty pursuant to s 28(2) of the QCAT Act. The lack of fairness arises from the failure of the Tribunal to consider important and relevant unchallenged evidence. The Tribunal’s reasoning is also wrong in important respects and contrary to uncontradicted evidence.
3. Ground three: the Tribunal denied the Applicant procedural fairness and thereby failed to discharge its duty under s 28(3)(a) of the QCAT Act. This relates to the making of adverse and serious findings against the Applicant which he had no opportunity to deal with either in cross-examination, or by his being examined by the Tribunal (which had this power). This failure is particularly significant in circumstances where the Tribunal made adverse findings about the integrity and sincerity of the Applicant which are matters which assume particular significance in disciplinary proceedings.
4. Ground four: the Tribunal erred in law by failing to give proper consideration to whether conditions proposed by the Applicant, which were not before the Respondent on its original decision, would have been adequate to overcome alleged problems with granting him a practising certificate. This was a serious error. It also underscores the fact that the Tribunal did not conduct a rehearing on the merits.
5. Ground five: the Tribunal erred in law in its application of the principle from Wardell v the New South Wales Bar Association [2002] NSWSC 548 at [52] in its limited reference to a ‘right thinking’ person. The Tribunal adopted the notion of a ‘right thinking’ person who would look at fault but would not take a fair look at the circumstances in which faults occurred, contrary to the authorities. In so doing, the Tribunal failed to take proper account of the Applicant’s exculpating features and his personal circumstances.
6. Ground six: the Tribunal’s reasoning about the Applicant’s trip to the People’s Republic of China (China) just before he filed for bankruptcy is wrong in fundamental ways. This episode attracted serious censure from the Tribunal but its reasons about it were wrong, in not just one, but several key respects. The Tribunal erred in finding:
(i) at [64] of the Tribunal’s reasons that the Applicant never explained the purpose of his travel;
(ii) at [72] of the Tribunal’s reasons that the Applicant represented that he had filed an application for bankruptcy before he flew out of Australia on 17 August 2024;
(iii) at [80] of the Tribunal’s reasons that even by the end of the hearing before the Tribunal, ‘it seems to have escaped the Applicant’s attention that what he did was wrong’.
7. Ground seven: the Tribunal erred in its approach to the Applicant’s evidence concerning his previous contempt conviction by:
(i) misrepresenting the Applicant’s written submission at [40] that his failure to disclose his conviction and punishment for contempt was of no significance;
(ii) rejecting the Applicant’s evidence that the conviction and punishment for contempt ‘slipped his mind’ at the time of applying to renew his practising certificate, or, in the alternative, finding that the fact that it had ‘slipped his mind’ was evidence of a ‘staggering lack of regard for the significance of the conviction’.
8. Ground eight: The Tribunal’s rejection of the Applicant’s submission that the hospitalisation did not ‘cross his mind’ when he was applying for his practising certificate was unfair for three reasons:
(i) the evidence gave rise to a number of explanations for why the matter may have in fact did not cross his mind.
(ii) The Tribunal gave no regard to the Applicant’s unsworn evidence that it was not intentional and that due to his health issues he found it difficult to concentrate on his own personal affairs and prioritised his client’s interests.
(iii) The Tribunal made a finding that there was a ‘continuing lack of candour’ by the Applicant concerning the hospital confinement but the Applicant was not cross-examined about his evidence and he was therefore not afforded an opportunity to respond to this assertion.
9. Ground nine: the Tribunal erred in its approach to the Applicant’s failure to pay tax in that the Tribunal:
(i) adopted an unfair and overly simplistic approach to this matter which ignored the Applicant’s personal circumstances, the fact that he was not evading tax but had numerous voluntary interactions with the Australian Tax Office (ATO) seeking temporary relief from payment, and that he was spending a lot of money on serious criminal charges that had been brought against him, including a trial of eight days which miscarried and is in the process of being heard again. The other charges were not proceeded with against him, but it was an expensive exercise for the Applicant to defend himself;
(ii) gave insufficient weight to the repeated, genuine, and unchallenged steps taken by the Applicant to engage with the ATO.
10. Ground ten: The Tribunal erred when it found at [106] that the Applicant ‘was more fortunate than others. He did not have to deal with adversity alone’.
11. Ground eleven: the Tribunal erred at law and fact in both misconstruing and giving insufficient weight to the Applicant’s apology.
12. Ground twelve: the Tribunal erred in failing to give proper analysis to the character references filed in support of the Applicant.”
Tribunal hearing
[14] The hearing was conducted on the basis that the facts were set out in extensive affidavit material. No deponent was required for cross-examination. The parties agreed that at issue was the applicant’s reasons for having engaged in the conduct set out in the second information notice, which formed the basis for the respondent’s decision to refuse to renew the applicant’s practising certificate.
[15] It was agreed that the base facts were not in contest with the applicant’s explanation to be “examined in light of the evidence and it can be determined whether the explanation is consistent with the evidence, is contradicted by the evidence or is not supported by the evidence …”.1
[16] It was also agreed that QCAT’s role was to review the respondent’s decision and to make the correct and preferable decision. Central to that decision was whether the applicant remained a fit and proper person to hold a practising certificate. A practising certificate is not to be renewed unless the holder of that practising certificate is a fit and proper person to continue to hold the practising certificate.
Information notice
[17] The information notice given on 2 October 2024 stated that, in the opinion of the respondent, a number of matters, when viewed together, compelled the conclusion that the applicant was not a fit and proper person within the meaning of s 51(5) of the LPA. Those matters were:
(a) On 29 August 2017, the applicant had been punished for contempt of the Magistrates Court of Queensland, a fact that was a suitability matter within the meaning of s 9 of the LPA, but the applicant did not disclose it in his application to renew his practising certificate on 1 June 2018.
(b) The applicant was a defendant in civil proceedings, the trial of which had been adjourned by reason of the applicant experiencing mental health difficulties which had led to his hospitalisation on 11 May 2023, but the applicant did not disclose mental health difficulties in his application to renew his practising certificate on 28 May 2023.
(c) When the respondent became aware of the applicant’s mental health difficulties, it required the applicant to attend a health assessment by a psychiatrist who reported, among other things, that the applicant had stated that he had not had negative feedback from clients, solicitors or the judiciary, that the applicant was unaware that he had to report an episode of ill health and that his application for renewal was managed by his wife as he had been too unwell in May 2023. The respondent recorded that the statement that the applicant had not had negative feedback from clients was inaccurate, as he had been the subject of a complaint; that the statement that the applicant was unaware that he had to report an episode of ill health was difficult to accept, given the seriousness of his ill health and the fact that every barrister is asked every year, as part of the renewal process, to state any matters which may affect their fitness; that the statement that his wife had managed his application raised whether the statutory declaration given as part of the renewal process, was in fact given by him; and that if the applicant in fact remained incapacitated at the date of applying for renewal, that itself should have been disclosed.
(d) The applicant had been notified, on 19 January 2023, by the Legal Services Commission, that a client had lodged a complaint against the applicant, but the applicant did not disclose that complaint in his application to renew his practising certificate on 28 May 2023.
(e) The applicant, on 12 September 2023, was informed by the Legal Services Commission of its intention to commence a disciplinary procedure in relation to that complaint, but the applicant did not disclose to the respondent that he had received such notice, in breach of an undertaking the applicant had given by email on 21 July 2023, to inform the respondent of the status of the complaint against him “when requested to do so, and upon any event that would reasonably prompt an update”.
(f) As a result of a judgment given against the applicant in the civil proceeding, a summons was issued on 24 July 2024, requiring the applicant to attend an enforcement hearing in the District Court on 22 August 2024. Despite the applicant knowing that he was obliged by summons to appear, the applicant departed Australia on 17 August 2024 and travelled to the People’s Republic of China, where he intended to stay past the date of the enforcement hearing.
(g) As a result of becoming bankrupt, the applicant had provided to the respondent a statement as to why he remained fit and proper despite bankruptcy. That statement brought to the respondent’s attention that the applicant had not paid any substantial amount of tax for at least two years and had an outstanding debt to the Australian Tax Office of $398,392.
[18] The information notice recorded the respondent’s conclusions:
45. On the basis of the above matters, the Association is satisfied that you are not a fit and proper person to hold a practising certificate and that it is therefore bound to refuse to renew your practising certificate. In particular, the Association notes that, in the period since you last made an application to renew your practising certificate (on 28 May 2023, for the 2023/24 practising year):
(a) you failed to disclose the fact that the LSC had informed you of its intention to commence a disciplinary proceeding against you to the Association, in breach of your undertaking to the Association, and against a backdrop of several previous disclosure failures;
(b) you failed to comply with your obligations regarding the statement of financial position;
(c) you failed to comply with the summons to attend the Enforcement Hearing and produce documents; and
(d) you entered into bankruptcy and you informed the Association of your failure to pay:
(i) all but a nominal contribution to historical tax debts due as at August 2022; and
(ii) make any payment of income tax in the 2022 and 2023 financial years despite having been assessed as owing amounts of $37,059.45 and $45,037.45. respectively in those years.
46. The Association considers that the conduct surrounding the various Disclosure Failures indicates that you have not treated your disclosure obligations under the Act with the seriousness required of a barrister. When they occur, you express contrition and explain those failures by reference either to forgetfulness or by reference to the various stressors present in your professional and personal life (or some combination of those). You do not appear to have been able to re-arrange your affairs so as to be able to comply with those various obligations.
47. Of particular concern with respect to the Disclosure Failures are the most recent ones. Disclosure Failure 4 occurred in circumstances where you had led evidence in the Civil Proceeding that you were probably cognitively unfit to give instructions to defend that proceeding. Disclosure Failure 5 occurred less than two months after you had given a written undertaking to keep the Association informed of developments with respect to the Habchi Complaint, the very subject matter of Disclosure Failure 5.
48. As to the failure to appear at the Enforcement Hearing, submissions made on your behalf are to the effect that you had an honest belief that you did not need to attend because you accepted the advice of Mr Dimond that the debtor’s petition, if lodged online, would be processed within 48 hours, and you believed that once the petition had been accepted, that would bring the enforcement proceedings to an immediate end and relieve you of the obligation to answer the summons.
49. As to the advice from Mr Dimond, we note that you are a very experienced barrister and it must surely have occurred to you that, regardless of what are the usual times for processing debtors’ petitions online, there must have remained the risk that yours would not be processed in time.
50. As to the belief that, if the petition was processed in time, you would not be required to appear and the enforcement proceedings would be at an immediate end, it is to be noted that:
(a) you make no direct submission that you in fact received legal advice to that effect;
(b) it is difficult to accept that a competent legal advisor would have informed you that it was sensible to travel overseas rather than take the less risky approach of attending at the Enforcement Hearing;
(c) it is submitted by Potts Lawyers on your behalf that you had no real familiarity with the Bankruptcy Act 1966;
(d) there was therefore no basis for you to be confident that your bankruptcy would have the effect you assumed; and
(e) it cannot be accepted that an experienced, competent barrister would think it appropriate to travel overseas and ignore an extant summons in those circumstances.
51. Further, it cannot be accepted that a competent legal practitioner would think it appropriate to travel overseas and essentially run the risk of not appearing in answer to the summons (and not producing the documents required to be produced under the summons) if the debtor’s petition was not processed prior to the time you were required to appear, or if it were not accepted.
52. This failure to appear in answer to the summons has occurred consequently upon your:
(a) failure to provide a completed statement of financial position within 14 days of being served on 25 June 2024, as required by rule 807 of the UCPR; and
(b) provision of only an unsigned statement of financial position on 15 August 2024.
53. The Association also notes that there is no suggestion that your travel to China was urgent. Potts Lawyers submits on your behalf that you took the caution of arranging plane tickets that would allow you to cancel and obtain a refund if necessary so that ‘you could appear in Court if [your] bankruptcy was not to proceed for any reason’. It is difficult to see how this ameliorates the position at all. You waited until two days after you had departed to lodge the petition, and, on your submission, you were acting on the assumption that the petition would be processed by 21 August 2024.
54. Your conduct of your taxation affairs is considered to be unacceptable. Barristers are officers of the Court. They are expected to comply with the law, including laws in relation to the payment of tax. Whilst the various stresses you have experienced are severe and unusual, their existence does not relieve a barrister of such basic obligations. Of particular concern is your decision to eschew an offer from the ATO to enter into what appears, considering the size of your debt, to have been an eminently reasonable payment plan. The Association notes your explanation in your statement that you did not want to set yourself up for failure, but does not consider that this is a sufficient excuse simply to refuse to enter into such a plan, much less to fail to engage in such circumstances to see if some more lenient plan could be achieved.
55 .Further, the failure by you to pay any tax at all for the 2022 and 2023 financial years, in the Association’s view, reflects an utter disregard on your behalf for the requirement to comply with fundamental tax obligations.
56. In the Association’s view, your conduct in connection with the Disclosure Failures, the Enforcement Hearing, your taxation affairs, and your bankruptcy demonstrates a poor attitude towards your responsibilities as a citizen and as an officer of the Court. When taken together, that conduct, and the disrespect to the Court, the profession, and the community that it entails, demonstrates that you are no longer ‘able to command the confidence and respect of the court, of [your] fellow counsel and of your professional and lay clients’.
…
QCAT decision
[46] Relevantly, QCAT found:
(a) When the applicant applied for renewal of his practising certificate for the 2018/2019 year, he was required to answer a question to the following effect: “In the past 12 months have you been or are you currently subject to any of the suitability matters listed in sections 9 and 46 of the LPA which may affect your eligibility or fitness to hold a practising certificate”, in response to which the applicant did not disclose his conviction and punishment for contempt on 2 August 2017. QCAT had been told that it “slipped his mind”. QCAT said, “If this was true, it evidenced a staggeringly lack of regard for the significance of the conviction”.
(b) In written submissions for the applicant it had been contended that the omission was of no importance because the applicant had disclosed the fact of a contempt charge when he applied for renewal of his practising certificate in 2017 and 2018. That submission reflected “a failure to take the contempt conviction seriously. It was also misleading and disingenuous”. In 2017, the applicant had disclosed the contempt charge telling the respondent that he intended “to vigorously defend this matter” and in 2018 he had informed the respondent that the matter was “still before the courts” and that “the date for the final resolution of the matter is yet to be made”. QCAT said that as a barrister of many years’ experience, the applicant appreciated the significant difference between being charged with an offence, which one intends to vigorously defend and being convicted and punished for committing the offence and that a conviction for contempt of court, for a barrister, is a serious matter.
(c) It had also been submitted for the applicant that there was “no attempt to hide” the fact that he was convicted of contempt. However, when the applicant completed each application to renew his practising certificate in each of the following five years, he never disclosed the conviction for contempt. If the applicant did not intentionally leave the contempt conviction out of his answer to the direct question in 2019 and did not intentionally omit to disclose it, it was more likely than not “he continued to treat it with the same lack of regard”.
(d) That on or about 28 May 2023, when the applicant applied to the respondent for renewal of his practising certificate for the 2023/2024 year, the applicant did not disclose that in the opinion of the treating medical specialist placed before the District Court, his mental health difficulties had made him so unwell that he could not defend a civil proceeding in which he was a party and that he had been hospitalised with that condition for nine days from 11 to 19 May 2023. Although the applicant later relied on these mental health difficulties to explain his failure to disclose another matter in the same renewal application, the applicant did not contend they were an explanation for the non-disclosure of an apparently acute mental health situation and hospitalisation, less than two weeks before his renewal application. The applicant, in the review application, denied that he remained incapacitated at the time he applied for renewal of his practising certificate, stating that he was in recovery and following medical advice in relation to a gradual return to work, such that there was no current incapacity that he had failed to disclose.
(e) The applicant’s submission that the apparently acute medical episode had passed from his memory, could not be accepted as the applicant had been discharged from hospital only eight days before he submitted the renewal application, having spent nine days in hospital. In the circumstances, the applicant displayed a lack of candour in his explanation for his failure to disclose this relevant matter and the applicant did not rectify this lack of candour during the hearing.
(f) Also on about 28 May 2023, in answer to the same question, the applicant did not disclose that on 19 January 2023, he had been advised by the Legal Services Commission that a client had lodged a complaint about the applicant’s conduct as a legal practitioner, a disclosable suitability matter.
(g) On 21 July 2023, the respondent wrote to the applicant requesting an explanation for not disclosing the complaint in his renewal application. On the same day, the applicant had replied that the complaint had completely slipped his mind; that nothing had occurred with respect to the complaint; and there was no follow up from the Legal Services Commission. The applicant undertook to inform the respondent of the status of the new complaint, “when requested to do so, or upon any event that would reasonably prompt an update”.
(h) This was not a trivial complaint. The client had alleged that the applicant had demanded to be paid $5,000 in advance for professional work as a barrister, had been paid that sum, had not performed the work and had refused to refund the payment. The applicant’s apparent disregard of the complaint indicated an inappropriate attitude towards complaints about his professional conduct and the processes of the Legal Services Commission. Due to the applicant’s disregard, he had misled the respondent by answering the renewal question as if there was no such complaint. If the complaint had not come to the attention of the respondent in some other timely way, the applicant’s practising certificate renewal would have been decided on that false basis.
(i) On 12 September 2023, the applicant received a letter from the Legal Services Commission setting out its intention to commence a disciplinary proceeding in relation to that complaint. Whilst that letter was received about eight weeks after the applicant had given the undertaking to inform the respondent, the applicant did not inform the respondent of this letter, in breach of that undertaking. The applicant was in breach of his undertaking for about eight and a-half months, until 27 May 2024 when the respondent wrote to the applicant, having become aware of the matters by other means. This lengthy period of default was more remarkable because the respondent on 9 February 2024, wrote to the applicant seeking his confirmation that the undertaking continued for the duration of his 2023/2024 practising certificate and the applicant, by his solicitors on 20 February 2024, had confirmed his obligation.
(j) On 27 May 2024, the respondent wrote to the applicant inviting him to provide reasons as to why he had failed to comply with his undertaking. On 28 May 2024, the applicant replied advising that he was seeking legal advice and stating that he was not a person who intentionally ignores undertakings, “either to the courts my colleagues the Bar Association or for that matter anyone”.
(k) On 28 May 2024, the respondent replied, referring to the exchange of correspondence in February 2024 and stating that it was imperative that the respondent be provided with a clear explanation as to his reasons for not informing it of the change in status in respect of the complaint matter. The applicant did not respond until 24 June 2024 when, through a new firm of solicitors, he confirmed that he did not advise the respondent of the correspondence from the Legal Services Commission as required by the undertaking and further, disclosed for the first time that he had, through other solicitors, “filed a submission with the Legal Services Commission in response on 31 October 2023”. The applicant’s response included an apology for his failure to comply with the undertaking, stating that the failure was a reflection upon the applicant’s lack of personal administration and his individual distressed personal circumstances, rather than any deliberate disrespect or malfeasance directed towards the respondent. The applicant had been facing criminal charges since 2017, there had been media publications about him in August 2023, there was a personal civil trial on 23 October 2023 and there was a direction from the respondent on 30 October 2023 that the applicant attend an independent medical specialist to assess his ability to perform as a barrister and “personal medical issues”. Those factors had a significant compounding effect from a personal health perspective and also from a professional administrative perspective.
(l) By 31 October 2023, the applicant had given his solicitors instructions to make a written submission to the Legal Services Commission about its intention to commence disciplinary proceedings, based on the client’s complaint and that when his attention was focussed on that change of status of the complaint, the applicant ought to have honoured his undertaking to the respondent. By then, the civil trial had been adjourned, the media publications about him were some months in the past, and the respondent had directed the applicant to attend an assessment by an independent medical specialist, for advice on his contention that he had fully recovered from his May 2023 acute mental health episode.
(m) The independent specialist who saw the applicant on 4 December 2023, diagnosed the applicant with two disorders in remission and residual features of a third; opined that the applicant had recovered almost completely from the acute episode in May 2023 and opined that the applicant had shown an ability to comply with treatment and seek additional assistance when there was a worsening; and that by his account, there were no other issues threatening his psychiatric health, such as substance abuse or cognitive decline in the absence of active psychiatric symptoms. The independent specialist further opined that the applicant “does not currently have a psychiatric, cognitive or substance use disorder that would prevent him from satisfactorily carrying out” the work of a barrister, or that would prevent the applicant from “making satisfactory disclosures” to the respondent.
(n) In the all now known circumstances, the applicant had capacity to receive and understand the Legal Services Commission’s 12 September 2023 communication and to give instructions to respond with a submission on 31 October 2023, such that he did not lack capacity to honour his undertaking to update the respondent in either respect for more than eight months and that the applicant’s lengthy breaches of his undertaking indicated that he continued to give little respect to the complaint and that he gave even less respect to his undertaking to the respondent.
(o) On 24 June 2024, the District Court gave judgment against the applicant in an amount of $240,000 and made directions for the parties to seek agreement on the interest to be included in the judgment. After judgment was entered, the plaintiff as enforcement creditor, had given written notice to the applicant requiring him to complete and return a Statement of Financial Position as an enforcement debtor, which the applicant was obliged to complete and return within 14 days, but did not do so. Although the applicant sought an extension of time, he never completed and returned the signed Statement of Financial Position as an enforcement debtor.
(p) When the time for its return had lapsed, the enforcement creditor applied to the District Court for an enforcement hearing. An enforcement hearing summons in the approved form was issued by the Registrar, with the applicant’s solicitors accepting service of the summons on his behalf on 24 July 2024. By the summons, the District Court required the applicant to attend an enforcement hearing on 22 August 2024, to provide information, answer questions and to produce documents before the Registrar in Brisbane.
(q) On 29 July 2024, the applicant sent an email to his solicitor stating that, should he decide to go bankrupt before the enforcement hearing, an issue was whether the bankruptcy would put an end to that hearing, which would involve the applicant’s wife as well. Whilst the applicant later told the respondent that he was “made aware” of the summons “around early August”, as the applicant had been communicating with his solicitor about putting an end to the enforcement hearing as early as 29 July 2024, it seems likely that the applicant was aware of the summons closer to the date it was served, 24 July 2024, and had given the solicitor instructions to accept service.
(r) On 4 August 2024, the applicant sent his solicitor an unsigned incomplete draft of the Statement of Financial Position, instructing that he wanted to go ahead with the plan “that we made”. The solicitor replied on 5 August 2024, “will do”.
(s) On 9 August 2024, the applicant purchased plane tickets to travel out of Australia. The applicant had sworn that he arranged tickets that “would have allowed me to cancel and obtain a refund for the tickets, if necessary, so that I could appear in Court if my bankruptcy was not to proceed for any reason”.
(t) On 15 August 2024, the applicant’s then-solicitor sent the enforcement creditor’s solicitors a copy of the unsigned Statement of Financial Position with supporting material on a without prejudice basis, making an offer to compromise the judgment debt which was open for acceptance until 4.00 pm that day, after which the offer was withdrawn completely.
(u) On 17 August 2024, the applicant left Australia for China, remaining there until he returned on 2 September 2024. QCAT said the applicant “never explained the purpose of this travel”.
(v) On 23 August 2024, the applicant, through his solicitors, wrote to the respondent to give notice of his bankruptcy. The solicitors confirmed that judgment had been entered against the applicant and that the decision was under appeal. The letter further stated:
An Enforcement Summons was served on [the applicant] to produce documentation. Without prejudice negotiations then ensued and these failed and accordingly [the applicant] filed an Application for Bankruptcy.
[The applicant] departed Australia on Saturday 17 August, 2024. At that time he was suffering a great deal of stress because of all of these economic matters and his pending criminal proceedings of which you are aware and has been visiting his psychiatrist … .
When he departed he was of the honest belief that the Certificate of Appointment of a Trustee would be issued well prior to the Enforcement Proceedings on 22 August, 2024 and that they would be stayed.
We requested an adjournment prior to that date and that was rejected and [the solicitor] appeared before the Registrar in the District Court on 22 August to advise the Registrar and at that stage it was understood that [the applicant] would be returning on 29 August and the hearing was adjourned to that date.
On the same day, 22 August 2024 the Certificate of Appointment was issued and we promptly gave notice to the solicitors for the enforcement creditor. There was no intention by [the applicant] to abuse the process or not respect his obligations but that has to be understood in the context of all of the matters with which he is now dealing.5
(w) The applicant’s solicitors adopted the same sequential description of the events in correspondence on 16 September 2024, as had the applicant in his affidavit sworn 4 August 2025. Each of these narratives represented that the applicant had filed an application for bankruptcy before he flew out of Australia on 17 August 2024, when the applicant had in fact agreed not to file it, to allow time to reach a settlement. These misrepresentations made more plausible, assertions that at the time he left Australia, the applicant was of the honest belief that a certificate of appointment of a trustee would be issued well prior to the enforcement proceedings on 22 August 2024 and that his bankruptcy would be processed prior to that enforcement hearing.
(x) Whilst the applicant had, in his affidavit, later sworn that the debtor’s petition was lodged electronically on 19 August 2024; that he had taken the enforcement proceedings very seriously and was not careless or reckless with respect to his obligations; and that he had erred in assuming that his bankruptcy would be made official before the enforcement hearing, “a person served with a summons to appear can hardly have been less cautious or more reckless than to purchase an airline ticket 16 days after service of the summons and fly out of Australia to China three days before the date they are commanded to appear, intending to be absent from the country on that date”.
(y) Whilst the applicant seemed to accept, on the final day of the hearing, this proposition, telling the Tribunal in a voluntary, unsworn statement from the Bar table that he had acted “cavalierly” in leaving Australia whilst the enforcement summons was pending, the applicant said:
I have always had respect for the courts, my colleagues, and will always have respect for the courts, the colleagues, the clients. I’ve never made, in my life, a misrepresentation to the court or to misled colleague or a court, and I pride myself in that. What I’ve done though is that I stupidly went to China. I have no idea what I was thinking at that particular time. I can’t even comprehend the nature of my thought. It was — to say it was cavalier is being generous to me in those circumstances. It was wrong and I apologise sincerely for that conduct. It was an affront to the court. I accept that. And one of the things I’ve learnt is that it doesn’t matter who’s on the bench, our duty is to the court, because that is justice and that’s what we’re looking at.6
(z) Even by the end of the Tribunal hearing, it seemed to have escaped the applicant’s attention that what he did was wrong:
The steps he took to prepare to lodge a bankruptcy application (and apparently lodge it electronically from outside Australia) were expressly aimed at preventing the judgment creditor (…) from taking further steps against him consequent upon his failure to comply with the summons. Simply put, the applicant planned and intended to disobey the summons issued by the District Court on 24 July 2024: a command that he appear and produce material to the Court on 22 August 2024. The discussions he had with his proposed trustee, with other accountants and advisers, with a colleague, and with his solicitor, were about how he might immunise himself from any ill-effect of his defiance of the Court’s summons.7
(aa) The applicant was not a teenager, unfamiliar with the role and authority of a court. By leaving the country shortly before the enforcement hearing, he showed a public disrespect for the District Court and its processes. His apparent lack of understanding and appreciation of the nature and effect of his conduct, marks his character.
(bb) Whilst the applicant had stated to the respondent that the reason he went bankrupt was because he could not afford to pay the judgment debt, such a subjective reason for filing a bankruptcy application, overlooked the other significant liabilities that had been accruing over the preceding five years, with the applicant’s taxation returns produced on the last day of the Tribunal hearing, making it likely he was unable to meet his debts as and when they fell due, long before that judgment debt.
(cc) Those returns revealed that the applicant had not paid any income tax, or remitted any GST he had collected to the ATO, since 1 August 2022 and likely not since 2019. Whilst in the review application the applicant stated that he had maintained constant contact with the ATO and was endeavouring to enter into an achievable payment plan, the applicant’s sworn evidence and the documents he produced, did not make good that contention. The applicant was behind in the payment of his taxation liabilities since about 2019. His accountant had negotiated two payment plans, counselling the applicant to pay them on time, but the applicant rejected both payment plans. The applicant also accepted that since December 2022, he had made only occasional contact with the ATO by telephone.
(dd) Although the applicant did not consciously decide to cease paying tax or remitting GST indefinitely, he knew he was not paying those sums and he knew the money he spent on any other thing was money he was denying to the ATO. That was at best irresponsible and reckless, as “[m]ost right-thinking members of the community expect people to honour their obligations to meet their debts, if they can. The applicant’s failure to do so, over a long period, would lead most people to conclude he was not a fit and proper person to hold a [practising certificate]”.
(ee) References supportive of the applicant continuing to hold a practising certificate contained opinions expressed by solicitors, which were confined to the applicant’s work and that the matters going to the applicant’s fitness to practise, did not concern in any substantial way, his ability to act as a representative of persons before the courts, charged with offences. They were character matters, rather than competency issues.
(ff) Weight was to be given to the opinions expressed by two King’s Counsel, but QCAT’s decision must be the correct and preferable decision based on all of the evidence before it. QCAT concluded:
[106] A person’s initial response to an adverse event (or a series of adverse events) likely indicates something of the person’s character. Due allowance should be made for the rawness of an initial reaction. It is likely to be more driven by emotion than by reason. The course a person has adopted with the benefit of time and professional advice is likely more representative of their character. The applicant was more fortunate than others. He did not have to deal with adversity alone. He had representatives and advisers for each of his various fields of tribulation. His conduct over time, with the benefit of professional advice, is likely a better gauge of his character than his initial untutored responses.
[107] The Tribunal has evidence of the applicant’s conduct over a reasonable period of recent time. This covers the period from August 2017, when he was convicted of and punished for contempt, from 2019, when he seems to have stopped paying income tax and ceased remitting GST to the ATO, from 2023, when he was less than frank with the Association about his mental health, failed to disclose a formal professional complaint, and breached his undertaking to the Association for an extended period, to August 2024, when he defied the enforcement summons.
[108] There was a pattern to the applicant’s conduct. It has marked his responses from the contempt in 2016 to the Association’s decision to suspend his practising certificate in August 2024. With the contempt charge, he retained leading counsel and was to vigorously defend himself. At the hearing, he admitted his guilt and submitted to the penalty.
[109] In the most recent iteration of this cycle, the applicant began the hearing on 2 December 2024 denouncing the Association’s decisions. His failure to disclose the contempt conviction was ‘of no significance’. The Association’s concern that he may have remained incapacitated nine days after being discharged from hospital for an acute mental health episode ‘cannot be sustained.’ His failure to disclose a complaint about his professional conduct and his subsequent breach of the related remedial undertaking did not reflect upon his fitness to practise law. His failure to appear in response to a court summons was ‘regrettable’, but not ‘careless’ or ‘reckless’. It was due to his ‘honest and mistaken belief’. By 5 December 2024, he was proposing to submit to five conditions if granted a PC. These included 12 months’ mentoring under a leading counsel, three-monthly reporting by his trustee in bankruptcy, six-monthly reporting from his private accountant, completing a Queensland Law Society Legal Ethics Course, and an additional five hours of professional development focussed on tax accounting and management.
[110] In his voluntary unsworn statement to the Tribunal, the applicant said it was only in the ‘last 90 days’ when he had been unable to practise as a barrister that he came to realise ‘it was also important that [he] look after [his] own affairs.’ Even so, the applicant was unable to explain his conduct or identify what he would actually do differently in the future. He offered nothing in respect of his history of failures to disclose suitability matters to the Association. He had ‘no idea’ what he was thinking when he flew to China a few days before the summons required him to appear in the District Court. He could not ‘begin to think’ why he did not make a payment arrangement with the ATO. In the end, the applicant described his conduct as ‘stupidity’. He concluded:
And so essentially, what I want to do is apologise to the court and just put on the record that … I’d like to think I’m not bad intentioned, but I made bad mistakes and I apologise to the court and to the Bar Association and my colleagues and to the public at large for my stupidity. And I don’t know that I can say much more, your Honour. That is my apology. If I could be excused. … that’s all I have to say.
[111] The applicant continues to be subject to criminal charges, which were first pressed against him in 2017. So, he continues to be on the ‘rollercoaster’ he has been riding for about seven years.
[112] The courts are experienced in assessing the genuineness of human sentiments including remorse and resolutions to make amends. The courts make these assessments every day in sentencing offenders. The conduct of a person is the surest guide. Words unsupported by action leave unproven the genuineness of an expressed desire to change. The applicant’s recent remorse has this difficulty.
[113] Considering the matter afresh, on the merits, and using the evidence before it of the applicant’s previous behaviour and its causes, so far as is reasonably possible, the Tribunal cannot be confident the applicant will follow the appropriate course of action in the future, nor that he could properly be entrusted to undertake the tasks that attach to the practise of a barrister in accordance with the demanding requirements under the LPA.
[114] By this conduct, he showed himself unsuitable to share what Kitto J called the privilege of the delicate relationship and intimate collaboration with the courts and with fellow members of the Bar.8
…
Conclusions
[105] The applicant has not established any error of fact or law in QCAT’s decision.
[106] Further, a consideration of the evidence as a whole supports a conclusion that QCAT’s decision that the applicant was not a fit and proper person to hold a practising certificate as a barrister, was the correct and preferable decision.
[107] As no error has been shown and a real review of the record as a whole supports a conclusion that QCAT’s decision was correct, the appeal must be dismissed.
[108] The applicant submits that having regard to the evidence that since QCAT’s decision, the applicant’s serious outstanding criminal charges have been resolved either by acquittals, or withdrawal of the charges, this Court ought to find that the applicant is now a fit and proper person to hold a practising certificate, as the stressors said by QCAT to still exist in the applicant’s life, now no longer exist.
[109] Whilst this Court can receive and act on that evidence,14 it is not appropriate for this Court to determine that the change of circumstances supports a conclusion that the applicant is now a fit and proper person to hold a practising certificate.
[110] The change of circumstances, although significant and resulting in the removal of what were significant stressors said to have led to the applicant having such a chaotic personal and professional life, does not mean automatically that the applicant would now be found to be a fit and proper person to hold a practising certificate as a barrister.
[111] Such a conclusion is properly to be made by the respondent, upon application in the approved form and having regard to the disclosure of any relevant suitability matters. One such suitability matter may be the outcome of any report by the applicant’s trustee in bankruptcy, as to the circumstances of that bankruptcy.
Orders
[112] The Court orders:
1. Leave to appeal granted.
2. The appeal be dismissed.
3. There be no order as to costs.
1 AB 1391/10–40.
…
5 AB 58 at [67].
6 AB 60 at [78].
7 AB 60 at [80].
8 AB 36–38.
…
14 QCAT Act ss 153, 154.
(emphasis added)
The link to the full decision is here.
