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QCAT backs QLS decision to prevent lawyer returning to practice

A former solicitor who operated as a sole principal of law firm after failing to renew his practising certificate has failed to gain re-entry to the legal profession.

Queensland Civil and Administration Tribunal (QCAT) President Martin Daubney on Wednesday 22 September dismissed Davin Mark Castle’s application for review of a 26 March 2020 tribunal finding that he was “not a fit and proper person to hold a practising certificate”.

Justice Daubney, in an 11-page decision, said Castle was admitted as a legal practitioner in Queensland on 12 July 2007 and held unrestricted and principal practising certificates (PC).

However, the tribunal was told Castle allowed his unrestricted practising certificate (PC) to expire through non-payment of his annual renewal fees on 30 June 2016 and his principal PC to do likewise 30 June 2017.

“(Castle) was the legal practitioner director of an incorporated legal practice, DMC Legal Services Pty Ltd trading as Brereton Lawyers … (and) according to QLS records, Brereton Lawyers operated from 4 March 2016 to 13 April 2018,” Justice Daubney said.

“(Castle) was the sole principal of Brereton Lawyers but, as is apparent from the chronology of the (his) practising certificates, he did not hold a practising certificate because of his failure to renew during the … periods  1 July to 22 September, 2016 and 1 July to 18 July 2017.

On 24 May 2019, Castle applied to Queensland Law Society to renew his PC, but as an employee rather that a principal.

On 15 November 2019, QLS wrote to Castle setting out concerns that he may not be a fit an proper person to hold an unrestricted employee PC and asked him to respond to a show cause letter.

Justice Daubney said Castle provided a number of written responses to the show cause letter, but on 20 February 2020 the QLS Council Executive Committee determined Castle was not a fit and proper person and opted to not renew his PC.

Castle, in response, sought review of the decision by QCAT.

“(Castle’s) submissions consisted largely of unsupported collateral attacks on the QLS and its officers, seeking to impugn their motives for determining that he was not a fit and proper person to hold a practising certificate,” Justice Daunbey said.

“He asserted, for example, that he had been caught up as a ‘pawn’ in an ongoing investigation being conducted by the regulatory authorities into the law firm for which he worked after closing Brereton Lawyers.

“Similarly, he critically questioned the competence of the QLS staff who investigated his trust account without, in any way, actually identifying what he claimed were errors or mistakes in the way they conducted their investigations.

“Both in his evidence and in his submissions, (Castle) portrayed little insight into the seriousness of the conduct which had led to the QLS forming its opinion as to his lack of fitness to hold a practising certificate. At its highest, he concedes of the possibility that the conduct may have amounted to ‘unsatisfactory professional conduct’ but says, in effect, that even if such a finding were made he is nevertheless a fit and proper person to hold a practising certificate.

“(Castle) simply did not address the further issues of concern raised by the QLS before this Tribunal.”

In dismissing Castle’s application for review, the tribunal was satisfied the decision made by QLS was “the correct and preferable decision in the circumstances”.

Justice Daubney said: “In my opinion, the conclusion by the QLS on those grounds that (Castle) was not then a fit and proper person to hold a practising certificate was not only open, but was self-evidently correct. On my fresh review of that material, I have reached the same conclusion.”

Read the decision.

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