Following investigation by the Commission, the Legal Services Commissioner may decide to commence disciplinary proceedings in respect of your complaint.
When the Commissioner commences disciplinary proceedings, the matter goes to a hearing before either the Queensland Civil and Administrative Tribunal (QCAT) or the Legal Practice Committee (the Committee).
In disciplinary proceedings, the Commissioner is referred to as the “applicant” and the lawyer or law practice employee is referred to as the “respondent”. The Commissioner is legally represented in disciplinary proceedings. Generally, the respondent is also legally represented, although they may also choose to self-represent.
More information about discipline applications is available in the discipline application guidelines.
If you brought the original complaint to the Commission, you may be asked to provide evidence in the form of an affidavit and attend the hearing as a witness. For more detail on affidavits, see the Common Questions section below.
If you need to provide evidence, you will be contacted by the Commission prior to the hearing to make necessary arrangements.
It is important that you let the Commission know if you have difficulty understanding English so that an interpreter can be arranged for the hearing.
Similarly, if you have a disability or any special needs please let the Commission know so that arrangements can be made to enable you to give evidence.
If you need to give evidence at the hearing, the Commission will contact you to confirm the time and location of the hearing. The Commission will generally arrange for someone to meet you beforehand.
When you enter the courtroom, you should bow toward the 'bench' as a sign of respect. In the courtroom, you will see three members of the Tribunal or Committee sitting at the bench, which faces the bar table (where the lawyers sit) and the public gallery.
Hearings generally proceed as follows.
The hearing may start with an opening address by the applicant, which presents a short summary of the evidence expected to be heard in more detail during the case.
Note: If you are attending court as a witness, you will be asked to leave the hearing room for the opening address. This is to ensure the opening address does not influence your evidence.
After the opening address, the applicant will call any witnesses to give oral evidence in support of their affidavit.
If you are required to give evidence, a Commission legal officer will come outside and call your name. The officer will then take you into the courtroom.
Note: Remember, when appearing in QCAT, bow in the direction of the bench when entering and leaving the hearing room.
The officer will escort you to the witness box where you will be asked to take an oath or to affirm that the evidence you give will be the truth.
If you take an oath, you will be asked to place your hand on a religious text of your choosing (for example, the Bible or Koran). You will then be administered the oath.
Your affidavit is called your evidence in chief and will already have been presented to QCAT or the Committee. In most cases you will simply be asked by the Commissioner’s legal representative whether or not there are any amendments or additions to be made to your affidavit and to confirm the accuracy of its contents.
Once you have given your evidence, the respondent will have an opportunity to ask you questions about your evidence and matters relevant to the case. This process is called cross-examination. If necessary, the Commissioner’s legal representative may ask you some more questions to clarify answers you gave during cross-examination. This is known as re-examination.
The members of QCAT or the Committee may also ask you questions.
During the course of the hearing, the applicant or the respondent may submit documents or other items into evidence as part of the case. Those items are then called exhibits and become part of the evidence. Exhibits may include photographs, invoices, contracts and similar items that relate to the case. You may be asked to explain or comment upon an exhibit.
After you have finished giving evidence you will be excused from the witness box. You are then free to leave the hearing room or sit in the public gallery and observe the rest of the hearing.
When the Commissioner’s witnesses have all given evidence, this represents the close of the Commissioner’s case.
Just like the Commissioner, the respondent then has an opportunity to put their case by calling witnesses and tendering documents that rebut the complaint against them.
At the conclusion of the respondent’s case, final submissions will be made by each party.
QCAT or the Committee then considers the evidence, submissions and applicable legal principles before coming to a decision. A decision may be made on the same day of the hearing; however, usually, QCAT or the Committee may take some weeks before notifying the parties of their decision.
When a decision is made, you will be advised of the result and provided a copy of the decision.
A witness is a person who can give relevant and admissible evidence about the subject matter of the disciplinary proceedings. Generally, the person who filed the original complaint with the Commission, or another person who was involved in the matter, may be a witness.
If you are a witness, you are not automatically obliged to give evidence or agree to provide an affidavit. However, if you do not provide evidence, this may affect the prospects of a successful outcome of the disciplinary proceedings. Sometimes, in rare circumstances, the Commissioner may seek an order of the court to compel a witness to provide evidence.
Witnesses provide evidence to either QCAT or the Committee so they can make findings of fact about what happened. Evidence is initially provided in the form of an affidavit. Witnesses may also be required to give oral evidence. If you are a witness, you must give your evidence honestly and truthfully.
An affidavit is a document made under oath setting out your evidence in writing. Affidavits are often accompanied by attached documents called exhibits. If you are a witness, the Commission’s staff may contact you to obtain an affidavit.
Your affidavit should provide an account of your direct experience of the events and circumstances of the case.
Your affidavit becomes part of the Commission’s case and may be filed as part of the disciplinary proceedings. As soon as your affidavit is filed it becomes a public document and may be inspected by any third party.
When your affidavit is complete:
If you live outside the Brisbane metropolitan area, the hearing may be conducted by telephone or video link. This is entirely at the discretion of QCAT or the Committee.
If you are required to appear as a witness, you may be paid in accordance with a set scale as a contribution towards travelling and related expenses.
When giving evidence remember:
Note: Don’t let the formal language and surroundings make you feel uneasy or intimidated. Just be yourself.
The Commissioner, the respondent or the Attorney-General may appeal a decision of QCAT to the Court of Appeal.
The Commissioner or the respondent may appeal a decision of the Committee to QCAT.
Complainants and witnesses do not have any right of appeal.
If you have any questions or require further information, contact us.
