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  • Unreported Judgment

Legal Services Commissioner v Bentley

 

[2016] QCAT 185

CITATION:

Legal Services Commissioner v Bentley [2016] QCAT 185

PARTIES:

Legal Services Commissioner

(Applicant)

 

v

 

Zeke David Bentley

(Respondent)

APPLICATION NUMBER:

OCR107-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

14 October 2015

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

Assisted by:

Mr Peter Sheehy, Legal panel member

Dr Margaret Steinberg, Lay panel member

DELIVERED ON:

20 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The respondent is publicly reprimanded.
  1. The respondent pay a fine in the sum of $2,000.00 within 30 days from the date of this order.
  1. The respondent pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT  – OTHER MATTERS  – where the applicant charged the respondent with purporting to witness the signature of his client on an affidavit filed in the Supreme Court when the execution of the affidavit did not take place in the respondent’s presence  – where the respondent witnessed the signing of the affidavit over the telephone when his client was overseas – where the respondent swore an affidavit outlining the circumstances in which the affidavit was sworn  – where this affidavit was not adduced in Court  – whether “in the presence of” means in the physical presence  –  whether the respondent’s conduct amounts to unsatisfactory professional conduct or professional misconduct – nature of appropriate sanction

Legal Profession Act 2007 (Qld) ss 418, 419, 456, 456(2), 462(5)(a)

Oaths Act 1867 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107(1)

Uniform Civil Procedure Rules 1999 (Qld) r 432

Legal Services Commissioner v Clapin [2011]

QCAT 339

Legal Services Commissioner v Tung Nguyen [2005] LPT 007

APPEARANCES and REPRESENTATION:

APPLICANT:

A.D. Scott instructed by the Legal Services Commissioner

RESPONDENT:

K.C. Fleming QC instructed by Irish Bentley lawyers

REASONS FOR DECISION

  1. [1]
    The Commissioner alleges that the following charge constitutes professional misconduct and/or unsatisfactory professional conduct.
    1. On 22 May 2013, Mr Bentley purported to witness the signature of Paul Grant Klerck on an affidavit filed in respect of Supreme Court proceedings 638 of 2013 in circumstances where the execution of the affidavit by Mr Klerck did not take place in the presence of Mr Bentley.

Background

  1. [2]
    Mr Bentley’s firm acted on behalf of Mr Klerck in Supreme Court proceedings in a dispute with the complainant and others. 
  2. [3]
    It was necessary for Mr Klerck to swear an affidavit in the proceedings.  However, at the time, he was in Hungary and had been unable to locate a suitable witness.
  3. [4]
    At 4:00pm on 22 May 2013, Mr Bentley sent an email to the lawyers acting for the other parties in the Supreme Court proceedings enclosing a copy of the draft affidavit, indicating that Mr Klerck was in Hungary and attempting to find a witness, but informing the other lawyers that Mr Klerck had already read the affidavit in full, made corrections, and confirmed the contents of the affidavit were true and correct.  Mr Bentley put the other solicitors on notice that his side intended to rely upon the sworn version of the draft affidavit which was enclosed.[1] 
  4. [5]
    As Mr Klerck could not find a witness, Mr Bentley suggested to the barrister he had briefed that Mr Bentley take Mr Klerck’s sworn oath over the telephone.  Mr Bentley suggested accompanying Mr Klerck’s affidavit with an affidavit sworn by him, which set out in detail how Mr Klerck had sworn to the contents of the affidavit.  There was some discussion about the need for the affidavit sworn by Mr Bentley, however, Mr Bentley insisted upon drafting and executing that affidavit. 
  5. [6]
    As to swearing of the affidavit, Mr Bentley told Mr Klerck that he should closely read the draft affidavit (which had been forwarded by the barrister), make any changes required, and then call Mr Bentley for the purpose of swearing the affidavit.[2]
  6. [7]
    Mr Klerck then telephoned Mr Bentley and had a conversation which included:[3]
    1. Mr Klerck told Mr Bentley that he had carefully read the draft affidavit had made some changes, that the final version was in front of him, and that he wanted to swear that the contents of the affidavit were true and correct.
    2. Mr Klerck confirmed that he had a bible and also confirmed to Mr Bentley that he did not want to make any further changes to the affidavit.
    3. Mr Klerck told Mr Bentley he had carefully read the affidavit several times to ensure he was comfortable with swearing the contents of the affidavit were true and also confirmed to Mr Bentley that he understood the consequences of making a false sworn statement.
    4. Mr Bentley again asked Mr Klerck to read the affidavit to him over the phone, which he did.
    5. Mr Bentley asked Mr Klerck to confirm that he had his hand on the bible (which he did) and then said “do you swear the contents of the affidavit in front of you to be true and correct to the best of your knowledge, information and beliefs so help you god”.  Mr Klerck replied saying words to the effect of “yes” and “I do”.
    6. Mr Bentley again explained the importance of providing sworn evidence and told Mr Klerck that if the things he had said in the affidavit were not true or accurate then he would be in serious trouble for perjury.
    7. Mr Klerck agreed to sign the affidavit and return it to Mr Bentley by facsimile.
  7. [8]
    Mr Bentley provided to the barrister a copy of Mr Klerck’s sworn affidavit and also a copy of the affidavit which he had sworn. He asked the barrister whether his affidavit should be served and was advised not to serve it.[4]
  8. [9]
    On the morning of the hearing, Mr Bentley spoke to the barrister emphasising that he thought his affidavit should be filed and that it should be available at the Court, but that he would defer to the barrister’s view on the best way to proceed.[5]
  9. [10]
    Mr Myers was the instructing solicitor from Mr Bentley’s office who attended at the hearing. He provided the original of Mr Bentley’s affidavit to the barrister.
  10. [11]
    At the hearing, the barrister sought leave to read and file various affidavits. He informed the Court to the effect that Mr Klerck was presently overseas, that the affidavit was a facsimile copy, and that the solicitors would provide an undertaking to the Court to file an original of the affidavit as soon as possible. The opposing counsel indicated he had no objection to that course.
  11. [12]
    The barrister did not seek to file Mr Bentley’s affidavit and, after the application, returned it to Mr Myers.
  12. [13]
    After the hearing, Mr Myers misplaced the original of Mr Bentley’s affidavit and was unable to locate it.[6]
  13. [14]
    On 27 May, a facsimile was received from the opposing lawyers querying the circumstances of the witnessing of Mr Klerck’s affidavit by Mr Bentley.[7]
  14. [15]
    Mr Bentley immediately inquired whether his affidavit had been filed and, learning it had not been filed asked that a copy be forwarded in response to the enquiry.[8] Upon learning that the affidavit could not be located, Mr Bentley re swore the affidavit (in identical terms) so it could be provided as soon as practicable.[9]

Discussion

  1. [16]
    The Commissioner submits the issue is simply that Mr Bentley did not witness his client’s affidavit in his presence.[10]
  2. [17]
    The Commissioner points to the fact that the affidavit on its face uses the words “sworn by Paul Grant Klerck on 22nd day of May 2013 in the presence of”.[11] 
  3. [18]
    Further, the Commissioner submits that the Court was not told of the circumstances in which the affidavit was sworn at the time the copy of the affidavit was filed by leave, nor was Mr Bentley’s affidavit filed at the hearing.  In any event, an affidavit not properly witnessed, was filed in Court on the day.[12]
  4. [19]
    The Commissioner asserts that Rule 432 of the Uniform Civil Procedure Rules 1999 (Qld), makes it clear that an affidavit must be signed by the person making it “in the presence of” the person authorised to take the affidavit.[13]
  5. [20]
    The Commissioner submits that what is required is that the witness be physically present. The Commissioner suggests this is underlined by the fact that when discussing affidavits outside of Australia, the Oaths Act 1867 (Qld), allows a person authorised to administer an oath under the law of the place in which the affidavit is taken to take the affidavit – so does not contemplate that the affidavit might be sworn “remotely”.
  6. [21]
    The Commissioner submits that the legal profession has long required the highest standard of integrity and that a solicitor witnessing a signature not made in the solicitor’s presence is in serious breach of ethical standards required by legal practitioners.[14]
  7. [22]
    The Commissioner refers to authorities of Legal Services Commissioner v Clapin (‘Clapin’)[15] and Legal Services Commissioner v Tung Nguyen (Nguyen).[16]
  8. [23]
    At the hearing, Mr Scott (appearing on behalf of the Commissioner) indicated that there is no allegation of intentional dishonestly, intentional falsity or intention to mislead anyone.[17]  He submitted the charge is simply that the representation that the affidavit was sworn in Mr Bentley’s presence was false.[18]
  9. [24]
    However, the Commissioner submits that, whilst there was no suggestion of an intention to mislead anyone and Mr Bentley’s actions did indicate that he was conscious of his professional obligations, he made an error of judgement in terms of what he should have done in the circumstances, which was an error of judgment that warrants professional discipline. The Commissioner points to the provisions of the Oaths Act 1867 (Qld) which signify a degree of trust placed in a legal practitioner in requiring that only certain persons, including legal practitioners, can witness affidavits. The Commissioner submits that this trust behoves legal practitioners to ensure that, when they purport to witness affidavits, they do so properly.[19] 
  10. [25]
    The Commissioner submitted that the error of judgment was a significant one but that, with all the mitigating factors concerning the steps taken by Mr Bentley, the conduct should be categorised as unsatisfactory professional conduct rather than professional misconduct.
  11. [26]
    On behalf of Mr Bentley, Mr Fleming QC informed the Tribunal that Mr Bentley “accepts responsibility for what’s done, and so this is a matter then going to penalty in the end, and perhaps the gravity.”[20]
  12. [27]
    Mr Fleming indicated that Mr Bentley would be submitting the following:[21]
    1. That the conduct was unsatisfactory professional conduct; and
    2. That a monetary fine and costs are the appropriate sanction.
  13. [28]
    Mr Fleming submitted that Mr Bentley did not aim to hide anything. He informed his counsel and prepared an affidavit, which set out all the details. Nothing was designed to deceive anyone and in fact all was done very openly.[22] Moreover, Mr Bentley did everything to ensure the fairness and accuracy of the affidavit.[23] He also sent a draft to his opponents the day before the hearing when he also informed the opponents that his client was in Hungary.
  14. [29]
    Mr Fleming submitted that there could be a dispute about what “in the presence of” might mean in this day and age. In those circumstances, there was room for Mr Bentley to have had some doubt in his mind about whether it was possible to swear the affidavit in the way he did.  At the time, Mr Bentley thought he was doing the right thing especially by swearing the affidavit describing how the process was undertaken and so, as he thought, ensuring that the matter would be brought to the attention of the Court.
  15. [30]
    Mr Fleming QC submitted that the protection of the public would not call for a public reprimand because Mr Bentley did everything he could to ensure the absolute fairness of the procedure, the conduct arising as a result of an error of judgment.[24] He submitted that the public would not be better protected by “public naming” – as nobody was deceived and every attempt had been made to be fair, open and honest.[25]

Disposition

  1. [31]
    Unsatisfactory professional conduct includes conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.[26]
  2. [32]
    Professional misconduct includes unsatisfactory professional conduct if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence.[27]
  3. [33]
    Ultimately, there was little difference between the submissions made by the applicant and the respondent in relation to the relevant conduct and, in fact, each side agreed that the conduct would amount to unsatisfactory professional conduct, but not professional misconduct. The offending conduct was, as the Commissioner appropriately conceded, that Mr Bentley did not witness his client’s affidavit in his presence, and then allowed a document to be submitted to the Court where, essentially, he represented that the document had been sworn in his presence. 
  4. [34]
    There is no suggestion of dishonesty on the part of Mr Bentley.  In fact, he took steps to ensure that his opponents had access to the draft affidavit as quickly as it was prepared and, at the time, informed them of the fact that the deponent was in Hungary, attempting to find a witness, but that his client’s would be relying upon the sworn version of the draft affidavit.  He also swore an affidavit which set out all the details of the way in which the documents were executed. Regrettably, this affidavit was never filed or made available to either the Court or his opponents in a timely way. 
  5. [35]
    The Commissioner has referred to a number of authorities said to deal with “similar conduct”. In Clapin, the practitioner witnessed a document certifying that the mortgagor had signed the document in his presence when this was not true. The circumstances were very different from those involved in the way in which the affidavit by Mr Klerck’s was sworn, as the practitioner in Clapin witnessed the client’s signature on a guarantee and there was no explanation or effort to verify the person signing.
  6. [36]
    In the case of Nguyen, the practitioner witnessed a false signature purporting to be a client’s signature in circumstances where the client was not known to the practitioner and the practitioner was not present. 
  7. [37]
    Again, the conduct in Nguyen’s case was quite different given the procedures, which were adopted by Mr Bentley when he was speaking with his client. 
  8. [38]
    It is also appropriate to note that the requirements arising from the words used in the jurat have not been judicially considered and involve the type of concept which may change over time depending upon the way in which technology and communications develop.
  9. [39]
    However, having said that, our system depends upon being able to rely upon the fact that an affidavit, which is said to have been sworn by a deponent, has in fact been sworn by that deponent and, in that context, the role of the witness is fundamental. 
  10. [40]
    As Mr Fleming QC has submitted, the position may have been different had all of the information become available, but of course, it was not.  The role of the solicitor as an officer of the Court means that the solicitor should be particularly vigilant, and that did not occur in this case.
  11. [41]
    On that basis, the Tribunal finds that Mr Bentley’s conduct did fall short of the standards which a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and so is unsatisfactory professional conduct. As observed, this is the outcome suggested by both parties.

Sanction

  1. [42]
    Sanctions are dealt with in s 456 of the Legal Profession Act 2007 (Qld) (‘the Act’). Upon the Tribunal finding that the practitioner has engaged in unsatisfactory professional conduct the Tribunal may make any order it thinks fit including those orders which are listed in s 456(2) of the Act. 
  2. [43]
    The most serious of the orders is to recommend that the name of the practitioner be removed from the local Roll or that the practitioner’s Practising Certificate be suspended or cancelled. Relevantly, the Tribunal may make “an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner”.[28]
  3. [44]
    The requirements of the Act therefore suggest that some “special circumstances” must be identified in deciding to privately reprimand a practitioner rather than impose a public reprimand.
  4. [45]
    It is well established that the purpose of sanctions in the professional disciplinary jurisdiction is not to punish the practitioner but to protect the public. 
  5. [46]
    Mr Fleming QC has submitted that the interests of the protection of the public do not require that a public reprimand be ordered. He submits this because Mr Bentley did all that he could do to ensure the absolute fairness of the procedure which he undertook.
  6. [47]
    The Tribunal agrees that this element of protection of the public does not require that the practitioner be reprimanded.
  7. [48]
    Another aspect of the protection of the public is the maintenance of standards within the legal profession. If conduct is identified as being unsatisfactory professional conduct or professional misconduct, one of the aims of any sanction is to dissuade other practitioners from such conduct – essentially to warn practitioners that such conduct is not acceptable.
  8. [49]
    That aim is best achieved by a public reprimand.
  9. [50]
    In relation to general deterrence, the imposition of a fine serves to reinforce this objective.
  10. [51]
    In Nguyen’s case[29], decided in 2005, a fine of $4,000.00 was imposed. In Clapin’s case,[30] a higher fine of $7,500.00 was thought to be appropriate.  Mr Fleming QC submitted that cases suggest the range of fines is “a couple of thousand dollars up to $4,000.00”.
  11. [52]
    It is significant that, in this case, there is no suggestion of dishonesty or any intention to mislead or deceive on the part of Mr Bentley. He did everything, which in his judgment, could ensure absolute fairness of the procedure which he decided (incorrectly as it transpires) could be followed. In the circumstances, a fine at the lowest end of the range would be appropriate and so the Tribunal orders that there be a fine in the sum of $2,000.00.
  12. [53]
    The Tribunal therefore orders that Mr Bentley be publicly reprimanded and that a fine in the sum of $2,000.00 be imposed, to be paid within 30 days from the date of this order.

Costs

  1. [54]
    Upon the Tribunal finding that the practitioner has engaged in conduct which is unsatisfactory professional conduct, the Tribunal must make an order requiring the practitioner to pay costs unless the Tribunal is satisfied exceptional circumstances exist.
  2. [55]
    Mr Fleming QC accepted, on behalf of Mr Bentley, that an order for costs to be assessed would be appropriate.[31]
  3. [56]
    Whenever possible, the Tribunal must fix costs.[32]
  4. [57]
    In its original written submissions the Commissioner suggested that the costs be fixed at $5,000.00 pursuant to s 462(5)(a) of the Act. However, at the hearing the Commissioner indicated that further costs had been incurred by way of the oral hearing. There was no submission as to a level at which costs could be fixed.
  5. [58]
    The parties each indicated that there will be no objection to an order that costs be assessed or agreed.
  6. [59]
    In the circumstances, the Tribunal orders that the respondent pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.

Footnotes

[1] Affidavit of Zeke David Bentley, sworn 4 November 2014, paragraph 2.

[2] Affidavit of Paul Grant Klerck sworn 15 October 2014 paragraph 6(c) and (d).

[3] Ibid, paragraph 7(a)-(h).

[4] Affidavit of Zeke David Bentley, sworn 4 November 2014, paragraph 5.

[5] Affidavit of Alex Walter Maxwell Myers, sworn 12 February 2014, Exhibit AWMM-2 paragraph 12.

[6] Ibid, paragraph 19.

[7] Ibid, paragraph 20.

[8] Ibid, paragraph 21.

[9] Ibid, paragraph 22.

[10] Submissions of the applicant, filed 20 November 2014, paragraph 24.

[11] Ibid, paragraph 26.

[12] Ibid.

[13] Ibid, paragraph 28.

[14] Ibid, paragraph 31.

[15] [2011] QCAT 339.

[16] [2005] LPT 007.

[17] Transcript of hearing 14 October 2015, page 1-3, lines 7 to 11.

[18] Ibid, page 1-3, lines 11 to 13.

[19] Ibid, page 1-5, lines 1 to 6.

[20] Ibid, page 1-2, lines 18 to 21.

[21] Ibid, lines 22 to 23.

[22] Ibid, page 1-9, lines 18 to 21.

[23] Ibid, lines 31 to 32.

[24] Transcript of hearing 14 October 2015 page 1-10, lines 11 to 12.

[25] Ibid, page 1-12, lines 34 to 36.

[26] Legal Profession Act 2007 (Qld) s 418.

[27] Ibid, s 419.

[28] Legal Profession Act 2007 (Qld) s 456(2)(e).

[29] [2005] LPT 007

[30] [2011] QCAT 339.

[31] Transcript of hearing 14 October 2015, page 1-13, lines 22 to 28.

[32] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107(1).

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Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Bentley

  • Shortened Case Name:

    Legal Services Commissioner v Bentley

  • MNC:

    [2016] QCAT 185

  • Court:

    QCAT

  • Judge(s):

    Thomas P

  • Date:

    20 Jul 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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