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Queensland Judgments
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Legal Services Commissioner v Zeke David Bentley (No 3)

 

[2020] QCAT 183

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Bentley (No 3) [2020] QCAT 183

PARTIES:

Legal Services Commissioner

(applicant)

 

v

 

Zeke David Bentley

(respondent)

APPLICATION NO/S:

OCR225-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

5 June 2020

HEARING DATE:

1 May 2020

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

ORDERS:

  1. The applicant’s application filed on 7 April 2020 is dismissed.
  2. Orders 1 and 2 of the orders made on 3 April 2020 are replaced by the following:

“1. By 15 June 2020, the applicant is to send to each complainant a copy of the following documents:

  1. (a)
    The amended discipline application filed 17 May 2019;
  2. (b)
    Statement of Agreed Facts filed 14 October 2019;
  3. (c)
    Outline of Submissions on behalf of the Applicant filed 13 March 2020;
  4. (d)
    Outline of Submissions on behalf of the Respondent filed 23 March 2020; and
  5. (e)
    A copy of these reasons.
  1. The matter be listed for a telephone directions hearing, with the parties and the complainants or their legal representatives to attend by telephone or some other suitable means of remote communication at a time to be determined by the Tribunal’s registry.”

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where a complainant has filed a Notice of Intention to Claim Compensation – where another complainant has shown an intention to claim compensation – where the complainants are not parties to the disciplinary application – where the Tribunal ordered that the complainants be provided with an opportunity to be heard in relation to the findings to be made about the respondent’s conduct – where the applicant sought to make further submissions prior to the orders being made but the Tribunal was only made aware of the request afterwards – where the applicant subsequently applied to the Tribunal for the orders to be rescinded and other directions made – whether the provisions of the Legal Profession Act 2007 (Qld) (“LPA”) require there to be separate hearings for the Tribunal making findings in relation to the respondent’s conduct and deciding on compensation claims – whether the LPA affords complainants with an opportunity to be heard prior to the Tribunal making a finding of misconduct

Acts Interpretation Act 1954 (Qld) s 32C

Legal Profession Act 2007 (Qld) s 452, s 453, s 455, s 456, s 457, s 464, s 465, s 656B

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 6, s 7, s 28

Carson v Legal Services Commissioner [2000] NSWCA 308

Legal Services Commissioner v Bentley (No 2) [2020] QCAT 78

Legal Services Commissioner v McHenry (No 2) [2020] QCAT 50

National Australia Bank v Hokit (1996) 39 NSWLR 377

APPEARANCES &

REPRESENTATION:

 

Applicant:

M Nicholson, instructed by the Legal Services Commission

Respondent:

J D Batch QC, instructed by Irish Bentley Lawyers

REASONS FOR DECISION

  1. [1]
    At a directions hearing on 24 March 2020, I directed that the matter be conducted on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing.  I was then informed that complainants had given notice of an intention to seek a compensation order.  I raised a question of whether a direction should be made so that the complainants could be heard before findings were made about the respondent’s conduct.  The applicant opposed such a direction, for reasons which were then stated briefly.
  2. [2]
    I considered the question whether some form of notice of the proceedings, and whether an opportunity to be heard, should be given to the complainants before findings were made in relation to the misconduct allegations made against the respondent.  That resulted in the reasons and orders of 3 April 2020.[1]
  3. [3]
    In the meantime, on 27 March 2020, the applicant wrote to the Tribunal’s registry, indicating that she wished to make further submissions on the question.  That letter did not come to my attention until after the reasons of 3 April 2020 were published, and the orders made.  The applicant has since brought an application dated 7 April 2020 for the rescission of Orders 1 and 2 of those orders and for some other directions, which was heard by telephone on 1 May 2020.  The respondent participated in the hearing, but the complainants did not.  These reasons deal with the applicant’s application.  I have stayed the operation of those orders until further order.

Submissions

  1. [4]
    The application included written submissions, which were supplemented orally.  In the written submissions, the applicant contended that the complainants have no standing to be a party to the hearing of a discipline application, the parties being the applicant and the respondent.  The submissions referred to provisions of the Legal Profession Act 2007 (Qld) (“LP Act”).  In particular, they pointed out that the present applicant in her capacity as Legal Services Commissioner is the only person who may apply for orders in relation to a complaint against a legal practitioner, by way of a discipline application (after a consideration of complaints).  The only potential involvement of a complainant at that stage is as a witness.  Section 456 of the LP Act deals with what happens when the hearing is completed.  The Tribunal may then be satisfied that the practitioner has engaged in unsatisfactory professional misconduct or professional misconduct (for convenience, both forms of conduct will be referred to as “misconduct” in these reasons).  If the Tribunal is so satisfied, it may make orders.  The applicant submitted that “it is at this stage” that the complainants are given an opportunity to be heard.  In context, that was intended to refer to a point in time after the Tribunal has made the relevant finding against a practitioner.
  2. [5]
    The submissions then referred to s 656B of the LP Act.  It was said that this section provides a mechanism by which a complainant has a right to be heard on a compensation claim (after findings of misconduct are made).  Paragraph 18 of the submissions continued by contending that, when a Tribunal is considering whether or not to grant a complainant a right to be heard (at some earlier point in time), the relevant criteria were those identified in National Australia Bank v Hokit[2] and Carson v Legal Services Commissioner.[3]  Those criteria are not satisfied in the present case.
  3. [6]
    It was then submitted that, under the LP Act, there is no basis to allow a complainant, at this stage of the proceedings, the opportunity to assert a right to be heard, or (as I understood paragraph 21 of the submissions) to seek leave to be heard in relation to findings about the respondent’s conduct, the subject of the discipline application.  Once a finding is made, there can then be a separate hearing in relation to compensation issues.
  4. [7]
    The applicant’s oral submissions to a substantial extent repeated the written submissions.  However, it appeared to be accepted that the criteria referred to in paragraph 18 of the written submissions were relevant only to an application for leave to appear at the hearing of the discipline application under s 656B(b) of the LP Act, and that no application for leave had been made.  It was submitted that the Tribunal had in the past conducted the proceedings in that fashion, holding a hearing to determine whether the respondent had engaged in a relevant category of misconduct, and subsequently holding a second hearing to deal with compensation matters, as had occurred in Legal Services Commissioner v McHenry (No 2)[4] (where I had constituted the Tribunal).  It was submitted that this practice followed the procedure prescribed by the LP Act.
  5. [8]
    These submissions were followed by a discussion of ss 452, 453, 455, 456, and 457 (it being pointed out that one order was required for sanctions, and one for compensation, to enable compliance with the section).  It was then submitted that, when a finding of misconduct was made under s 456, it led to two different consequences.  One was a sanction, and the other was a compensation order.  It was pointed out that the Commissioner was the only person who (under s 452) could make an application for orders against a practitioner, with the consequence, it was said, that there was no role for a complainant in the hearing of an allegation of misconduct.  The right to appear, conferred by s 656B(a), is a right to appear at a hearing to determine whether a compensation order should be made, which is a second hearing conducted after a finding of misconduct.  If there was some concern in a particular matter about the need for a complainant to participate in the hearing relating to the allegations of misconduct, that could be addressed by a grant of leave under s 656B(b).
  6. [9]
    The written submissions for the respondent adopted the content of the letter of 27 March 2020; and confirmed the summary of the respondent’s position set out in the reasons of 3 April 2020.[5]  It was submitted that the complainants were not parties to the discipline application.  The written submissions otherwise addressed the substantive merits of the compensation claims, and indicated an intention to have them dismissed summarily.
  7. [10]
    The respondent’s oral submissions expressed support for the position of the applicant; and with respect to the reference to “hearing” in s 456, referred to s 32C(a) of the Acts Interpretation Act 1954 (Qld) (“AIA”) for the proposition that the singular may include the plural.

Legislative context

  1. [11]
    There is no reason to doubt that the applicant alone is to determine whether to start a proceeding (a “discipline application”) as a consequence of a complaint.[6]  I adhere to reasons previously expressed for the view that a complainant is not a party to a discipline application, absent a specific order to that effect, made under statutory authority.[7]  Since these matters are not in contention, it is unnecessary to set out the relevant statutory provisions.
  2. [12]
    Of significance for the present application are the following provisions of the LP Act:

456 Decisions of tribunal about an Australian legal practitioner

  1. (1)
    If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.

  1. (4)
    The tribunal may, under this subsection, make 1 or more of the following–

  1. (b)
    a compensation order;

656B Entitlement to appear at hearing

The complainant for a discipline application before the tribunal is entitled to appear at the hearing of the application in relation to–

  1. (a)
    those aspects of the hearing that relate to a request by the complainant for a compensation order; and
  2. (b)
    other aspects of the hearing, but only if the tribunal gives leave to the complainant to appear in relation to them.
  1. [13]
    Section 456 is found in Part 4.9 of the LP Act, which deals with proceedings in a disciplinary body such as the Tribunal.  Section 656B is found in Part 7.4A of the Act, headed “Provisions applying to Tribunal for discipline applications”.
  2. [14]
    It is also necessary to note s 453, which requires the Tribunal to hear and decide each allegation stated in a discipline application.  It is also found in Part 4.9.

Consideration of submissions

  1. [15]
    In my opinion, the submissions of the applicant do not pay enough attention to the language and structure of the relevant statutory provisions.  The only provision for a hearing is found in s 453.  It is a hearing of the allegations in the discipline application.   Under s 456 of the Act, it is at the end of that hearing that the Tribunal is called upon to reach a conclusion about a practitioner’s conduct, as alleged in the discipline application, and to determine what orders are to be made.  Those orders include both orders for some kind of sanction, and for compensation.  The Act does not provide for some second hearing after a finding of misconduct, and before orders are made, or before a compensation order is made.
  2. [16]
    Consistently, s 656B deals with the position of a complainant in relation to the hearing of the discipline application.  The section confers on a complainant an entitlement “to appear at the hearing of the application”.  The hearing referred to is the hearing of the application mentioned almost immediately before, namely the discipline application.  It is the hearing required by s 453.  Section 456 requires findings relating to the practitioner’s conduct to be made “after the tribunal has completed a hearing of a discipline application in relation to a complaint…”, and not before that hearing is completed.  It follows inevitably, in my view, that a complainant has an entitlement to appear at the hearing, before it is completed, and before findings are made about allegations of misconduct against a practitioner; though that entitlement is limited in the way identified in s 656B(a).  It is apparent from s 456 that a finding of misconduct (and thus the completion of the hearing of the discipline application) is a condition precedent to the making of an order under that section, including a compensation order.
  3. [17]
    While the applicant may be correct to point out that, as a consequence of s 457 of the LP Act, it may be necessary to issue a compensation order separately from other orders, that goes only to the drawing up of orders.  It does not alter the effect of s 456, which requires findings of misconduct and orders to be made after the completion of the hearing.
  4. [18]
    The applicant points to reasons of convenience for the position for which she contends.  They cannot affect the provisions of the statute.  Indeed, there appear to be good reasons why a complainant would have a right to appear at a hearing before a finding is made about a respondent’s conduct.  A compensation order for the payment of money may only be made for pecuniary loss suffered because of conduct that has been found to be professional misconduct or unsatisfactory professional conduct on the part of the respondent.[8]  The participation of a complainant at the hearing may contribute to such a finding, or ensure that it is made.  The presence of a complainant may even lead the Tribunal to consider (in practice, likely only to occur in an exceptional case) whether to vary the discipline application by adding allegations,[9] which may be important to the extent to which compensation may be ordered.
  5. [19]
    The applicant’s submission that s 656B(b) would enable a complainant in an appropriate case to participate in the hearing of a discipline application, before findings of misconduct are made, is an argument of convenience.  In my view, it is of no assistance in determining the effect of the statutory provisions.
  6. [20]
    The Tribunal is, by s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), required to act fairly and to observe the rules of natural justice.  If the view I have taken is correct, then the position taken by the applicant would be inconsistent with these requirements.  Even if the view is only arguable, it would be inconsistent with these requirements to deny complainants the opportunity to assert a right to appear before questions relating to allegations of misconduct are determined, which seems to be the intent of the present application.
  7. [21]
    The respondent’s reference to s 32C(a) of the AIA does not assist.  That section, like others in the AIA, applies unless displaced by a contrary intention in the Act where the relevant term occurs.  Here, I have found that the intention of the LP Act is to provide for only one hearing; or at least to provide that a complainant has a (limited) right to appear at the hearing of a discipline application, before questions of misconduct are determined.
  8. [22]
    The applicant referred to page 4 of the Explanatory Notes to the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Bill 2009 (Qld) (“Explanatory Notes”).  The passage referred to points out that powers and procedures found in the QCAT Act are modified by legislation such as the LP Act.  In fact, the relationship between provisions of the QCAT Act and the provisions of the LP Act is dealt with in ss 6 and 7 of the QCAT Act.  The conclusion which has been reached as to the right of a complainant to be heard comes entirely from a consideration of the effect of the provisions of the LP Act, so that no question of the interaction between the provisions of that Act and the provisions of the QCAT Act arose.   The decision to make directions was, at least in part, supported by s 28 of the QCAT Act; but there is no reason to think that the operation of that section was relevantly modified by the provisions of the LP Act.  It might be observed that the statement in the Explanatory Notes that s 656B of the LP Act is intended “to enable the complainant to appear at the hearing of a discipline application in QCAT” is consistent with the view taken in these reasons (though the view was the result of an examination of the statutory provisions).[10]

Conclusion

  1. [23]
    It follows that the application should be dismissed.  However, it is necessary to modify two of the orders made on 3 April 2020.  Accordingly, I make the following orders:
  1. The applicant’s application filed on 7 April 2020 is dismissed.
  2. Orders 1 and 2 of the orders made on 3 April 2020 are replaced by the following:

“1. By 15 June 2020, the applicant is to send to each complainant a copy of the following documents:

  1. (a)
    The amended discipline application filed 17 May 2019;
  2. (b)
    Statement of Agreed Facts filed 14 October 2019;
  3. (c)
    Outline of Submissions on behalf of the Applicant filed 13 March 2020;
  4. (d)
    Outline of Submissions on behalf of the Respondent filed 23 March 2020; and
  5. (e)
    A copy of these reasons.

2.  The matter be listed for a telephone directions hearing, with the parties and the complainants or their legal representatives to attend by telephone or some other suitable means of remote communication at a time to be determined by the Tribunal’s registry.”

Footnotes

[1] See Legal Services Commissioner v Bentley (No 2) [2020] QCAT 78 (“Bentley (No 2)”).

[2] (1996) 39 NSWLR 377, 381 (Mahoney P).

[3] [2000] NSWCA 308, [282]–[284].

[4] [2020] QCAT 50 (“McHenry (No 2)”).

[5] Bentley (No 2), [14].

[6] See Legal Profession Act 2007 (Qld) ss 447, 448, 452 (“LP Act”).

[7] See McHenry (No 2), [13]–[17].

[8] See LP Act ss 464(d), 465(1)(a).

[9] See LP Act s 455.

[10] See Explanatory Notes, Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Bill 2009 (Qld) 299.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Zeke David Bentley (No 3)

  • Shortened Case Name:

    Legal Services Commissioner v Zeke David Bentley (No 3)

  • MNC:

    [2020] QCAT 183

  • Court:

    QCAT

  • Judge(s):

    Hon Peter Lyons QC, Judicial Member

  • Date:

    05 Jun 2020

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2020] QCAT 7803 Apr 2020Determination that complainants to a discipline application have an opportunity to be heard in relation to findings to be made about the respondent's conduct (against opposition by the Legal Services Commissioner); directions given accordingly: Judicial Member Lyons QC.
Primary Judgment[2020] QCAT 18305 Jun 2020Legal Services Commissioner's application to rescind directions made in [2020] QCAT 78 dismissed (with ancillary directions): Judicial Member Lyons QC.
Notice of Appeal FiledFile Number: Appeal 6328/2012 Jun 2020-

Appeal Status

Appeal Pending
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