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  • Unreported Judgment

Legal Services Commissioner v Bentley (No 4)

 

[2021] QCAT 2

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Bentley (No 4) [2021] QCAT 2

PARTIES:

Legal Services Commissioner

(applicant)

v

Zeke David Bentley

(respondent)

APPLICATION NO/S:

OCR225-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

12 January 2021

HEARING DATE:

6 November 2020

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

ORDERS:

  1. The respondent’s application is dismissed.
  2. Any party wishing to contend for a costs order is to file and serve submissions within 7 days of the publication of these reasons, with any submissions in reply to be filed and served within a further 7 days.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where the applicant Commissioner has brought a discipline application against the respondent – where a complainant for the purposes of the discipline application has filed a Notice of Intention to Seek Compensation Order – where the discipline application is yet to be decided – where the complainant has brought proceedings in the Magistrates Court of Queensland against the respondent’s law practice, seeking the refund of fees paid to the practice and damages as a result of alleged breaches of a contractual or tortious duty of care – where the respondent seeks a stay of the compensation claim before the Tribunal until the hearing and determination of the matter in the Magistrates Court – whether a finding that the respondent engaged in professional misconduct or unsatisfactory professional conduct is required before the Tribunal can make a compensation order – whether the complainant is required to establish a cause of action independent of the provisions of the Legal Profession Act 2007 (Qld) – whether pursuing a compensation order in the Tribunal and simultaneously seeking damages in the Magistrates Court constitutes an abuse of process

Legal Profession Act 2007 (Qld) s 452, s 453, s 456, s 463, s 464, s 466, s 467

Henry v Henry (1996) 185 CLR 571

Heydon v NRMA Ltd (2000) 51 NSWLR 1

Johnson v Gore Wood & Co [2002] 2 AC 1

Kermandi v Westpac Banking Corporation [2012] VCA 42

Logan v Bank of Scotland (No 2) [1906] 1 KB 141

Moore v Inglis (1976) 50 ALJR 589

Moore v Inglis (1976) 136 CLR 677

Owen v Menzies [2013] 2 Qd R 327

Re AWB Limited (No 10) [2009] VSC 566

Rogers v Roche [2017] 2 Qd R 306

UBS AG v Tyne [2018] HCA 45

APPEARANCES &

REPRESENTATION:

 

Applicant:

No appearance

Respondent:

J D Batch QC, instructed by Irish Bentley Lawyers

Complainant:

D Thomae, instructed by Alex Mackay & Co

REASONS FOR DECISION

  1. [1]
    Mid Brisbane River Irrigators Inc (“MBRII”) made a complaint to the applicant about legal services provided to it by the respondent.  The applicant has filed in this Tribunal a discipline application, Charge 3 of which relates to the provision of those services.  MBRII has given notice that it seeks a compensation order.  The respondent has brought the present application.  The primary order sought in the application appeared to be an order “that the proceeding constituted by the compensation request be struck out or dismissed”.  However, at the hearing of the respondent’s application, Mr Batch of Queen’s Counsel, who appeared for the respondent, announced that the order sought, orally formulated at the hearing, was an order “that the request by MBRII for compensation against Mr Bentley be stayed pending the hearing and determination of the proceeding in the Magistrates Court of Queensland held at Brisbane number M4123 of 2019 or further earlier order”.  Mr Thomae of Counsel, who appeared for MBRII, indicated he was prepared to deal with that application, and the matter was argued accordingly.

Background

  1. [2]
    MBRII is an incorporated association representing the interests of some agricultural landholders in the Brisbane Valley region.  Its chairman is Mr Thomas Wilkinson.
  2. [3]
    At all relevant times, the respondent was an Australian legal practitioner.  He was the sole principal of the law practice Irish Bentley.  Three solicitors employed by the firm, Mr David Stevenson, Mr Alex Myers and Mr Ross Sommers, played some role in events relevant to MBRII’s complaint.
  3. [4]
    In April 2013, the Queensland Competition Authority (“QCA”) published a report as a result of a statutory process, set out in the Queensland Competition Authority Act 1997 (“QCA Act”).  The report proposed the imposition of charges for water drawn from the Brisbane River for irrigation.  This led MBRII to seek legal advice.  The advice was sought initially from Hawthorn Cuppaidge & Badgery, where Mr Stevenson then practised.  However, the advice was subsequently sought from Irish Bentley in and from October 2013, at about the time that Mr Stevenson came to be employed by that practice.
  4. [5]
    Irish Bentley provided a letter of advice dated 16 October 2013.  It is apparent from the letter that, by then, the relevant Minister or Ministers of the Queensland Government had accepted the QCA’s recommendation (“acceptance decision”).  The letter expressed the view that there were “reasonable prospects of success with respect to the Judicial Review” (the proceedings were not better identified); and that, if the proceedings were unsuccessful, there were reasonable prospects that the Court would not make an order for costs against MBRII.
  5. [6]
    By letter dated 21 October 2013, MBRII informed Irish Bentley that it wished to proceed with the matter.
  6. [7]
    On 31 October 2013, Irish Bentley filed an Application for a Statutory Order of Review.  The respondents were the Treasurer and Minister for Trade, the Attorney-General and Minister for Justice, and the QCA.   The application sought review of the acceptance decision.
  7. [8]
    On 19 November 2013, Gilbert & Tobin, solicitors for the QCA, wrote to Irish Bentley questioning whether MBRII was aggrieved by the acceptance decision.  Irish Bentley responded that it was clear that MBRII was so aggrieved, for the purposes of the Judicial Review Act 1991 (Qld).
  8. [9]
    On 18 December 2013, the Minister administering the Water Act 2000 (Qld) and the Treasurer of Queensland gave a direction under that Act to the Queensland Bulk Water Supply Authority (which trades as Seqwater), the effect of which was that irrigators would be required to pay for water taken from the Brisbane River (“pricing direction”).
  9. [10]
    In February 2014, MBRII (no doubt through Irish Bentley) produced a statement of facts and contentions, pursuant to a direction in the application for a statutory order of review, on the question whether it was aggrieved by the acceptance decision.  On 20 February 2014, Crown Law wrote a letter stating that MBRII had not demonstrated that it was aggrieved by the acceptance decision; and that in any event, the acceptance decision had been superseded by the pricing direction.
  10. [11]
    On 18 March 2014, Irish Bentley commenced proceedings for judicial review of the pricing direction.  The relief sought in the application included an interlocutory injunction, to restrain Seqwater from charging for irrigation water in accordance with the direction.
  11. [12]
    The application for the interlocutory injunction and the application for a statutory order of review of the acceptance decision were both dismissed by Jackson J.[1]  His Honour held that MBRII had not shown it was aggrieved by the acceptance decision.  His Honour dismissed the application for an interlocutory injunction on the basis that MBRII had not shown that damages would not be an adequate remedy if it was ultimately successful in its application; MBRII had not offered an undertaking as to damages; and there was no other significant reason to grant an interlocutory injunction.  His Honour ordered MBRII to pay costs in both matters.
  12. [13]
    In addition to its complaint, MBRII has filed a Claim and Statement of Claim in the Magistrates Court, against Irish Bentley.  The Statement of Claim alleges that, in the conduct of the matters described above, Irish Bentley was negligent and in breach of its contractual duty of care.  It claims damages of $69,007.20, being the refund of fees paid to the firm, costs paid to the QCA in the first review proceedings, costs for Counsel’s advice, and costs relating to a costs assessment.  The Tribunal was orally informed that these documents have been recently served on the respondent, and it was accepted that service was effected in accordance with the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).
  13. [14]
    On 25 March 2020, MBRII filed a Notice of Intention to Seek Compensation Order in this Tribunal.

Contentions

  1. [15]
    Mr Batch pointed out that, of the amounts claimed in the Magistrates Court, $27,704.30 represented the fees paid to the law practice, and the balance of the claim (calculated to be $41,302.90) was for other damages suffered as a result of alleged breaches of a contractual or tortious duty of care.  In these reasons, the former amount will be referred to as the “refund component” of MBRII’s claim, and the latter amount as the “pecuniary loss component”.
  2. [16]
    Mr Batch submitted that the amounts claimed in the Magistrates Court were identical to the amounts sought by way of compensation order in the Tribunal.
  3. [17]
    With respect to the pecuniary loss component, Mr Batch conceded that the Legal Profession Act 2007 (Qld) (“LP Act”) created a cause of action, which would justify MBRII proceeding with its compensation request in the present proceedings.  However, the amount of compensation which could be ordered for pecuniary loss was limited by s 466(3) of the LP Act to $7,500 (there being no suggestion of consent by the law practice to an order for a larger amount).  He then produced a cheque in the sum of $7,500 in favour of MBRII, and offered it to Mr Thomae.  Mr Batch stated that the cheque was to be an “ex gratia” payment, made with a denial of liability, but with the condition that the respondent be given credit for it against MBRII’s claims relating to the pecuniary loss component.  Mr Thomae stated that he did not have instructions which would permit him to accept the cheque at that time.  However, it became apparent that it was likely that terms could be formulated, acceptable to both parties, on which the cheque could be accepted, thereby exhausting the Tribunal’s power to make an order by way of monetary compensation for pecuniary loss of the kind identified in s 464(d) of the LP Act.  The arguments thereafter proceeded by reference to the refund component.
  4. [18]
    Mr Batch submitted that the Tribunal could make an order for compensation under s 464(a)–(c) of the LP Act without, and independently of, a finding that the legal practitioner had engaged in “prescribed conduct”, a term used conveniently to describe professional misconduct and unsatisfactory professional conduct.[2]  He then submitted, by reference to Owen v Menzies,[3] that the Tribunal is a court of law; and was obliged to apply the law, and to make its determination in accordance with the parties’ legal rights and obligations.[4]  This was said to have the consequence that an order for the refund of fees, under s 464(a), could only be made if a cause of action under the general law were established (no doubt by the complainant).  That would require a trial.  The causes of action in the Magistrates Court and in the Tribunal would be identical, and accordingly the proceedings would be identical.  Section 464 of the LP Act did not create new causes of action, with the exception of a claim for compensation for pecuniary loss under s 464(d).   The Tribunal could not make an order for payment of compensation under s 464(a), unless it conducted a trial on the question whether the complainant had established that it had a cause of action for the recovery of those fees.  There was no utility in having a trial of that cause of action in the Tribunal, and then having a trial of the claim for the pecuniary loss component in the Magistrates Court.  Mr Batch submitted that the causes of action on which the claim for a refund of fees was based were more appropriately dealt with in the Magistrates Court, where there was provision for pleadings, particulars and disclosure.  It was inefficient to deal with the same claim in both courts.  The multiplicity of proceedings would be an abuse of process.  If appropriate, the parties could return to the Tribunal for a determination of compensation, after the conclusion of the Magistrates Court proceedings.
  5. [19]
    Mr Thomae submitted that the power to make a compensation order was conferred by s 456 of the LP Act, in particular by subsections (1) and (4)(b).  The power arose for exercise if the Tribunal found that the respondent had engaged in prescribed conduct.  The Tribunal then had the power to make “any order as it thinks fit”, including a compensation order.  Section 464(a) of the LP Act described or defined one type of compensation order.  There were advantages for MBRII in having the Tribunal consider whether to order compensation for the refund component: MBRII did not have to establish a cause of action, and it had a favourable position with respect to costs.  The amount of a compensation order awarded to MBRII would have to be taken into account in the Magistrates Court, by virtue of s 467 of the LP Act.  MBRII was prepared to undertake not to take steps in the Magistrates Court proceeding until further order of the Tribunal.  An undertaking to that effect was formally given.  The respondent was therefore not prejudiced if the compensation question were dealt with by the Tribunal.
  6. [20]
    In reply, Mr Batch indicated that the undertaking was not acceptable to the respondent, as it was designed to lead to a second trial in the Magistrates Court.  The respondent intended to file a defence in the Magistrates Court proceedings in the near future.  In response to a question from the Tribunal, Mr Batch submitted that, if his submissions about the circumstances in which an order of the kind described in s 464(a) could be made were not accepted, that would not make much difference to his argument, as the damages claimed were the same.  He did not elaborate on this submission.  He submitted that prescribed conduct inevitably involved a breach of a duty of care; and was more serious than “professional negligence”, apparently a reference to conduct which was negligent, or a breach of a contractual duty of care, by the respondent in the provision of legal services to the complainant.  The fact that litigation was unsuccessful did not demonstrate that the lawyers conducting the litigation had been negligent, as was demonstrated by the decision of the New South Wales Court of Appeal in Heydon v NRMA Ltd.[5]
  7. [21]
    The applicant did not formally appear at the hearing.  However, Mr Nicholson of Counsel was present in Court on behalf of the applicant.  He indicated that he was available to make submissions to assist the Tribunal.  He submitted that an order for compensation of the kind described in s 464(a) could be made under s 456 only on a finding that a respondent had engaged in professional misconduct or unsatisfactory professional conduct.  He indicated that he did not wish to make a submission on any other legal question which had been raised.

A compensation order under s 464(a)

  1. [22]
    The essence of Mr Batch’s argument in chief was that the Tribunal’s power to make a compensation order under s 464(a) did not depend on a finding of professional misconduct or unsatisfactory professional conduct.  However, the power was not at large.  The Tribunal, being a court of law, was bound to make its determinations in accordance with the rights and obligations of the parties.  The consequence was that a compensation order for a refund of fees could be made only if the complainant established a cause of action in the hearing in this Tribunal.  The causes of action which it might establish are identical with those on which it sued in the Magistrates Court.  It would be inefficient to deal with them here.  It would also be an abuse of process for them to be dealt with in both forums.
  2. [23]
    The effect of the LP Act relating to the making of a compensation order is, in the Tribunal’s opinion, clear and conventional.  Section 452 of the LP Act authorises the Legal Services Commissioner to apply to the Tribunal for an order against an Australian legal practitioner in relation to a complaint against the practitioner, the application being called a discipline application.[6]  Section 453 has the effect that the Tribunal must hear and decide each allegation stated in a discipline application.[7]  Section 456 then provides that if, after the hearing of a discipline application in relation to a complaint, it is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, it may make “any order[s] it thinks fit” including a compensation order.  Section 464 then identifies a compensation order as one which is, or includes, an order that a law practice must repay “the whole or a stated part of the amount that the law practice charged [the] complainant for stated legal services”.[8]  The making of such an order is conditioned on a finding, in the language used by Mr Batch, of prescribed conduct.  To contend otherwise would reflect a fundamental misconception of the language and structure of the LP Act.
  3. [24]
    The submission that the Tribunal is obliged to apply the law, and to make its determinations in accordance with the legal rights and obligations of the parties, is plainly correct, but does not have the consequences for which the respondent contends.  In applying the law, the Tribunal is to consider, and appropriately exercise, the powers conferred on it by the LP Act when it determines a discipline application.  If satisfied that a practitioner has engaged in professional misconduct or unsatisfactory professional conduct, it may make an order of the kind described in s 464.  In following that course, it is applying the law, essentially that stated in s 456(1) and (4)(b), read with s 464.
  4. [25]
    The statement made by de Jersey CJ in Owen should be read in context.  The jurisdiction his Honour was referring to was the Tribunal’s jurisdiction in relation to a “minor civil dispute”; and the Tribunal’s duty in a proceeding for such a dispute to make orders that it considers “fair and equitable”.  It had been submitted that, in making such orders, the Tribunal was not necessarily obliged to apply the law (and accordingly was not a court of a State within the purview of Chapter III of the Commonwealth Constitution).  His Honour rejected that submission. The statement that the determination must be in accordance with the legal rights and obligations of the parties is, in the context of such a dispute, respectfully considered apt, as such a dispute is generally based on a cause of action or a right arising under a statute.[9]  It does not suggest that, where a power is conferred by statute on the Tribunal to make an order in favour of a person in certain circumstances, the order can only be made if the person establishes some other cause of action.
  5. [26]
    It follows that the respondent’s submission that a compensation order may be made against an Australian legal practitioner, without a finding that the practitioner engaged in professional misconduct or unsatisfactory professional conduct, should be rejected.  Since that was the basis for its argument that MBRII would have to establish a cause of action before a compensation order could be made in its favour, that argument should also be rejected. It will be apparent from earlier discussion of the statutory provisions that the only necessary precondition to the making of such an order is a finding that the respondent engaged in professional misconduct or unsatisfactory professional conduct.
  6. [27]
    The argument based on efficiency seems dependent on the submission that the causes of action on which MBRII relies would have to be litigated in the Tribunal before a compensation order could be made.  Accordingly, that argument also fails.  If the argument were simply that, because of the compensation request, the respondent’s conduct will be examined in two forums rather than one, and accordingly it is inefficient to proceed with the compensation request, it would be incorrect.  If the causes of action were litigated in the Magistrates Court, it would still be necessary for the Legal Services Commissioner to establish misconduct in the proceedings in this Tribunal, according to the onus which applies here,[10] which would mean that the respondent’s conduct in the course of its retainer by the complainant would be the subject of scrutiny in both forums.
  7. [28]
    The submission made by Mr Batch in the course of his oral reply that, even if his principal argument failed, he should nevertheless succeed because the damages claimed were the same, should not be accepted.  It was not advanced in his submissions in chief, and received little explanation.  It appeared to be based on the proposition that it would be an abuse of process for the complainant to request a compensation order, and at the same time to seek damages in the Magistrates Court proceedings.
  8. [29]
    No authority was identified for the proposition that the mere fact that the damages sought in each forum were the same was sufficient to constitute one proceeding an abuse of process.  Authority points to a contrary conclusion.
  9. [30]
    In Rogers v Roche,[11] Fraser JA (with whose reasons Gotterson JA and Burns J agreed) was considering what his Honour described as “re-litigation abuse of process”.[12]  His Honour said:[13]

Blue J (with whose reasons Kourakis CJ and Sulan J agreed) held in Morgan v WorkCover Corporation that the mere fact that a person against whom a re-litigation abuse of process is alleged was a party in two sets of proceedings and seeks to litigate an issue decided in the earlier proceedings is not sufficient to give rise to abuse of process. I agree. The decisions discussed in [29]–[31] of these reasons make it clear that it may but not necessarily will be an abuse of process for a litigant to rely upon a claim which was determined adversely to that litigant in previous litigation; it is necessary to examine the circumstances of each case and to decide whether or not litigation of the second claim would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.

  1. [31]
    Where it is contended that a proceeding is an abuse of process, a more wide-ranging enquiry is to be undertaken.  In UBS AG v Tyne,[14] Kiefel CJ, Bell and Keane JJ (with whose reasons Gageler J agreed[15]) stated:[16]

The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.

  1. [32]
    Their Honours were considering a submission that the commencement of a second set of proceedings for relief which could have been pursued in earlier proceedings would, without proper explanation, amount to an abuse of process.[17]  Their Honours stated:[18]

Whether conduct of this description rises to the level of an abuse of the processes of the court is a determination that requires consideration of all the circumstances.

  1. [33]
    Their Honours then cited with approval the following description by Lord Bingham of Cornhill in Johnson v Gore Wood & Co[19] of the relevant assessment as:

… a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.

  1. [34]
    The first passage from UBS cited above identifies two conditions, either of which would enliven the power to order a stay of proceedings on the ground of abuse of process.  The first is whether the respondent will be the subject of unjustifiable oppression if the Tribunal deals with compensation.  The discipline application will inevitably require some scrutiny of the respondent’s conduct in the provision of legal services to the complainant.  The consequences of that conduct are likely to be relevant to the determination of appropriate orders.  There is no reason to think that he will suffer unjustifiable oppression, if a compensation order is within the range of orders that that the Tribunal might consider making.  If made, the respondent will be protected from a further order for the same damage by s 467 of the LP Act.
  2. [35]
    No reason has been identified for concluding that the administration of justice might be brought into disrepute.  The issues in the two proceedings are different.
  3. [36]
    Some support for Mr Batch’s position may be thought to be found in Moore v Inglis,[20] a decision of Mason J.[21]  His Honour granted a stay of an action in the High Court on the ground that it was an abuse of process, in view of proceedings earlier commenced by the plaintiff in the Supreme Court of the Australian Capital Territory.  Both arose out of the same factual circumstances.  His Honour adopted the statement of Sir Gorell Barnes in Logan v Bank of Scotland (No 2)[22] that “…where two actions are brought by the same person against the same person in different Courts governed by the same procedure, and where the judgments are followed by the same remedies, it is prima facie vexatious to bring two actions where one will lie …”.[23]    His Honour went on to find that the same conclusion should be reached in the case before him, notwithstanding some differences in the formulation of causes of action, the remedies sought, and the defendants sued in each Court.  His Honour noted that the matters complained of and the relief sought in the High Court were “subsidiary and subservient to” the claim for damages in the Supreme Court, and the declarations sought were directed to the Supreme Court proceedings.
  4. [37]
    In Henry v Henry,[24] Mason J’s judgment was cited as authority for the proposition that “it is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue”.
  5. [38]
    It might be noted that in Logan and Henry the conclusion about the character of one set of proceedings is said to be “prima facie”.  Consistent with UBS, other matters are relevant to the question whether one proceeding is oppressive.  The decision is not just based on the fact one proceeding has some element in common with another proceeding.
  6. [39]
    In the language of Logan, the present case is not one where two actions are brought by the same person; nor are the remedies the same.  In the language of Henry, the matter in issue in the Tribunal is not the same as in the Magistrates Court.  In that court, the matters to be established by the complainant are the existence of a duty of care, its breach, and (to recover money for) resultant damage.  In the Tribunal, one issue is whether the respondent’s alleged conduct amounts to professional misconduct or unsatisfactory professional conduct.  If that is established, another issue will be what orders (including possibly a compensation order) should be made.
  7. [40]
    Whether the compensation request might amount to unjustifiable oppression is to be considered by reference to all the circumstances of the case.  As was suggested at the hearing, what is sought is some form of anticipatory decision by the Tribunal that it will not make a compensation order, before it has heard the discipline application.  Given the nature of these proceedings, the appropriateness of such a course is, at best, questionable.  There may well be a public interest, associated with general deterrence, in making a compensation order, which would militate against some form of stay.
  8. [41]
    Moreover, the legislation appears designed to enable the Tribunal to consider the making of a compensation order, while a complainant pursues a damages remedy in a court.  By virtue of s 463 of the LP Act, the conferral of a power to make a compensation order does not affect any other remedy available to a complainant.  By virtue of s 467, the recovery of an amount awarded by a compensation order does not affect any other remedy available to a complainant, though the amount awarded must be taken into account in another proceeding brought in relation to the same loss.
  9. [42]
    There is another matter that is potentially relevant to the question whether a stay should be granted.  In Re AWB Limited (No 10),[25] Robson J was dealing with an application for a stay of proceedings brought by the Australian Securities and Investments Commission for declarations and other relief based on alleged breaches of directors’ duties, when the Commission had brought an earlier set of proceedings for similar relief arising out of the same circumstances.  After a substantial review of authorities, his Honour produced a summary of relevant principles on the question whether a proceeding should, in such circumstances, be stayed as an abuse of process.  His Honour repeated the summary when sitting as an Acting Justice of Appeal in Kermani v Westpac Banking Corporation, with the agreement of Neave and Harper JJA.[26]  The summary included the following propositions:[27]
  1. (9)
    It is prima facie vexatious to bring two extant civil actions where one will lie: Moore v Inglis; Thirteenth Corporation Pty Ltd v State.
  1. (10)
    This prima facie rule applies whether or not the two proceedings are in separate courts or one: Branir Pty Ltd v Wallco Pastoral Co Pty Ltd
  1. (11)
    The prima facie rule applies where the issues overlap or significantly overlap or there is a similarity of subject matters of the proceedings.
  1. (12)
    The fact that the parties may not be identical, or the relief different, does not necessarily disentitle relief under this principle: Moore v Inglis.
  1. (13)
    In considering whether the rule should apply, the court should consider whether there was no reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like: Thirteenth Corporation Pty Ltd v State.
  1. [43]
    Proposition 13 reflects the fact that a finding that a second proceeding is vexatious is only the prima facie position.  The discipline application, which in truth is the second proceeding, is not suggested to be vexatious.  There would in any event seem to be legitimate considerations for MBRII to request a compensation order in that proceeding.  It has the advantage that the applicant will have to establish the respondent’s conduct; MBRII does not have to establish a cause of action; and matters which might be expected to be raised are in any event potentially relevant to the discipline application generally.  MBRII might have the benefit of a compensation order, without incurring the expenses of a trial in the Magistrates Court (at least in relation to the refund component).  In the Tribunal, it is given a protected position as to costs.[28]
  2. [44]
    The matters which have been discussed demonstrate that there appear to be a range of considerations which need to be considered before relief in the nature of a stay should be granted.  The mere fact that the same damages might be recovered is not, of itself, sufficient to support the stay.  There are other factors which make it appropriate for the Tribunal to consider a compensation order.

Conclusion

  1. [45]
    The respondent’s application should be dismissed.  No submissions have been made about costs.  In view of the provisions of s 462 of the LP Act, it seems appropriate to make directions for submissions on this question.

Footnotes

[1]See Mid Brisbane River Irrigators Inc v Treasurer and Minister for Trade of the State of Queensland & Ors [2014] 2 Qd R 592 and Mid Brisbane River Irrigators Inc v Treasurer and Minister for Trade of the State of Queensland & Ors (No 2) [2014] QSC 197.

[2]See LP Act ss 418, 419 for the definitions of these expressions.

[3][2013] 2 Qd R 327, [20] (de Jersey CJ); see also [52] (McMurdo P) and [100]–[101] (Muir JA) (“Owen”).

[4]See Owen, [12]-[13].

[5](2000) 51 NSWLR 1.

[6]See LP Act s 452(2).

[7]Charge 3 of the discipline application alleges that the respondent engaged in conduct which amounts to unsatisfactory professional conduct or professional misconduct when acting on behalf of MBRII.

[8]See LP Act s 464(a).

[9]See Queensland Civil and Administrative Tribunal Act 2009 (Qld) sch 3 (definition of “minor civil dispute”) (“QCAT Act”).

[10]See LP Act s 656C.

[11][2017] 2 Qd R 306 (“Rogers”).

[12]See Rogers, [29].

[13]Rogers, [46], and omitting citations.

[14][2018] HCA 45 (“UBS”).  Although the judgment drew on s 37M of the Federal Court of Australia Act 1976 (Cth), a similar approach to the conduct of proceedings in this Tribunal is apparent from QCAT Act ss 3, 4 and 45.

[15]UBS, [61].

[16]UBS, [1], and omitting citations.

[17]More fully described in UBS, [6].

[18]UBS, [7].

[19][2002] 2 AC 1, 31.

[20](1976) 50 ALJR 589 (“Moore”).

[21]Upheld on appeal in Moore v Inglis (1976) 136 CLR 677.

[22][1906] 1 KB 141, 150.

[23]Moore, 591.

[24](1996) 185 CLR 571, [35].

[25][2009] VSC 566 (“Re AWB Limited (No 10)”).

[26][2012] VCA 42, [1], [2], [97].

[27]Re AWB Limited (No 10), [264], and omitting citations.

[28]Under LP Act s 462.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Bentley (No 4)

  • Shortened Case Name:

    Legal Services Commissioner v Bentley (No 4)

  • MNC:

    [2021] QCAT 2

  • Court:

    QCAT

  • Judge(s):

    Member Peter Lyons QC

  • Date:

    12 Jan 2021

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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