Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2021
  4. Legal Services Commissioner v Bentley (No 5) - [2021] QCAT 226

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Legal Services Commissioner v Bentley (No 5)[2021] QCAT 226

Legal Services Commissioner v Bentley (No 5)[2021] QCAT 226

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Bentley (No 5) [2021] QCAT 226

PARTIES:

Legal Services Commissioner

(applicant)

v

Zeke David Bentley

(respondent)

APPLICATION NO/S:

OCR225-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 July 2021

HEARING DATE:

31 May 2021

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

Assisted by:

Mr Keith Revell

Ms Patricia Schmidt

ORDERS:

  1. The respondent is publicly reprimanded.
  2. The respondent is ordered to pay a penalty of $5,000.
  3. The respondent is ordered to pay to the complainant, Mid Brisbane River Irrigators Inc, the sum of $27,704.30 by way of repayment of fees charged by the respondent.
  4. These orders and the reasons published on 22 July 2021 are to be referred to the Ethics Counsel for the Queensland Law Society.
  5. The respondent is forthwith to consult with the Ethics Counsel for the Queensland Law Society and undertake within twelve months, at his own expense, such course as the Ethics Counsel considers appropriate in light of these reasons.
  6. The respondent is to pay the applicant’s costs of and incidental to this application, but excluding the costs of and incidental to the application filed by the applicant on 7 April 2020, to be assessed on the standard basis as if the proceedings had been conducted in the Supreme Court of Queensland.
  7. The respondent is to pay the complainant’s costs of and incidental to the application, including reserved costs, to be assessed on the standard basis as if the proceedings had been conducted in the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the applicant Commissioner has brought a discipline application against the respondent – where three charges brought against respondent in discipline application – where respondent failed to make adequate and timely costs disclosures – where respondent acted without client instructions – where respondent failed to give appropriate advice to complainant – where respondent failed to address important issues in proceedings involving complainant – whether conduct should be characterised as unsatisfactory professional conduct or professional misconduct

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 complainant originally sought an order for compensation for pecuniary loss and an order for recovery of the amount charged by law practice for legal services – where complainant no longer pursuing compensation for pecuniary loss – whether the Tribunal should make a compensation order

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the applicant Commissioner has brought a discipline application against the respondent – where respondent subject to previous disciplinary proceedings – where previous sanctions included a public reprimand and fine – where conduct of respondent reveals number of failures relating to costs disclosure and overall competency – where respondent accepts a public reprimand – where Tribunal has power to make any order it sees fit – whether Tribunal has power to order respondent to consult ethics counsel and undertake ethics counselling – whether respondent should pay a monetary penalty

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – ORDERS – where the applicant Commissioner has brought a discipline application against the respondent – where applicant and respondent agree that respondent should pay applicant’s costs of and incidental to the application on standard basis as assessed by Supreme Court of Queensland – where complainant seeks an order that respondent pay its costs on the same basis – where respondent opposes such an order – where respondent claims question of costs of stay application should be determined by ss 100 and 102 of QCAT Act – where alternatively respondent claims costs should be assessed as if discipline application were a proceeding in the Magistrates Court – whether the complainant’s costs should be assessed as if the proceedings were conducted in the Supreme Court of Queensland

Judicial Review Act 1991 (Qld), s 20

Legal Profession Act 2007 (Qld), s 308, s 309, s 310, s 315, s 418, s 419, s 420, s 429, s 452, s 453, s 456, s 462, s 463, s 464, s 466, s 467, s 468

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 10, s 28(3)(b), s 47, s 48, s 100, s 102

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249

Legal Services Commissioner v Bentley [2016] QCAT 185

Legal Services Commissioner v Bradshaw [2009] QCA 126

Legal Services Commissioner v McQuaid [2019] QCA 136

Mid Brisbane River Irrigators Inc v The Treasurer and Minister for Trade of the State of Qld & Ors [2014] QSC 196

Mid Brisbane River Irrigators Inc v The Treasurer and Minister for Trade of the State of Qld & Ors (No 2) [2014] QSC 197

Victorian Legal Services Commissioner v Szwider [2019] VCAT 505

APPEARANCES &

REPRESENTATION:

Applicant:

M Nicholson, instructed by Legal Services Commission

Respondent:

J D Batch QC, instructed by Irish Bentley Lawyers

Complainant:

D Thomae, instructed by Alex Mackay & Co

REASONS FOR DECISION

  1. [1]
    Although there is not a great deal that remains contentious, it remains necessary for the Tribunal to deal with a number of matters. They are, the characterisation of the respondent’s conduct as either unsatisfactory professional conduct or professional misconduct; the orders to be made, including whether a compensation order should be made; and costs.
  2. [2]
    The discipline application nominates three charges against the respondent. Two arise out of a retainer of the respondent by Mr Ian van der Woude, and will be referred to as the “van der Woude charges”. The third arises out of a retainer of the respondent on behalf of Mid Brisbane River Irrigators Inc (“MBRII”), and will be referred to as the “MBRII charge”.
  3. [3]
    At all times relevant to the discipline application, the respondent was a sole practitioner, carrying on legal practice under the name “Irish Bentley”. Notwithstanding some language found in the Legal Profession Act 2007 (Qld) (“LP Act”), in the present case there is no relevant distinction between the respondent and the legal practice. However, the respondent employed other solicitors, who played some role in relevant events.
  4. [4]
    Mr van der Woude and MBRII both filed a request for compensation. By email of 24 August 2020, Mr van der Woude gave notice that he wished to withdraw his request. Accordingly, it will not be given further consideration.
  5. [5]
    Factual background to the charges is set out in a Statement of Agreed Facts (“SOAF”) dated 14 October 2019, signed by the applicant and the respondent. It makes extensive reference to an affidavit of Mr David Edwards, filed on 17 August 2018. The recitation of facts which follows is based on these documents.

Background to van der Woude charges

  1. [6]
    On 6 October 2010, Mr van der Woude retained the respondent to act on his behalf and on behalf of a Mr Hancock and their related corporate entities in a litigious matter, relating to a claim against DFK Hirn Newey Chartered Accountants (“DFK”). On 15 November 2010 and again on 23 November 2010, the respondent advised Mr van der Woude that the clients had an actionable claim, and that they should commence proceedings against DFK. On the same day, the respondent requested Mr van der Woude to provide documents for a report from another accountant, and for the litigation generally.
  2. [7]
    It was not until 3 March 2011 that a document in the nature of a costs disclosure was provided to Mr van der Woude. It identified the work to be done as “Conducting proceedings against DFK Hirn Newey Chartered Accountants for professional negligence”. It estimated professional fees as between $20,000 and $50,000; but it also identified an item of “extraordinary work”, specified as “if trial is necessary”, for which the costs were said to be $50,000 to $100,000.
  3. [8]
    By October 2013, the bills rendered by the practice had exceeded $50,000. At this stage, the matter was not ready for trial, a statement of claim having been delivered only the month before.
  4. [9]
    On 4 September 2013, the practice sent an amended costs agreement to Mr van der Woude. It gave some information about fees and other charges, but did not contain an estimate of fees.
  5. [10]
    By 31 July 2014, the legal practice had charged legal costs, including Counsel’s fees, totalling $108,436.08.
  6. [11]
    The first charge in the discipline application alleges that the respondent was, between 6 October 2010 and 31 July 2014, involved in the failure of the legal practice to provide costs disclosure as required by Part 3.4 Division 3 of the LP Act, to Mr van der Woude.
  7. [12]
    On 24 February 2014, the defendants in the litigation applied to the Supreme Court for summary judgment in their favour, or alternatively to strike out part of the statement of claim. The application was returnable on 11 March 2014. The practice filed submissions accepting that the claim in contract against the defendants was statute barred; and that the claims against the second and third defendants ought to be dismissed with costs. On 11 March 2014, orders were made by consent, striking out certain paragraphs of the statement of claim, dismissing the claims against the second and third defendants, and dismissing the claim for breach of contract.
  8. [13]
    The SOAF records that Mr van der Woude says that he was unaware of the hearing on 11 March 2014, prior to its occurrence; and he had not given instructions to make concessions or to consent to the orders. It also records the respondent’s acceptance that, when he was attending to the matter prior to 11 March 2014, he did not give due attention to communicating with the lay client and advising him, in order to obtain his informed consent. The SOAF also records that there were no signed written instructions from the client to consent to orders on 11 March 2014.
  9. [14]
    Charge 2 alleges that on 11 March 2014, the respondent acted without the instructions of his client Mr van der Woude, in relation to the hearing.
  10. [15]
    The approach taken in the SOAF appears somewhat coy on a central fact; namely, whether Mr van der Woude gave instructions to consent to the orders made on 11 March 2014 by consent. To avoid any uncertainty, the Tribunal makes a finding that Mr van der Woude did not give those instructions. The SOAF records his statements that he was unaware in advance of the hearing which took place on 11 March 2014, and that he had not given instructions to consent to the orders. The Tribunal is not bound by the rules of evidence.[1] There seems to be little point in presenting the statements of Mr van der Woude in this form in the SOAF unless the Tribunal is to accept them. They are not controverted by the respondent. They find support in the fact that there were no written instructions from Mr van der Woude in relation to the hearing. Accordingly, the Tribunal acts on them in finding that the orders were made by consent on 11 March 2014, without Mr van der Woude’s instructions.

Background to the MBRII charge

  1. [16]
    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 (Qld) (“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 a Mr David Stevenson then practised. However, the advice was subsequently sought from Irish Bentley, in October 2013. At about this time, Mr Stevenson came to be employed by Irish Bentley. Also at about this time, the Treasurer and Minister for Trade, and the Attorney-General and the Minister for Justice (“QCAA Ministers”) had accepted the recommendations in the QCA report.
  2. [17]
    Irish Bentley provided a letter of advice to MBRII dated 16 October 2013. The letter was signed by the respondent. It is apparent from the letter that, by then, the QCAA Ministers 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); but the reference was to a proposed challenge to the acceptance decision; and that, if the proceedings were unsuccessful, there were reasonable prospects that the Court would not make an order for costs against MBRII.
  3. [18]
    By letter dated 21 October 2013, MBRII informed Irish Bentley that it wished to proceed with the matter.
  4. [19]
    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.
  5. [20]
    On 19 November 2013, Gilbert and 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) (“JR Act”).
  6. [21]
    On 18 December 2013, the Minister administering the Water Act 2000 (Qld) and the Treasurer of Queensland gave a direction under that Act to Queensland Bulk Water 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”).
  7. [22]
    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 to Irish Bentley 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.
  8. [23]
    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.
  9. [24]
    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. His Honour gave judgment on both matters on 21 August 2014.[2] His Honour held that MBRII had not shown it was aggrieved by the acceptance decision and accordingly, he dismissed the application. His Honour further 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.
  10. [25]
    Charge 3 alleges, on the basis of these facts, that, between October 2013 and 21 August 2014, the respondent, in acting on behalf of MBRII, engaged in conduct which amounted to unsatisfactory professional conduct or professional misconduct pursuant to the LP Act.

Characterisation of respondent’s conduct

  1. [26]
    As foreshadowed, no issue has been raised about what occurred.
  2. [27]
    The LP Act contains statutory definitions relevant to the conduct allegations against the respondent. Thus, s 418 of the LP Act provides:

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law 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.

  1. [1]
    Section 419 of the same Act provides that:
  1. (1)
    Professional misconduct includes –

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence...

  1. [28]
    Because these definitions are inclusive, and because these expressions were in common use before the LP Act was enacted, common law tests for the assessment of such conduct remain relevant. In Adamson v Queensland Law Society Incorporated,[3] Thomas J said, with respect to professional misconduct:

The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency…

  1. [29]
    Such conduct has also been described as conduct that would reasonably be regarded as disgraceful or dishonourable by the lawyer’s professional colleagues of good repute and competency.[4]
  1. [2]
    Moreover, s 420(1)(a) of the LP Act has the effect that conduct consisting of a contravention of a “relevant law” (defined in Schedule 2 to include the LP Act) is capable of constituting unsatisfactory professional conduct or professional misconduct. It is therefore necessary to assess the seriousness of a respondent’s breach of the LP Act when considering whether it is to be characterised as unsatisfactory professional conduct or professional misconduct.
  1. [30]
    In essence, Charge 1 alleges a failure on the part of the respondent to comply with the costs disclosure requirements of the LP Act. Although the discipline application and the SOAF, as well as the applicant’s submissions, refer to a series of facts relating to costs disclosure, none of these documents identifies the specific provisions of the Act which it is alleged the respondent breached; and what amounts to any alleged breach. The respondent has not taken any objection to the way the charges have been advanced by the applicant. The Tribunal proposes to deal with the charge on the basis of such breaches of the disclosure requirements of the Act as would be supported by the facts alleged in the discipline application, to the extent that those facts are established.
  2. [31]
    Section 310 of the LP Act provides that the disclosure required by s 308 of that Act is to be made in writing before, or as soon as practicable after, the law practice is retained in the matter. A period of more than four months elapsed from the time the respondent was retained, until some form of disclosure was made in March 2011. Nothing has been put forward to suggest that this occurred as soon as practicable after the respondent was retained. This was in breach of the requirements of ss 308 and 310.
  3. [32]
    There is no clear criticism in the discipline application of the sufficiency of the costs disclosure given in March 2011.
  4. [33]
    Section 315 of the LP Act requires a law practice to make written disclosure to a client of “any substantial change to anything included in a disclosure already made under this division as soon as is reasonably practicable after the law practice becomes aware of that change”. By about October 2013, in view of the amounts then billed, it must have been clear to those conducting the matter that the estimates in the disclosure given in March 2011 were no longer correct. Section 315 required the law practice to make further costs disclosure. It has not been suggested otherwise; and the documents sent to the client in September that year tend to suggest some awareness that the original costs disclosure was no longer adequate.
  5. [34]
    While the documents provided in September 2013 gave some information about how fees would be charged, they did not contain an estimate of costs. Accordingly, the Tribunal is satisfied that, at least from October 2013, there was a failure to make further costs disclosure as required by s 315. The discipline application alleges that the failure to make costs disclosure continued until 31 July 2014. There is no evidence of any earlier compliance with s 315, and the Tribunal finds that the failure continued until that date.
  6. [35]
    The discipline application alleges (and the SOAF establishes) that the legal practice engaged Counsel in about June 2012, again in or about January 2013, in about March 2014, and for a fourth time in about April 2014. Section 309 of the LP Act provides that if a law practice engages another law practice on behalf of a client, the first-mentioned law practice must disclose to the client certain matters relating to the second law practice’s fees, including an estimate of the total legal costs. As the example to s 309 shows, the section relates to the retainer of a barrister by a solicitor. There is no suggestion of any disclosure of matters relating to the barristers’ fees, whether in the disclosure made in March 2011, or in the documents of September 2013, or otherwise, save for some discussion of one barrister’s daily rate. That does not amount to written disclosure, as required by s 310 of the Act; and it did not deal with all matters required to be disclosed under s 309. The law practice failed entirely to make disclosure in relation to the fees of three barristers; and for the fourth, the failure to make the required disclosure may be regarded as being somewhat mitigated by the fact that the respondent orally informed the client of the barrister’s daily rate. Importantly, however, he did not give the client an estimate of the total costs likely to be paid to that barrister.
  1. [36]
    In summary, the Tribunal is satisfied that the law practice:
    1. (a)
      failed to make timely costs disclosure when initially retained;
    2. (b)
      failed to make further costs disclosure when it must have become apparent that the initial estimate of total legal costs was no longer adequate;
    3. (c)
      failed to make costs disclosures relating to the retainer of the four barristers, in the respects identified; and
    4. (d)
      in these respects, breached the provisions of the LP Act discussed earlier in these reasons.
  1. [37]
    Taken together, these failures might well be found to be professional misconduct, as defined in s 419 of the LP Act, involving a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence. However, it is necessary to keep in mind that the definition applies to “conduct of an Australian legal practitioner”. It is not to be applied to the aggregated conduct of a number of practitioners.
  2. [38]
    The discipline application alleges that the respondent had “the overall supervision of the matter, including the supervision of the firm’s staff involved in the matter”. The disclosure notice sent in March 2011 was alleged to have been provided by “the firm”; and the discipline application makes allegations about the role played by an “Associate with the firm” in providing documents to the client and securing the client’s written agreement to the retainer. Likewise, the discipline application refers to “bills rendered by the firm” to establish that the fees charged were in excess of the estimate provided in March 2011. It is not clear whether the charge relies on a failure by the respondent to supervise the conduct of others who were given the responsibility of complying with the disclosure obligations of the LP Act; or the more direct involvement of the respondent in the breaches of the statutory provisions. Without wishing to fail to recognise the importance of proper supervision by a principal of a law practice, the Tribunal considers that the respondent’s conduct would be judged more seriously if he were personally involved in all of the breaches of those obligations; or if it were clear that there had been a serious failure in the respondent’s duty to supervise employed professional staff.
  3. [39]
    In determining what view to reach, it is also relevant to note that it has been the agreed position of the applicant and the respondent, at least since October 2019, that the conduct the subject of Charge 1 should be characterised as unsatisfactory professional conduct.
  4. [40]
    In Victorian Legal Services Commissioner v Szwider (“Szwider”),[5] Charges 1 and 4 were based on failures to comply with disclosure obligations. Judge Jenkins identified a number of cases where such failures resulted in some cases in findings of professional misconduct, and in some cases in findings of unsatisfactory professional conduct. Her Honour stated:[6]

…Counsel suggested that it is not always apparent why professional misconduct or unsatisfactory professional conduct has been found in apparently similar factual circumstances. In my view, this does not necessarily reflect an inconsistency but rather the nature of negotiated pleas, particularly where complex factual circumstances may present evidentiary challenges.

  1. [41]
    In Szwider itself, her Honour found the failure, repeated in 25 bills of costs, to inform the client as to his right to challenge legal costs, and of applicable time limits, amounted to unsatisfactory professional conduct.[7] On the other hand, the failure to provide an estimate of legal costs for some of the work performed, insufficient disclosure of the basis on which legal costs would be charged, as well as the failure to provide an estimate of the costs which the client might recover if successful, and the costs which the client might be required to pay if unsuccessful, coupled with the failure to disclose matters relating to the right to dispute costs, constituted professional misconduct.[8]
  2. [42]
    In view of the way the matter has been conducted, and notwithstanding the overall seriousness of the breaches of the disclosure obligations, the Tribunal is prepared to accept the characterisation of the respondent’s conduct the subject of Charge 1, as unsatisfactory professional conduct. It must nevertheless be regarded as being at the upper end of the range of conduct to which this description might apply.
  3. [43]
    Acting without instructions when consenting to orders, particularly orders dismissing a client’s claim against other parties, is a matter of considerable concern. Nevertheless, it has not been suggested that any other course was in truth open to the client. In those circumstances, the real problem with what happened is that the difficulties which the client faced in the litigation were not recognised in sufficient time to enable an explanation to be given to him, and for him to come to an informed decision about the course to be taken.
  4. [44]
    The applicant and the respondent have agreed that the conduct the subject of Charge 2 is to be characterised as unsatisfactory professional conduct. The Tribunal is prepared to accept that characterisation.
  5. [45]
    The major concerns raised in the discipline application about the conduct the subject of Charge 3 (with some adaptation for the sake of clarity) may be summarised as follows:
    1. (a)
      the failure of the respondent to advise the client adequately in respect of the view expressed on behalf of the QCA that the basis on which MBRII asserted it was a person aggrieved by the decision of the QCAA Ministers to accept its recommendations, had not been made clear in the application in the first proceedings, and the view later expressed on behalf of the QCAA Ministers that MBRII had not demonstrated that it was a person aggrieved by the acceptance decision;
    2. (b)
      the failure to give appropriate advice about MBRII’s potential costs exposure, in particular in relation to the question whether it was aggrieved by the decision of the QCAA Ministers;
    3. (c)
      briefing Counsel late for the hearing on 27 May 2014;
    4. (d)
      failing to address the question whether damages (or some compensatory relief) would be an adequate remedy if an interlocutory injunction were not granted in the second proceedings;
    5. (e)
      failing to deal with the question of an undertaking as to damages in relation to the interlocutory injunction sought in the second proceedings; and
    6. (f)
      the respondent’s failure to supervise legal staff in the conduct of the matter for MBRII.
  6. [46]
    In the SOAF, the respondent accepted that he failed to identify, and that he failed to attempt to address and overcome, the issue whether MBRII was a person aggrieved by the acceptance decision, for example, by not asking natural persons who were members of MBRII to join the proceedings as co-applicants. When dismissing the first proceeding, Jackson J expressly refrained from doing so on the basis that the members of MBRII may have been aggrieved by the acceptance decision, when MBRII itself was not.[9] No specific argument in this Tribunal dealt with the alleged failure to ask members of MBRII to become parties to the proceeding. It is clear from his Honour’s reasons that their joinder would not have overcome the difficulty relating to standing. The Tribunal does not attach any significance to failure to attempt to add members of MBRII as applicants when assessing the respondent’s conduct.
  7. [47]
    More concerning is the respondent’s admitted failure to identify and address the question whether there was a person aggrieved by the acceptance decision, as a fundamental issue in the first proceeding. The issue is made apparent from a reading of s 20 of the JR Act , which enables a person who is “aggrieved by a decision to which this Act applies” to apply to the court for a statutory order of review. The legislation is no longer novel; and there is a substantial body of case law on the issue. It is plainly a matter which should have been recognised in the course of providing advice to the client in this matter. The respondent’s failure to address it is compounded by the fact that the issue was raised in the correspondence from QCA’s solicitors in November 2013; and in the correspondence from Crown Law on behalf of the QCAA Ministers in February 2014. Its significance should also have been apparent from the Court direction in November 2013, requiring MBRII to file a statement of facts and contentions on the question. The fact that the proceeding failed on this question, however, is not of itself of any particular significance in assessing the respondent’s conduct. A matter may well fail on a ground which has been identified and considered by the lawyer with the conduct of the matter, without there being any basis for alleging a failure on the part of the lawyer to demonstrate an appropriate standard of diligence and competence.
  8. [48]
    Another matter of particular concern is the failure to advise on and seek instructions to give an undertaking as to damages. As is apparent from the judgment of Jackson J, such an undertaking is the ordinary protection provided to a party bound by an interlocutory injunction, and it has been “in use since about the middle of the nineteenth century”.[10] The failure to deal with it is significant.
  9. [49]
    The respondent’s letter of 16 October 2013 advised MBRII that there were reasonable prospects, if it failed in the first proceeding, that costs would not be ordered against it. No basis for that advice has been identified. The applicant’s submissions do not deal in detail with inadequacies of this advice. However, the respondent has admitted that he failed to provide any concrete or realistic advice about MBRII’s costs exposure. He has also accepted that he failed to provide an estimate of the likely costs to MBRII if it were to lose the application.
  10. [50]
    Another matter of concern is the late briefing of Counsel for the hearing of both proceedings on 27 May 2014.
  11. [51]
    The SOAF records that the respondent had responsibility for the matter throughout, initially supervising Mr Stevenson, and from 4 April 2014 when Mr Stevenson left the respondent’s law practice, supervising two other solicitors. Save that the respondent signed the letter dated 16 October 2013, it is not shown that he played more than a supervisory role in relation to the failures found in relation to Charge 3.
  12. [52]
    The applicant and the respondent have submitted that the conduct which is the subject of Charge 3 should be characterised as unsatisfactory professional conduct. MBRII was heard on this question. It did not submit otherwise.
  13. [53]
    It these circumstances, the Tribunal is prepared to accept this characterisation of the respondent’s failures, found in relation to Charge 3.

Compensation order

  1. [54]
    MBRII requested that an order for compensation for pecuniary loss, of the kind identified in s 464(d) of the LP Act, and an order for recovery of the amount charged for legal services under s 464(a), be made against the law practice.
  2. [55]
    Since the request, the respondent has paid, and MBRII has accepted, the sum of $7,500 for compensation for pecuniary loss. That is the maximum amount which could be the subject of an order by the Tribunal, since the respondent has not consented to an order for a greater amount.[11] Mr Thomae indicated that MBRII no longer sought an order for compensation for pecuniary loss. Accordingly, the Tribunal will not make an order for compensation for pecuniary loss.
  3. [56]
    Mr Batch accepted that an order should be made for the repayment of the amount charged for legal services, in the sum of $27,704.30. An order will be made accordingly.

Other orders

  1. [57]
    There are some very concerning features of this application. It reveals a substantial number of failures by the respondent relating to the costs disclosure requirements of the LP Act. Even if the respondent was only involved in a supervisory capacity in these failures, nevertheless, the failures, taken together, are very concerning. The nature and extent of the failures in relation to Charge 3, relating to matters of competence, are also very concerning.
  2. [58]
    There has been an earlier finding that the respondent engaged in unsatisfactory professional conduct by witnessing the signature of a client who was not physically in his presence, but with whom he was in contact by telephone as the client swore to the truth of the affidavit.[12] The respondent was publicly reprimanded, and a fine of $2,000 was imposed.
  3. [59]
    Mrs Schmidt, the solicitor panel member for this matter, suggested that it would be appropriate to refer these reasons to the Ethics Counsel for the Queensland Law Society, and for the respondent to consult with him, and undertake such course as he might propose.
  4. [60]
    Section 456 of the LP Act confers on the Tribunal, after it has completed the hearing of a discipline application, if it is then satisfied that a respondent has engaged in unsatisfactory professional conduct or professional misconduct, the power to make “any orders as it thinks fit”, including those specified in the section. Notwithstanding the breadth of this language, the range of orders which might be made is no doubt limited by the scope and purpose of the legislation. In any event, the orders specified in the section include an order that the practitioner undertake and complete a stated course of further legal education, an order that the practitioner do (or refrain from doing) something in connection with the practitioner engaging in legal practice, and an order that the practitioner seek advice from a stated person in relation to the practitioner’s management of engaging in legal practice. The Tribunal is satisfied that it has power to make an order in accordance with Mrs Schmidt’s suggestion.
  5. [61]
    Initially, Mr Batch raised a question about the appropriateness of ethics counselling, when the issues raised about the respondent’s conduct related to competence. The Tribunal does not accept, in a case like this, that there is a clear distinction between failures of competence, and a breach of ethical obligations to a client. Moreover, the Tribunal understands that any course proposed for the respondent would be tailored to his needs, no doubt in light of these reasons. Ultimately, Mr Batch accepted the appropriateness of such an order, as did the applicant. Accordingly, the order will be made.
  6. [62]
    The applicant contended, and the respondent accepted, that the respondent should be publicly reprimanded for his conduct the subject of these charges.
  7. [63]
    The applicant did not seek an order that the respondent pay a penalty. The Tribunal expressed concern that a reprimand would not sufficiently mark the seriousness of the respondent’s conduct, particularly against the background of the orders made against him in the earlier proceeding. Mr Nicholson said that it was a matter for the Tribunal to decide what orders it should make, a submission adopted by Mr Batch.
  8. [64]
    Mr Batch submitted that the respondent had acknowledged his failures, which occurred at a time when he was expanding his practice; he was prepared to address them; and he had made and was prepared to make compensation to MBRII as indicated earlier.
  9. [65]
    Of itself, the respondent’s misconduct the subject of the charges in the discipline application might be regarded as justifying an order that the respondent pay a substantially greater penalty than is proposed. However, the Tribunal takes into account the amount of fees that the respondent will be ordered to repay, and the compensation that he has already paid. It is also conscious that any penalty it may impose is limited, the maximum being $100,000.[13] It considers that the respondent’s misconduct is substantially less serious than some forms of misconduct which come before it.
  10. [66]
    An order will be made that the respondent pay a penalty of $5,000.

Costs

  1. [67]
    Section 462 of the LP Act includes the following:
  1. (1)
    A disciplinary body must make an order requiring a person whom it has found to have engaged in prescribed conduct to pay costs, including costs of the commissioner and the complainant, unless the disciplinary body is satisfied exceptional circumstances exist.
  1. [68]
    It was common ground between the applicant and the respondent that the respondent should be ordered to pay the applicant’s costs of and incidental to the application, but excluding the costs of and incidental to the application filed by the applicant on 7 April 2020, to be assessed on the standard basis as if the proceedings had been conducted in the Supreme Court of Queensland. An order will be made accordingly.
  2. [69]
    MBRII sought an order that the respondent pay its costs on the same basis, and similarly assessed of and incidental to the discipline application. The respondent ultimately opposed such an order in two respects.
  3. [70]
    The respondent filed an application on 24 August 2020 in relation to MBRII’s request for compensation. This ultimately proceeded to a full hearing on 6 November 2020, when the respondent sought an order that the request for compensation be stayed pending the determination of proceedings brought in the Magistrates Court by MBRII against the respondent. The application failed; and costs were reserved.
  4. [71]
    Mr Batch submitted that the respondent’s application was brought under the provisions of the QCAT Act; and accordingly, s 462 of the LP Act did not apply to it. Any question of the costs of that application had to be determined by reference to the provisions of ss 100 and 102 of the QCAT Act.
  5. [72]
    It has been established that the expression in s 462(1) of the LP Act that “an order requiring a person whom it has found to have engaged in prescribed conduct to pay costs, including costs of the commissioner and the complainant”, means an order requiring such a person to pay all of the costs of the proceedings[14]; though the relevant cases only involved an issue about the costs to be paid to the Legal Services Commissioner. It is difficult to think that the expression has a different effect in relation to the costs of a complainant. It should be taken to mean that, in the absence of exceptional circumstances, an order should be made that a respondent found to have engaged in prescribed conduct is to pay all of a complainant’s costs of the proceedings.
  6. [73]
    The respondent’s application was brought in the proceedings commenced by the discipline application. That alone is sufficient to bring the respondent’s application within the scope of s 462.
  7. [74]
    Section 452 of the LP Act enables the applicant to apply to the Tribunal for orders against a practitioner in relation to a complaint. Section 429 provides for the making of a complaint. There has been no suggestion that the present application is not an application of the kind just identified; or that MBRII is not a complainant. Section 10 of the QCAT Act confirms that the Tribunal has the jurisdiction conferred on it by Acts such as the LP Act. That is also recognised in s 6, which states that the QCAT Act provides for the Tribunal’s jurisdiction and related functions, and its practices and procedures. However, that section recognises that such matters may be varied by an Act such as the LP Act. It is thus apparent that provisions of the QCAT Act play some role in regulating a proceeding commenced by a discipline application.
  8. [75]
    The submissions made by Mr Batch appeared to suggest that the respondent’s application for a stay was brought under provisions such as ss 47 and 48 of the QCAT Act. Accepting that to be correct, it does not follow that an application for relief is not an application within the proceeding commenced by the discipline application.
  9. [76]
    Moreover, what was sought was, in substance, the stay of the complainant’s request for a compensation order. The making of such an order is, by virtue of s 456, a part of the proceeding commenced by the discipline application. The application for a stay is inevitably part of the same proceeding. Resisting the application was a step taken by the complainant to enable it to advance its request.
  10. [77]
    For these reasons, the Tribunal considers that the complainant’s costs of and incidental to the respondent’s application for a stay are part of its costs of the proceedings. They thus come within the scope of s 456, and an order should be made that the respondent pay them.
  11. [78]
    The respondent contended that the complainant’s costs should be assessed as if the discipline application were a proceeding in the Magistrates Court. That is because the amount recovered is an amount within the general jurisdiction of that Court.
  12. [79]
    The Tribunal is the body on which jurisdiction has been conferred to make compensation orders. The matters with which a complainant must deal are, in essence, the same as those with which the applicant (and for that matter, the respondent) must deal, so far as they relate to the complainant’s request for a compensation order. It is not obvious that costs should be assessed on a different basis for the complainant.
  13. [80]
    Throughout the proceeding, the respondent retained Senior Counsel to represent him. The most contentious aspects of the proceeding have related to the request for compensation. The respondent has sought to prevent the involvement of the complainant for as long as possible. He did not acknowledge that the complainant should have the benefit of an order for compensation for pecuniary loss until late in the proceedings (at about the time of the hearing of his application for a stay); and did not accept that an order for the repayment of fees should be made until the final hearing of the discipline application. It cannot be said that, in the present case, the respondent has had an easy path, and had to deal only with simple issues; and for that reason, costs should be assessed on a lower scale.
  14. [81]
    In the present case, the complainant’s costs should be assessed as if the proceedings were conducted in the Supreme Court.

Conclusion

  1. [82]
    The following orders will be made:
    1. (a)
      The respondent is publicly reprimanded.
    2. (b)
      The respondent is ordered to pay a penalty of $5,000.
    3. (c)
      The respondent is ordered to pay to the complainant, Mid Brisbane River Irrigators Inc, the sum of $27,704.30 by way of repayment of fees charged by the respondent.
    4. (d)
      These orders and the reasons published on 22 July 2021 are to be referred to the Ethics Counsel for the Queensland Law Society.
    5. (e)
      The respondent is forthwith to consult with the Ethics Counsel for the Queensland Law Society and undertake within twelve months, at his own expense, such course as the Ethics Counsel considers appropriate in light of these reasons.
    6. (f)
      The respondent is to pay the applicant’s costs of and incidental to this application, but excluding the costs of and incidental to the application filed by the applicant on 7 April 2020, to be assessed on the standard basis as if the proceedings had been conducted in the Supreme Court of Queensland.
    7. (g)
      The respondent is to pay the complainant’s costs of and incidental to the application, including reserved costs, to be assessed on the standard basis as if the proceedings had been conducted in the Supreme Court of Queensland.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), s 28(3)(b).

[2] Mid Brisbane River Irrigators Inc v The Treasurer and Minister for Trade of the State of Qld & Ors [2014] QSC 196 (“first Jackson decision”) and Mid Brisbane River Irrigators Inc v The Treasurer and Minister for Trade of the State of Qld & Ors (No 2) [2014] QSC 197 (“second Jackson decision”).

[3] [1990] 1 Qd R 498, 507.

[4] See Allinson v General Council of Medical Education and Registration [1894] 1 QB 750; and the discussion in G.E. Dal Pont, Lawyers’ Professional Responsibility, (Thomson Reuters, 6th ed, 2017), [23.85].

[5] [2019] VCAT 505.

[6] Ibid, [40].

[7] Ibid, [76]-[77].

[8] Ibid, [18], [49]-[53].

[9] First Jackson decision, [38]-[39].

[10] Second Jackson decision, [22]-[23].

[11] LP Act, s 468(3).

[12] Legal Services Commissioner v Bentley [2016] QCAT 185.

[13] LP Act, s 456(4)(a).

[14] See Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249, [2006] QCA 145, [55]; Legal Services Commissioner v Bradshaw [2009] QCA 126, [63]; Legal Services Commissioner v McQuaid [2019] QCA 136, [20]-[30].

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Bentley (No 5)

  • Shortened Case Name:

    Legal Services Commissioner v Bentley (No 5)

  • MNC:

    [2021] QCAT 226

  • Court:

    QCAT

  • Judge(s):

    Hon Peter Lyons QC, Judicial Member

  • Date:

    22 Jul 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Adamson v Queensland Law Society Incorporated[1990] 1 Qd R 498; [1989] QSCFC 145
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 498
Cite 2 - [1990] 1 Qd R 498
Allinson v General Council of Medical Education and Registration (1894) 1 QB 750
2 citations
Jump To
Cite 1 - (1894) 1 QB 750
Cite 2 - (1894) 1 QB 750
Baker v Legal Services Commissioner[2006] 2 Qd R 249; [2006] QCA 145
3 citations
Jump To
Cite 1 - [2006] QCA 145
Cite 2 - [2006] 2 Qd R 249
Cite 3 - [2006] 2 Qd R 249
Legal Services Commissioner v Bentley [2016] QCAT 185
2 citations
Jump To
Cite 1 - [2016] QCAT 185
Cite 2 - [2016] QCAT 185
Legal Services Commissioner v Bradshaw [2009] QCA 126
2 citations
Jump To
Cite 1 - [2009] QCA 126
Cite 2 - [2009] QCA 126
Legal Services Commissioner v McQuaid(2019) 1 QR 499; [2019] QCA 136
2 citations
Jump To
Cite 1 - [2019] QCA 136
Cite 2 - [2019] QCA 136
Mid Brisbane River Irrigators Inc v Treasurer and Minister for Trade of the State of Queensland[2014] 2 Qd R 592; [2014] QSC 196
2 citations
Jump To
Cite 1 - [2014] QSC 196
Cite 2 - [2014] QSC 196
Mid Brisbane River Irrigators Inc v Treasurer and Minister for Trade of the State of Queensland (No 2) [2014] QSC 197
2 citations
Jump To
Cite 1 - [2014] QSC 197
Cite 2 - [2014] QSC 197
Victorian Legal Services Commissioner v Szwider [2019] VCAT 505
5 citations
Jump To
Cite 1 - [2019] VCAT 505
Cite 2 - [2019] VCAT 505
Cite 3 - [2019] VCAT 505
Cite 4 - [2019] VCAT 505
Cite 5 - [2019] VCAT 505

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.