Legal Services Commissioner v Bentley - [2016] QCAT 185

CITATION:

Legal Services Commissioner v Bentley [2016] QCAT 185

PARTIES:	Legal Services Commissioner (Applicant)
v
Zeke David Bentley (Respondent)

APPLICATION NUMBER:

OCR107-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

14 October 2015

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President
Assisted by:
Mr Peter Sheehy, Legal panel member
Dr Margaret Steinberg, Lay panel member

DELIVERED ON:

20 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent is publicly reprimanded.

2. The respondent pay a fine in the sum of $2,000.00 within 30 days from the date of this order.

3. The respondent pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.

CATCHWORDS:

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

Legal Profession Act 2007 (Qld) ss 418, 419, 456, 456(2), 462(5)(a)
Oaths Act 1867 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107(1)
Uniform Civil Procedure Rules 1999 (Qld) r 432

Legal Services Commissioner v Clapin [2011]

QCAT 339

Legal Services Commissioner v Tung Nguyen [2005] LPT 007

APPEARANCES and REPRESENTATION:

APPLICANT:

A.D. Scott instructed by the Legal Services Commissioner

RESPONDENT:

K.C. Fleming QC instructed by Irish Bentley lawyers

REASONS FOR DECISION

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

Background

Mr Bentley’s firm acted on behalf of Mr Klerck in Supreme Court proceedings in a dispute with the complainant and others.
It was necessary for Mr Klerck to swear an affidavit in the proceedings. However, at the time, he was in Hungary and had been unable to locate a suitable witness.
At 4:00pm on 22 May 2013, Mr Bentley sent an email to the lawyers acting for the other parties in the Supreme Court proceedings enclosing a copy of the draft affidavit, indicating that Mr Klerck was in Hungary and attempting to find a witness, but informing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCAT 185
Decision Date: 20 July 2016

CaseChat Overview and Summary

The Legal Services Commissioner brought a complaint against Mr. Bentley, a lawyer, alleging professional misconduct and unsatisfactory professional conduct. The Commissioner argued that Mr. Bentley had falsely witnessed the signing of an affidavit on behalf of his client in the Supreme Court, despite not being physically present when the client signed the document. Instead, Mr. Bentley claimed to have witnessed the signing over the phone while the client was overseas. Mr. Bentley provided an affidavit detailing the circumstances of the signing, but this affidavit was not presented in court. The court was tasked with determining whether the term "in the presence of" necessitated a physical presence, and if Mr. Bentley's actions constituted unsatisfactory professional conduct or professional misconduct. Additionally, the court needed to decide on the appropriate sanction if his conduct was found to be unsatisfactory or misconduct.

The court examined the definition of "in the presence of" and considered whether it strictly required physical presence. The court found that while witnessing an affidavit signing over the phone was unconventional, it did not necessarily equate to a lack of presence in a legal sense. However, the court emphasised the importance of adherence to legal protocols and the need for lawyers to maintain high standards of integrity and professional conduct. Mr. Bentley's actions, although not amounting to professional misconduct, did fall short of the expected standards of satisfactory professional conduct. The court determined that a public reprimand and a fine were appropriate sanctions, along with an order for Mr. Bentley to cover the Commissioner's costs.

In summary, the court held that Mr. Bentley's conduct, while not amounting to professional misconduct, did constitute unsatisfactory professional conduct. The court ordered a public reprimand, a fine of $2,000, and that Mr. Bentley pay the Commissioner's costs on a standard basis, as if the matter had been heard in the Supreme Court of Queensland.

Orders

Orders of the court

1. The respondent is publicly reprimanded.

2. The respondent pay a fine in the sum of $2,000.00 within 30 days from the date of this order.

3. The respondent pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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