Struck off lawyer ordered to pay over $25k to complainants

By Jerome Doraisamy|04 March 2020

A former Queensland solicitor has been ordered to pay compensation and costs to three former clients.

David Allan McHenry was recommended for removal from the roll after being found to have engaged in professional misconduct and unsatisfactory professional misconduct just over a year ago.

The Queensland Legal Services Commissioner had brought 30 charges against Mr McHenry (all of which were for professional misconduct, save for two which were for unsatisfactory professional conduct), and included seven charges alleging forgery of documents. Other charges brought included a failure to take action to progress a client’s claim, failure to maintain reasonable standards of competence and diligence, making a series of false representations, falsely making representations to third-party law firms and the Queensland Law Society, and making representations that were “deliberately misleading and dishonest”.

At the time of its ruling, the Queensland Civil and Administrative Tribunal said: “The circumstances of this case plainly warrant an order recommending that the respondent’s name be removed from the local roll.”

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In a ruling delivered in late February, QCAT ordered that Mr McHenry pay the following amounts to the following former clients: $7,500 in compensation to Gilbert Thornley, $7,500 in compensation and $2,750 in costs to Kelly Trevena and $7,500 in compensation to Paul Lastavec.

With regard to Mr Thornley’s claim, QCAT said: “One of the matters found to be misconduct by the respondent was his failure to advise Mr Thornley as to what an appropriate resolution of the family law proceeding might be. Had he done so at the mediation he would not have advised Mr Thornley to sign the agreement. Any resulting financial loss was therefore suffered because of the misconduct. While it is difficult to determine the extent of the loss suffered by Mr Thornley as a result of this misconduct, the Tribunal is satisfied it exceeds the maximum amount of compensation which might be awarded.”

Ms Trevana had engaged Mr McHenry in family law proceedings for a property settlement after her divorce, which QCAT noted “had good changes of success”. However, after initially taking action on her proceedings, “he failed to institute proceedings, and made dishonest representations to the effect that he had instituted and progressed them. This conduct continued until 2015”. 

“There is no reason to think that it would not be in the interests of justice to make a compensation order against the respondent in Ms Trevena’s favour, in the sum of $7,500. Given the loss and the circumstances in which it was suffered, and the absence of any reason for finding the contrary, the Tribunal is satisfied it is in the interests of justice to make such an order,” QCAT said.

Finally, in reference to Mr Lastavec, who had engaged Mr McHenry with regard to a partnership to undertake a subdivision of land, QCAT noted that Mr McHenry had done “some work” on the matter but then “did little work thereafter” and subsequently made “false representations to the effect that he had successfully pursued” an application pertaining to the proceedings, which was found to amount to professional misconduct.

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“Given the loss and the circumstances in which it was suffered, and the absence of any reason for finding to the contrary, the Tribunal is satisfied it is in the interests of justice to make a pecuniary loss order. It is therefore proposed to order the respondent to pay Mr Lastavec the sum of $7,500 by way of compensation,” QCAT said.

QCAT determined that Mr McHenry did not have to pay compensation to other complainants named Dennis Stanley, Terry Orth and Carolyn Willis. Moreover, it held that Chris Trevor & Associates – the firm at which Mr McHenry was managing partner at the time of some charges of misconduct – did not have to pay compensation where such costs were sought. 

Just over two years ago, Lawyers Weekly reported that Mr McHenry had been ordered by the Supreme Court of Queensland to stop telling clients that he is a practising solicitor, amid claims the man forged bank deposit slips, Federal Circuit Court orders and emails from banks.

The citation for this judgment is Legal Services Commissioner v McHenry & Anor (No 2) [2020] QCAT 50 and can be found online at Caselaw QLD.

Struck off lawyer ordered to pay over $25k to complainants
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