ASHTON & PAINE (No.3)

[2015] FCCA 2935

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHTON & PAINE (No.3) [2015] FCCA 2935

Catchwords:
FAMILY LAW – Legal profession – Lawyers’ duty to the court – watchlist orders.

Legislation:

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), rr.3,19

Legal Profession Uniform Law Act 2014 (NSW), s.296

Ashton & Paine (No.2) [2015] FCCA 2813
Legal Services Commissioner v Bevan [2015] QCAT 290

Applicant: MR ASHTON

Respondent: MS PAINE

File Number: MLC 8584 of 2015

Judgment of: Judge Harland

Hearing date: Heard in chambers

Date of Last Submission: 13 October 2015

Delivered at: Melbourne

Delivered on: 12 November 2015

REPRESENTATION

Counsel for the Applicant: Mr Moore

Solicitors for the Applicant: Moore Law Firm

Counsel for the Respondent: Ms Canturi

Solicitors for the Respondent: Cash & Stavroulakis Lawyers

ORDERS

1. I request that the Registrar of the Federal Circuit Court of Australia refer the conduct of Mr Simeon Moore of Moore Law Firm to the Legal Services Commissioner of New South Wales.

2. I request that the Registrar of the Federal Circuit Court of Australia provide a copy of these reasons to be sent to the appropriate officer at Australian Federal Police.

IT IS NOTED that publication of this judgment under the pseudonym Ashton & Paine (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8584 of 2015

MR ASHTON

Applicant

And

MS PAINE

Respondent

REASONS FOR JUDGMENT

1. This is the third judgment I have delivered in these proceedings in a short period of time. It is unfortunately necessary to write this judgment to address an issue of professional conduct.

2. After the interim hearing on 23 September 2015, I made an order permitting the mother to remove X, the youngest child from Australia and return to (country omitted) with him.  I made that order in Court immediately after the hearing, before delivering written reasons two days later.

3. At no stage during the interim hearing did either lawyer inform the Court that the children had been placed on the Watchlist. This had the potential to frustrate the Court’s orders.  Chambers only became aware of this when the mother and child were stopped at the airport. Chambers emailed the orders to the Australian Federal Police (“AFP”) and the mother and child were able to travel.  If this had happened outside of working hours the orders would have been frustrated.

4. I raised my concerns about this when the matter came before me for hearing of the father’s application for a stay. I also expressed concern that the father’s barrister did not appear to be properly briefed as she was not aware of the paternal family’s imminent trip to (country omitted) which was a relevant issue. (See Ashton & Paine (No.2) [2015] FCCA 2813.)

5. I directed that the lawyers for the parties file an affidavit explaining how the children’s names were placed on the Watchlist.

6. Both lawyers complied with that order. The mother’s lawyer deposes that she did not become aware of the children being on the Watchlist until she received a call from her client when she was at the airport with X attempting to leave the country pursuant to the order I made allowing her to do so.  She also deposes that neither she nor the mother were aware of how the children were placed on the Watchlist.

7. The father’s lawyer’s affidavit is longer and repeats some of the arguments ventilated at the interim hearing.  The issue of concern is not that Mr Moore acted without instructions or acted in bad faith in taking that action but that he misled the Court.

8. He explained that he caused the children’s names to be placed on the Watchlist. He did this 3 days before the first return date before the Court. He did this, directly by email, enclosing a copy of the mother’s initiating application. It is clear that he did not advise the mother’s lawyer at any time about this action and did not advise the Court. He should have advised both. Mr Moore says at paragraph 13 of his affidavit:

   This Honourable Court did not make the watchlist orders sought by the Husband and I thought that was the end of the matter. The hearing was so intense I did not think to mention X had been placed on the watchlist. To the extent, it occurred to me later, I thought the orders having been made that the Wife could leave Australia and take X with her, the orders would over-ride the watchlist application.

9. Lawyers are officers of the Court and it is incumbent upon them to ensure that the Court if fully aware of any factors which may impact on the Orders the Court makes. Mr Moore did not raise the issue of the Watchlist during the course of submissions.

10. The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) came into effect on 1 July 2015[1]. Mr Moore is a New South Wales Legal Practitioner.

    [1] The text of the rules quoted are the same as the previous version of the rules.

11. Rule 3.1 reads as follows:

    3.1 A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

12. Rule 19 deals with frankness in court. I set it out in full:

    19.1 A solicitor must not deceive or knowingly or recklessly mislead the court.

    19.2 A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.

    19.3 A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.

    19.4 A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:

    19.4.1 are within the solicitor's knowledge;

    19.4.2 are not protected by legal professional privilege; and

    19.4.3 the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.

    19.5 A solicitor who has knowledge of matters which are within Rule 19.4 must:

    19.5.1 seek instructions for the waiver of legal professional privilege, if the matters are protected by that privilege, so as to permit the solicitor to disclose those matters under Rule 19.4; and

    19.5.2 if the client does not waive the privilege as sought by the solicitor:

    (i) must inform the client of the client's responsibility to authorise such disclosure and the possible consequences of not doing so; and

    (ii) must inform the court that the solicitor cannot assure the court that all matters which should be disclosed have been disclosed to the court.

    19.6 A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of:

    19.6.1 any binding authority;

    19.6.2 where there is no binding authority, any authority decided by an Australian appellate court; and

    19.6.3 any applicable legislation,

    known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client's case.

    19.7 A solicitor need not inform the court of matters within Rule 19.6 at a time when the opponent tells the court that the opponent's whole case will be withdrawn or the opponent will consent to final judgment in favour of the client, unless the appropriate time for the solicitor to have informed the court of such matters in the ordinary course has already arrived or passed.

    19.8 A solicitor who becomes aware of matters within Rule 19.6 after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:

    19.8.1 a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter; or

    19.8.2 requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.

    19.9 A solicitor need not inform the court of any matter otherwise within Rule 19.8 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.

    19.10 A solicitor who knows or suspects that the prosecution is unaware of the client's previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.

    19.11 A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension.

    19.12 A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake.

13. Mr Moore appears to fail to appreciate that he failed in his duty to the Court and his opponent. He should have advised the mother’s lawyer that he had placed the children on the Watchlist. If he had, the mother’s lawyer would have likely raised this at the interim hearing. He also had a duty to the Court to inform the Court of this. He was present in Court when I pronounced the order allowing the mother to leave the country with X. He should have at that point informed the Court about the children being on the Watchlist. If he had, I would have made an order removing them from the Watchlist. By not doing so he mislead the Court. The pronouncement of that order should have alerted him to his failure to raise the issue earlier.

14. Unsatisfactory professional conduct is defined in s.296 of the Legal Profession Uniform Law Act 2014 (NSW) as follows:

    For the purposes of this Law, "unsatisfactory professional conduct includes conduct of a lawyer occurring 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 lawyer.

15. Legal Practitioners as officers of the Court have a trusted position. It is an important role which carries heavy responsibilities. Mr Moore’s conduct as an advocate was less than satisfactory. He was disrespectful and aggressive. At one stage, he had to be told to stand when addressing the bench. He also remained standing whilst the other practitioner made submissions. It is useful to refer to a recent decision of QCAT dealing with unsatisfactory professional conduct of a solicitor who misled the court. In Legal Services Commissioner v Bevan [2015] QCAT 290 Justice Carmody says at paragraphs 23 and 24:

    “Solicitors, entrusted with the special privilege to appear before the Court, are subject to onerous professional and ethical responsibilities demanding unimpeachable independence and candour. As Officers of the Court, these duties are of singular significance and central to the institutional function of a legal professional. Therefore, misleading the Court is a serious defalcation in professional responsibilities reflecting poorly on the suitability of the errant solicitor for practice.

    The efficiency and efficacy of the administration of justice would be gravely prejudiced if Courts were not entitled to rely on the honesty and diligence of admitted legal practitioners. Judges would be required to ascertain the veracity of any submissions or statements of fact or law, as the failure to meticulously verify all material presented before the Court would generate intolerable risks of gross injustice to the parties. Furthermore, the Court would no longer be able to rely on the solemn undertakings of legal practitioners, requiring more costly signals to mitigate the risk of adverse selection and prevent moral hazard”.

16. The other issue that this case raises is the practice of the AFP acting on an initiating application seeking a Watchlist order.  The difficulty with this practice is whether or not it is appropriate and necessary to protect the children’s interests to place the children on the Watchlist. The mischief that can occur when the AFP act on an application is that there is no mechanism that ensures the other party and the Court is informed that the children have been placed on the Watchlist.  This problem does not occur when the Court makes the order. It is possible to get Watchlist applications listed very urgently either on the same day or the following day depending on the urgency. In emergencies the Court operates an after-hours service where urgent orders can be made if the Court is satisfied it is justified. These applications are often made on an ex parte basis in the first instance.

17. I have no doubt that the AFP take this action in order to assist parents and prevent the harm caused to children by being kidnapped by a parent or someone with parental responsibility out of the country. The real mischief is not so much the action of placing the children on the Watch list but the fact that there is no mechanism in place to inform the other party and the Court that that action has been taken.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  12 November 2015