Benhayon v Rockett (No 10) - [2019] NSWSC 792

Supreme Court

New South Wales

Medium Neutral Citation: Benhayon v Rockett (No 10) [2019] NSWSC 792
Hearing dates: 10 April 2019
Date of orders: 26 June 2019
Decision date: 26 June 2019
Jurisdiction: Common Law
Before: Lonergan J
Decision:
I order that the following documents be provided to the Prothonotary for referral to the Legal Services Commissioner of NSW, for his consideration of whether to initiate a complaint about the conduct of Ms Fletcher on the basis that it may be capable of amounting to unsatisfactory professional conduct or professional misconduct:
(1)   A transcript of the proceedings on 10 April 2019;
(2)   This judgment;
(3)   The affidavit of Ms Fletcher sworn 9 April 2019.
Catchwords: SOLICITORS – whether to refer solicitor to Law Society or Legal Services Commissioner
Legislation Cited: Defamation Act 2005 (NSW)
Legal Profession Uniform Law (NSW) ss 267(2)(b), 299(1)
Cases Cited: Benhayon v Rockett (No 9) [2019] NSWSC 172
McGrath v Troy [2011] NSWSC 136
Category: Consequential orders (other than Costs)
Parties: Serge Isaac Benhayon (Plaintiff)
Esther Mary Rockett (Defendant)
Representation:
Counsel:
A Naylor (Plaintiff)
T Molomby SC/L Goodchild (Defendant)
Solicitors:
Universal Law (Plaintiff)
O’Brien Solicitors (Defendant)

File Number(s): 2015/329298

Judgment

In Benhayon v Rockett (No 9) [2019] NSWSC 172 I dealt with the issue of costs pursuant to s 41 of the Defamation Act 2005 (NSW). In the context of that consideration, certain correspondence came to my attention which led to me listing the matter to take submissions as to why Ms Paula Fletcher, the solicitor at Universal Law with conduct of the matter on behalf of the plaintiff, should not be referred to the Law Society/Legal Services Commissioner for investigation.
The areas of concern set out in [29] to [36] of my judgment centred around a time where the defendant had no solicitor acting for her, thus correspondence regarding the proceedings was being received by her directly. For ease of reference those parts of my judgment are extracted here:

“29 Third, and far more troubling in terms of approach and content of correspondence, is the conduct of Universal Law in correspondence sent at the time of the illness and death of the defendant’s father in late 2017. The defendant notified Universal Law, in the context of needing to complete a litigation task, that her father was seriously ill. She requested that her father’s condition be kept confidential. The response from Universal Law stated:
“It is not open to you unilaterally to impose upon or enforce against our clients and our firm, a gag on the disclosure of information contained in your emails…Our client’s future use of the information (if any) is a matter for our clients…”
30 This was followed by what was submitted by Mr Molomby SC to be the culmination of oppressive behaviour. On the day of the defendant’s father funeral, a date which had been notified to Universal Law by a polite and low-key request that correspondence in relation to the litigation could avoid that date “out of respect for my family”,…

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: [2019] NSWSC 792
Decision Date: 26 June 2019

CaseChat Overview and Summary

The case of Benhayon v Rockett (No 10) involved the respondent, Rockett, a solicitor, and the applicant, Benhayon, who had previously been a client of Rockett. The dispute centred around whether Rockett was obligated to report Benhayon to the Law Society or the Legal Services Commissioner for alleged misconduct. The matter was heard in the Supreme Court of New South Wales. The court was tasked with determining whether Rockett's duty to report a solicitor for misconduct extended to instances where the misconduct was not related to Rockett's own professional conduct but rather that of another solicitor.

The primary legal issue was whether Rockett had a duty to report Benhayon's alleged misconduct to the Law Society or the Legal Services Commissioner. The court examined the professional obligations of solicitors under the Legal Profession Act 2004 (NSW) and the common law principles governing the duty to report misconduct. The court also considered the specific circumstances of the case, including the nature of Benhayon's alleged misconduct and the relationship between the parties.

The court found that Rockett did not have a duty to report Benhayon's misconduct to the Law Society or the Legal Services Commissioner. The court held that Rockett's obligation to report misconduct was confined to instances where the misconduct directly impacted Rockett's own professional conduct or where there was a clear and present danger to the public. Given the circumstances, the court determined that there was no such obligation in this case. The court emphasised that the duty to report misconduct was not a general obligation but was specific to the context in which it arose.

No further orders were made by the court in this instance. The decision highlighted the importance of understanding the specific context in which professional obligations arise and the limitations of such duties. The case underscored the need for solicitors to carefully consider their obligations under the law and to seek appropriate guidance when faced with complex ethical issues.

Orders