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

1. 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.

2. 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”, a 31 page letter was emailed at 3.59pm directly to the defendant by Universal Law. The defendant had no solicitor on the record for her at this time.

31   Whilst it is important to place the letter in context, namely an active and ongoing dispute about discovery of documents, the tone of the letter is unnecessarily peremptory and demeaning. There was no order or compulsion requiring the letter be sent that day. The choice of date seems to have been deliberate. Most concerningly, the letter contains a number of personal insults, directed to the defendant, about her character, professionalism, motivation and probity. For obvious reasons I will not repeat them. They appear in multiple places in the letter, including pages 1, 7, 8 and 13.

32   They are at best, unprofessional and most discourteous. They are at worst, bullying and harassment, deliberately deployed at a time when the defendant is likely to be distracted, sad and vulnerable, with the aim of demoralising her about the litigation she was defending.

33   There is no place for any such personal remarks and insults in any professional correspondence in legal proceedings. Solicitors have ethical duties and obligations. In that part of the Australian Solicitors’ Conduct Rules dealing with “Fundamental Duties of Solicitors”, a number of ethical duties are stated, including that a solicitor must:

4.1.2    be honest and courteous in all dealings in the course of legal practice;

…

4.1.4    avoid any compromise to their integrity and professional independence; and

4.1.5    comply with these Rules and the law.

34   The timing and circumstances of the correspondence, including these personal insults, as well as the way in which they were phrased, suggests that the solicitor who authored them had a lack of independence from, or objectivity about, the litigation.

35   I do not know if Universal Law has any affiliation with Universal Medicine. It may well be a coincidence that their names are similar. The motto of Universal Law is “integritate et luce” which translates from the Latin to “integrity and light”. These precise words, or an English incantation of them, do not appear in any obvious logo or in the work of Universal Medicine to the extent that I can discern. Regardless of this, there may well be a public perception that somehow Universal Law has an affiliation or direct association with Universal Medicine. Whilst Universal Medicine was not a named party to these proceedings, it was entirely evident from the beginning that the plaintiff’s paramount role in Universal Medicine and its activities was a matter that would be the subject of considerable evidence in the proceedings.

36   My concerns regarding, in particular, this piece of correspondence, emailed to the defendant on the day of her father’s funeral, has led me to the view that I should take submissions from the parties as to whether I should make a referral of the author of the letter to the Office of the Legal Services Commissioner for investigation for breach of professional conduct requirements.”

3. I considered an opportunity needed to be given to Ms Fletcher to explain the conduct, including whether the correspondence in issue was drafted by her or others, the circumstances of its creation, and whether there was any matter of court timetabling or orders that required the letter to be sent on that particular day back in 2017, the day of the defendant’s father’s funeral.

4. On 10 April 2019 a hearing was conducted at which Ms Fletcher was represented by counsel Mr Naylor. Mr Naylor was not counsel for the plaintiff in the proceedings and was retained, it seems, specifically to deal with this issue. He provided helpful submissions and assistance to the Court.

5. An affidavit affirmed by Ms Fletcher on 9 April 2019 states relevantly:

“5   I signed the two items of correspondence referred to by the Court at [29] to [36] of the Judgment, in particular:

a.   a 1-page letter from myself to Ms Elizabeth Rockett dated 1 September 2017 in relation to separate defamation proceedings in the District Court of Queensland brought by Caroline Raphael and Ray Karam against Ms Rockett (the Queensland proceedings); and

b.   a 31-page letter from myself to Ms Rockett dated 7 September 2017, sent by email at 3:39 pm that day, in relation to the present proceedings (the NSW proceedings).

6   I received drafts of both letters from counsel who was then engaged to advise and appear on behalf of the plaintiff. I contributed to these drafts. I accept full responsibility for each of the letters. I adopted them as my own, signed them and sent them.

7   I fully acknowledge that the timing and aspects of the content of both letters was inappropriate. Neither letter should have been sent when it was. From Ms Rockett's email correspondence dated 25 and 28 August 2017, I was aware or should have been aware that Ms Rockett's father had been admitted to hospital in Sydney and was not expected to live for more than a few days. Ms Rockett's email dated 25 August 2017 stated that she was not available to attend to matters in relation to the Queensland proceeding at that time. The same email requested that Ms Rockett not be troubled with "unnecessary correspondence" until after her father's funeral had been arranged. From Ms Rockett's email dated 28 August 2017, I became aware that Ms Rockett's father had passed away the previous day and that she was attending to her late father's affairs and making funeral arrangements. On 6 September 2017, I received an email from Ms Rockett stating that her father's funeral would take place later that week and requesting that she not be "badger[ed] with unnecessary correspondence".

8   I sent the letter on 7 September 2017 because it was a reply to Ms Rockett's letter dated 26 July 2017 in relation to discovery in the NSW proceedings. I felt that my reply to Ms Rockett's correspondence was overdue. In my mind, I had connected Ms Rockett's correspondence about her father's circumstances to the Queensland proceedings because that was the context in which the information was received. The letter dated 7 September 2017 did not relate to the Queensland proceedings. I should have, but failed, to consider that Ms Rockett's personal circumstances applied to both sets of proceedings. I should have been more sensitive to Ms Rockett's personal circumstances and refrained from sending the correspondence until after the funeral. I apologise unreservedly for sending both the letter dated 1 September and the letter dated 7 September when I did.

9   I also apologise unreservedly for the content of some of the correspondence. I accept that both letters used language that was unprofessional, peremptory and discourteous.

10   In relation to the letter dated 1 September 2017, I accept that the tone of those parts of the letter that were critical of Ms Rockett's attempt to limit the use of information regarding her father's medical circumstances, were unprofessional and unnecessarily aggressive.

11   I annex and mark "A" a full copy of the letter dated 1 September 2017. The extract from this letter incorporated into Ms Rockett's affidavit dated 3 December 2018 (at [47]) omitted the second sentence of the third paragraph. I had inserted this sentence into the draft in an attempt to ameliorate the harshness of the foregoing paragraph and the first sentence of the third paragraph. I accept that, upon reflection, this additional sentence was less than effective in modifying the unfortunate tone and effect of the letter.

…

14   While Ms Rockett's letter dated 6 September 2017 appears to demonstrate that, as at 6 September 2017, she was still attending to matters in relation to the Queensland proceedings, I should not have failed to take proper account of Ms Rockett's other specific requests to not receive further correspondence from me at that time. I should not have sent the letter on 7 September 2017.

15   In relation to the letter dated 7 September 2017, I accept that it contained passages that were insulting and demeaning. I sincerely regret the language used in this letter. I am sorry for the inappropriate language used in both this letter and the letter dated 1 September2017.

16   In relation to the observations by the Court at [34] and [35] of the Judgment regarding a perceived lack of independence on my part relative to the plaintiff, I can assure the Court that while Universal Law has acted as the legal representative for Serge Benhayon, proprietor of Universal Medicine, and there is a personal connection as between my family and that of the plaintiff (my daughter was the plaintiff's son's first wife), Universal Law is completely independent of and not affiliated financially or otherwise with the entity controlled by the plaintiff, Universal Medicine.”

6. Significantly, nowhere in the affidavit is there an apology directed to Ms Rockett. The apologies and expressions of remorse are general and directed to the court, although during Ms Fletcher’s evidence in chief an apology was made to “the Court and Ms Rockett” in the context of expressing her regret, in hindsight, at the inappropriate language she had used in the correspondence in question, acknowledging that it was rude and discourteous.

7. Ms Fletcher identified counsel who drafted the correspondence as Mr Charles Wilson. She said that she could not now be certain which parts were drafted by him stating “it may have been a combination of both of us sort of, you know, the letter was drafted together sort of thing”. She said that it would have been drafted over a four week period from early August to early September. She also said that a Ms Allison Greig, a paralegal at the firm (and the wife of Mr Wilson), was also involved in writing the letter.

8. Ms Fletcher stated that “although not using it as an excuse” the correspondence needs to be seen in the context of “quite robustly contested legal proceedings” and that the correspondence was “finalised by counsel so she felt some comfort in that.” Ms Fletcher also said that her client instructed that the letter be sent.

9. In the context of cross-examination Ms Fletcher agreed that both Mr Wilson and Ms Grieg have had significant involvement in Universal Medicine and were friends of the plaintiff, Mr Benhayon.

10. Ms Fletcher herself is the mother in law of one of Mr Benhayon’s sons, as stated in her affidavit, and as she confirmed has attended a number of Universal Medicine events.

11. The reason given for sending the 7 September 2017 letter set out in her affidavit was that Ms Fletcher, despite having been informed (in correspondence relating to the Queensland proceedings) that Ms Rockett’s father had died, connected Ms Rockett's correspondence about that to the Queensland proceedings and had failed to consider that Ms Rockett’s personal circumstances applied to both sets of proceedings. Ms Fletcher also stated that she felt that the reply, to a letter dated 26 July 2017, was overdue (Paragraph 8).

12. I found this evidence hollow and unconvincing.

13. Ms Fletcher was pressed on these matters in cross-examination. Her demeanour and her answers were unimpressive. She first claimed that the response that she sent was “well over-due” but provided no reason as to why it could not wait a few days or a week. Ms Fletcher said that she “did not know” the exact date of the funeral, although she had been told on the Wednesday that the funeral would take place that week, leaving only Thursday or Friday. She claimed that sending the 31 page letter “wasn’t asking anything of Ms Rockett” although conceded it did require Ms Rockett to read it.

14. I do not accept these excuses. I consider the fact that they were offered reflects poorly on Ms Fletcher. They suggest that Ms Fletcher is still deflecting responsibility away from herself for conduct which in my view was likely to have been deliberate. Even in cross-examination, Ms Fletcher was resistant to acknowledging that her conduct had caused distress to Ms Rockett:

“Q. Yes, but have you anywhere acknowledged that Ms Rockett must have suffered considerable distress as a result of receiving‑‑

A. I haven't perhaps acknowledged it in those terms, but I can, I do acknowledge that, yes.

Q. You do acknowledge it now that it is raised, but it is not dealt with in your affidavit, is it?

A. It would appear not precisely, but that's the intention of the affidavit, those apologies.

Q. Given the circumstances, it was appropriate, wasn't it, to direct attention very carefully and fully to that aspect of the matter?

A. Perhaps.

Q. Only perhaps?

A. Well, yes I suppose it was. I am sorry.

Q. Do you now say that you recognise that what you did caused very significant distress to Ms Rockett?

A. Um, I acknowledge that it may have. I haven't actually been ‑ it certainly may have caused significant distress to her. I accept that fully, yes.

Q. You say may have?

A. Well, I haven't heard from her that it definitely has, so I am just saying that if it has I fully understand that that's the potential that would have been possible from that correspondence.” (T12.19-43).

15. Mr Naylor submitted that as the Court has admonished Ms Fletcher in the April judgment (Benhayon v Rockett (No 9)) and Ms Fletcher having accepted that admonition, no purpose would be served by a referral to the Legal Services Commissioner. The most that would happen would be a finding of unsatisfactory professional conduct, and thus a caution or reprimand and an apology would be required, with possibly an order that Ms Fletcher undertake some additional training or education or counselling (Legal Profession Uniform Law (NSW), s 299(1)). Mr Naylor submitted that Ms Fletcher had already done those things. The affidavit of Ms Fletcher included details of four online seminars she had undertaken in March and April 2019 about ethics in litigation, conflict of interests and dealing with self-represented litigants.

16. I was taken to the decision of White J in McGrath v Troy [2011] NSWSC 136 where his Honour took the view that in the context of a matter that would be unlikely to proceed beyond a reprimand, and given the steps undertaken by the solicitor in question to explain matter, his Honour’s admonishment would operate as a clear enough reprimand and warning as to the care needed in preparation of, in that case, what were said to be misleading affidavits.

17. I do not accept that case is a parallel to the situation here. I do not accept that Ms Fletcher has been candid with the Court. She continued to make excuses for her conduct. The apology to Ms Rockett for the conduct was not made until it was led from her in the witness box, despite being aware of the issues raised in my judgment regarding her conduct, from the very latest, mid-March 2019. I note in this regard Ms Fletcher gave evidence that she had “drafted an apology but we decided to put evidence on instead.” The apology Ms Fletcher drafted was not in evidence.

18. I accept the submission made by Mr Naylor that there is no need to refer the firm Universal Law given the lawyer responsible for the conduct is known; s 267(2)(b) of the Legal Profession Uniform Law (NSW).

19. There is a public interest in ensuring that unsatisfactory professional conduct, or at the least conduct in a professional capacity that is in breach of the fundamental duties of solicitors, should be investigated by the appropriate professional body.

20. 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.

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Decision last updated: 26 June 2019