Brott v Legal Services Commissioner
[2009] VSCA 55
•2 April 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3928 of 2008
| ISSAC ALEXANDER BROTT |
| v |
| LEGAL SERVICES COMMISSIONER |
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JUDGES: | BUCHANAN JA and VICKERY AJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 13 March 2009 |
DATE OF JUDGMENT: | 2 April 2009 |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 55 |
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APPLICATION ON SUMMONS
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Legal practitioner – Solicitor – Discipline – Misconduct – False and misleading letter to court – Belief in sophistry apparently justifying letter was not a belief in the truth of the contents of the letter.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Mr S Matters | Mr Felipe Tellez |
| For the Respondent | Ms K Judd SC with Ms K Anderson | Legal Services Commissioner |
BUCHANAN JA:
The applicant is a legal practitioner. In 1997 he acted for a Mrs Fay Joachim in a matrimonial dispute.
On 3 November 1997, the applicant wrote to his client in the following terms:
Dear Madam,
Re: Your matter/trial
Per many oral advices to you I advise you that unless monies are made available to place this office in funds for a trial, we are still unable to prepare for a trial nor act on your behalf with respect to the trial.
Whilst we are prepared, as a matter of professional duty and concern, to continue to act for you in the appeal process arising from last week’s filed application for adjournment, we do not have the resources to support preparation and conduct of a trial.
The consequence of the above is that you will be unrepresented at your trial.
The applicant knew that the letter would be produced to a Family Court judge in support of an application to adjourn the trial of the proceedings.
In 2003, Brown J, a judge in the Family Court heard a dispute as to costs between Mrs Joachim and the applicant. One of the matters which was canvassed in the course of the hearing was the circumstances in which the letter dated 3 November 1997 was written. Her Honour referred documents, including the letter, to the Law Institute of Victoria and the Attorney-General to take what ever steps they might deem appropriate.
By notice of charge dated 29 June 2007 the respondent charged the applicant with misconduct. The essence of the charge was that the applicant had prepared and signed the letter dated 3 November 1997 ‘knowing that the letter was false and misleading’.
The charge was heard by the Victorian Civil and Administrative Tribunal (‘the Tribunal’) constituted by a County Court judge, a senior member and a member of the Tribunal. After a hearing, the Tribunal found the applicant guilty of misconduct and subsequently made an order prohibiting the applicant from practising as a lawyer for a period of four years and six months and ordered that the applicant pay the respondent’s costs of the proceeding. As the applicant had earlier been barred from practice, the total period during which he was forbidden to practise was some five years and three months.
The applicant now seeks leave to appeal from the Tribunal’s decision pursuant to the provisions of s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998. The President of the Court has determined that this Court as presently constituted may exercise all the jurisdiction and powers of the Court of Appeal. To their credit the parties recognise the savings in time and costs that can be achieved if the appeal can be determined at this stage. Accordingly, we proceed to determine the application for leave and the substantive appeal if leave is granted.
The issue in the appeal is within a narrow compass. In order to establish the charge, the respondent was required to prove that the applicant prepared and signed the letter knowing that it was false and misleading. It was contended on behalf of the applicant that the conviction cannot stand because the Tribunal found that, when he wrote the letter, the applicant genuinely held the view that it was true.
The contention is based upon two passages in the Tribunal’s reasons for decision. The Tribunal recounted the following evidence of the applicant before Brown J:
Well, now, Mr Sandbach had provided you with a means of where in all conscience you could write this letter knowing it would be presented to the court and that the first paragraph – notwithstanding that the first paragraph was in fact a lie. Do you agree with that? - In retrospect, yes, but not at the time, because I adopted Mr Sandbach’s justification for writing it to fulfil the client’s instructions.
The Tribunal noted that the applicant was given the opportunity in the Tribunal to withdraw any part of his evidence before Brown J but chose not to do so. Referring to this evidence, the Tribunal said:
It is apparent from this extract that [the applicant] acknowledges the falsity of the first paragraph of the letter but contends that it wasn’t false at the time he wrote it because of the rationalisation provided by Mr Sandbach. We do not doubt that [the applicant] genuinely holds this view; nor do we doubt his evidence before us .
The second passage in the Tribunal’s reasons relied upon by the applicant is this:
It was a singular incident which occurred in unusual circumstances and [the applicant] had a genuinely held (but erroneous) view that the letter wasn’t false at the time he wrote it.
It is necessary to set the foregoing passages in the Tribunal’s reasons in their context.
The passage in the Tribunal’s reasons which I have set out in paragraph [8], above, was immediately followed by these words:
But the difficulty lies in the casuistical reasoning he has adopted. The ‘rationalisation’ provided by Mr Sandbach did not alter the fact that the letter was false and misleading and nor does it alter Mr Brott’s knowledge of the relevant facts.
The Tribunal described the applicant’s reasoning in these terms:
The type of reasoning adopted by Mr Brott in this case was the subject of trenchant criticism in In re Thom.[1] In that matter the Court viewed the practice of stating in an affidavit that the deponent does not admit a charge the deponent knows to be true a ‘very reprehensible one’; the concern being that it gives the court the impression that the particular allegation is unfounded. In that case the Chief Justice observed:
‘It is perhaps easy by casuistical reasoning to reconcile one’s mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure. By this means a practitioner may be led into presenting a statement of fact which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of fact which the deponent is professing to place before it. For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.’
The explanation proffered by Mr Brott in his evidence before Brown J amounts to little more than ‘casuistical paltering with the exact truth of the case’.
[1](1918) 18 SR(NSW) 70.
Shortly before the statement I have set out in paragraph [8], the Tribunal said:
We have concluded that Mr Brott knew that the letter was false and misleading at the time he prepared and signed it. This conclusion follows as a necessary inference from the fact that at the time he prepared and signed the letter Mr Brott knew what the true state of affairs was. In particular Mr Brott knew:
·That contrary to the statement in the first paragraph in the letter he was in fact prepared to continue to act for Mrs Joachim (see para 78 infra);
·The statement in the second paragraph of the letter reflected oral advices Mr Brott had given Mrs Joachim which pre-dated the finalisation of the cost agreement (see paras 79 and 80 infra); and
·That he had a costs agreement with Mrs Joachim which secured his (and counsel’s) costs by a charge over Mrs Joachim’s real and personal property.
Later in their reasons the Tribunal reiterated their finding that the applicant knew the letter was false and misleading. They said:
Mr Brott knew that the letter was false and misleading at the time he prepared and signed it.
Paragraphs 78, 79 and 80 of the Tribunal’s reasons were:
78.As to the first matter the following extract from Mr Brott’s evidence before Brown J is relevant:
“Are you saying to the court in relation to that first paragraph that in fact without funds you were still prepared to act for Mrs Joachim at the trial of her case? – Absolutely.
So that when you wrote this letter you say to this court this is what Mrs Joachim asked you to write and in fact that first paragraph, as far as you were concerned, was a lie. Is that right Mr Brott? – It was disturbing.
You in fact were prepared to continue to act for her at the trial of her hearing or at the trial of her case without funds? – Mrs Joachim had asked me for the letter – and she instructed me that that was the position and personally I would have proceeded.”
79.The following extract from Mr Brott’s evidence before the Tribunal is relevant of the second way the letter was false at the time it was prepared.
MR PRIEST: Next paragraph, “Whilst we are prepared as a matter of professional duty and concern to continue to act for you in the appeal process arising from last week’s failed applications for adjournment, we do not have the resources to support preparation and conduct of a trial.” Now, what does that mean? Or what did you mean, more to the point, when you wrote it?
MR BROTT: That we didn’t have the money to pay counsel, and pay for counsel’s two week preparation, pay for the valuations, the revaluations for the property, the forensic accountant.
MR PRIEST:But at the time there was a signed costs agreement which had security by way of a charge over property?
MR BROTT: This relates essentially to oral advices that had been given some time ago and this was an affirmation and a confirmation of those oral advices. It was too late now. It was over. It couldn’t be done.
80.In relation to Mr Brott’s last answer it is apparent that the statement in the letter that “ … we do not have the resources to support preparation and conduct of a trial” reflected oral advices Mr Brott had given to Mrs Joachim “some time ago”. It is reasonable to draw the inference that such oral advice pre-dated the finalisation of a cost agreement. Hence the statement in the letter was not factually accurate at the time the letter was prepared.”
The rationalisation furnished by Mr Sandbach to the applicant was described by the Tribunal in these terms:
In his evidence Mr Brott said that Mr Sandbach provided him with ‘a rationalisation’ which allowed him to provide a letter ‘in all conscience’. He said Mr Sandbach advised that the letter could be written if counsel who was available on credit (ie Mr Geddes) was no longer available; funds were then required to have counsel available and Mrs Joachim was instructing him to give her the letter.
It appears that Mr Sandbach did not give advice as to the precise terms of the letter. The Tribunal set out part of the contents of a letter written by Mr Sandbach to the Law Institute of Victoria, which stated:
Mr Brott told me that his client, Mrs Joachim, had failed to comply with the terms of Mr Brott’s costs agreement with his firm and that the counsel who had been briefed for trial was not willing to extend credit any more and required the payment of his fees in trust, in advance. Mrs Joachim had approached Mr Brott for a letter that formally confirmed that he would not be acting because he had not received any funds in trust on account of the fees of counsel likely to be incurred in a trial. I saw no problem with him providing such a letter …
The applicant’s contention must also be viewed in the light of the facts found by the Tribunal to constitute the false and misleading statements and the applicant’s evidence before Brown J. The applicant could hardly deny knowledge that he was prepared to continue to act for Mrs Joachim or that he had concluded a costs agreement. In his evidence the applicant admitted that he knew the true position.
When the passages from the Tribunal’s reasons relied upon by the applicant are read in the light of the matters I have set out, in my view it is clear that the Tribunal did find that, when he wrote the letter, the applicant knew it was false, but believed that the rationalisation supplied by Mr Sandbach entitled him to play with words by not making full disclosure of the facts he knew. As the Tribunal said, the applicant knew the relevant facts and placed his faith in casuistical reasoning. The applicant knew that the reasoning said to justify the letter was sophistry but believed that the reasoning constituted a justification for the letter.
The statement I have set out in paragraph 9 was not made in the course of the Tribunal’s reasons for finding the charge proven, but in its reasons for imposing a penalty upon the applicant. The Tribunal was dealing with the existence of a factor which the applicant had advanced as mitigatory.
Counsel for the applicant submitted that, if the applicant held a view which negatived the falsity of the letter, it was of no moment that the view was erroneous, even stupid. The short answer to this contention is that the view of the applicant identified by the Tribunal was not a view that the letter was true. Rather, it was a view as to the talismanic qualities of a specious explanation for a false and misleading statement.
Having regard to the Tribunal’s reasons for finding that the applicant acted with knowledge of the falsity of the letter, I think it is clear that the Tribunal meant that the applicant believed that the letter could be justified by reasoning that he knew was specious. The Tribunal’s reasons were unhappily expressed, but in my view they are not to be construed as the applicant contends. In Collector of Customs v Pozzolanic[2], the Federal Court stated that, when considering an application for judicial review, a court should:
[2](1993) 43 FCR 280.
Not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts … The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.[3]
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang[4] Brennan CJ, Toohey, McHugh and Gummow JJ referred to the Federal Court’s dicta and said:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[5]
[3]Above, 487.
[4](1996) 185 CLR 259.
[5]Above, 272.
In the present case I am of the opinion that the Tribunal did not at any point conclude that the applicant held the view that the letter was not false at the time he wrote it.
As the attack upon the penalty imposed by the Tribunal largely rests upon the contention that the length of the period of disqualification from practice did not reflect the fact that the applicant held the view that the letter was not false when he wrote it, it fails for the reasons I have already stated. In my opinion a term of disqualification of five years and three months imposed upon a practitioner who set out to deceive a court, and who continued to rely upon casuistical reasoning to justify his conduct,[6] and who had been reprimanded and fined for misconduct as a legal practitioner on six occasions and on another occasion suffered cancellation of his practising certificate, was not beyond the range of penalties open to a reasonable tribunal. The Tribunal was entitled to take the view that any breach of a practitioner’s duty to the court goes to the heart of practising as a legal practitioner.
[6]Hannebery v Legal Ombudsman [1998] VSCA 142, [22] (Tadgell JA).
Accordingly, I would grant leave to appeal, but dismiss the appeal.
VICKERY AJA:
I agree with the orders proposed by Buchanan JA and with the reasons given by his Honour.
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