Council of the Law Society of the Australian Capital Territory v Legal Practitioner 201921 (Desmond Maxwell Moore) (Occupational Regulation)

[2019] ACAT 88

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LEGAL PRACTITIONER 201921 (Desmond Maxwell Moore) (Occupational Regulation) [2019] ACAT 88

OR 21/2019

Catchwords:                OCCUPATIONAL REGULATION – legal practitioner – obligation of frankness to the court – duty to make full disclosure in ex parte matters

Legislation cited:        ACTCivil and Administrative Tribunal Act 2008 s 55

Legal Profession Act 2006 s 419

Subordinate

Legislation cited:        Legal Profession (Solicitors) Conduct Rules 2015 r 19

Cases cited:Elfic Ltd v Macks [2001] QCA 219

Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56

Legal Services Commissioner v Rosen [2016] QCAT 50
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679

Tribunal:Senior Member B Meagher SC

Date of Orders:  18 September 2019

Date of Reasons for Decision:     27 September 2019

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          OR 21/2019

BETWEEN:

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

Applicant

AND:

LEGAL PRACTITIONER 201921 (Desmond Maxwell Moore)

Respondent

TRIBUNAL:Senior Member B Meagher SC

DATE:18 September 2019

CONSENT DECISION PURSUANT TO SECTION 55 OF THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2008

The parties have reached an agreement as to the terms of a decision of the Tribunal in response to the application for disciplinary action dated 25 July 2019. The terms of the agreement were reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal. The Tribunal is satisfied that a decision consistent with those terms is within the power of the Tribunal and is appropriate.

By consent, the Tribunal makes the following orders:

1The respondent is guilty of professional misconduct.

2The respondent be publicly reprimanded pursuant section 425(3)(e) of the Legal Profession Act 2006 (the Act).

3The respondent pay a fine of $4,750 payable within 28 days of the Tribunal’s orders pursuant to section 425(5)(a) of the Act.

4The respondent pay the applicant’s costs of the proceedings up to the sum of $15,000 payable within 12 months of the date of the Tribunal’s orders pursuant to section 433(1) of the Act.

………………………………..

Senior Member B Meagher SC

REASONS FOR DECISION

1.By application dated 25 July 2019 the applicant brought occupational discipline proceedings against the respondent under section 419 of the Legal Profession Act 2006 (the Act).

2.On 13 September 2019 the parties filed a Joint Submission with the Tribunal to assist it in determining the matter by consent pursuant to section 55 of the ACTCivil and Administrative Tribunal Act 2008 (the ACAT Act).

3.The Joint Submission sets out the parties’ agreed position on the relevant facts, the charges, the characterisation of the charges, and the agreed sanction. It also sets out matters in mitigation put by the respondent and submissions of the appropriateness of the agreed sanction. The Joint Submission is attached.

4.On 18 September 2019, after hearing from the parties, I was satisfied pursuant to section 55 of the ACAT Act that the proposed orders are within power and appropriate for the Tribunal to make. The orders were then made. I was requested by the applicant to provide written reasons as there was little local authority about the relevant rule.

5.The Rule in question is Rule 19 and in particular rule 19(4) of the Legal Profession (Solicitors) Conduct Rules 2015 which is as follows:

FRANKNESS IN COURT

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:

19.4.1are within the solicitor’s knowledge;

19.4.2are not protected by legal professional privilege; and

19.4.3the 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:

19.5.1must 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

19.5.2if 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.

[Subrules 19.6-19.12 are not reproduced here]

6.The respondent acted for a father in family law proceedings regarding the custody of his two children. Following proceedings between 2015 and 2017 consent orders had been made for the children to live with the father. In March 2018 the client advised that the children had not been returned as required by the consent orders and instructed the respondent to make an urgent ex parte application seeking recovery of the children.

7.The next morning the respondent contacted the mother by email and text message asking that the children be returned. An application was made but before it was heard the respondent had received an email from the mother’s lawyer. In the email it was said that the mother had instructed that an application be made to vary the consent orders to prevent contact with the father and asserting that the father had sexually abused the children. The respondent told the mother’s lawyer that he had filed an urgent application. The next morning the respondent was told by the Court that the matter would be heard that afternoon and there was no need to serve the papers on the mother.

8.The matter was then heard ex parte. The respondent was not asked about communications with the mother or her lawyer. He did not disclose the communications. The court did not know about the allegations of sexual abuse that had been made the day before.

9.The matter was listed for another day and by then the fact of the communications was known. The Judge told the respondent that he had failed in his duty of frankness to the Court. The respondent agreed and explained it was unintentional. He agreed to pay the other side’s costs and to undergo some CPD courses. As it happened the Court came to the conclusion that the allegations of abuse were not substantiated and ordered the return of the children. It made orders about costs and CPD as accepted by the respondent.

10.The respondent accepts that he should have told the Judge that the mother was represented and details of the communications with the mother’s lawyer; that the mother had made allegations of abuse; that the mother had not been served with the ex parte application and that the mother’s solicitors held instructions to file an application to vary the consent orders. The Tribunal agrees.

11.It was common ground that there was no legal professional privilege involved so rule 19.5 was not engaged.

12.The Tribunal was referred to cases where the duty of disclosure was breached including Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at [12]; Elfic Ltd v Macks [2001] QCA 219 at [162] and Legal Services Commissioner v Rosen [2016] QCAT 50. The latter case was very similar to this one. The facts and reasons are set out in the annexed Joint Submission.

13.There were some mitigating factors here. The respondent has been in practice for 17 years and never before been the subject of disciplinary proceedings. He was acting urgently and had some misapprehension based on the advice that he need not serve the papers. The allegations of abuse were not new and had been the subject of the proceedings for the prior two years and had not been substantiated then. The respondent made an oral and written apology to the Judge and has deep remorse and embarrassment at what took place. He has cooperated with admirable candour with the applicant when the complaint was made. He had been ordered by the Judge to pay the mothers costs and undertake CPD units.

14.The reason why the conduct is regarded as serious enough to constitute misconduct is that, objectively, the Court was deprived of important information that may have resulted in an injustice. The need for the Court to be able to rely on the candour of lawyers, who are regarded as officers of the Court, is obvious. The duty is fundamental to the administration of justice.

15.In ex parte matters the obligation is very onerous. It was explained in an ex parte injunction case of Thomas A Edison Ltd v Bullock (1912) 15 CLR 679. There it was said:

There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence. But instances occur where justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to the Court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action. But, when he does so, and the Court is asked to disregard the usual requirement of hearing the other side, the party moving incurs a most serious responsibility.

Dalglish v. Jarvie, a case of high authority, establishes that it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall. I add the word “almost” in deference to such an exceptional case as Holden v. Waterlow. The obligation is stated by Turner L.J. in that case to be to “state their case fully and fairly,” and so by Sugden L.C. in Dease v. Plunkett, where he said:—”The plaintiff had not fully and fairly disclosed the entire facts of the case.” Lord Cottenham L.C., in Brown v. Newall, observes that the power to grant such an injunction should exist is indispensable, but, from the liability to injustice, must be exercised with caution. Then he says:—”The Court can have no ground upon which it can proceed, in granting an ex parte injunction, but a faithful statement of the case.” The learned Lord Chancellor distinguishes between mis-statement, or suppression likely to influence the Court in acceding to the application, and that which is immaterial.

In the present instance the admitted circumstances are most material: no order could have been made had they been stated, without considering and weighing them, and therefore the order for injunction was improperly obtained. In Clifton v. Robinson, even forgetfulness of a material fact was not a sufficient excuse to prevent the injunction being dissolved[1] (footnotes omitted)

[1] 681-682

16.This case has been applied countless times and puts powerfully the reasons why full disclosure is so important in an ex parte application.

17.Having said that, it is apparent that the respondent is well regarded. In the affidavit of Ms O’Hara dated 29 August 2019 filed on behalf of the applicant there is at page 33 and 34 a very supportive letter from the mother’s lawyer. He has acted honourably and appropriately in dealing with the complaint.

18.In all the circumstances the Tribunal was persuaded to make the consent orders.

………………………………..

Senior Member B Meagher SC

ANNEXURE 1

Joint Submissions

Background

1.By Application dated 25 July 2019 the Applicant brought proceedings against the Respondent under section 419 of the Legal Profession Act 2006 (ACT) (the Act).

2.The Respondent has indicated his intention to plead to the charges in the Application.

3.The parties wish to file this Joint Submission with the Tribunal to assist it in determining the matter pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACT).

4.The Joint Submission sets out the parties’ agreed position in respect to the facts pleaded in the Application, the charges, the characterisation of the charges and the agreed sanction. The Joint Submission also sets out matters in mitigation put by the Respondent and submissions on the appropriateness of the agreed sanction.

The facts, law, charges and characterisation

5.The Respondent agrees to the facts pleaded in paragraphs 1 to 19 of the Application.

6.The Respondent agrees to the restatement of the law in paragraphs 20-24 of the Application.

7.The Respondent accepts that pursuant to rule 19.4 he was required to disclose all factual matters that were within his knowledge (and not subject to legal professional privilege) and which would support an argument against granting the relief sought. That included:

(a)that the mother was represented (at the time of the hearing) and the details of communications with the mother’s solicitor;

(b)that the mother had made allegations of abuse;

(c)that the mother had not been served with the ex-parte application; and

(d)that the mother’s solicitor held instructions to file an application seeking that the Consent Orders be amended.

8.The Respondent accepts that, in the circumstances of this case, none of the information received by the Respondent from Mr Lloyd was subject to legal professional privilege and hence no issue arises pursuant to rule 19.5.

9.The Respondent accepts that the email correspondence from the mother’s solicitor was relevant, especially in light of the fact that:

(a)it contained allegations made against the father;

(b)it was not protected by legal professional privilege;

(c)the Respondent had reasonable grounds to believe that it would support an argument against granting the relief or limiting its terms adversely to his client; and

(d)the duty of a solicitor in conducting an ex-parte application extends to disclosure of matters which are relevant to the application and should not be construed to limit the flow of information.

10.The Respondent accepts that in not making the disclosures outlined in paragraph 9 above, he knowingly misled the Federal Circuit Court contrary to rule 19.4 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and the common law. The conduct was knowing because the Respondent had actual knowledge of the information that he should have been conveyed to the Federal Circuit Court.

11.The parties agree that the conduct constitutes professional misconduct within the meaning of section 387(1) of the Act, being unsatisfactory professional conduct of an Australian Legal Practitioner that involves a substantial failure to reach or maintain a reasonable standard of competence and diligence and professional misconduct at common law being conduct that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency and is otherwise capable of bringing the profession into disrepute.

Matters in mitigation

6.The Respondent submits the following:

(a)The Respondent has not been subject to disciplinary proceedings in some 17 years of practice.

(b)The Respondent did not consciously or deliberately set out to mislead the Court, though by gross, unacceptable oversight and omission did so;

(c)The conduct was in part or in whole a product of both urgency and misunderstanding in that:

a.      The Registry of the Federal Circuit Court had granted leave to proceed on an ex-parte basis and granted leave dispensing with the need to serve of the Application. Such leave was granted the day after the urgent Application was filed, being on the morning of the day the Application was heard;

b.     The Application arose in urgent circumstances of the mother in those proceedings withholding children in breach of Final Orders made only a few months prior after lengthy Family law litigation of approximately 2 years, throughout which the mother had made various allegations of inappropriate behaviour by the Respondent’s client (the father). Given the breach of recently made Final Orders the father held significant concerns in relation to the mental and physical welfare of the children, as did the Federal Circuit Court with the mother subsequently having had supervised time with the children for approximately the past 1 ½ years.

(d)The Respondent accepted without reservation or argument the wrongdoing when initially raised or put by Judge Neville of the Federal Circuit Court (Canberra Registry);

(e)The Respondent has demonstrated deep remorse and embarrassment with regard his conduct, including an oral apology to Judge Neville in open Court and in written submissions filed in the Federal Circuit Court;

(f)The Respondent has been judicially admonished by Judge Neville in a formal decision and Judgement with regard to his conduct, and the Respondent has since satisfied the penalties issued or Ordered by the Federal Circuit Court;

(g)The Respondent has been fully co-operative and candid with the Law Society throughout this matter and has not sought to diminish responsibility for, and the seriousness of, his conduct.

Submissions

7.Pursuant to rule 19.4.3 the Respondent was required to disclose all factual matters that were within his knowledge and would support an argument against granting the relief sought. That included, that he had received email correspondence from the mother’s solicitor, the mother had made allegations of abuse, and the mother’s solicitor held instructions to file an application seeking that the orders be amended.

8.In Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56 at [12] Ipp J stated (emphasis added):

It is the general duty of lawyers not to mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or conceal from the court facts which ought to be drawn to the judge’s attention, or knowingly permit a client to deceive the court.

9.In Elfic Ltd & Ors v Macks & Ors [2001] QCA 219 it was said at [162]:

A party seeking ex-parte relief must make disclosure to the Court of all matters within his knowledge... there is substantial authority for the proposition that Courts require a high degree of candour and responsibility of those who seek ex-parte orders and it has sometimes been said that the utmost good faith is required.

10.There is one Queensland authority directly on point. In Legal Services Commissioner v Rosen [2016] QCAT 50 the Legal Practitioner acted on behalf of an Applicant mother in proceedings in the Queensland Magistrates Court.

11.On 18 October 2013 the Legal Practitioner sent an email to the father (who was responding to the mother’s application), advising that:

(a)he acted for the mother;

(b)the mother alleged the father had engaged in sexually inappropriate manner, which had been reported;

(c)the father could continue to have contact with the child, under supervision; and

(d)the father could continue having telephone contact with the child, on the condition that he did not discuss the allegations.

12.On 22 October 2013 the Legal Practitioner filed an ex-parte application and an affidavit on the mother’s behalf. On 23 October 2013 the father’s solicitors sent a letter to the Legal Practitioner, advising that:

(a)the firm acted on behalf of the father;

(b)the firm had a copy of the Respondent’s correspondence;

(c)the father denied the allegations and had not been contacted by Police or the Department of Child Safety;

(d)the firm was instructed to commence an application in the Federal Circuit Court to have contact with the child;

(e)the father wished to continue spending time with the child while the application was pending, and was willing to consent to supervised visitation; and

(f)the father agreed not to discuss the allegation with the child.

13.The Legal Practitioner confirmed receipt of the letter via email on 24 October 2013 and advised that the letter had been forwarded to the Legal Practitioner’s client for instructions. The Legal Practitioner appeared at the hearing of the ex-parte application on 25 October 2013 and took part in the following conversation:

Bench:Alright, is the father aware of this application?

Respondent:      No, he’s not your Honour.

Bench:Why is that?

Respondent:     Because it was brought on ex-parte and I have only just got the documents back today in any event.

Bench:And because what, sorry?

Respondent:     I only received the sealed copy of the documents back this morning, your Honour.

14.The Legal Practitioner failed to disclose significant facts, including:

(a)the email sent to the father;

(b)that the father was represented (at the time), and the details of communications with the father’s solicitors;

(c)that the father denied the allegations and that investigations had not led to adverse findings;

(d)that the father had not been served with the ex-parte application or the mother’s affidavit; and

(e)that the mother had allowed the father to care for the child three nights per fortnight following the alleged events.

15.The Tribunal held that:

(a)the correspondence was relevant, especially in light of the fact that it contained denials as to the allegations made against the father;

(b)the duty of a solicitor in conducting an ex-parte application extends to disclosure of matters which are relevant to the application, and should not be construed to limit the flow of information; and

(c)the Respondent’s conduct constituted professional misconduct.

In particular, the Tribunal stated at [39] that:

It is fundamental to the administration of justice that, particularly in the context of ex-parte applications, Courts are able to be confident in relying upon practitioners to show utmost fairness and good faith in the way in which these matters are conducted and presented. This arises because in such matters, the applicant is seeking relief in the absence of the other party and so it is essential that all material be put before the Courts by those who are seeking such relief.

16.The Tribunal ordered that the Legal Practitioner:

(a)be publically reprimanded;

(b)pay a pecuniary penalty in the sum of $5,500;

(c)undertake the ‘Queensland Law Society Remedial Ethics Course’ or an equivalent course, as approved by the Queensland Law Society; and

(d)pay the costs of the disciplinary proceedings.

17.In Rosen the Legal Services Commissioner referred to the case of Re Cooke (1889) 5 TLR 2017 where it was similarly observed that:

It was the duty of professional men, whether solicitors or counsel, in making an ex-parte application to show the utmost fairness and good faith, and to see that all relevant matters, whether for or against the application, were brought to the attention of the Court.

Agreed sanction

18.The parties submit that the following orders are within the powers of the Tribunal and are appropriate for the Tribunal to make:

(a)a finding that the Respondent is guilty of professional misconduct;

(b)an order publicly reprimanding the practitioner pursuant to subsection 425(3)(e) of the Act;

(c)an order that the practitioner pay a fine of $4,750.00 payable within 28 days of the Tribunal’s orders pursuant to subsection 425(5)(a) of the Act; and

(d)an order that the Respondent pay the Applicant’s costs of the proceedings fixed in the sum of $15,000.00 payable within 12 months of the date of the Tribunal’s orders pursuant to subsection 433(1) of the Act.

HEARING DETAILS

FILE NUMBER:	OR 21/2019
PARTIES, APPLICANT:	Council of the Law Society of the Australian Capital Territory
PARTIES, RESPONDENT:	Legal Practitioner 201921
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	McInnes Wilson
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Senior Member B Meagher SC
DATES OF HEARING:	18 September 2019