D’Cruz and Pierce and Ors

[2009] FamCA 435

FAMILY COURT OF AUSTRALIA

D’CRUZ & PIERCE AND ORS [2009] FamCA 435

FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest

APPLICANT: Ms D’Cruz

RESPONDENT: Mr Pierce and Ors

FILE NUMBER: MLC 3135 of 2004

DATE DELIVERED: 15 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the question of the conduct of the legal practitioner Mr T of … Firm shall be referred to the Legal Services Commissioner, and the Registry Manager of the Family Court of Australia at Melbourne is requested to forward to the Legal Services Commissioner the following documents:

(a)The affidavit of Mr T filed 29 April 2008;

(b)The transcript of his evidence given before me in the hearing held between 16 and 29 May 2008;

(c)My reasons for judgment published on 19 September 2008;

(d)The wife’s Amended Application filed and marked Exhibit W2 in the course of the hearing;

(e)My orders dated 29 October 2008;

(f)The affidavit of Mr T filed 3 April 2009; and

(g)A sealed copy of this order.

1. That in the event that the Legal Services Commissioner requires further documents, an application may be made before me.

1. That costs of this day shall be reserved.

IT IS NOTED that publication of this judgment under the pseudonym D'Cruz & Pierce and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3135 of 2004

MS D’CRUZ

Applicant

And

MR PIERCE and ORS

Respondent

REASONS FOR JUDGMENT

1. I made orders in this property case on 29 October 2008, following Reasons for Judgment given on 19 September 2008.  Mr T was the fifth respondent.  He was represented by counsel instructed by the firm in which he was a partner, throughout the hearing which ran from 16 May to 29 May 2008, that being just the first stage of these complex property proceedings.  Those orders are now pending appeal. 

2. The parties subsequently made written submissions as to costs.  This mention today was initiated by me.  The first reason was to discuss my preliminary view that in fact the wife's costs at this stage should be reserved.  There is now a consensus about that.  The second reason was that Mr T had his firm prepare and file an affidavit on his behalf, filed on 3 April 2009.  It was apropos no live application before the court.  It was properly brought to my attention in the course of considering the costs submissions.  It was apparent that the other parties were aware of the affidavit.  That was clear from the second round of submissions made by the wife. 

3. At the heart of the issues in the first stage of the proceedings were questions of Mr T’s independence from the husband and the husband's father in various roles undertaken by him, and whether he had a conflict of interest in work undertaken.  I do not propose going into further detail.  I have said what I can and should say about that in my Reasons for Judgment. 

4. All that should be added is that Mr T has made certain admissions in this recent affidavit, that through an entity related to the second respondent - that is the husband’s father, Mr C Pierce - he, Mr T, has at relevant times had his own three children's private school fees paid.  It is an astounding admission and apparently at odds with aspects of his previously sworn evidence.  He offers his own explanation in the course of that affidavit to the effect that he had no opportunity to mention this, either in evidence‑in‑chief or in the course of his cross‑examination.  That explanation also causes me profound concern. 

5. This morning I raised with his solicitor the prospect of referring the issue to the appropriate professional body.  I raised the prospect of allowing submissions from him on the topic, probably because of a longstanding “default setting” in favour of natural justice and hearing argument on any issue.  But I have reflected upon that, and, upon reflection, I do not believe that I am obliged to hear submissions at this point. 

6. It is up to the professional body to investigate and to afford the appropriate procedural fairness and natural justice to the practitioner.  That is not my role today.  There is enough material in my Reasons for Judgment, coupled with this affidavit, to persuade me that Mr T’s professional complaints body should be apprised of it.  In any event, Mr T has had the opportunity to tell the Court what he chooses, to excuse his conduct, he having filed an unsolicited affidavit to that effect. 

7. Accordingly, I propose referring the matter of Mr T’s conduct to the Legal Services Commissioner.  In terms of the documents that I shall send, I am happy if anyone wants to give me any assistance, but I propose sending Mr T’s original affidavit filed 29 April 2008 for the trial, the transcript of his evidence before me, my Reasons for Judgment of 19 September 2008, and Mr T’s recent affidavit filed 3 April 2009.  I would permit the Legal Services Commissioner or an appropriate body to apply to the Court if any other documents are needed. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  15 May 2009