Gandini v Legal Profession Complaints Committee
[2013] WASCA 168
•1 AUGUST 2013
GANDINI -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2013] WASCA 168
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 168 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:59/2011 | 9 APRIL 2013 | |
| Coram: | McLURE P MURPHY JA MAZZA JA | 1/08/13 | |
| 44 | Judgment Part: | 1 of 1 | |
| Result: | Appeal as to certain findings of professional misconduct allowed in part Appeal on penalty as to undisturbed findings to be the subject of further submissions | ||
| A | |||
| PDF Version |
| Parties: | LEONARD GANDINI LEGAL PROFESSION COMPLAINTS COMMITTEE |
Catchwords: | Solicitor Professional misconduct Whether intentionally misleading court Whether intentionally misleading opposing practitioner Inferences as to practitioner's state of mind Briginshaw standard |
Legislation: | Nil |
Case References: | Angus v Clifford [1891] 2 Ch 449 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Derry v Peek (1889) 14 App Cas 337 Fidock v Legal Profession Complaints Committee [2013] WASCA 108 John McGrath Motors (Canberra) Pty Ltd v Applebee [1964] HCA 1; (1964) 110 CLR 656 Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563 Legal Profession Complaints Committee and Gandini [2011] WASAT 86 Legal Profession Complaints Committee and Gandini [2011] WASAT 86 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GANDINI -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2013] WASCA 168 CORAM : McLURE P
- MURPHY JA
MAZZA JA
- Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
- Appellant
AND
LEONARD GANDINI
Respondent
ON APPEAL FROM:
For File No : CACV 59 of 2011
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE T SHARP (DEPUTY PRESIDENT)
- MR M ODES QC (SENIOR SESSIONAL MEMBER)
MS F CHILD (MEMBER)
Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI [2011] WASAT 86
File No : VR 107 of 2010
For File No : CACV 151 of 2011Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE T SHARP (DEPUTY PRESIDENT)
- MR M ODES QC (SENIOR SESSIONAL MEMBER)
MS F CHILD (MEMBER)
Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI [2011] WASAT 86 (S)
File No : VR 107 of 2010
Catchwords:
Solicitor - Professional misconduct - Whether intentionally misleading court - Whether intentionally misleading opposing practitioner - Inferences as to practitioner's state of mind - Briginshaw standard
Legislation:
Nil
Result:
Appeal as to certain findings of professional misconduct allowed in part
Appeal on penalty as to undisturbed findings to be the subject of further submissions
Category: A
Representation:
CACV 59 of 2011
Counsel:
Appellant : Mr L M Levy SC
Respondent : Ms P E Cahill SC & Ms P Le Miere
Solicitors:
Appellant : Butcher Paull & Calder
Respondent : Legal Profession Complaints Committee
CACV 151 of 2011
Counsel:
Appellant : Ms P E Cahill SC & Ms P Le Miere
Respondent : Mr L M Levy SC
Solicitors:
Appellant : Legal Profession Complaints Committee
Respondent : Butcher Paull & Calder
Case(s) referred to in judgment(s):
Angus v Clifford [1891] 2 Ch 449
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Derry v Peek (1889) 14 App Cas 337
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
John McGrath Motors (Canberra) Pty Ltd v Applebee [1964] HCA 1; (1964) 110 CLR 656
Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563
Legal Profession Complaints Committee and Gandini [2011] WASAT 86
Legal Profession Complaints Committee and Gandini [2011] WASAT 86 (S)
1 REASONS OF THE COURT: On 8 June 2011, the State Administrative Tribunal (the Tribunal) found the appellant (the practitioner) guilty of professional misconduct and unsatisfactory professional conduct relating to his conduct between July 2004 and December 2004: Legal Profession Complaints Committee and Gandini [2011] WASAT 86 (SAT reasons).
2 The Legal Profession Complaints Committee (the Committee) had alleged that the practitioner was guilty of professional misconduct in respect of the following three grounds:
(a) [The practitioner's] conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner with respect to an interlocutory hearing held on 9 August 2004;
(b) By making representations to the Supreme Court at a hearing on 17 November 2004 that were intentionally, alternatively, recklessly misleading; and
(c) By making representations to another firm of legal practitioners in letters dated 17 November 2004 and 2 December 2004 that were intentionally misleading.
3 The Tribunal found the practitioner guilty of unsatisfactory professional conduct in respect of the first ground. This finding has not been challenged in this appeal. In respect of the second and third grounds, the Tribunal found the practitioner guilty of professional misconduct. Both of these findings are challenged in the appeal CACV 59 of 2011.
Background
4 It is necessary for this court to set out in detail the uncontroversial background facts, derived principally from the contemporaneous documents and the unchallenged findings. Regrettably, the Tribunal did not undertake the conventional task of chronologically making, and setting out, its findings as to the background facts before drawing any inferences concerning the practitioner's state of mind.
5 The practitioner is a principal of the law firm Chapmans Barristers and Solicitors (Chapmans). Chapmans had been instructed to act on behalf of the AMWU and certain other individuals (collectively referred to as the Union), who had been sued by Bell-A-Bike Rottnest Pty Ltd (BAB) in a defamation action arising out of other industrial litigation. Chapmans had agreed to act for the Union in the defamation action without, in effect, charging for its services because of the volume of work that the Union had given to Chapmans. Jackson McDonald acted for BAB.
6 On 22 December 2003, Chapmans informed the Union that the practitioner 'will now have the day to day conduct of this matter, assisted by appropriate Counsel if required'. Mr Grant Donaldson was briefed and attended to all pleadings and court appearances in the defamation action.
7 On 12 May 2004, the Union filed a reamended defence which was drafted by Mr Donaldson after consultations with the practitioner and Union legal officers.
8 On 10 June 2004, BAB applied to the Case Management Registrar seeking interlocutory orders disallowing certain paragraphs and striking out other paragraphs of the Union's reamended defence.
9 On 21 June 2004, Chapmans were notified by letter from the Supreme Court that the strike out application was listed for a special appointment before the master on 9 August 2004. The practitioner attempted to have the special appointment rescheduled due to the unavailability of preferred counsel, but did not make an application to vacate the hearing as the court had advised him to do.
10 On 9 August 2004, the practitioner attended the special appointment, without counsel, unprepared to argue the merits of the application and instead sought an adjournment. The master refused to grant the adjournment. The master ordered that certain paragraphs be struck out. The master gave the Union leave to re-plead the paragraphs that were struck out as a result of being incorrectly numbered, within 14 days.
11 The Tribunal's findings relating to the practitioner's conduct in respect of the interlocutory hearing, the subject of the Committee's first complaint, are set out in the Tribunal's reasons at [43] - [66]. The Tribunal found that the practitioner's conduct with respect to the hearing of 9 August 2004 involved a 'consistent failure to reach a reasonable standard of competence and diligence' and accordingly found the practitioner guilty of unsatisfactory professional conduct. The Tribunal made a finding of unsatisfactory professional conduct, as opposed to professional misconduct, as it found that his 'conduct or lack thereof was prompted by utter confusion as to the correct courses to follow and by inappropriate behaviour rather than a deliberate failure to follow those courses' [66]. As noted above, this finding is not challenged in this appeal.
12 Following the special appointment before the master on 9 August 2004, the Union had until 30 August 2004 (21 days - O 63A r 3(1) of the Rules of the Supreme Court 1971 (WA) (RSC)) to file the application for leave to appeal against the decision of the master.
13 On 12 August 2004, Chapmans sent a letter to Mr Donaldson which referred to the orders made by the master on 9 August 2004 and enclosed copies of relevant documents so that Mr Donaldson could draft their client's appeal (GB 255).
14 On 25 August 2004, Chapmans sent a facsimile to Mr Donaldson which set out their understanding that the time to file an appeal expired on 30 August 2004 and sought advice as to whether Mr Donaldson would 'be in a position to lodge the appeal by that time' (GB 260).
15 On 26 August 2004, Mr Donaldson sent a facsimile to Chapmans which enclosed the substantive detail of what would be included in the notice of motion and draft notice of appeal. He referred to the order of the master giving leave to re-plead the paragraphs that were incorrectly numbered and said that he assumed that 'this had been fixed'. In fact, this had not been done. He also advised that the practitioner 'will need to have regard to RSC O 63A dealing with interlocutory appeals' (see GB 261 - 265).
16 Chapmans prepared a notice of motion seeking leave to appeal, and a minute of draft notice of appeal, dated 27 August 2004. On 27 August 2004, a Chapmans file note indicates that the practitioner left a message with one of the Union's employees relating to the 'appeal, cheque etc' and stressed the urgency of the message (GB 276). Chapmans were provided with an AMWU cheque for $221 on 30 August 2004 (GB 297).
17 Mr Cooper, an articled clerk of Chapmans, deposed in an affidavit sworn on 14 September 2004 to the effect that he had attempted to file the relevant documents in time but had the incorrect filing fees as a result of inconsistent advice from the Supreme Court registry (GB 294). In an internal memorandum sent from Mr Cooper to the practitioner dated 30 August 2004, Mr Cooper said that he '[f]inally managed for the Registry to accept the documents' and that they 'will file them with today's date provided we take the correct fee in tomorrow' (GB 278).
18 The correct filing fee was not paid the following day. At some stage between 31 August 2004 and 9 September 2004, according to Mr Cooper, 'copies of the documents … had been returned to Chapmans' (GB 295). In this period, there were five notes and a letter relating to attempts by Chapmans to contact the Union to sort out the cheques for the filing fees (GB 280 - 282). The letter to the Union dated 6 September 2004 stated that an appeal was 'lodged' on 30 August 2004 and that the court, 'whilst accepting the Appeal papers, indicated that previous advise [sic] to our office regarding the filing fee was wrong' (GB 281). The letter advised that the total filing fee was $1,152, and that a further cheque for $931 was necessary.
19 The Union provided a further cheque for $931 on 8 September 2004 (GB 298). Mr Cooper attempted to pay the correct filing fee on 9 September 2004 but the registry 'refused to file the documents because … the application for leave to Appeal was now out of time notwithstanding that the filing fee was now for the correct amount, and [the counter-clerk] had accepted the documents on 30 August 2004' (GB 295).
20 On 17 September 2004, Chapmans filed a 'Notice of Motion Ex Parte Application for an Extension of Time to Seek Leave to Appeal' against the master's decision dated 9 August 2004, and a minute of draft notice of appeal (GB 287 - 291, 320). The orders sought in the 'ex parte' notice of motion were:
1. The time for the Applicant to file his application for leave to Appeal be extended to a date fixed by this Honourable Court.
2. The Applicant be granted leave to appeal the whole of the decision of Master Sanderson delivered on 9 August 2004, on the grounds set out in the Applicant's Minute of Draft Notice of Appeal.
3. That the costs of the applications be in the cause of the Appeal.
21 In support of the application for an extension of time, Chapmans filed an affidavit of Mr Cooper, referred to above, deposing as to the difficulties with the Supreme Court registry in relation to filing fees. A filing fee in the sum of $221 was paid in respect of the extension of time application (GB 299).
22 The Union's application for an extension of time (which included an application for leave to appeal), minute of draft notice of appeal and supporting affidavit were not served on Jackson McDonald until 3 November 2004 (GB 311). In the meantime, on 21 October 2004, BAB filed a notice of motion for judgment, pursuant to O 41 r 1 of the RSC, seeking that judgment be entered in the name of the plaintiffs (GB 301). The motion referred to a listing date of 10 November 2004.
23 The Union's application for an extension of time for leave to appeal, and BAB's motion for judgment, were both listed before the master on 10 November 2004. Mr Donaldson appeared for the Union. Mr Caspersz appeared for BAB. The practitioner was not present. Mr Caspersz said to the master that BAB were 'clearly concerned about the ongoing delays in the matter', however, they were not aware of the Union's application for leave to appeal when they filed their motion for judgment (GB 316). Mr Caspersz said that his 'instructions are to oppose the application for leave to appeal', however, his instructions were also 'that logically [the Union's] notice of motion … needs to be determined before [BAB's] notice of motion is determined' (GB 316 - 317). He also sought to have BAB's motion for judgment listed together in the Full Court with the Union's application for leave so that 'there are no further delays' (GB 317). Despite wishing to have the application for leave to appeal heard with the motion for judgment in order to avoid 'further delays', it is apparent from the transcript that there was no objection by BAB's counsel to the application to extend the time in which to apply for leave to appeal.
24 The master granted the Union an extension of time to file its application for leave to appeal until 12 November 2004, and made certain cost orders. In this regard, the following exchange took place between Mr Donaldson and the master (GB 320 - 321):
Donaldson, Mr: … So master, this morning having said all of that, in the notice of motion for extension of time which is dated 17 September - I think all of these papers eventually found their way to you, master.
The Master: It did.
Donaldson, Mr: Order 1, the time for the applicant to file his application for leave to appeal be extended to - that should be whatever date the motion was filed.
The Master: You may need to file actually now file another application for leave to appeal.
Donaldson, Mr: Yes. If that could then be extended which is the 12th.
The Master: Yes, the 12th.
Donaldson, Mr: 12 November 2004. They will accept that.
The Master: Then really the only other orders that I can make I think on this application are just simply the costs orders.
Donaldson, Mr: Yes.
The Master: What you should then do is when you have filed your notice of motion, rather than have to come down again, just send me down a minute that encapsulates that application for leave, not be heard ex parte, leave to appeal be heard together with the appeal and costs in the application.
…
Donaldson, Mr: That would be ex parte but I don't think my friend would have any objection. We will send a copy of it to my friend.
The Master: Yes, that's right. You just have to notify him within 24 hours, so if you send a copy the same time you send it down to me, that should cover it.
Donaldson, Mr: Yes.
The Master: All right. What I will do then is take out order 2, costs of this application be costs in the cause - the costs of this application, the costs in the cause of the application for leave to appeal.
Donaldson, Mr: Thank you.
The Master: Then I will refer the plaintiff's notice of motion for judgment to the Full Court to be heard at the same time as the application for leave to appeal.
Donaldson, Mr: Yes.
Caspersz, Mr: Indeed, master, thank you.
25 The master was evidently contemplating orders by consent that would dispense with the requirement for a directions hearing under O 63A r 4. Order 63A r 4 then provided:
4. Directions hearing
(1) As soon as practicable after an appeal is commenced it shall be referred to the Judge or Master who made the order or judgment under appeal, or if that person is absent to another Judge or Master, for a directions hearing in chambers.
(2) At the directions hearing the Judge or Master may -
(a) direct than an application for leave to appeal not be heard ex parte;
(b) direct that an application for leave to appeal be heard together with the appeal;
(c) on any application for leave to appeal, grant or refuse leave;
(d) direct that the appeal or any application for leave to appeal proceed under Order 63;
(e) make any directions that are necessary or desirable for the expeditious hearing of the appeal.
(3) If at the directions hearing -
(a) leave to appeal is granted, the draft notice of appeal shall stand as the notice of appeal;
(b) any order is made ex parte, the applicant shall serve any other party with details of the order within 24 hours.
On our application for an extension of time - the Master ordered that time within which to make the application for leave be extended to 12 November 2004 and the costs of the application are to be costs in the cause of the application for leave.
In respect of the application for leave, the Master indicated that he would order that the question of leave be reserved to the Full Court.
What is required is that you file with the Court a further motion seeking leave, with a minute of order in the terms that I have outlined above, that is that the question of leave be reserved to the Full Court and that costs be reserved. The motion for leave to appeal is to be in the same terms as that already filed.
This MUST be done before close of business Friday 12 November.
The plaintiffs' motion for judgment was adjourned to be dealt with by the Full Court at the return of the application for leave.
27 Mr Donaldson's facsimile was incomplete and to that extent inaccurate. The master had said that after the Union had filed its notice of motion for leave to appeal, 'rather than have to come down again', the Union should send the master a minute to the effect that the application for leave to appeal should be referred to the Full Court, that the application for leave to appeal not be heard ex parte and that the application for leave to appeal be heard together with the appeal. Mr Donaldson's facsimile omitted reference to the directions contemplated by the master pursuant to O 63A r 4.
28 On 11 November 2004, the practitioner made a telephone call to Mr Donaldson seeking clarification of the contents of the facsimile. The practitioner's file note recorded that Mr Donaldson said 'separate doc called "minute of orders"' and to 'deal with Master Sanderson['s] Associate'.
29 A file note dated 11 November 2004 at 2.05 pm indicates that the practitioner spoke to the master's associate in relation to the minute of orders and appears to record 'file apn first' and 'then minute of orders'. The word 'then' is underlined (GB 325).
30 Chapmans prepared documents, the titles of which included the words 'Notice of Motion for Leave to Appeal' dated 11 November 2004, although the documents were prepared as if the appeal were an application within the original proceedings - the documents referred to the parties as 'plaintiffs' and 'defendants' and used the CIV number in the original proceedings (GB 326 - 331).
31 A draft notice of appeal showing the parties as 'appellants' and 'respondents' was also prepared. The document is undated in the space provided for at the conclusion of the document, but at the start it refers to the 'date of document' as 11 November 2004 (GB 333).
32 There are notes, apparently originally on the back of a document dated 11 November 2004 (and which were referred to in the appeal as being 11 November 2004, ts 32), which indicate that at 3.30 pm an employee of Chapmans was 'prepared to file' but that the court would 'not accept' the documents because they had the incorrect filing fees. The note records that they had made an 'offer to pay $931', 'but have to pay $1152', so that they 'need an extra $221'. It appears that Chapmans were still holding the Union's second cheque dated 8 September 2004 in the sum of $931.
33 A file note dated 12 November 2004 at 2.09 pm indicates that the master's associate returned a telephone call from Chapmans (at 1.15 pm) and records: 'as per O 63'; 'minute would be signed by Master Sanderson and once extracted it would be signed by the Court'.
34 On 15 November 2004, a notice of motion for leave to appeal dated 11 November 2004, and a minute of draft notice of appeal dated 11 November 2004, were filed by Chapmans (GB 338 - 344). The 'date of filing' on each document was recorded as being 15 November 2004. The filed notice of motion was given a Full Court reference number. The notice of motion indicated that the Full Court would be moved on 17 November 2004 at 9.15 am for the relief claimed therein. The practitioner gave evidence that the date of the hearing (17 November 2004) was filled in by someone at the court, and this was accepted by the Tribunal (SAT reasons [72]).
35 Although the notice of motion was expressed to have been copied to Jackson McDonald, it was common ground that Chapmans did not serve it on Jackson McDonald, or give notice to Jackson McDonald of any hearing on 17 November 2004.
36 Later, at 3.58 pm on 15 November 2004, the master's associate sent Chapmans a facsimile headed 'Urgent' which stated that the 'Master has refused to sign the minute [of orders] dated 11 November 2004 and forwarded to me on 15 November 2004' (GB 345). Although not before the Tribunal and not contained in the green appeal books, there was, on the court file, a 'minute of orders' with the 'date of document' being 11 November 2004 which, in effect, set out the matters to which Mr Donaldson had referred in his facsimile of 10 November 2004 The minute of orders said the following:
WITHOUT HEARING from Counsel for the Defendants and Counsel for the Plaintiffs it is hereby ordered that:
1. With respect to the Defendant's application for leave to appeal filed 12 November 2004, the question of leave be reserved to the Full Court; and
2. Costs be reserved.
37 On or about 15 November 2004, Jackson McDonald sent a facsimile to Chapmans headed 'Urgent' which referred to the master's orders dated 10 November 2004 and asked for a copy of the 'new application for leave to appeal, which [they] assume was filed at the Supreme Court registry on Friday 12 November 2004 in compliance with Master Sanderson's orders' (GB 357). The copy of this document provided in the appeal books, which is marked to be 'By way of confirmation of facsimile transmission', is stamped as being received on 18 November 2004.
38 On 16 November 2004, Chapmans made a file note which indicated that an attempt was made to brief Mr Donaldson to attend on 17 November 2004, but that he was unavailable (GB 346).
39 The practitioner attended court on Wednesday, 17 November 2004. Although the notice of motion filed 15 November 2004 stated that the matter would be heard by the Full Court on 17 November 2004, the practitioner appeared before the master. It is necessary to set out the full transcript of proceedings of what transpired before the master (the words in the square brackets, by way of clarification, are ours):
The Master: Mr Gandini?
Gandini, Mr: For the applicant defendant, master. There will be no appearance from the other side.
The Master: No.
Gandini, Mr: Sir, you dealt with this matter in part last Wednesday [10 November], and Mr Donaldson appeared as counsel.
The Master: I did.
Gandini, Mr: And we understand there were some administrative orders to be made, but we were then advised - - -
The Master: Look, this appears to have got completely out of control.
Gandini, Mr: Yes.
The Master: The orders that I made were that the time for appealing should be extended to the date specified I forget what date that was.
Gandini, Mr: The time for an application for leave to appeal was extended, yes.
The Master: Yes, right. The application for leave to appeal should then have been lodged. There seems to have been some doubt as to just what form the application should have taken, but I assume that that has now been done and been complied with, has it?
Gandini, Mr: Yes.
The Master: Have the time limits been complied with?
Gandini, Mr: The application for leave to appeal, the applicant says, was lodged on the 12th, however the registry effectively refused to take it until the morning of the 15th and didn't formalise it until then. So - - -
The Master: Are you going to run into a problem with the respondents over that?
Gandini, Mr: I understood, no, from Wednesday [10 November] I mean, I wasn't here Wednesday [10 November]. I understand that a short time was allowed to extend the time.
The Master: Right.
Gandini, Mr: The 12th [Friday] was the union getting cheques and so on and there then appeared to be a bit of a problem, but I'm not sure really what happened.
The Master: But it was lodged on the 15th [Monday]?
Gandini, Mr: Indeed, indeed yes, indeed.
The Master: Okay. Then perhaps what I should do - - -
Gandini, Mr: Is perhaps amend the time, yes.
The Master: - - - is amend the order allowing the extension of time to refer to the 15th.
Gandini, Mr: Yes, the 15th or the 16th. Yes.
The Master: This today is a directions hearing under 63A(4) and - - -
Gandini, Mr: Yes. Counsel indicated that rather than appear again, that the matter would simply be referred off to the Full Court.
The Master: Well, that's right, but the orders that I need to make under 63A(4) are that the application for leave to appeal be heard with the appeal; (2) the application not be heard ex parte. I won't make any order granting or refusing leave and it doesn't need three judges.
Gandini, Mr: No.
The Master: So the only other order is costs of today be costs in the application.
Gandini, Mr: Costs in the application?
The Master: For leave to appeal.
Gandini, Mr: Yes. So, master, the first order made was that the time was extended to the 15th.
The Master: That will have to be made in the other matter - the originating summons matter, but I will get hold of that file and make that order, so that if a problem - if the issue arises.
Gandini, Mr: Yes.
The Master: Just remember that the appeal shall be entered for hearing within seven days after the directions, so you have got seven days from today to enter it, and - - -
Gandini, Mr: The application for leave [to appeal]?
The Master: Yes. Actually enter it for hearing.
Gandini, Mr: Yes, yes.
The Master: The procedure for that you will have to work out with the
Gandini, Mr: Yes. No, that's fine.
The Master: And the only other order I should draw to your attention is 63A(4)(iii)(b) [sic - O 63A r 4(3)(b)], which says that you have got to serve this within 24 hours - details of the order made.
Gandini, Mr: Yes, master. Thank you, sir.
The Master: All right. Thank you.
40 It is apparent that the two directions made by the master on 17 November 2004 (that the application for leave to appeal be heard with the appeal, and that the application not be heard ex parte) were directions under O 63A r 4(2)(b) and (2)(a) respectively.
41 Following the hearing on 17 November 2004, Chapmans sent three letters, one to Jackson McDonald, another to their client, the Union, and another to Mr Donaldson, reporting on or advising on the outcome of the hearing on 17 November 2004.
42 Chapmans' facsimile to Jackson McDonald dated 17 November 2004, stated the following:
We refer to previous correspondence and to the applications dealt with by the Court on the 10th November 2004.
Our client's application for leave to appeal was filed by the Court however rather than deal with that matter administratively as we understand was foreshadowed on the 10th November 2004, the Court listed the matter before Master Sanderson on the morning of the 17th November 2004.
Master Sanderson, inter alia, made orders along the lines of:
1. the defendants' application for leave to appeal be referred to the Full Court;
2. the application for leave to appeal not be heard ex parte; and
3. costs be in the application.
We will extract the orders made by Master Sanderson on the 17th November 2004 and provide them to your office in due course.
If you have any difficulties with the orders made (noting that we understand they were consistent with the orders discussed on the 10th November 2004 and are consistent with what was reported back to us by Mr Donaldson), then we are happy to provide you with further detail.
Please find enclosed a copy of the notice of motion for leave to appeal with our client's draft notice of appeal.
43 The letter to the Union referred to previous correspondence and stated that on 'the 10th and 17th November 2004 the Court granted an extension of time for leave to appeal' and that the 'application for leave to appeal has been referred to the Full Court'.
44 The letter to Mr Donaldson advised, in effect, that orders were made that the application for leave to appeal be referred to the Full Court and heard not on an ex parte basis, and requested his unavailable dates.
45 Jackson McDonald discovered from the documents received in the letter from Chapmans dated 17 November 2004 that the application for leave to appeal had been filed out of time. On 24 November 2004, Jackson McDonald wrote to Chapmans and said the following:
We refer to your letter dated 17 November 2004.
Your clients failed to comply with the orders of Master Sanderson on 10 November 2004 in that your clients' application for leave to appeal was required to be filed by 12 November 2004. We note that the application was filed on 15 November 2004.
Please explain why we were not notified of the listing of your clients' notice of motion before Master Sanderson on 17 November 2004, or served with the papers which you filed at the court on 15 November 2004.
Our clients were entitled to be informed about the hearing and given an opportunity to be heard in relation to your clients' application for a further extension because:
1. fairness between the parties requires it;
2. the Supreme Court Rules requires it;
3. professional courtesy demands it, especially given that you were likely stirred to file the application by our letter dated 15 November 2004 enquiring about this very matter.
…
Our clients reserve their rights to:
1. apply to the Court to re-list the hearing of your clients' application and seek that the orders of Master Sanderson be revoked on the basis that our clients were not given notice of the hearing, served with the papers or given an opportunity to be heard;
2. bring this matter before the court with respect to a costs award in favour of our clients.
46 The letter was copied to the Supreme Court for the attention of the master's associate.
47 On 2 December 2004, Chapmans sent a letter to Jackson McDonald in the following terms:
We refer to your correspondence of 24 November 2004.
Firstly, your last paragraph on the first page setting out 3 points is, with the greatest of respect, a nonsense.
Counsel who attended on our clients behalf on the 10th November 2004 indicated that:
1. our client's application to extend the time for leave to appeal was granted;
2. that the question of leave to appeal be reserved for the Full Court; and
3. your client's application to 'strike out' our clients action, be adjourned until the conclusion of the leave to appeal application had been determined.
The orders in relation to the whole of this matter were effectively made therefore on the 10th November 2004.
We were then advised, purely in our view as a procedural requirement, that any fresh application for leave to appeal was to be filed by the 12th November 2004. Attempts to file the relevant documents on that day were thwarted by the registry, throughout the whole of that day.
The documents were lodged on the 15th November 2004.
Master Sanderson then indicated through his Associate that he was not prepared to confirm the orders set out above administratively, and accordingly the matter was returned again to chambers on the 17th November 2004. We attended on that date purely to finalise the administrative aspects of the orders made on the 10th November 2004.
Your letter of the 15th November had nothing to do with the events set out above.
You have been served with all relevant documents to date.
In the circumstances there is simply no basis for your client to drag this matter back before Master Sanderson when the matter was resolved by Master Sanderson in a substantive way, on the 10th November 2004 and the 17th November 2004 was an administrative tidying up only.
Finally we note with extreme concern the conduct of, we would assume Ms Primrose, in copying your correspondence to the Supreme Court. We think this is highly inappropriate and can only be interpreted as an attempt to influence Master Sanderson. There is also of course the question of the accuracy of the correspondence, and it may well be that the correspondence being copied to the Supreme Court is also an attempt to mislead the Court.
In the circumstances please find enclosed a copy of our letter recently sent to the Court which has only been sent as a direct result of your letter of the 24th November 2004 being inappropriately copied to the Court.
The Committee's case against the practitioner
48 The Committee's case against the practitioner was set out, relevantly, at pars 20, 22 and 23 of its statement of facts and contentions in the Tribunal (BAB 45 - 47).
The hearing on 17 November 2004
49 As to the hearing on 17 November 2004, the Committee alleged:
20. At the hearing on 17 November 2004 before Master Sanderson the practitioner misled the Master by representing to the Master that:
(a) Jackson McDonald had been given notice of the defendants' application for a further extension of time;
(b) having been given notice of the defendants' application for a further extension of time, the plaintiffs did not wish to appear to be heard on the application;
(c) the plaintiffs did not, or were unlikely, to oppose the application for a further extension of time,
in circumstances where, by reason of the circumstances referred to in paragraphs 18 and 19 above, the practitioner knew those representations were false, alternatively, the practitioner did not care whether they were true or false.
18. The practitioner did not give any notice to Jackson McDonald of:
(a) the hearing before Master Sanderson on 17 November 2004;
(b) the application for a further extension of time that the practitioner made at the hearing on 17 November 2004.
19. Further, the practitioner did not before attending the hearing on 17 November 2004 ascertain or attempt to ascertain the attitude of the plaintiffs to an application by the defendants for a further extension of time, in circumstances where:
(a) the plaintiffs had opposed the defendants' application for an extension of time granted by the Supreme Court on 10 November 2004;
(b) the practitioner had received a facsimile transmission from Jackson McDonald on 16 November 2004 in which Jackson McDonald had, in effect, informed the practitioner of their assumption that the defendants had filed an application for leave to appeal from the Court's orders on the strike out application on or before 12 November 2004;
(c) Jackson McDonald had not otherwise informed the practitioner of the attitude of the plaintiffs to an application by the defendants for a further extension of time.
The practitioner's letter dated 17 November 2004 to Jackson McDonald
52 In relation to the practitioner's letter dated 17 November 2004, the Committee alleged:
22. By a letter dated 17 November 2004 the practitioner misled Jackson McDonald by representing to Jackson McDonald that:
(a) the defendants' application for leave to appeal the Court's orders on the strike out application had been filed on 12 November 2004;
(b) the Supreme Court had made orders with respect to the application so filed at the hearing on 17 November 2004;
(c) the defendants had not made any application for a further extension of time at the hearing on 17 November 2004;
(d) the Supreme Court at the hearing on 17 November 2004 had not made any order or orders further extending the time for the defendants to apply for leave to appeal from the Court's orders on the application to strike out,
in circumstances where … the practitioner knew those representations were false.
The practitioner's letter dated 2 December 2004 to Jackson McDonald
54 The Committee alleged, with respect to the practitioner's letter dated 2 December 2004:
23. By a letter dated 2 December 2004 the practitioner misled Jackson McDonald by representing to Jackson McDonald that:
(a) the defendants had not made any application for a further extension of time at the hearing on 17 November 2004;
(b) the Supreme Court at the hearing on 17 November 2004 had not made any order or orders further extending the time for the defendants to apply for leave to appeal from the Court's orders on the application to strike out,
in circumstances where … the practitioner knew those representations were false.
The Tribunal's findings
56 The practitioner appeared on his own behalf at the hearing before the Tribunal. The Tribunal made the following findings.
Misleading the master
57 The Tribunal found that '[b]ecause of confusion and mixed messages as to the fees to be paid', the documents ordered to be filed by 12 November 2004 were not 'accepted' with the 'result that the Court order was not complied with by the date stipulated'. The Tribunal said that the detail of the 'confusion and mixed messages as to the fees to be paid' was not relevant for present purposes [71].
58 The Tribunal found that:
even if [the practitioner] did not know the precise reason for going back to Court on 17 November, he knew … that he would have to rectify the failure to file the necessary documents by 12 November by obtaining an extension of time to 15 November at the first opportunity [77]. (emphasis added)
59 Similarly, the Tribunal found that:
whatever uncertainty and confusion there might have been as to what would transpire at the hearing on 17 November, [the practitioner] knew that he had not complied with the Court order requiring him to file the relevant papers by 12 November 2004 and that he had to apply for and obtain an extension of time to 15 November 2004, failing which the leave to appeal application was going nowhere [93].
60 The Tribunal found that the practitioner's statement to the master on 17 November 2004 that 'there will be no appearance from the other side' conveyed the 'clear impression that his opponent was aware of the proceedings but either chose not to attend or had consented or was agreeable to the orders which would be made' [84]. The Tribunal rejected the practitioner's evidence to the effect that the message intended to be conveyed by the statement was that the plaintiffs did not know it was on, and that, as the practitioner was simply appearing on an administrative basis, 'no-one from the plaintiff would need to be there' [80] - [84].
61 The Tribunal did not accept the practitioner's evidence that he believed that the purpose of the hearing on 17 November was simply an 'administrative tidying up process' and that he did not make an application to extend the time for lodging the leave to appeal application in the hearing before the master [91] - [93]. The Tribunal treated the passage where the practitioner, more or less simultaneously with the master, suggested that the time for compliance be amended, as being an application for an extension of time to 15 November 2004 (see [94], [105], [113]).
62 The Tribunal described the passage of the practitioner's evidence to the master relating to whether there would be a problem with Jackson McDonald about the extension of time as being 'disingenuous and misleading' and 'calculated to reassure the Master that the other side was aware of what was going on, and that it was not going to raise any problems with the late lodging'. The Tribunal said that the risk of opposition from Jackson McDonald was real and that the practitioner had no basis for informing the master that he understood there would be no problems from the respondents [88].
63 The Tribunal concluded, relevantly:
We find further, that he misled the Master into believing that the respondents had been notified of the hearing and that they chose, for whatever reason, not to attend. He lied to the Master that there would be no problems with the respondents in relation to the application for an extension of time to 15 November 2004 when he knew that there was a considerable risk of opposition to such an order from the opposing solicitors, with whom he had a hostile and antagonistic relationship.
…
We accordingly find that the practitioner made representations to the Supreme Court in the respects outlined above which were intentionally misleading and that the practitioner is accordingly guilty of professional misconduct [94], [96]. (emphasis added)
64 It is regrettable that the Tribunal did not, when making its findings, address itself specifically to the Committee's allegations. Presumably, the Tribunal's findings were intended to be read as upholding the Committee's allegations in par 20 of the Committee's statement of facts and contentions (see [49] above) to the effect that at the hearing on 17 November 2004 the practitioner falsely represented to the master, knowing and intending his representations to be false, that:
• Jackson McDonald had been given notice of an application he was making that day to extend time;
• having been given such notice, Jackson McDonald did not wish to appear or be heard on that application; and
• BAB did not, or was unlikely to, oppose the application for a further extension of time.
65 Finally, it should be noted that at the start of its reasons, in the Tribunal's summary of its findings at [1.2], the Tribunal said that it had found that the practitioner had 'intentionally, or alternatively, recklessly mislead the Court' on 17 November 2004. However, as noted earlier, in the material section of its reasons dealing with the hearing on 17 November 2004, the Tribunal found that the practitioner lied to the master and intentionally misled the court. That construction also appears to be borne out by reference to the Tribunal's reasons on penalty: Legal Profession Complaints Committee and Gandini [2011] WASAT 86 (S) [21] - [22] and [26]. Accordingly, despite the reference in [1.2] to recklessness, it appears to us that on the proper construction of the Tribunal's reasons, it found an intentional misleading of the court on 17 November 2004.
Misleading Jackson McDonald
The letter dated 17 November 2004
66 The Tribunal's ultimate finding was that the practitioner deliberately misled Jackson McDonald by his letter dated 17 November 2004 [115]. The Tribunal found that the practitioner had deliberately intended to mislead Jackson McDonald in his letter of 17 November 2004 by omitting to inform them that an extension of time for leave to appeal had been granted at the hearing that day, and by failing to dispel the assumption made by Jackson McDonald that the application for leave to appeal had been filed by 12 November 2004 [102]. The Tribunal referred to the comparison between the contents of the letters sent on 17 November to the Union and to Jackson McDonald as being 'striking' in that the practitioner had omitted to refer to the extension of time in the letter to Jackson McDonald, yet it was '[w]hat was most important for his client to know' in the letter to the Union [102]. The Tribunal also relied on the fact that the extension of time was 'the one thing he was at pains to remind the Master' at the hearing on 17 November [101], [103].
67 The Tribunal regarded the use of the phrase 'inter-alia' when setting out the orders of the Full Court proceedings as being disingenuous and suggested to Jackson McDonald that no other matters of significance were dealt with by the master [101]. The Tribunal also found the practitioner's evidence that he was only required to serve on the other side, pursuant to O 63A r 4 of the RSC, the orders relating to the Full Court proceedings as being unconvincing in circumstances where the practitioner knew that the other party was not notified of the hearing and knew of the importance of an extension of time for the future conduct of the proceedings [104].
68 The Tribunal rejected the practitioner's evidence that he would not have enclosed in the letter the documents from which it would have been apparent that an extension of time had been granted if he had intended to mislead the position to Jackson McDonald [105], [115]. The Tribunal said that the practitioner's statement that 'our client's application for leave to appeal was filed with the court', without mentioning that the documents were not filed by 12 November 2004 and that an oral application to extend the time for compliance had been made and granted, 'bristles with misrepresentation, not for what it says but for what it deliberately … fails to communicate' [106].
69 Again, the findings are not made with specific reference to the Committee's allegations. Although the effect of the Tribunal's reasons are somewhat unclear, it is to be inferred that the Tribunal's findings at [102] and [106] were intended to uphold the allegations in pars 22(a), (c) and (d) of the Committee's statement of facts and contentions (see [52] above), to the effect that the practitioner falsely represented to Jackson McDonald, knowing his representations to be false, that:
• the Union's application for leave to appeal had been filed on 12 November 2004;
• he had not, on behalf of the Union, made any application for a further extension of time at the hearing before Master Sanderson on 17 November 2004; and
• the court had not, at the hearing on 17 November 2004, made any order further extending the time for applying for leave to appeal.
The letter dated 2 December 2004
70 Again, the Tribunal found that the practitioner intentionally misled Jackson McDonald by his letter dated 2 December 2004 [115]. The Tribunal found that Jackson McDonald was aware that an extension of time had been granted by the time they received the letter from Chapmans dated 2 December 2004 [112]. Notwithstanding this fact, the Tribunal found that the passage in the letter where the practitioner refers to his attendance at the hearing on 17 November being 'purely to finalise the administrative aspects of the orders made on 10 November 2004' was misleading, and that the passage where the practitioner asserts that there was no basis to drag the matter back before the master when what occurred on 17 November was 'an administrative tidying up only', was 'calculated to misrepresent the position' to Jackson McDonald and was a 'deliberate attempt to obfuscate the importance of having sought and obtained an extension of time without notice to the other side' [111] - [112]. In reaching these findings, the Tribunal said it was clear from the practitioner's letter to the Union that he knew that what had transpired at the hearing was not only the finalising of 'the administrative aspects of the orders' made on 10 November 2004, but also the making of a substantive order relating to the grant of an extension of time [111].
71 The Tribunal also found that the practitioner's reference in the letter to the copying of the correspondence to the Supreme Court as being an attempt by Jackson McDonald to mislead the court was dishonest 'in light of his knowledge of having applied for an extension of time without notice' [113].
72 Again, regrettably, the Tribunal's findings were not made with reference to the Committee's specific allegations. Nevertheless, the Tribunal was presumably upholding the allegations in par 23 of the Committee's statement of facts and contentions (see [54] above), to the effect that the practitioner falsely represented to Jackson McDonald, knowing his representations to be false, that:
• he had not, on behalf of the Union, made any application for an extension of time at the hearing on 17 November 2004; and
• the Supreme Court, at the hearing on 17 November 2004, had not made any orders further extending the time for the Union to apply for leave to appeal.
The grounds of appeal and the parties' contentions
73 The practitioner had four grounds of appeal. The first was abandoned. Grounds 2, 3 and 4 read as follows:
2. The learned Deputy President erred in fact and law in finding that the practitioner knew he needed an extension of time before the Directions hearing on 17 November 2004, and further His Honour failed to apply at all the test in Briginshaw in reaching this finding.
3. The learned Deputy President erred in fact and law, and failed to apply at all the test in Briginshaw in finding that the words:
(a) 'There will be no appearance of the other side' and;
(b) 'I understood, no, from Wednesday - I mean I wasn't here Wednesday',
constituted a misleading of Master Sanderson on 17 November 2004 and/or constituted the conduct complained of by the [Committee] in paragraph 20 of their complaint.
4. The learned Deputy President erred in fact and law in finding that the practitioner's letters of 17 November 2004 and 2 December 2004 deliberately mislead Jackson McDonald, and further failed to apply at all the test in Briginshaw in reaching these findings.
74 In substance, the practitioner contended that the Tribunal failed to assess the evidence by reference to the objective background circumstances and thereby failed to consider whether alternative inferences were available other than the inference that the practitioner deliberately deceived the court and Jackson McDonald. The Committee, on the other hand, contended that the inferences drawn by the Tribunal were properly open and emphasised, in particular, the oral evidence given by the practitioner before the Tribunal.
The relevant legal principles
75 The Tribunal's findings involve, critically, inferences as to the practitioner's state of mind.
76 In Angus v Clifford [1891] 2 Ch 449, 470 - 471, Bowen LJ said:
A man may tell a lie about the state of his own mind, just as much as he can tell a lie about the state of the weather, or the state of his own digestion. It makes, to be sure, the inquiry a difficult and complicated one, and probably an obscure one, as to what the state of his mind may have been, but once arrive at the inference of fact that the state of his mind was to his own knowledge not that which he describes it as being, then he has told a lie, just as if he made an intentional misstatement of something outside his own mind, and visible to the eyes of all men. A great deal of the argument which has been addressed to the Court, arises, as it seems to me, under cover of the fallacious use, first of all, of the principle that you cannot look into a man's mind. It is said you cannot do that: therefore, what follows? It is said that you are to have fixed rules to tell you that he must have meant something, one way or the other, when certain exterior phenomena arise. The answer is that there is no such thing as an absolute criterion which gives you a certain index to a man's mind. There is nothing outside his mind which is an absolute indication of what is going on inside. So far from saying that you cannot look into a man's mind, you must look into it, if you are going to find fraud against him; and unless you think you see what must have been in his mind, you cannot find him guilty of fraud.
77 These observations were referred to in Fidock v Legal Profession Complaints Committee [2013] WASCA 108 [96] - a matter in which one of the complaints against the practitioner was that he had knowingly or recklessly misled the court by a false affidavit. For present purposes, the principles of fraudulent misrepresentation provide a suitable framework within which to consider the Tribunal's findings that the practitioner intentionally misled the court and intentionally misled Jackson McDonald.
78 The sense in which a representation would be understood by a reasonable person in the position of the representee (in this case relevantly the master in relation to grounds 2 and 3, and Jackson McDonald in relation to ground 4) is prima facie the sense relevant to the question whether the representation is false. The sense in which the representor (relevantly the practitioner) intended the representation to be understood is relevant to the question of whether the representation was made fraudulently: see Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563, 576 - 577. Reference was made in Krakowski v Eurolynx to John McGrath Motors (Canberra) Pty Ltd v Applebee [1964] HCA 1; (1964) 110 CLR 656, 659 where Kitto, Taylor and Owen JJ said, in connection with the question of whether the representation was made fraudulently, that what had to be determined was the meaning with which the representor used the words and, in light of that meaning, whether his statement was, to his knowledge, false or made with reckless indifference as to its truth or falsity.
79 The observations of Lord Herschell in Derry v Peek (1889) 14 App Cas 337, 375, are also pertinent in this context:
In my opinion making a false statement through want of care falls far short of, and is a very different thing from, fraud, and the same may be said of a false representation honestly believed though on insufficient grounds. …
At the same time I desire to say distinctly that when a false statement has been made the questions whether there were reasonable grounds for believing it, and what were the means of knowledge in the possession of the person making it, are most weighty matters for consideration. The ground upon which an alleged belief was founded is a most important test of its reality.
80 In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 363, Dixon J said:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences…This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
Grounds 2 and 3
81 As noted earlier, the Tribunal appears to have found that the practitioner made three false representations to the master on 17 November 2004, knowing his representations to be false, namely that:
• Jackson McDonald had been given notice of an application he was making that day to extend time;
• having been given such notice, Jackson McDonald did not wish to appear or be heard on that application; and
• BAB did not, or was unlikely to, oppose the application for a further extension of time.
82 In relation to grounds 2 and 3, the Committee in this appeal accepted (ts 91 - 92), in effect, that at least the first two of these findings could only be supported if it were established that, prior to the commencement of the hearing on 17 November 2004, the practitioner:
(a) knew that he needed an extension of time in which to file the notice of motion containing the application for leave to appeal; and
(b) intended to use the listing on 17 November 2004 to seek an extension of time.
83 At the outset, the following matters would appear to us to be uncontroversial arising from the objective facts:
(1) the court registry had accepted the notice of motion for filing on 15 November 2004 and had made it returnable on 17 November 2004, even though the notice of motion had not been filed within the time for filing ordered by Master Sanderson on 10 November 2004;
(2) the court process which referred to the listing on 17 November 2004 was a notice of motion filed in the proceedings in the Full Court. The notice of motion indicated that the Full Court would be moved on 17 November 2004 at 9.15 am for the relief claimed therein;
(3) notwithstanding (2), there is nothing in the evidence to indicate that there was any hearing in the Full Court on 17 November 2004 with respect to the Union's application for leave to appeal, or that the Union's motion appeared in any list as a matter to be dealt with by the Full Court on 17 November 2004;
(4) the Union's application for leave to appeal was a matter in master's chambers on 17 November 2004; and
(5) the master himself understood, because he said as much at the hearing, that the purpose of the matter being in his list on 17 November 2004 was to make directions under O 63A r 4 (the master said: 'today is a directions hearing under 63A(4)').
84 Also, the Tribunal found (in relation to the complaint not under appeal) that 'the practitioner and indeed members of his firm were confused as to the processes to be followed at the Supreme Court' [53], and that the practitioner's conduct at the hearing on 9 August 2004 involved a 'consistent failure to reach a reasonable standard of competence and diligence that a member of the public is entitled to expect' [66]. Added to that, it may be inferred that at all material times the practitioner had no, or at best a meagre, understanding of the rules and forms of the Supreme Court. The practitioner's ignorance and level of competence in this period are to be taken into account in evaluating his state of mind at and prior to the hearing on 17 November 2004.
85 Next, it is important to note the matters about which the Tribunal made no findings of fact, and in respect of which there is no notice of contention. First, the Tribunal did not make any finding as to when the practitioner first knew that the listing on 17 November 2004 would involve an appearance in master's chambers rather than an appearance in the Full Court. That finding would have been significant because if the practitioner did not know until, for example, the morning of 17 November 2004, that the matter was, in fact, in master's chambers and not in the Full Court, that could have a bearing on the inference to be drawn from the attempt by the practitioner to brief Mr Donaldson on 16 November 2004, and the more general inference as to whether he attended court on 17 November 2004 with an intention to make an application to extend the time for filing the notice of motion. The practitioner, in his evidence before the Tribunal (GB 93 - 94, 128 - 130) gave no satisfactory explanation as to how he ended up in master's chambers on 17 November 2004 when the notice of motion referred to the matter being in the Full Court on that day, but that is perhaps not surprising given the passage of six and a half years between the appearance in master's chambers and the hearing before the Tribunal.
86 Secondly, the Tribunal made no finding about whether the master had declined to make orders in accordance with the minute on the papers on 15 November 2004 because the notice of motion had not been filed on 12 November 2004, or because the minute did not adequately reflect the requirements of O 63A r 4. As to this, the practitioner had said in a passage of evidence in chief that the master's associate had told him or his office words to the effect that 'it's all too late' (GB 93), but his evidence in this passage is somewhat jumbled, there is no file note of such contact from the master's associate, and his evidence in this passage is difficult to reconcile with later evidence in cross-examination (GB 127).
87 Thirdly, the Tribunal made no finding as to whether the practitioner had seen Jackson McDonald's facsimile dated 15 November 2004 before he attended court on 17 November 2004. The practitioner in his affidavit dated 23 May 2005 said that Chapmans received Jackson McDonald's facsimile on 16 November 2004 (GB 397). The practitioner accepted before the Tribunal that Chapmans had received the facsimile by 16 November 2004 but gave conflicting evidence as to whether he could recall having seen it before 17 November 2004 (GB 93, 124, 127 - 128, 147).
88 The Tribunal was required to consider carefully any competing inferences which were logically open on the materials before it. Having regard to the objective background circumstances recited earlier, one inference that was open was that the practitioner attended master's chambers on 17 November 2004 for the purpose of obtaining, in effect, uncontested directions, and that he did so without any premeditated intention of seeking an extension of time.
89 The Tribunal's reasons for not drawing that inference, and inferring that the practitioner intended to mislead the court on 17 November 2004, appear to be based on, or arise from, the following matters, very few of which involve findings of primary fact.
90 First, the Tribunal drew attention to the practitioner's general understanding that if an application is not made in time, it is necessary to make an application for an extension of time supported by an affidavit [75]. However, this finding would tend against the Tribunal's inference, as the practitioner did not file an application for an extension of time supported by an affidavit prior to the hearing on 17 November 2004.
91 Secondly, the Tribunal found that the practitioner was aware that 'if he had not complied with the Master's order requiring filing of the documents by 12 November 2004 it would be necessary to apply for a further extension …' [76] (emphasis added). However, that finding begs the question of whether the practitioner had a positive belief, when he first attended court on 17 November 2004, that he required an extension of time in which to file the notice of motion seeking leave to appeal.
92 The practitioner's evidence (GB 120 - 125, 151) before the Tribunal was to the effect that prior to appearing in court on 17 November 2004:
• he was in a state of 'confusion' both as to why the matter had been listed for 17 November 2004, and as to the effect of the court registry having 'stamped' the documents for filing on 15 November 2004;
• it would have been 'an issue' in his mind as to whether the application for leave to appeal had been filed within time, but it was not 'a big issue' for him; and
• he had formed no positive belief that he needed an extension of time.
93 In assessing the practitioner's state of mind, the history of the matter as known to the practitioner was relevant. On 15 November 2004, Chapmans attended to file the application for leave to appeal and although the application was, strictly speaking, out of time, the registry accepted the documents for filing. This may be contrasted with the position on 9 September 2004 when Chapmans had attempted to file the application for leave to appeal and, despite having the correct filing fees, the registry had refused to file the documents because the application for leave to appeal was out of time. On or about 30 August 2004, the court had originally accepted documents for filing, even though the correct filing fee had not been paid, on the basis that the correct fee would be paid the next day. The practitioner's evidence in cross-examination included (GB 122):
[B]ut I thought at one stage and I think I thought for a few days at least that at least the papers had gone in on the 12th but it is fair to say that the court date stamped it the 15th and I think that's more than enough indication that it was the 15th. But I had some - because I'm not even sure I was in the office on the Friday or the Monday but I certainly I think was aware of what had occurred before the 17th, no doubt about that.
…
But that's what you knew at the time?- - -well, no, at the time I wasn't sure … I thought a similar situation might have occurred with Gary Cooper previously, that he had put the documents in and please bring the correct money down the next day. Now, the next day was the Monday. I must say I wasn't really clear on what had actually occurred for at least a few days maybe longer.
But by the 17th you were?- - -No, well, sorry, by the 17th I still thought maybe the documents had gone in but they had been stamped the 15th. I think that, you know, it puzzled me a bit as to why if they had gone in been paid the next morning. They weren't stamped the 12th. That was part of the sort of confusion I think I had in these few days[.]
94 Given the practitioner's ignorance and level of competence in respect of Supreme Court matters, the practitioner's evidence in this respect could not be regarded as being inherently incredible.
95 Thirdly, the Tribunal emphasised that the practitioner announced his appearance before the master in the following terms:
For the applicant defendant, master. There will be no appearance from the other side.
96 The Tribunal found that 'his statement to the Master in our view conveyed the clear impression that his opponent was aware of the proceedings but either chose not to attend or had consented or was agreeable to the orders which would be made' [84]. There are several difficulties with this finding. One is that if the practitioner intended to convey the latter matter, his belief was apparently genuine insofar as he had in mind that Jackson McDonald were agreeable to the orders the subject of the minute. Another is that it is evident from the question raised by the master in the exchange with the practitioner referred to below, that when the practitioner first announced his appearance, the master did not understand his statement to mean that Jackson McDonald were aware of and had consented to an application to extend time. The master's actual understanding of what was conveyed was a relevant, but not decisive, factor in determining what was conveyed by the practitioner's statement to a reasonable person in the master's position.
97 Further, the practitioner's statement to the master was, objectively, having regard to the background circumstances, equally capable of reflecting a belief by the practitioner that Jackson McDonald would not be appearing because the purpose of the occasion was to make orders in accordance with the minute which, on the practitioner's understanding, reflected the directions which had been addressed, without controversy, on 10 November 2004. In this regard, it is significant that, at a time much closer to the events in question (approximately 6 months) than the hearing before the tribunal (approximately 6 1/2 years later), the practitioner had sworn an affidavit in the Full Court which reflected such a belief. The Tribunal said his cross-examination before the Tribunal on this aspect of his affidavit was 'confusing and evasive' [83] and treated it as unreliable (but did not find that he had lied to the Tribunal about his state of mind at the relevant time). However, it appears that the Tribunal did not assess his evidence on the basis that an inference to that effect was logically open in light of the objective background facts.
98 Fourthly, the Tribunal appears to have attached considerable significance to the exchange between the master and the practitioner which commenced with the words by the master 'Yes, right. The application for leave to appeal should then have been lodged' down to the master asking whether it was lodged on 15 November 2004, and the practitioner replying 'Indeed, indeed - yes, indeed'. Within that passage was the following exchange:
The Master: Have the time limits been complied with?
Gandini, Mr: The application for leave to appeal, the applicant says, was lodged on the 12th, however the registry effectively refused to take it until the morning of the 15th and didn't formalise it until then. So - - -
The Master: Are you going to run into a problem with the respondents over that?
Gandini, Mr: I understood, no, from Wednesday [10 November] - I mean, I wasn't here Wednesday [10 November]. I understand that a short time was allowed to extend the time.
99 The Tribunal found that the 'entire passage' in this exchange was 'calculated to reassure the Master that the other side was aware of what was going on, and that it was not going to raise any problems with the late lodging' [88]. (emphasis added)
100 Two observations may be made about the exchange relied upon by the Tribunal. The first is, as noted above, that it is evident from the master's question that up to that point in the hearing on 17 November, the master had not understood, from anything said by the practitioner or otherwise, that Jackson McDonald were already aware of the 'late lodging' and had informed the practitioner that they had no problems with it. The other relates to the practitioner's understanding that he was not going to run into any problems over that because of his perception of Jackson McDonald's attitude in relation to the extension of time arising out of the hearing on 10 November 2004. In evaluating the practitioner's state of mind in making that statement, the Tribunal was required to consider the specific ground upon which he said his understanding was based. This point has further, particular, relevance to the third of the three knowingly false representations found by the Tribunal referred to in [81] above. We address it with specific reference to the third representation in [104] - [111] below.
101 Fifthly, the Tribunal noted that the practitioner 'simultaneously with the Master suggested that the time for compliance needed to be amended' and that he was 'at pains to confirm the granting of the extension of time when he said "… So Master, the first order made was that the time was extended to the 15th"' [89] - [90]. Those matters certainly support the inference that at that point in the hearing on 17 November 2004, the practitioner appreciated that he should obtain an order extending the time in which to file the application for leave to appeal, and that he sought an extension. It does not, however, exclude the inference that when the practitioner first attended in master's chambers that morning, he did not have such an application in mind. The same observation may be made about the sixth matter relied upon by the Tribunal, namely the fact that he had reported to his client later that day that an extension of time had been obtained both on 10 and 17 November 2004 [92].
102 Seventhly, the Tribunal asked rhetorically why, if the practitioner believed that only an 'administrative tidying up' was to take place on 17 November 2004, did he seek to brief senior counsel [94]. If the practitioner had believed on 16 November, when he attempted to brief counsel, that the matter was in the Full Court on 17 November 2004 (even if only for apparently uncontentious directions), that matter, having regard to his level of competence in and familiarity with Supreme Court matters, would provide one answer to that question. Another is that the Tribunal found, in effect, that Mr Donaldson was briefed to attend to all pleadings and court appearances in the defamation action [21].
103 In summary, the objective evidence, combined with the difficulties in the Tribunal's reasoning to which we have referred, in our view, indicate that the Tribunal erred in being satisfied, on the Briginshaw standard, that the practitioner had intentionally misled Master Sanderson on 17 November 2004 with respect to the first two representations referred to in [81] above. The inference was equally open, in our view, that prior to the commencement of the hearing on 17 November 2004, the practitioner had not formed the view that he needed an extension of time in which to file the notice of motion, and that he had not formed an intention to use the listing on 17 November 2004 to seek an extension of time, until the point dawned on him during the course of the hearing.
104 The third misrepresentation found, in effect, by the Tribunal was that BAB did not, or was unlikely to, oppose the application for a further extension of time. This requires separate consideration. To our minds, the appeal with respect to this representation does not necessarily and automatically succeed on the back of the appellant's success with respect to the first two representations. In his evidence before the Tribunal (which on this point appears inherently credible) the practitioner accepted, in effect, that he thought there was an 'issue' about the filing on 15 November 2004, albeit that he did not see it as a 'big issue', before he attended court on 17 November 2004. In the early part of the hearing on 17 November 2004, the master then raised for the practitioner's consideration whether the late filing might be a problem. The 'issue' of the date of filing then required a response from the practitioner.
105 The Tribunal found the 'only thing' the practitioner knew about BAB's attitude regarding a further extension of time was that his relationship with Jackson McDonald was 'aggressive', as evidenced in correspondence in which they had vigorously opposed previous applications, and that the practitioner 'had no basis for informing the Master that he understood there would be no problems from [BAB]' [88]. The Tribunal concluded that the practitioner knew that there was a considerable risk of opposition to such an order from the opposing solicitors with whom he had a hostile and antagonistic relationship [94].
106 Despite the relationship being 'aggressive', as the practitioner conceded in cross-examination before the Tribunal, the fact was that Jackson McDonald had not opposed the proposed extension of time on 10 November 2004, and the extension to 12 November 2004 was a date proposed by Mr Donaldson, and not one, it appears, demanded by Jackson McDonald at the hearing on 10 November 2004. In this regard, the Committee's allegation in par 19(a) of its statement of facts, issues and contentions (see [50] above) that BAB had opposed the Union's application for an extension of time on 10 November 2004 had not been established, and to the extent that the Tribunal found that it had been established, it was in error.
107 The Committee nevertheless submits that the Tribunal's finding was open having regard to the practitioner's evidence before the Tribunal, in which he said in cross-examination 'on the 10th, as far as I know, Jackson McDonald opposed the application to extend the time if that helps …' (GB 110). However, it is not clear from that passage, or his evidence as a whole (including the passage at GB 114 - 115 where he appears to contradict this evidence), as to whether he was giving positive evidence of his recollection of the state of his knowledge in court on 17 November 2004, or whether he was reconstructing what he thought he must have known at the time. The difficulty is exacerbated when it is recalled that he was giving evidence concerning his state of mind in relation to an event over six years earlier which he had not witnessed.
108 The practitioner's knowledge of what occurred on 10 November 2004 was derived from Mr Donaldson. The evidence was scant as to the content of the practitioner's conversation with Mr Donaldson on 11 November 2004, and the Tribunal made no findings about what transpired in that conversation. As it appears that, in fact, Jackson McDonald did not oppose the application for an extension of time on 10 November 2004, and Mr Donaldson must have been aware of that, it is difficult to treat the practitioner's statement in cross-examination, 6 1/2 years after the event, as an admission, or at least an admission of any great weight, against interest.
109 The Committee also submitted that the Tribunal's finding was open on the basis that the practitioner had accepted, in cross-examination, that he did not 'assume' that Jackson McDonald would not have a problem with an extension of time (GB 154). However, the practitioner's evidence in the part of the cross-examination to which the Committee refers is itself less than pellucid. It is contradicted by other passages in his evidence and, as the Tribunal rightly observed, his evidence before the Tribunal was 'confusing'.
110 In the end, we are not persuaded that the Tribunal had a sufficient basis for inferring that the practitioner intended to mislead the master when he said, in effect, that he understood that there was not going to be a problem with BAB in relation to the 'late lodging', particularly when regard is had to the following matters:
• the Tribunal's overall approach to the evidence (consistently with the Committee's allegations) was that the practitioner had gone down to court on the morning of 17 November 2004 in order to apply for an extension of time. As we have indicated, in our view, the evidence was not to be viewed through that prism;
• at the time that the practitioner was responding to the master's question, he had not made any application for an extension, nor should it be inferred that he had at that point decided to make such an application;
• the master's question required an immediate response from the practitioner. The appellant's response to the master's question was 'off the cuff'. That would not, of course, excuse him from knowingly misleading the court, but it is relevant in any assessment of his state of mind in response to the master's question; and
• it is difficult to accept that the practitioner intended to mislead the master when he articulated the basis for his understanding - the occasion on 10 November 2004 - and reminded the master, who had presided on that occasion, that the practitioner had not himself been at the hearing on 10 November 2004.
111 The Committee also emphasised that the Tribunal's finding was open when regard is had to the practitioner's correspondence to Jackson McDonald written after the hearing on 17 November 2004 and on 2 December 2004. That correspondence is addressed below. For the reasons given below, it seems to us that there is a real difference between the context in which the practitioner responded to the master's question in court on 17 November 2004, and the context in which he subsequently came to write to Jackson McDonald. The difference is sufficiently material in our view to make it inappropriate, in the circumstances of this case, to use the latter occasions as evidence of an intention to mislead the master on the earlier occasion.
112 In our view, grounds 2 and 3 should be upheld.
Ground 4
Introduction
113 We have referred earlier to the findings made by the Tribunal in relation to the practitioner's letters of 17 November 2004 and 2 December 2004. The Tribunal, in effect, summarised its findings at [1.3] in these terms:
By making representations to another firm of legal practitioners in writing he intentionally misled a fellow practitioner.
114 Ground 4 alleges, in effect, that the Tribunal erred in finding that the practitioner's letters of 17 November 2004 and 2 December 2004 deliberately misled Jackson McDonald, and further failed to apply the test in Briginshaw in reaching its findings.
The practitioner's letter to Jackson McDonald dated 17 November 2004
115 The Tribunal found that by this letter, the practitioner replied to Jackson McDonald's letter of 15 November 2004. It is implicit in the Tribunal's finding at [99] that by this point in time, the practitioner had seen Jackson McDonald's letter of 15 November 2004. Although the practitioner contends in this appeal that his letter of 17 November 2004 was not in response to Jackson McDonald's letter of 15 November 2004, we would not disturb the Tribunal's findings in this regard. The words 'Our client's application for leave to appeal was filed by the Court however …' indicates that the practitioner was alive to the implicit query in Jackson McDonald's letter of 15 November 2004 when they said that they assumed that the 'new' application for leave to appeal had been filed 'on Friday 12 November 2004 in compliance with Master Sanderson's orders', and asked for provision of the document by 12 noon on 16 November 2004. In our view, it was open to the Tribunal to infer that the practitioner's letter served, at least in part, as a response to Jackson McDonald's letter of 15 November 2004.
116 The practitioner's letter dated 17 November 2004 informed Jackson McDonald that there had been an ex parte appearance before the master and that the master had made ('inter alia') certain orders. In our view, a reasonable person in Jackson McDonald's position, in light of their letter of 15 November 2004, would have read the practitioner's letter as, prima facie, conveying:
• a representation that there was no material application made to the master affecting their client beyond the matters the subject of the specific orders to which the practitioner made reference in enumerated points 1, 2 and 3 of his letter, including no application for any extension of time; and
• a representation that there were no material orders made that day beyond the three orders to which the practitioner specifically referred, including that there was no order that granted an extension beyond 12 November 2004 for applying for leave to appeal.
117 These representations were contrary to the fact.
118 The use of the phrase 'inter alia' in his letter as a preface to the three particular orders to which he referred, would not, in itself, have informed a reasonable person in Jackson McDonald's position, upon reading the letter, that the practitioner had also sought, and been granted, an order further extending the time for applying for leave to appeal to 15 November 2004.
119 The practitioner in this appeal contends, however, that the letter of 17 November 2004 was not misleading, having regard to the evidence before the Tribunal given by the solicitor from Jackson McDonald who handled the matter for BAB at that time. Her evidence before the Tribunal included evidence, elicited by the practitioner in chief, to the effect that, by the time she wrote Jackson McDonald's letter of 24 November 2004 (GB 78):
As at that time my understanding was, which was concluded by me from the letter dated 17 November [2004] together with the documents that were enclosed with it that were dated 15 November [2004], that the appearance that you referred to in your letter on 15 November [2004] must have allowed you some sort of an extension of time and that would be based on an application that was made. It's a conclusion that I would have made to explain why it was that the documents were filed beyond the time that the previous orders allowed for.
120 The solicitor also said in her evidence before the Tribunal in cross-examination by the Committee (GB 81 - 82):
You were asked in evidence-in-chief about the last sentence in the second paragraph, 'We note that the application was filed on 15 November 2004,' and it was put to you that your knowledge of that must have arisen purely from the letter of 17 November [2004] and the enclosed application. Is that right, or was it immediately apparent to you from those documents, did it take you some time to work that through, or did you obtain any other information? --- It took me some time, hence the delay in responding to the letter, and my recollection is that I came to the belief that the documents were filed on the 15th because those - the documents that were attached to the earlier letter were dated the 15th. I don't recall - - -
Sorry. Can I just pause there to say was that immediately apparent to you or was that something that you had to work through in your mind? --- I think I had to work through it, which is why the letter was delayed.
Why did you have to work through it in your mind? --- I was concerned at the time when I first received the letter of the 17th that perhaps we had received some sort of notice or there had been some sort of mix-up within our office or with the court notifying us of a hearing and I needed to check that that was the case. As best I recall it took me a few days to come to grips with what had gone on, that we hadn't missed anything, that we hadn't received any notice and that the documents were in fact dated after the date by which they were due to be filed.
So that wasn't immediately apparent to you when you received the letter and the enclosed application? --- No, and I think the reason for that was because the letter didn't refer to there being an extension of time being granted. It just simply refers to the court having filed the documents and on first reading that it didn't come to my attention that there was an extension of time.
What about how long it took you to work out - or whether it was immediately apparent from the letter and the enclosed application about whether an extension of time had been either sought or obtained on 17 November [2004]? --- It didn't immediately occur to me.
121 The solicitor also gave evidence that she had ordered a transcript of the hearing on 17 November 2004, and had not understood 'exactly' what had gone on at the hearing on 17 November 2004 until she had received and considered the transcript, which was sometime shortly prior to 20 December 2004 (GB 83 - 84).
122 The effect of the solicitor's evidence, in our opinion, is that it was only after a few days, having first checked the file and taken steps to make sure she had not 'missed anything', that she came to the view that an extension of time had likely been granted on 17 November 2004, but she was not sure of the exact position until she had read the transcript of the hearing in late December 2004. Her evidence is admissible, but not conclusive, on the question of whether the practitioner's letter of 17 November 2004 contained a false representation. Her evidence does not assist the practitioner. When viewed as a whole, her evidence tends to confirm that a reasonable person in Jackson McDonald's position would, upon receiving the letter, have read the practitioner's letter of 17 November 2004 as conveying the representations to which we have referred. The fact that after inquiry Jackson McDonald drew their own conclusion concerning the truth as to what occurred on 17 November 2004, does not alter the inherently misleading nature of the representations conveyed by the letter. Indeed it is difficult to see how Jackson McDonald's conclusion, as at 24 November 2004, that there had been an extension of time, was anything more than conjecture at that point. The enclosures to the practitioner's letter showed that the documents had been accepted by the registry on 15 November 2004, and were stamped with that date, but there was nothing in them, in our view, to indicate with any certainty to a reasonable person in Jackson McDonald's position that the court had already granted an extension of time.
123 Accordingly, no error is shown insofar as the Tribunal found that the practitioner's letter of 17 November 2004 represented to Jackson McDonald that:
• the practitioner had not, on behalf of the Union, applied for an extension of time at the hearing on 17 November 2004;
• the court had not, on 17 November 2004, made any further order extending the time for applying for leave to appeal,
and that those representations were false.
124 However, insofar as the Tribunal also found that the practitioner represented that the Union's application for leave to appeal had been filed on 12 November 2004, we do not accept that that representation was necessarily implicit in the practitioner's letter of 17 November 2004, particularly having regard to the fact that he enclosed the relevant notice of appeal which showed that the motion had been filed on 15 November 2004.
125 The next question is whether the Tribunal has been shown to be in error in finding, in effect, that the practitioner intended by his letter to convey the false representations to which we have referred, knowing that they were false. As to this, the Tribunal found, relevantly [102] - [103]:
As referred to above, the practitioner, on the same day wrote a letter to his client and informed the Union that 'on the 10 and 17 November 2004 the Court granted an extension of time for leave to appeal. The application for leave to appeal has been referred to in Full Court' … A comparison between the contents of this letter with those of the letter written to his opposing solicitors that same day is striking. What was most important for his client to know was that an extension of time for leave to appeal had been granted on 17 November 2004. The omission of that important piece of information in his letter to Jackson McDonald and the failure to dispel the latter's assumption that the documents had been filed timeously, on 12 November 2004 are capable of only one reasonable explanation and that is that he deliberately intended to mislead Jackson McDonald.
His evidence was that the main purpose in sending the letter to Jackson McDonald on 17 November 2004 was to set out the orders made under Order 63A as he was ordered to do. However, those were not the only orders that were made on 17 November 2004. As the practitioner reminded the Master at the hearing before any order was issued under 63A, 'the first order made was that the time was extended to the 15th'.
126 In our view, the Tribunal's findings in this regard were open to it. The transcript of the hearing on 17 November 2004 shows that the practitioner, in effect, orally sought an extension of time after the master had raised the issue with him, and that he knew that the master had made an order to that effect on that occasion. We do not accept the submission made by senior counsel for the practitioner to the effect that when the practitioner was writing to Jackson McDonald, he was merely turning his attention to the directions made by the master. More or less at the same time as this letter, the practitioner was reporting to his client, in terms, that the application to extend time had been made and granted on two occasions, the second of which was 17 November 2004. When the practitioner wrote his letter to Jackson McDonald on 17 November 2004, he must have appreciated that he had asked the master for an extension that day, and had been granted it. He said in his evidence in chief before the Tribunal (GB 95):
I think almost simultaneously it's fair or he probably even triggered it and said, 'Well, you know, you're going to need to extend the time', and I almost certainly thought, 'We might do actually, yes' and certainly concurred and no opposition there, I accept that.
127 He also said in cross-examination (GB 158):
You wanted an extension of time to either the 15th or the 16th because you just wanted a little bit of extra leeway if you could get it?--- I didn't quite know when the documents had gone in.
And you asked for it?---Well, again, I'm just - - -
That's what happened, isn't it?---Well, in looking at the transcript, I'm telling you, and I don't mind looking at it or not looking at it, what occurred was the master correctly identified and whichever way identified the documents had not been lodged and the key word is 'lodged' to me. To me that's a very, you know, 'Don't beat around the bush, Mr Whoever You Are. When were they lodged?' There's only one answer: 15th. He then correctly looks at this situation and goes, 'Well, you know, are you going to need to extend the time?' I think from that transcript in my view he was going to complete those words whether I said my words or not. I think that's a fair inference. But in my view even if I - it was just clear we needed to do that and - - -
Clear that you needed to do it?---At that point because they were lodged the 15th and then he's sort of walking me through this and I've said, 'Yes, perhaps we need to amend the time.'
128 Further, as he came to compose the letter to Jackson McDonald concerning the events of that morning, it is difficult to suppose that he was unmindful of the fact that, generally speaking, Jackson McDonald was an aggressive opponent 'on everything' (GB 147). There was nothing 'off the cuff' about this correspondence. His communication to Jackson McDonald occurred in an environment far removed from the pressure of the courtroom. He was not under any pressure to form an immediate response to a question for which he was not adequately prepared. It was open to infer that the practitioner omitted reference to this matter in his recitation of the orders sought and made on 17 November 2004, as a result of a conscious and deliberate decision to convey the representations to which we have referred, rather than as a result of innocent, negligent, omission. The fact that he sent the notice of motion showing the date of 15 November 2004 does not signify that he had not made that deliberate decision in drafting the text of his letter. It was merely an unavoidable consequence of complying with the timetable for service, of which the master had advised him and with which he knew he was required to comply in order to secure his client's interests arising from the events of that morning. If proper scrutiny was not subsequently applied by Jackson McDonald upon receipt of the letter (eg through inattention, pressure of work on other files or the solicitor handling the file being absent), the extension of time may have gone unnoticed or not remarked upon.
129 Insofar as ground 4 applies to the letter of 17 November 2004 in relation to the two representations referred to in [123] above, it should be dismissed.
The practitioner's letter to Jackson McDonald dated 2 December 2004
130 In his letter of 2 December 2004, the practitioner described as 'nonsense' the paragraph of Jackson McDonald's letter of 24 November 2004, which alleged that their client was entitled to be heard on the Union's application for a further extension of time. The practitioner also queried the accuracy of Jackson McDonald's letter, and alleged that the letter (which had been copied to Master Sanderson's associate) 'may well be … an attempt to mislead the Court'.
131 In our view, the practitioner's letter of 2 December 2004 conveyed representations to Jackson McDonald that:
• he had not, on behalf of the Union, made any application for an extension of time at the hearing on 17 November 2004; and
• at the hearing on 17 November 2004, the master had not made any orders extending the time for the Union to apply for leave to appeal.
132 Even if (contrary to the view expressed earlier) his letter of 17 November 2004 was not intentionally misleading, then at least by 2 December 2004 it was plain to the practitioner that Jackson McDonald were concerned that he had applied for and obtained an extension of time from 12 to 15 November 2004 without notice to them. His letter of 2 December 2004, by its terms, in the overall context in which it was written, was calculated to induce Jackson McDonald not to investigate further, or raise before the master, the question of the extension of time which he knew he had obtained on 17 November 2004. His response was emphatic to the point where he even asserted, wrongly, that Jackson McDonald could itself be guilty of misleading the court. In our view, it was open to the Tribunal to infer that he intended his letter to be understood as containing the representations to which we have referred, and that those representations, as he knew, were false.
133 We would dismiss ground 4.
Conclusion
134 For the foregoing reasons, we would allow the appeal in CACV 59 of 2011 in part. It is inappropriate to deal with the arguments in appeal CACV 151 of 2011, which involved the Committee's appeal and the practitioner's cross-appeal against the Tribunal's findings on penalty. Although the practitioner in his cross-appeal sought to challenge, in effect, the power of the Tribunal to impose a single penalty relating to multiple charges, the practitioner conceded in the appeal that it was open to the Tribunal to impose a global penalty (ts 67).
135 The parties should be given an opportunity to consider these reasons and to make further submissions in relation to the disposition of the appeal on penalty.
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