Handa & Mallick
[2024] FedCFamC2F 957
•19 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Handa & Mallick [2024] FedCFamC2F 957
File number(s): MLC 6910 of 2023 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 19 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –inaccurate list of legal authorities tendered by practitioner (solicitor appearing as agent) at an enforcement hearing – list of authorities generated by a legal software package which uses artificial intelligence – practitioner afforded an opportunity make submissions as to why conduct in tendering the list of authorities should not be referred to the Victorian Legal Services Board and Commissioner. Division: Division 2 Family Law Number of paragraphs: 14 Date of hearing: 19 July 2024 Place: Melbourne Representative for the applicant: Mr B (appearing as agent) Solicitor for the applicant: Ms Aus Lawyers Counsel for the respondent: Mr Cain Solicitor for the respondent: RRR Lawyers ORDERS
MLC 6910 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HANDA
Applicant
AND: MS MALLICK
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1.The hearing of the enforcement application filed by the wife on 29 May 2024 be adjourned to 24 July 2024 at 3.00 pm in person at the Federal Circuit and Family Court of Australia (Melbourne).
2.Pursuant to rule 15.15 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) the parties and their practitioners (if applicable) attend in person on the adjourned date.
3.The parties are authorised to provide a copy of these orders and the final property orders made on 29 November 2023 to C Bank or to the lawyers acting for C Bank, being the lender in respect of the loans secured by mortgage against the real property the subject of the enforcement application.
4.A copy of these orders, the transcript of proceedings on 19 July 2024 and settled oral reasons as soon as available, be provided to Mr B, solicitor and principal of
D Law FirmD Law Firm (“the solicitor”), who today appeared as agent for MS AUS Lawyers being the solicitors for the husband and that transcript also be made available to the parties’ lawyers.5.By no later than 4.00 pm on 19 August 2024, the solicitor is to provide to the court by way of email to [email protected], submissions of not more than five pages, identifying any reasons as to why he ought not be referred to the Office of the Victorian Legal Services Board and Commissioner in relation to the list of authorities tendered by him at today’s hearing.
AND THE COURT NOTES THAT:
A.Order 4 is amended pursuant to rule 10.13(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
B.The list of authorities tendered by the solicitor has been marked Exhibit A.
C.Counsel appearing for the wife has foreshadowed an application for costs, against the legal representative(s) for the husband in relation to today's hearing, in light of the adjournment. If at the conclusion of the enforcement hearing, the wife seeks an order for costs against Mr B personally, he will be afforded procedural fairness in relation to that application and provided an opportunity to respond.
D.MS AUS Lawyers filed a Notice of Address for Service on 11 July 2024, which records they act for the husband only in respect of a pending contravention application but have been corresponding with my chambers in relation to today's hearing and arranged for Mr B to appear as their agent, indicating they also have instructions to act in the enforcement proceeding. If that is not the case, they are to notify my chambers by no later than 12 noon on Monday 22 July 2024, by email, copied to the lawyers for the wife.
E.Counsel for the wife has been requested to further explore the possibility of the resolution of this matter with MS AUS Lawyers prior to the adjourned hearing.
F.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS:
Before me is an enforcement application filed on behalf of the wife, who is the respondent in respect of substantive proceedings between the parties. The enforcement application relates to final property orders made by consent in November 2023.
I won’t go into the details of the nature of that application for now, noting these reasons relate to the conduct of the legal representative appearing on behalf of the husband today.
These reasons were delivered orally, ex tempore, and have been settled from the transcript, to make grammatical improvements and to assist with ease of reading.
Counsel appeared on behalf of the wife today instructed by her solicitors. The husband was represented by Mr B, principal of D Law Firm. Mr B appeared as agent for Ms Aus Lawyers. Ms Aus Lawyers filed a Notice of Address for Service on behalf of the husband on 11 July 2024. I have noticed this afternoon that the Notice of Address for Service records Ms Aus Lawyers act on behalf of the husband only in respect of a pending contravention proceeding. However, from their communications with my chambers in relation to today’s hearing and the fact they have engaged an agent to appear at court on his behalf today, I take it they also act on his behalf in the enforcement proceeding.
The matter was stood down this morning for the purposes of the parties’ legal representatives discussing the issues identified earlier this morning in relation to the enforcement application and to see if there was any prospect of a negotiated resolution. I asked if either party’s representative was in a position to provide me with any authorities that they sought to rely upon, for me to read while the matter was stood down.
Mr B tendered a single-page list of authorities. Upon returning to chambers neither I nor my associates were able to locate the cases identified in that list. The case citations provided for each of the four listed cases correspond with cases reported by names. My associates asked Mr B to provide copies of the authorities referred to in the list, and he did not do so.
When the matter returned to court, I asked Mr B if the list of authorities had been provided using artificial intelligence. He informed me the list had been prepared from LEAP, being a legal software package, as I understand it, used for legal practice management and other purposes. I asked if LEAP relies on artificial intelligence. He indicated that it does, answering “there is an artificial intelligence for LEAP.” I foreshadowed making procedural orders later in the day, requiring Mr B to provide an explanation as to what had occurred. Mr B clarified this afternoon that he prepared the list of authorities and not Ms Aus Lawyers.
I informed the parties and their legal representatives this morning that as a concern had arisen in relation to the veracity of information provided in the list of authorities, a concern had in turn been raised in relation to the competency and ethics of Mr B. In light of what transpired, I asked that the husband be assisted to seek advice from a duty lawyer in relation to Mr B continuing to assist him today. The husband has been present in court throughout these discussions. He informed the court via Mr B and also directly in court after seeing the duty lawyer that he is comfortable for Mr B to continue assisting him today.
Unfortunately, the parties have been unable to reach an agreement in relation to the enforcement application. That may be because other matters have arisen during the course of the day taking their attention and time away from their negotiations. I encourage them to continue those negotiations over the coming days, pending the adjourned hearing next Wednesday.
I have foreshadowed with Mr B and counsel for the wife, making an order providing Mr B an opportunity to respond to the court's proposal to refer his conduct in tendering the apparently inaccurate list of authorities today, to the Legal Services Board and Commissioner for investigation. Beyond that, I will not be making an assessment or a determination in relation to that conduct. That will be a matter for the legal professional body if a referral is made. The purpose of the order I make is for Mr B to be afforded procedural fairness in relation to my proposal to make that referral. I will provide him with one month to do that. Mr B has been informed of the orders I intend to make this afternoon and has not wished to make submissions against that course.
Counsel for the wife has foreshadowed making an application for costs in relation to the adjournment of today's hearing. He anticipates doing so at the conclusion of the enforcement hearing rather than separately today. I have indicated to the parties and to their legal representatives today, that if any application is made for costs to be paid personally by Mr B (as agent appearing today for the husband), he is to be put on notice of that application and have an opportunity to respond by way of procedural fairness. I will ensure that any further orders made in relation to the foreshadowed cost application provide for that to occur.
On the face of the Notice of Address for Service filed by them, Ms Aus Lawyers act for the husband only in respect of the contravention proceeding. Whilst I assume from their communications with chambers and engagement of Mr B today that they also act in relation to the enforcement proceeding, I will provide them with an opportunity to inform my chambers by 12 noon on Monday if that is not the case. Otherwise, I will take it that they are continuing to act for the husband and will arrange representation from their office or by counsel at the adjourned hearing on Wednesday afternoon.
Counsel for the wife indicated from the bar table this morning that correspondence has been received from the mortgagee foreshadowing enforcement action and the sale of the property the subject of the enforcement proceedings. In those circumstances, given the adjournment of the proceedings, I foreshadowed making an order authorising the parties to provide a copy of the orders and the final orders made in November 2023 to the lender being C Bank, or to the lawyers acting for C Bank.
Having foreshadowed the orders I will make to the parties’ legal representatives and neither of them making any submissions against the making of those orders, save for Mr B advising that he will be in a position to provide further information in respect of two of the cases identified in the tendered list of authorities and how material was downloaded from LEAP. Accordingly, I will make the orders foreshadowed and Mr B can address the veracity of information provided in the list of authorities in his written submissions if he wishes to do so.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 24 July 2024
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