HUNTER and LEGAL PROFESSION COMPLAINTS COMMITTEE
[2015] WASAT 25
•23 MARCH 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: HUNTER and LEGAL PROFESSION COMPLAINTS COMMITTEE [2015] WASAT 25
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MR P McNAB (SENIOR MEMBER)
MS R MOORE (MEMBER)
HEARD: 14 NOVEMBER 2014
DELIVERED : 23 MARCH 2015
FILE NO/S: VR 160 of 2012
VR 142 of 2014
BETWEEN: MARK EDWARD HUNTER
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First RespondentJONATHON REDMAN
Second RespondentRICHARD INGLEBY
Third RespondentJOANNA LAMPARSKI
Fourth Respondent
Catchwords:
Legal practitioners - Review of decision of Complaints Committee to dismiss complaints - Principles applied under s 435 of the Legal Profession Act 2008 (WA) - Requirement of leave - No reasonable likelihood that practitioners would be found guilty of unsatisfactory professional conduct or professional misconduct by Tribunal
Legislation:
Legal Profession Act 2008 (WA), s 415(2)(b), s 435, s 435(2)
Result:
Applications dismissed
Summary of Tribunal's decision:
Following the conclusion of proceedings in the Family Court of Western Australia, the applicant made complaints to the Legal Profession Complaints Committee regarding the way in which his case was handled by three practitioners he had engaged to conduct the Family Court proceedings. The Complaints Committee dismissed those complaints.
The applicant then filed two applications in the Tribunal under s 435(1)(a) of the Legal Profession Act 2008 (WA), seeking a review of the Complaints Committee's decision.
The Tribunal affirms the Complaints Committee's reasons for dismissing each of the complaints against each of the practitioners and orders that both applications be dismissed.
Category: B
Representation:
Counsel:
Applicant: In person
First Respondent : Ms D Mahiepaia
Second Respondent : Mr T Hammond
Third Respondent : Mr S Popperwell
Fourth Respondent : In person
Solicitors:
Applicant: N/A
First Respondent : Law Complaints Officer
Second Respondent : Slater and Gordon
Third Respondent : Denman Popperwell Lawyers
Fourth Respondent : N/A
Case(s) referred to in decision(s):
Neil and Legal Professional Complaints Committee [2010] WASAT 39
SJX and Legal Profession Complaints Committee [2012] WASAT 154
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Michael Edward Hunter and his ex-wife were engaged in proceedings in the Family Court of Western Australia (the Proceedings). The Proceedings went to trial. After 13 days, consent orders were agreed that resolved most issues between Mr Hunter and his ex-wife.
Mr Hunter had engaged the firm of Gibson & Gibson to act for him in the Proceedings. The solicitors at Gibson & Gibson who were involved in the file were Mr Jonathan Redman and Ms Joanne Lamparski. Gibson & Gibson briefed a barrister, Dr Richard Ingleby.
Final orders in the Proceedings were made by Justice Moncrieff on 8 April 2011 (s 24 bundle of documents pages 2 8). Although, in general terms, the Family Court is a noncosts jurisdiction, the Family Court has the power to order costs (s 117 of the Family Court Act (Cth)). Justice Moncrieff made a costs order against Mr Hunter. Justice Moncrieff published reasons for doing so on 9 May 2011 (s 24 bundle of documents, pages 13 44). The reasons are not complimentary of Mr Hunter. Something of the tenor of the reasons is to be found at [172] which states:
I am satisfied that this is a case where it is appropriate to make an order for costs and that the circumstances exist that warrant the making of such an order. I have particular regard to the unrealistic extent, of the husband's claim at 65 percent, a percentage claim that was commented upon as early as the husband's Counsel's opening. The offers made by the husband were unrealistic and the wife has been significantly advantaged by the matter proceeding to trial. She has made a genuine and proper effort to resolve the same by agreement, which has not been reciprocated.
Mr Hunter filed two applications under s 435(1)(a) of the Legal Profession Act 2008 (WA) seeking a review of the Legal Profession Complaints Committee's (the Committee) decision to dismiss his complaints against Mr Redman, Ms Lamparski and Dr Ingleby - VR 160 of 2012 and VR 142 of 2014.
The legislation
Section 435 of the Legal Profession Act 2008 (WA) (the LP Act) provides:
(1)Subject to subsection (2), a person aggrieved by -
(a)a decision of the Complaints Committee to dismiss a complaint; or
(b)… may apply to the State Administrative Tribunal for a review of the decision.
(2)If the Complaints Committee, in its reasons for its decision, specifically finds the complaint -
(a)to be trivial, unreasonable, vexatious or frivolous; or
…
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
Section 415(2)(b) of the LP Act provides that the Committee must dismiss a complaint if:
the conduct complained about has been the subject of a previous complaint that has been dismissed …
The task under s 435 of the LP Act
In SJX and Legal Profession Complaints Committee [2012] WASAT 154, Judge Parry explained the principles that apply when the Tribunal considers an application under s 435 of the LP Act. He stated:
17The Tribunal does not have jurisdiction to consider a complaint that was not made to the Committee, because the Tribunal may only review 'a decision of the Complaints Committee to dismiss a complaint'. If a complaint has not been made to the Committee, it could not have been dismissed by the Committee, and the Tribunal does not, therefore, have jurisdiction in relation to it. (See also Quinlivan and Legal Profession Complaints Committee [2012] WASAT 98 at [25] and [27] - [28] in which the Tribunal determined that 'there is no basis for a grant of leave' (at [28]) to seek review of a decision under s 435(2) of the LP Act in relation to a complaint that was not considered by the Committee).
…
Applicable principles
20As the Tribunal said in Vella and Bowden [2011] WASAT 56 at [6]:
In reviewing the Complaints Committee's decision, the function of the Tribunal is to conduct a hearing de novo, that is, to consider each of the complaints … and to determine whether there is any reasonable likelihood that the Tribunal might, on referral to it [by the Committee] of the complaints [under s 428 of the LP Act], find [the practitioner] guilty of either unsatisfactory professional conduct or professional misconduct.
21'Unsatisfactory professional conduct' is defined in s 402 of the LP Act inclusively as follows:
402.Unsatisfactory professional conduct
For the purposes of this Act -
'unsatisfactory professional conduct' includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
22'Professional misconduct' is defined by s 403 of the LP Act inclusively as follows:
403.Professional misconduct
(1)For the purposes of this Act -
'professional misconduct' includes -
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.
23The meaning of the expression 'reasonable likelihood' in s 425 of the LP Act was discussed by the Tribunal in Greenwood and Legal Profession Complaints Committee [2010] WASAT 31 (Greenwood) at [27] - [29] as follows:
The meaning of the phrase 'reasonable likelihood' in the context of s 425 of the LP Act is synonymous with the phrase 'reasonably likely'. The meaning of that phrase was discussed in Department of Agriculture and Rural v Binnie [1989] VR 836 at [842] (Marks J, Young CJ and Teague J agreeing) in the following passage:
The relevant expression here is 'reasonably likely' which has some analogy to 'fair probability'. It suggests the mathematical approach; the word 'reasonably' being a qualification of 'likely', alternatively, a measure in colloquial language of the likelihood.
The expression 'reasonably likely' is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is 'odds on' or where between nil and certainty it should be placed. A chance which in common parlance is described as 'reasonable' is one that is 'fair', 'sufficient' or 'worth noting'.
Those observations are equally apt to describe the meaning of 'reasonable likelihood' in s 425 of the LP Act.
In considering whether there is a reasonable likelihood that a practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct, it is also necessary to bear in mind the Tribunal's approach to the proof of matters referred to it under s 428(1) of the LP Act. It is well recognised that the consequences for a practitioner of an adverse determination are such that clear and cogent evidence will be required before a finding of unsatisfactory professional conduct or professional misconduct is made: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]. That follows from the fact that although the standard of proof is on the balance of probabilities, nevertheless the Tribunal must feel an 'actual persuasion' of the occurrence or existence of a relevant fact in determining whether or not conduct of that kind has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 (Dixon J).
The requirement of leave
In Neil and Legal Professional Complaints Committee [2010] WASAT 39; (2010) 70 SR (WA) 307, Justice Chaney, the then President, stated at [21] [23]:
It is clear that the legislature did not intend that all aggrieved complainants should have an unfettered right to seek review regardless of the Committee's view as to the merits of the complaint or regardless of whether a complainant had any direct personal interest in the matter the subject of complaint. Section 435(2) is clearly designed to restrict applications for review where the complaint is being dismissed because the Committee forms the view that it is trivial, unreasonable, vexatious or frivolous, or where the complainant does not have, or did not have, a direct personal interest.
In other contexts where leave is required before bringing a matter to the Tribunal, the Tribunal has adopted the criteria for the grant of leave identified by the full court in [Wilsonv Metaxas [1989] WAR 285] for example, see Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119. The criteria are that:
1)it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave; and
2)in addition that substantial injustice would be done by leaving the decision unreversed. What is substantial injustice must depend on all the circumstances of the case.
In my view, those principles are appropriate to the question of leave under s 435(2) of the LP Act. In other words, an applicant under s 435(2) must demonstrate that the Committee's decision to dismiss the complaint was wrong, or at least attended with sufficient doubt to justify leave, and that a substantial injustice would be done by leaving the decision unreversed.
VR 160 of 2012 Proceedings before the Committee
On 11 January 2012, Mr Hunter filed his first complaint with the Committee (s 24 bundle of documents, pages 52 56 and attachments pages 57 168). The complaint was filed using the Committee's standard form. The complaint prepared by Mr Hunter only nominated Mr Redman as the subject of the complaint (Item 2).
On 25 June 2012, Mr Hunter sent an email to the Committee in relation to his first complaint (s 24 bundle of documents, pages 542 546). The email stated:
It was the accumulation and dissatisfaction over time and the way the case was handled between Mr Redman, Dr Ingleby and Ms Lamparski.
Although the first complaint only named Mr Redman, it is clear that the underlying facts were common to Mr Redman, Dr Ingleby and Ms Lamparski.
The Committee's determination of 18 September 2012
On 18 September 2012, the Committee determined that Mr Hunter's complaint against Mr Redman should be dismissed (s 24 bundle of documents, pages 547 556).
The Committee identified seven aspects of Mr Hunter's complaint:
1)Failing to properly prepare for trial;
2)Failing to properly conduct the trial;
3)Failing to provide advice about or properly draft a minute of consent orders;
4)Improperly lodging a caveat;
5)Failing to properly draft submissions as to costs;
6)Failing to provide the correct information about a hearing date; and
7)Failing to comply with Family Court orders.
The Committee determined that other than those aspects of the first complaint relating to improperly lodging a caveat (4) and failing to provide the correct information about a hearing date (6), all aspects of the first complaint were lacking in substance and supporting evidence and were unreasonable. A review was not sought by Mr Hunter in relation to items (4) and (6).
In consequence of that finding, Mr Hunter required leave under s 435(2) of the LP Act for a review by the Tribunal of the Committee's decision of 18 September 2012.
Mr Hunter was dissatisfied with the Committee's decision. On 24 September 2012, he sent an email to the Committee which stated:
It appears I have to rewrite my complaint to be about Ms Lamparski.
(s 24 bundle of documents, page 556)
On 25 September 2012, the Committee advised Mr Hunter that it would refer his complaint against Ms Lamparski to the Committee's Rapid Response Team (s 24 bundle of documents, pages 575 576). The Team was unable to resolve the dispute.
The first s 435 application (VR 160 of 2012)
Mr Hunter's first application for a s 435 review was dated 8 October 2012. Mr Hunter asked the Tribunal to find Mr Redman and Ms Lamparski 'guilty of unprofessional conduct'. Mr Hunter sought a review of the Committee's decision on the following grounds:
Mr Redman told me he had 'friends' at the LPCC and any complaints made against him would be dismissed.
Mr Redman, as Ms Lamparski's supervisor, delegated all due diligence and substandard queries I put to the LPCC back onto Ms Lamparski or Counsel I had at trial.
New evidence is my ex-wife's Personal and Business Tax returns 08/09, 09/10, that I received on 3 July 2012. I find now I have a tax debt loan position of $19,094. I asked Mr Redman many times for this.
Bank disclosure documents sought by Mr Redman from the wife were only asked for one month after separation. They should have been from 12 months before, to get a true reflection of assets held at separation. Therefore counsel was not properly briefed or my wife's true income declared for Trial.
The drafting of the final Consent Orders, I was made to sign under duress by Ms Lamparski, with no additions I wanted included, which I supplied when asked for my input. They were poorly drafted by Ms Lamparski with her limited experience and criticised by the Judge in future proceedings. Ms Lamparski negligently told me we could not make changes to the Orders and proceeded not too, even after I had complained about this. Due to their poor drafting, I ended up paying for all the 'sales costs' and all the interest on the exwife's loans for a period of nearly 12 months. There was no sunset time limit or percentage splits for her to contribute to these joint costs. Her loans totalled $590,000; mine were $190,000.
Discovery on the wife's documents I had to do with Ms Lamparski after my Trial affidavit was already filed. Ms Lamparski's incompetence was stated to me in saying 'she did not know what she was looking for' when doing this. I had to do ongoing discovery on the many subpoenaed documents held at the Family Court viewing room during trial by myself for my Barrister to then crossexamine upcoming witnesses.
Therefore, my Barrister was not fully informed before trial by Mr Redman.
Mr Redman responded to a Costs Application after Trial by my wife. Mr Redman who was not at trial negotiations did not include any evidence in his two page response, or confirm with the Barrister at trial or with Ms Lamparski who was present taking notes. My bill from Gibson & Gibson confirms this.
Mr Redman told me more than once that he does not do 'property figures'. This hampered hearings when instructed by the Judge to go and do 'the figures' then come back in to settle. Mr Redman could not, telling me to go and get an accountant to do them or he would then go and delegate this to another lawyer at Gibson & Gibson, who, also not knowing the Consent Orders, got them wrong. I had to inform Mr Redman many times that my exwife was double counting her first property settlement payment of $200,000 twice in calculating her final settlement figures in the 'Asset and Liability' schedules. Again, Mr Redman could not grasp the accounting of this until the Judge told him and my exwife. Mr Redman and Ms Lamparski failed to include sales costs of the properties in the Assets and Liabilities schedule as a shared expense in the Consent Orders.
Mr Redman, in an offer of settlement to the wife, gave her just 14 minutes on a Friday to respond.
The Judge was critical of this in his Costs Order.
My trial affidavit was also drafted by Ms Lamparski, lacking annexures, and the wording of my past employment was criticised by the Judge as being untruthful. I was given one hour to go through this document at the office of Mr Redman where he corrected some things then reprinted it for signing and filing. (Minor corrections have been made by the Tribunal to the text above.)
VR 142 of 2014 Proceedings before the Committee
Mr Hunter made a complaint to the Committee against Mr Redman and Mr Hunter's former wife, a legal practitioner, on 6 November 2012 (s 24 bundle of documents, pages 579 585). He subsequently expanded that complaint to include Ms Lamparski and Dr Ingleby.
The Tribunal notes that Mr Hunter's claim against his ex-wife was dismissed and is not the subject of an application under s 435 of the LP Act.
On 8 January 2013, Mr Hunter sent a series of letters to the Committee outlining his complaints against Mr Redman, Ms Lamparski and Dr Ingleby (s 24 bundle of documents, pages 825 1022).
Mr Hunter's letter of complaint against Ms Lamparski (s 24 bundle of documents, pages 825 845) annexed a copy of the complaint he made against Mr Redman on 11 January 2012 (s 24 bundle of documents, page 65). Mr Hunter's letter of complaint against Dr Ingleby largely repeated the complaints against Mr Redman and Ms Lamparski (s 24 bundle of documents, pages 846 1022).
In Mr Hunter's letter of 8 January 2013 to the Committee complaining about Ms Lamparski, he stated:
The majority of my complaints are the same for all 3 respondents Mr Redman and Dr Ingleby being the other two respondents.
(s 24 bundle of documents, page 825)
Again, it is clear that the underlying facts concerned all three respondents.
The Committee's decision of 25 July 2014
On 25 July 2014, the Committee made a determination of the complaints against Mr Redman, Ms Lamparski and Dr Ingleby. The Committee resolved to:
1.Dismiss all the complaints against Mr Jonathan Redman because it was satisfied that there was no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct.
…
3.Dismiss the complaint against Dr Richard Ingleby relating to inadequate discovery in Family Court proceedings involving the complainant and [Mr Hunter's ex-wife] pursuant to Section 415(2)(b) of the Legal Profession Act 2008 because the conduct complained about has been the subject of a previous complaint which has been dismissed.
4.Dismiss all other complaints against Dr Richard Ingleby because it was satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct.
5.Dismiss the complaint against Ms Joanna A Lamparski of failing to properly attend to discovery in Family Court proceedings involving the complainant and [Mr Hunter's ex-wife] pursuant to Section 415(2)(b) of the Legal Profession Act 2008 because the conduct complained about has been the subject of a previous complaint which has been dismissed.
6.Dismiss all other complaints against Ms Joanna A Lamparski because it was satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct.
In dismissing Mr Hunter's complaints in its determination of 25 July 2014, the Committee found as follows:
Mr Redman
Distribution of funds from Trust Account
15.On or about 22 October 2012, the practitioner distributed the amount of $151,217 from a controlled money account ('CMA') held in the complainant's name by payments of:
a.$38,913.20 to the Australian Taxation Office in respect of the complainant's capital gains tax liability ('taxation liability');
b.$62,835.48 to [Mr Hunter's ex-wife]; and
c.$49,468.32 to the practitioner's firm Gibson & Gibson ('the Firm') for fees and disbursements in respect of representation of the complainant.
16.The complainant alleges that the practitioner distributed the above amounts in circumstances where:
a.the money in the CMA was transferred into the account pursuant to, and was held subject to, the 8 April 2011 Orders, 9 December 2011 Orders and 13 January 2012 Orders (set out in paragraph 18 below);
b.the Firm ceased acting for the complainant in or about January 2012;
c.the taxation liability was a personal liability of the complainant, which was due to be paid on or before 21 March 2013;
d.the complainant disputed the Family Court's order in respect of the distribution of the balance of the money held in the CMA after payment of the assessed taxation liability;
e.the complainant disputed the Firm's costs; and
f.no steps were taken to notify the complainant of the proposed distribution or to obtain his consent prior to distributing the funds held in the CMA.
17.The practitioner submitted:
(i)that the money was held pursuant to terms of the 9 December 2011 Family Court Orders which did not require the account to be held in the complainant's name nor did it require two signatures to operate the account;
(ii)he was ordered to retain the proceeds of sale of the property in order to pay the complainant's taxation liability and then distribute the proceeds in the divisions found by the Court;
(iii)although the taxation liability was a personal responsibility of the complainant, the practitioner was required to make no distribution until such time as the taxation liability was paid;
(iv)he was unaware upon what basis the complainant claims that the complainant disputed the Family Court orders;
(v)he was unaware that the complainant has disputed the firm's costs and more than 12 months had expired since invoices had been issued;
(vi)the Firm was entitled to obtain prompt payment of their outstanding fees by operation of the costs agreement that was held with the complainant; and
(vii) the Firm was not advised of a new address for the complainant and contacted the complainant using the last known address to the Firm.
18.A review of the orders of the Family Court reveal that:
(i)Pursuant to the 8 April 2011 Orders:
1.(1.13(d)) - the sum of $150,000 is to be held in trust in accordance with paragraph 1.16(a) pending payment .as set out in paragraph 1.16(c);
2.(1.16(a)) - until the complainant received confirmation of his capital gains tax liability, the sum of $150,000 was to be held in an interest bearing account in the joint names of the parties and requiring joint signatures;
3.(1.16(c)) - upon the capital gains tax liability being paid the parties shall receive the remaining funds in accordance with paragraph 1.13(e);
4.(1.13(e)) - 55% to the wife and 45% to the complainant
(ii)Pursuant to the 9 December 2011 Orders:
1.(3) - the sum of $ 125,000 is to be transferred by the complainant into an interest bearing term deposit to be held by [Mr Redman], such sum to be held to abide the payment of capital gains tax, written agreement of the parties or further order of the Court
2.(4) - each of the parties strictly comply with all previous orders ...
(iii)Pursuant to the 13 January 2012 Orders:
1.(1) - the sum of $25,000 being held by [the Firm], the former solicitors of the complainant, be paid into the account established pursuant to the 9 December 2011 Orders for the purposes of capital gains tax in the sum of $150,000 to bring the balance of the sum held to the sum of $150,000.
19.The Committee was of the view that order 3 of the 9 December 2011 Orders had the effect of varying Orders 1.13(d) and 1.16(a) of the 8 April 2011 Orders in that the sum of $125,000 was required to be put into an interest bearing term deposit to be held by the Firm. The amount was held to pay the complainant's taxation liability and then be distributed in accordance with the proportions of 55% to the [Mr Hunter's ex-wife] and 45% to the complainant as per Order 1.13(e) of the 8 April 2011 orders.
20.The Committee is satisfied that the money was held in in a controlled money account that accrued interest, the parties were entitled to interest earned and that pursuant to the costs agreement between the Firm and the complainant, the Firm was authorised to apply monies held on trust for the complainant towards payment of the Firm's outstanding fees and disbursements.
21.At the time the distribution was made, the Firm had outstanding legal costs totalling $49,468.32 and those costs had been outstanding since the complainant terminated the retainer with the Firm in January 2012.
22.The Committee also considered that pursuant to an authority the complainant signed with the Firm and Family Court Orders dated 15 September 2011, the Firm was entitled to apply the proceeds of sale of the marital homes to the complainant's outstanding accounts with the Firm.
23.The Committee was of the view that the evidence supported the complainant being aware that the arrangement with the Firm was that once trust funds were available, the Firm would apply those funds in satisfaction of the complainant's outstanding accounts with funds having been applied in this way on an ongoing basis prior to the final distribution of settlement monies.
24.The Committee was of the view that there was no evidence that at the time the practitioner made the distribution of monies held in trust, the complainant was disputing the taxation liability, the Family Court orders or the amount of legal costs owing to the Firm. The Committee noted that prior to the distribution of the funds by the practitioner no appeal had been lodged and no application had been made to assess or otherwise challenge the Firm's costs.
25.The Committee considered whether the practitioner's conduct breached Regulation 65(3)(b) of the Legal Profession Regulations 2009 ('the Regulations') which provides that a law practice may withdraw trust money if, before effecting the withdrawal, the practice gives or sends to the person a request for payment referring to the proposed withdrawal or a written notice of withdrawal.
26.In the circumstances, the Committee considered that Regulation 65(4) of the Regulations applied which enables a law practice to withdraw the trust money if the practice has given the person a bill in relation to the money and that person has not objected to the withdrawal of the money within seven days after being given the bill.
27.The Committee was satisfied that there was no evidence before it that the complainant disputed any of the six invoices issued by the Firm to which the Firm applied the funds remaining in trust and considered that it was reasonable for the practitioner to distribute the funds as he did and in accordance with the orders of 8 April 2011, 15 September 2011 and 9 December 2011.
Disclosure of Affidavit
28.The complainant also alleged that that the practitioner had breached Rules 16 and 24 of the Legal Profession Conduct Rules 2010 ('Rules') on the basis that by letter dated 6 November 2012, he had requested [Mr Hunter's ex-wife] to provide him with a copy of an affidavit filed in the Family Court by the complainant which the complainant had only served on [Mr Hunter's ex-wife] ('Affidavit').
29.Rule 16 contains various Rules relating to maintaining professional integrity. The complainant failed to particularise in what manner he considered that the practitioner had breached Rule 16 and the basis of the complaint here is unclear.
30.Rule 24 relevantly provides that a practitioner to whom material is disclosed by another practitioner in the circumstances where the first mentioned practitioner knows or reasonably suspects that the material is privileged and that disclosure was inadvertent, must not disclose the material or its substance to the practitioner's client or use the material in any way and must immediately notify the practitioner's client and the other practitioner that the material was disclosed and that the practitioner will destroy the material.
31.A Form 1 Initiating Application ('Form 1 Application') supported by the Affidavit was served on [Mr Hunter's ex-wife] at the end of October 2012 which dealt with children's issues but also dealt with the taxation liability and the complainant's proposed variations to the 8 April 2011 Orders which Mr Redman was involved in when acting for the complainant. The Affidavit itself referred to Mr Redman's conduct in respect of his representation of the complainant.
32.On 7 November 2012 the complainant filed two Form 19 contempt applications, with a supporting affidavit of himself, in the Family Court against the practitioner and [Mr Hunter's ex-wife] alleging that the practitioner and [Mr Hunter's ex-wife] had conspired to withdraw funds from the controlled money account ('Contempt Applications').
33.The Form 1 Application and the Affidavit were heard together with the Contempt Applications before Justice Moncrieff on 3 December 2012. Orders were made that the complainant was required to redraw the Form 1 Application with greater particularly as to what orders he sought.
34.The Committee was of the view that the Affidavit was not a privileged document and Rule 24 had no application.
35.The Committee considered whether the practitioner had breached or attempted to breach an obligation of confidentiality with respect to the Affidavit.
36.Section 121 of the Family Law Act 1975 ('FLA') provides that a person who disseminates to the public any part of any proceeding that identifies a party to the proceeding, a person who is relation to or associated with a party to the proceeding or a witness to the proceeding is guilty of an offence.
37.Pursuant to section 121(9) of the FLA, the restriction above is not applicable to the communication to persons concerned in proceedings in any court, of any pleading for use in connection with those proceedings.
38.The Committee was of the view that there had been no breach or attempted breach of section 121 of the FLA and noted that the practitioner had, up until the termination of the retainer between the complainant and the Firm, been actively involved in the proceedings and knew of the identity of those involved.
39.The Committee noted that there would have been no detriment to the complainant in the practitioner obtaining a copy of the Affidavit as the practitioner became involved in the Contempt Applications which were heard at the same time as the Form 1 Application.
40.The Committee considered whether the practitioner's conduct amounted to a possible breach of the 'implied undertaking' not to use documents or information filed in court for a purpose unrelated to the conduct of those proceedings: Hearne v Street [2008] HCA 36. It is said that the rule arises where a party is 'compelled' either by a specific rule of court, or specific court order, or otherwise, to disclose the documents or information.
41.The Committee's Legal Officer contacted both the practitioner and [Mr Hunter's ex-wife] with respect to the complainant's allegations concerning the Affidavit. From those discussions it appears that the Affidavit was not actually provided to the practitioner. Nevertheless, the Committee considered whether the request by the practitioner for a copy of the Affidavit was in breach of the practitioner's obligations.
42.Although the Affidavit was not required under any particular rule of court or order, the Committee was of the view that the practitioner's request for the Affidavit was not done for any collateral purpose.
43.The practitioner's conduct was the subject of the Affidavit and he had been involved in the proceedings the subject of the Affidavit. The practitioner said that the Affidavit was requested for the purpose of enabling the practitioner to decide whether he needed to be involved in the proceedings and meet the allegations made against him by the complainant. There was no evidence before the Committee that this was not the case and that the practitioner requested the Affidavit for a collateral purpose.
[Paragraphs 44 76 concerned the complainant's exwife and are not relevant to these proceedings].
Dr Ingleby
Inadequate discovery
77.The complainant alleged that the practitioner did not take adequate steps to obtain the other party to the proceedings ('[Mr Hunter's exwife]') personal tax returns and business/trust tax returns for the 08/09 and 09/10 financial years and bank documents beginning twelve months post separation.
78.The complaints against the complainant's former solicitor, Mr Redman, that the Committee dismissed on 4 September 2012 (and which are the subject of the complainant's review application currently before SAT) included a complaint as to the 'adequacy, of discovery in the Family Court proceedings in which the Firm instructed the practitioner, in particular relating to [Mr Hunter's exwife's] personal tax returns and business/trust tax returns for the 08/09 and 09/10 financial years and bank documents beginning twelve months post separation ('Previous Discovery Complaint').
79.The Committee had considered whether Mr Redman had failed to properly conduct discovery in the Family Court proceedings and concluded that there was no evidence that discovery was not properly attended to. The Committee made a specific finding that the Previous Discovery Complaint was lacking in substance and supporting evidence and was unreasonable.
80.Pursuant to section 415(2) of the Legal Profession Act 2008 the Committee must dismiss a complaint if the conduct complained about is the subject of a previous complaint that has been dismissed. The Committee's decision in respect of the Previous Discovery Complaint did not depend on the identity of the practitioner involved and the Committee was satisfied that the conduct complained about in respect of the complaint here against Dr Ingleby relating to inadequate discovery has been the subject of a previous complaint that has been dismissed, namely the Previous Discovery Complaint. Accordingly, the complaint here against Dr Ingleby must be dismissed.
Matters not raised at trial
81.The complaint contains allegations against the practitioner in respect of matters not raised at the trial. The complainant alleges that the practitioner failed to:
a.argue adequately or at all, that [Mr Hunter's ex-wife] had deliberately acted to reduce the value of her business ('HCL');
b.adequately present the complainant's case in respect of his care of his children and his contributions to [Mr Hunter's exwife's] business;
c.correctly apportion [Mr Hunter's ex-wife's] draw down of $100,000 from a business line of credit in schedules of assets and liabilities prepared during the course of the trial; and
d.tender as an exhibit at trial a complete set of bank statements in respect of the business line of credit.
82.The practitioner's recollection is that he was not instructed to challenge the business valuation but does recollect making submissions as to [Mr Hunter's ex-wife's] income and recalls putting to [Mr Hunter's ex-wife] that post separation the stress of the proceedings meant that her practice encountered some cash flow difficulties.
83.The practitioner said that he advised the complainant that any suggestion of 'deliberate' devaluing of her assets by [Mr Hunter's exwife] would be difficult and impossible to establish and would create problems as to the general approach he sought to adopt in relation to the parenting matters. .
84.The practitioner submits that with respect to the overdraft, specific submissions were made to the effect that it was unfair that the complainant had to pay all the interest when [Mr Hunter's ex-wife] retained the benefit of the borrowings and this was rejected by Justice Moncrieff as His Honour considered that the complainant was responsible for creating the problem (of the new borrowing) and so should be responsible.
85.The Committee considered that there was insufficient evidence before it to support the complainant's allegations and that Dr Ingleby's conduct of the trial was consistent with the proper and legitimate exercise of Counsel's discretion in the conduct of a trial. The Committee noted that there was no documentation or other evidence to show that the complainant raised any concerns with the practitioner during or shortly after the trial regarding the matters of complaint here, or generally as to the manner in which Dr Ingleby, as Counsel, was conducting the trial.
Discourtesy
86.The complainant alleges that during the trial, the practitioner's demeanour was rude, dismissive and, at times, inappropriately abusive, in particular, by mimicking the complainant and others in a derogatory and sarcastic manner and by telling the complainant words to the effect that he should 'forget his case, go find another rich woman and suck off her for the rest of his life'.
87.The practitioner denied the allegations stating that his recollection of the relationship with the complainant was that it was constructive but that he did provide the complainant with strong advice as to the complainant's demeanour and how this may negatively impact on how the trial judge viewed him.
88.The practitioner specifically denied the words attributed to him in paragraph 86 above saying the allegation was implausible and did not make sense as he did not consider [Mr Hunter's ex-wife] to be a rich woman.
89.There is a conflict of evidence between the complainant and the practitioner and in the absence of some other evidence to support the allegations (which there was not), the Committee considered there was no reasonable likelihood that the State Administrative Tribunal would find the practitioner guilty of professional misconduct or unsatisfactory professional conduct.
Not acting in the best interests of the complainant
90.The complainant alleges that after two days into the trial, the practitioner told the complainant words to the effect of 'this trial is in the toilet' and thereafter the practitioner failed to use his best endeavours to obtain the best reasonably attainable outcome for the complainant.
91.The practitioner denies having ever used the phrase as alleged. The practitioner said that he did discuss with the complainant his fears that the effect of proceeding to a final hearing was that legal fees would be 'flushed down the toilet' and he apologises if any offence was caused. The practitioner states that he meant to convey that when money is spent on legal fees, it is 'flushed away'; that is quickly and irretrievably.
92.The practitioner said that there was no reasonably foreseeable basis that the costs of a lengthy hearing in relation to parenting matters would be recoverable against [Mr Hunter's ex-wife] as it was extremely rare for costs orders to be made in parenting matters.
93.There appears to be a conflict of evidence between the complainant and the practitioner. Without some other evidence to support what the complainant alleges, the Committee considered that the practitioner's explanation appeared plausible and that the complainant may have misunderstood the practitioner's reference to 'toilet'. The Committee was satisfied that there was no reasonable likelihood that the State Administrative Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct here.
Failure to properly advise as to costs consequences
94.The complainant alleged that the practitioner did not, or not adequately, advise the complainant in respect of the possible costs consequences of refusing offers of settlement made on behalf of [Mr Hunter's ex-wife] and the effect of legal costs on the calculation of the property distributions to the complainant and [Mr Hunter's ex-wife].
95.The practitioner recollects advising the complainant as to the unlikelihood of costs orders being made in parenting matters and contrasted this with the greater willingness of Courts to order costs in financial matters where offers are refused. The practitioner recollects explaining to the complainant that he was 'at risk' as the difference between the parties' positions in relation to financial matters narrowed.
96.The practitioner recalls detailed discussions taking place about costs in general, and that further specific advice was provided to the complainant about being 'at risk' as [Mr Hunter's ex-wife's] offers came more in the range as to what the Judge had provided for in his preliminary indications.
97.The Committee is of the view that there is insufficient evidence to support the complainant's allegations here and considered that the overall manner in which the matter was conducted appeared consistent with what the practitioner said. The Committee also noted that there is no evidence of the complainant having raised issues of inadequate advice as to costs consequences with the practitioner during the course of the trial or shortly thereafter.
Failure to properly advise following trial
98.The complainant alleged that following the trial of the Family Court proceedings, the practitioner failed to adequately, or at all, advise in respect of:
a.the preparation of Minute of Consent Orders to effect the distribution of property between the parties;
b.the drafting of submissions in response to [Mr Hunter's exwife's] application for costs; and
c.potential grounds of appeal against the decision of Justice Moncrieff.
99.At some stage following the trial, the practitioner recollects having a general discussion with Mr Redman where he advised Mr Redman that Justice Moncrieff's decision was carefully written and unlikely to cause any concerns to the Full Court in terms of a possible appeal. Otherwise, the practitioner submitted that he was not retained by the Firm in relation to the matters referred to in paragraphs 36a, 36b, or 36c above.
100.The Committee noted that prior to the Minute of Consent Orders being finalised between the parties, the practitioner had returned his brief to the Firm. Further, there is no other evidence to suggest that the practitioner was briefed to draft or settle submissions as to costs or provide advice as to a potential appeal. The Committee was satisfied that there no reasonable likelihood that the State Administrative Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct here.
Ms Lamparski
Failure to properly draft trial affidavit
101.The complainant alleged that the practitioner failed to properly draft his trial affidavit, in particular, not ensuring that the trial affidavit contained material evidence from the other party's ('[Mr Hunter's ex-wife's]') discovery.
102.The practitioner was an employed solicitor at Gibson & Gibson ('the Firm') who acted for the complainant in the Family Court proceedings.
103.The practitioner advised the Committee that although she was involved in the preparation of the complainant's trial affidavit, Mr Redman, as her principal, settled the trial affidavit and that the affidavit is noted to this effect. The Committee noted that Mr Redman was the principal of the Firm with the conduct of the complainant's matter and had the overall responsibility for the trial affidavit.
104.The Committee noted that there was no evidence of the complainant having previously raised the issue of an inadequate trial affidavit with either the practitioner, Mr Redman or Counsel instructed ('Dr Ingleby'). Further, there is no evidence to suggest that Dr Ingleby raised concerns as to the adequacy of the complainant's trial affidavit.
105.The Committee was of the view that there was no evidence to support the complainant's allegations against the practitioner in respect of the trial affidavit and specifically found the complaint to be unreasonable.
Failure to properly attend to discovery
106.The complainant alleged that the practitioner failed to take adequate steps to obtain relevant documents from [Mr Hunter's exwife], in particular, [Mr Hunter's ex-wife's] personal tax returns for the 08/09 and 09/10 financial years and bank documents for the period beginning twelve months prior to the date of separation.
107.The complaints against the complainant's former solicitor Mr Redman that the Committee dismissed on 4 September 2012 (and which are the subject of the complainant's review application currently before SAT) included a complaint as the adequacy of discovery in the Family Court proceedings in which the Firm instructed the practitioner, in particular relating to [Mr Hunter's exwife's] personal tax returns and business/trust tax returns for the 08/09 and 09/10 financial years and bank documents beginning twelve months post separation ('Previous Discovery Complaint').
108.The Committee had considered whether discovery had properly been attended to on behalf of the complainant in the Family Court proceedings and found that there was no evidence that discovery was not properly attended to. The Committee made a specific finding that the Previous Discovery Complaint was lacking in substance and supporting evidence and was unreasonable.
109.Pursuant to section 415(2) of the Legal Profession Act 2008 the Committee must dismiss a complaint if the conduct complained about is the subject of a previous complaint that has been dismissed. The Committee's decision in respect of the Previous Discovery Complaint did not depend on the identity of the practitioner involved and the Committee was satisfied that the conduct complained about in respect of the complaint here against Ms Lamparski relating to failing to properly attend to discovery has been the subject of a previous complaint that has been dismissed, namely the Previous Discovery Complaint. Accordingly, the complaint here against Ms Lamparski must be dismissed.
Failure to adequately prepare for inspection
110.The complainant alleged that the practitioner failed to adequately prepare for the inspection of [Mr Hunter's ex-wife's] documents and alleges that when he attended the inspection with the practitioner at the office of Klimek & Co, the practitioner said words to the effect of she did not know what she was looking for.
111.The practitioner denied that she was inadequately prepared for the inspection of [Mr Hunter's ex-wife's] documents. The complainant provided no details or evidence that the inspection of the documents was not actually properly attended to. The practitioner did not admit saying the statement attributed to her. In any event, the Committee did not consider that the statement would, of itself, show that the practitioner was not adequately prepared for the inspection or did not properly carry out the inspection and there was no other evidence to support the complainant's assertions. In the circumstances, the Committee considered that there was insufficient evidence to support the complainant's allegations here and no reasonable likelihood that the State Administrative Tribunal would find the practitioner guilty of unsatisfactory professional conduct or professional misconduct.
Failure to properly brief Counsel
112.The complainant alleges that the practitioner failed to properly brief Dr Ingleby, in particular by not providing Dr Ingleby with relevant documents obtained from [Mr Hunter's ex-wife's] Solicitors ('Klimek & Co') following inspection of [Mr Hunter's exwife's] discovered documents.
113.The practitioner's recollection is that Dr Ingleby had access to all of the disclosure documents in the possession of the Firm and further that Dr Ingleby did not raise any concerns as to the adequacy of his brief or the availability of documents for him to consider.
114.The complainant did not specify what documents should have been provided to Dr Ingleby, but which were not.
115.There was no evidence of Dr Ingleby having raised the issue of being improperly briefed. Further, the Committee noted that there is no evidence that the complainant raised any such concerns with the practitioner or Dr Ingleby at the relevant time or following trial.
116.The Committee was of the view that there was no evidence to support the complainant's allegations here and specifically finds the complaint of failing to properly brief counsel to be lacking in substance and unreasonable.
Failure to properly advise in relation to Minute of Consent Orders
117.The complainant alleges that the practitioner failed to provide advice in respect of properly drafting the Minute of Consent Orders that was the basis for the 8 April 2011 Orders, in particular:
(i)not adequately advising the complainant in respect of the effect of consent orders 1.13(e) and 1.16; and
(ii)not acting on the complainant's instructions to seek an amendment of consent order 1.15.
118. The Committee noted that the Minute of Consent orders was consequent upon the determination of the Trial Judge that there be a division of available assets of the parties on the basis of 55% to [Mr Hunter's ex-wife] and 45% to the complainant. As such, the Minute of Consent Orders applying that determination would necessarily be circumscribed in terms of their content.
119.Although the complainant referred to changes having been made to draft orders prepared by Klimek & Co, ultimately he says that he reluctantly signed them as he was told by the practitioner on 23 March 2011 that there was nothing that could be done to change the orders and he had to sign them that day as the Judge was waiting for them.
120.The practitioner says that the orders were amended in accordance with the complainant's instructions and that he was satisfied with the terms of the orders.
121.The Committee noted that various amendments were made to the draft orders following communications between the practitioner and the complainant as to the terms of the orders and that the complainant then signed the orders.
122.There were conflicts and inconsistencies in the evidence before the Committee, in particular as to the ultimate satisfaction of the complainant with the orders that he had signed. The Committee was of the view that the conflicts and inconsistencies were such that there was no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct.
Failure to properly draft submissions as to costs
123.The complaint here is that the practitioner failed to ensure that the complainant's submissions in respect of costs were properly drafted, in particular not informing Mr Redman of offers made by the complainant during the course of the trial to settle at percentage distributions of 50/50 and 45/55 in favour of the complainant.
124.The practitioner says that she cannot recall the extent of her involvement in drafting the submissions in respect of costs but that the submissions were settled by Mr Redman. As indicated above, Mr Redman was the principal of the Firm with the conduct of the complainant's matter.
125.The Committee noted that the practitioner left the employ of the Firm on or about 8 April 2011. The Submissions as to Costs were filed and served on 28 April 2011. In the circumstances, the Committee considered that the practitioner did not have ultimate responsibility for the submissions as filed.
126.As to offers of settlement, the practitioner pointed to Justice Moncrieff's decision on costs referring to various offers of settlement including an offer by the complainant to settle at 52% in favour of [Mr Hunter's ex-wife] (late into the trial). The Committee noted that the judgement also refers to [Mr Hunter's exwife] making a counter offer of 53% (which was less than the ultimate determination in [Mr Hunter's ex-wife's] favour). The complainant's response was to allege that [Mr Hunter's ex-wife] did so by manipulating the value of one of the houses in the asset pool.
127.Although the decision on costs canvassed various offers made, of particular significance was the complainant seeking at the trial 65% of the asset pool. The decision also referred to the parties, at the conclusion of the trial, agreeing a schedule of asset and liabilities in part in response to comments made by the Trial Judge during the course of the evidence as to the likely outcomes in terms of the areas of dispute between the parties.
128.In the circumstances the Committee was satisfied that there was no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct.
The second s 435 application (VR 142 of 2014)
On 29 July 2014, Mr Hunter filed an application under s 435(1) of the LP Act seeking a review of the Committee's decision to dismiss the complaints against Mr Redman, Dr Ingleby and Ms Lamparski.
Mr Hunter sought a decision from the Tribunal that each of the respondents were 'guilty of unsatisfactory professional conduct and professional misconduct'.
The LPCC dismissed all my complaints as unreasonable. The LPCC used Section 415(2)(b) of the Legal Practice Act 2008 to avoid the respondents, Ms Lamparski and Dr Ingleby, being made to answer complaints I had raised.
I had initially only complained to the LPCC about Mr Redman as he was the Senior Family Law specialist I had engaged to handle my case. Mr Redman delegated work to Ms Lamparski and for the trial proceedings to Dr Ingleby from Victoria.
However, all the respondents failed, on many basic levels between them, to present a strong trial case on my behalf, costing me tens of thousands of dollars in fees and asset losses.
Mr Redman and Ms Lamparski failed before trial to secure via disclosure my exwife's 08/09, 09/10 personal, business or family trust tax returns. They also failed to secure any bank statements from 12 months prior to separation (only some three months after separation). This omission of bank statements had the ramifications of inadequate trial preparation, of the real assets that were available to myself, a business line of credit in which my wife spent $100,000 after separation, and me having to pay $45,000 of this (when I had previously had legal advice from Francine Walters that this would be the wife's responsibility), business tax returns not being available for trial scrutiny against a very low business valuation, and a family trust distribution of $19,094 made to me from my exwife nine months after separation, of which I was not aware of until two years after the trial. My wife also produced a F13 financial statement at trial that her income was $110,000 per year. The Child Support Agency informs me it was $224,000 when they finally got her tax return after trial. Judges make % adjustments on future earning capacity from tax returns. [Mr Hunter's ex-wife] did not provide for trial scrutiny. The LPCC found disclosure was adequately addressed by Mr Redman.
Dr Ingleby also did not complain of these documents not being available for him at trial, so he too was found not guilty of inadequately representing me at trial.
Discovery on my wife's documents before Trial was attended to by Ms Lamparski and myself. Ms Lamparski stated to me on the way that she didn't know what to look for. I believe she hadn't done this before.
My trial affidavit prepared by Ms Lamparski was filed the day of my exwife's discovery. Therefore, no evidence in the form of annexures to strengthen my case were included in my trial affidavit from discovery.
Dr Ingleby was my barrister for the three week trial. He failed to put $100,000 of the wife's spending after separation on the wife's side of the Asset and Liability Schedule he had prepared. Also my legal fees were $38,000 too high.
Dr Ingleby failed to ratify the Asset and Liability Schedule or Consent Orders in my best interests (which was drafted by my wife's Barrister, Ms Hossien) as he said he would do in the following days after trial. He flew back to Victoria leaving it to Ms Lamparski, a restricted practitioner. Dr Ingleby stated that he was not briefed (the brief was prepared by Ms Lamparski) to do the Consent Orders. At no time did he inform me that he would not do the final Consent Orders. $70,000 was his trial fee. Ms Lamparski did not make any changes I sought in the consent orders, such as sharing the interest on the wife's loans until the properties sold 12 months later. The cost to me was $44,000. Ms Lamparski failed to crystallise the 'sales costs' of the two properties in the Assets and Liabilities schedule as a shared expense between the parties. The cost to me was $30,000.
Complaints against Mr Redman before SAT in a previous application are to be now included in this new application. (Minor corrections have been made by the Tribunal to the text above.)
Mr Hunter's grounds also stated:
Ms Lamparski, a restricted practitioner, forced me under duress in the following weeks of trial to sign the Consent Orders in relation to property matters. She failed to make any changes I had requested to make the orders fairer, in my best interests, as her client before I had to sign.
In particular, there was a Consent Order saying 'the husband should pay for all the mortgages' with no sunset clause for how long. This was a 'try on' put forward by the wife's lawyers that should have been changed to shared at 55/45 as per the Assets and Liabilities Schedule.
I picked up on this but Ms Lamparski would not change the wording and meaning of this consent order.
This meant that I ended up paying $44,000 in interest off my side of the asset pool for my wife's loans of $590,000 for 12 months until the houses sold and before settlement occurred.
$590,000
$110,000 her half share of home loans
$80,000 loan for legal fees
$200,000 Hunter Cook Legal Business Line of Credit ($100,000 of which she spent after separation!) had no involvement or getting any benefit from this.
$200,000 loan to her days after trial as a Partial Property Settlement to help pay her taxes and super of her staff. This is when she had stopped paying them for one year to reduce the business value.
My loans were $110,000 for half mortgages and $80,000 for legal fees loan. Total $190,000.
Even at 55/45 I would have been generous as my wife's percentage on the loan interest was 76%.
At the signing I pushed the consent orders back to Ms Lamparski three times saying, I am not happy with the way they are drafted. Ms Lamparski responded with, We can't make any changes, the Judge is waiting for them.
I had even exclaimed to her in a previous e-mail that 'I had a gun pointed at my head' with the way they are drafted so biased in favour of my wife.
Ms Lamparski states in her defence to the LPCC that I was 'happy' with the Consent Orders at signing. I doubt Ms Lamparski, as a restricted practitioner, with her supervisor being Mr Redman being away, had settled Consent Orders before.
Mr Redman was on holidays at the time apparently and had no input into their drafting when he was the senior family lawyer I had engaged to look after my interests.
Dr Ingleby had returned his brief in the day's straight after trial. He did not finalise the Consent Orders when he was the barrister at trial and who was supposed to be negotiating on my behalf.
This was indicative of his halfhearted rude demeanour towards me during trial proceedings. This was a complaint to the LPCC but dismissed as well. I could only prove this if I had secretly recorded his rude inappropriate behaviour behind closed doors. No recording devices are allowed into the Family Court.
Dr Ingleby never communicated with me after trial in any way with regards to the meaning or future ramifications the Consent Orders would have on reducing my side of the asset pool.
Every lawyer I have spoken too since says that the barrister at trial finalises the Consent Orders for his client. Even Mr Redman told the LPCC that he thought Dr Ingleby would finalise the Consent Orders as his obligation to the client.
Dr Ingleby says, it was not in the brief Mr Redman and Ms Lamparski gave him, so he didn't.
Ms Lamparski left the employ of Gibson & Gibson the following week after the signing of the Consent Orders to go to Queensland.
This left Mr Redman who was not at trial proceedings to respond to a cost's application put forward by my wife to the Family Court. Mr Redman responded to my exwifes application of 70 pages with precedents in just two pages. He did not inform me of his limited response to the Court or add any annexures of evidence to counter the claim from my exwife that I would not except anything less than a 65/35 split (this being what Dr Ingleby said it should be before trial). Mr Redman was not at negotiations, and I did offer 50/50 and 45/55 % splits. My exwife when making offers also increased the value of one of the houses by $100,000 above the Expert's Valuation to make offers of 53/47 to herself and to be payed to her within three months. This offer was rejected until the properties sold, as I did not have the money to pay her if the properties did not sell within that time frame. I had the trial negotiation notes on this. Mr Redman did not know what negotiations took place to respond on my behalf at all. Costs Order against me, $16,000.
Mr Redman, on the 22 October 2012, removed money from a controlled money account for his legal fees. I had been Court ordered to set aside this money in trust for my payment of Capital Gains Tax when the properties sold.
Mr Redman without informing me and with a copy of the Capital Gains Tax (supplied to him by my exwife), $38,000 payable by me, goes and pays the Capital Gains Tax and then divides the remainder of the $153,000 held in trust to himself and my exwife who was agitating him to do so.
I was not informed of any of these dealings behind my back in any way.
I had an application before the Family Court in regards to my exwife double dipping on amounts back to her after I had payed the Capital Gains Tax.
Amounts such as: I had payed all the interest on the investment property loans, rates, repairs, sale commissions, Medicare levy and my PAYG Tax, all of which reduced the final Capital Gains Tax due. This should have been addressed in the Consent Orders. Cost due back to me: $20,000.
My ex-wife received 55% of these amounts back to herself when she did not pay for them when Mr Redman divided the money back to her without my authority. Mr Redman had not represented me for one year.
Both Mr Redman and my ex-wife knew via correspondence sent to them, before the dividing up of the money to themselves, that I was disputing the final division at the Family Court for clarification.
We all had liberty to apply to the Court, as did Mr Redman and [Mr Hunter's ex-wife] .
I had an application in at the Court. Mr Redman did not, and he did not have any authority from the Court or myself to go and pay my tax bill; a tax bill that was due and payable by the husband in the Consent Orders.
Mr Redman knew I was disputing his legal fees before payment at SAT and the LPCC, so he jumped in early when he saw the chance to pay himself. Mr Redman did not send me a final legal fee bill or ask me if he could use the funds from the controlled money account I had put up to be used towards his legal fees.
Mr Redman couldn't find the time to finalise the consent orders, but found the time while in Tasmania at a conference to authorise the withdrawing of money from a controlled money account to pay his legal fees.
Mr Redman charged me $920 for sitting in the public gallery on the second day of the trial.
Mr Redman often quoted to me he does not do property figures when issues arose in the Consent Orders, Asset and Liability Schedule at court. I engaged him as a professional Family Law specialist to handle my property matters. He would delegate this work to another lawyer not familiar with my case. (Minor corrections have been made by the Tribunal to the text above.)
The hearing of VR 160 of 2012 and VR 142 of 2014
The final resolution by the Tribunal of Mr Hunter's first application, VR 160 of 2012, was delayed by the resolution of his second complaint before the Committee. The matter could not be finally resolved until the complaints against all three respondents could be heard together, since the facts were essentially common to all three persons.
During the course of the hearing, the Tribunal explained to Mr Hunter that he required leave to proceed in relation to:
a)VR 160 of 2012 because the Committee had found that his complaints were unreasonable (s 435(2) of the LP Act); and
b)any findings of the Committee in its letter dated 25 July 2014 that Mr Hunter's complaints were unreasonable.
In response, Mr Hunter stated that he would not seek leave. The implications of not seeking leave and the potential impact of s 415(2)(b) of the LP Act on VR 142 of 2014 were pointed out to Mr Hunter by the Tribunal. However, he remained firm in his decision not to seek leave.
Leave not having been sought nor given, the complaints against Mr Redman and Ms Lamparski in VR 160 of 2012 were dismissed.
The complaints against Ms Lamparski for which leave is also required, noted above, should also be dismissed.
Shortly before the hearing on 14 November 2014, comprehensive submissions had been filed on behalf of Dr Ingleby. The Tribunal invited the other practitioner respondents to file submissions on the matters raised by the parties to date, and for the applicant to then file responsible submissions. This he did.
Content of these reasons
The Committee's reasoning in relation to each aspect of the complaint is clearly set out and supplemented by the 1,901 pages of the s 24 bundle of documents. Mr Hunter has not led any new evidence that would displace any of the findings made by the Committee. Nor was there anything in his submissions before the Tribunal that added to what was before the Committee.
No relevant purpose would be served by the Tribunal preparing detailed reasons that simply reiterate the Committee's reasons in a different form.
The Committee's reasoning is thorough, detailed and highly persuasive. Having considered all of the material that was placed before us (including the extensive material that was placed before the Committee), we agree with the Committee's findings, which are soundly drawn and based. We have no hesitation on review in adopting their reasons for reaching our conclusions which are to the same effect.
We observe that these proceedings arose out of the complaints of a disgruntled litigant in complex, lengthy and difficult Family Law litigation. Despite Mr Hunter's opinions, we are satisfied that, taken overall, he has received fair treatment in and from the Family Court processes, including the best endeavours of his three legal representatives in the circumstances of the case. Those representatives cannot be 'blamed' for the findings of Justice Moncrieff (which were never appealed) nor for the consequences of the various orders consented to by Mr Hunter.
Of course, this is not to say that, that with the benefit of hindsight, matters on occasion might not have been handled differently or better. Misunderstandings and mistakes (not material) might have arisen at various points. However, litigation of this nature often invites the same, and is perhaps to be expected where difficult judgment calls have to be made by counsel and those who instruct them in very tight time frames, with a client (Mr Hunter) who as the trial judge noted 'at every turn was convinced, of the rightness and unassailability of any position that he adopted' ([15]).
Such matters complained of by Mr Hunter do not amount to unsatisfactory professional conduct or professional misconduct on the part of any of the practitioners.
The Tribunal is satisfied that there is no reasonable likelihood that any of the respondents would be found guilty of unsatisfactory professional conduct or professional misconduct by the Tribunal.
The Tribunal affirms the Committee's reasons for dismissing each of the complaints against each of the respondents.
Orders
The Tribunal orders that:
1.Application VR 160 of 2012 be dismissed.
2.Application VR 142 of 2014 be dismissed.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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