Legal Practitioners Complaints Committee and McCormack

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PRACTICE ACT 2003 (WA)

CITATION: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and McCORMACK [2009] WASAT 4

MEMBER: JUSTICE M L BARKER (PRESIDENT)
MS A G BRADDOCK SC (SENIOR SESSIONAL MEMBER)
MS B HOLLAND (SESSIONAL MEMBER)

HEARD: 28 AND 29 JULY 2008

DELIVERED : 16 JANUARY 2009

FILE NO/S: VR 252 of 2007

BETWEEN: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Applicant
AND
RICHARD JAMES LARRY McCORMACK
Respondent

Catchwords:

Vocational Regulation - Legal Practitioner - Unsatisfactory conduct - Whether failure to inform court of insufficient evidence to justify making declaration - Whether failure to inform court it would be unsafe to rely on affidavit - Whether recklessly indifferent to truth of affidavit

Legislation:

Criminal Property Confiscation Act 2000 (WA)
Legal Practice Act 2003 (WA), s 180(1), s 185
Legal Practitioners Act 1983 (WA)
Supreme Court Act 1935 (WA), s 25(6)
Supreme Court Rules, O 30, O 43 R 6

Result:

Allegations of unsatisfactory conduct not established
Disciplinary proceedings dismissed

Category: B

Representation:

Counsel:

Applicant: Mr GR Donaldson SC and Mr AS Derrick
Respondent: Mr MJ McCusker AO QC and Mr JJ Garnsey QC

Solicitors:

Applicant: Legal Practitioners Complaints Committee
Respondent: Corser & Corser

Case(s) referred to in decision(s):

Banditt v R [2005] HCA 80; (2005) 224 CLR 262
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
BMI Ltd v Federated Clerks Union of Australia (NSW Branch) (1983) 51 ALR 401
Briginshaw v Briginshaw (1938) 60 CLR 336
Chilton v Corporation of London (1878) 7 Ch D 735
D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
Derry v Peek (1889) 14 App Cas 337
Direct Factory Outlets Pty Ltd v Westfield Management Ltd (2003) 132 FCR 428
Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 173
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Frackleton v McQueen; Re a solicitor [1910] StR Qd1
Giannarelli v Wrath (1988) 165 CLR 543
Ibeneweka v Egbuna [1964] 1 WLR 219
Kennedy v McGeechan [1978] 1 NSWLR 314
Kinch v Walcott [1929] AC 482
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Metzger v Department of Health and Social Security [1977] 3 All ER 444
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Patten v Burke Publishing Co Ltd [1991] 2 All ER 821
Quigley (A practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228
R v Caldwell [1982] AC 341
R v Dick [1982] TAS R 252
Re Gruzman; Ex parte the Prothonotary (1968) 70 SR (NSW) 316
Rondel v Worsley [1969] 1 AC 191
Smith v Littlemore (1996) 15 WAR 289
Snarski & Snarski v Barbarich [1969] WAR 46
Termijtelen v Van Arkel [1974] 1 NSWLR 525
Van Den Esschert v Chappell [1960] WAR 114
Wallersteiner v Moir [1974] 1 WLR 991
Williams v Powell [1894] WN 141

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Legal Practitioners Complaints Committee commenced disciplinary proceedings against the respondent practitioner alleging unprofessional conduct in connection with the practitioner’s conduct in Supreme Court proceedings. The Committee alleged the practitioner sought declarations when he knew the evidence did not justify making them, failed to inform the court of a general rule regarding the making of declarations by consent, failed to inform the court it would be unsafe to rely on the affidavit filed and was recklessly indifferent to whether an affidavit on which he relied was false.
The Tribunal considered each particular of the alleged unprofessional conduct and found that unsatisfactory conduct was not established.
The Tribunal found the practitioner held an honest and arguably reasonable belief that it was open for him to contend that it was an appropriate case for the court to make the declarations sought and in the circumstances of the case did not have an obligation to do more than he did in acquainting the court with the relevant materials and law or practice governing the grant of declarations by consent. Further, the Tribunal was not satisfied that the practitioner had presented to the court an affidavit in respect of which he either knew was unsafe to rely on or did not care if the contents were true or false.
Consequently the application was dismissed.

Issue

The primary issue in these proceedings is whether Richard James Larry McCormack (practitioner) was guilty of unsatisfactory conduct by unprofessional conduct while appearing as counsel for a plaintiff in certain proceedings in the Supreme Court of Western Australia on 19 June 2003.

Allegations of unsatisfactory conduct

The Legal Practitioners Complaints Committee (Committee) alleges unsatisfactory conduct against the practitioner on three grounds:
Ground 1:
•On 19 June 2003 the practitioner Richard James Larry McCormack was guilty of unsatisfactory conduct by unprofessional conduct in that while appearing as Counsel for the plaintiff in Supreme Court proceedings CIV 2565 of 2002 ("the proceedings") he applied by way of chamber summons ("Summons for Declarations") for declaratory orders regarding the plaintiff's claimed entitlement to certain property held by the defendant ("the application") with the consent of the defendant who appeared in person:
a)without informing the Court, as was the fact, that the evidence before the Court did not justify the making of such declarations, when he knew or ought to have known of this fact; and or
b)without informing the Court that as a general rule declarations of right ought not be made on admissions by the parties, or by consent, but only if the Court is satisfied by evidence when he knew or ought to have known of this general rule;
c)while knowing that the declarations, if granted, were intended to be used by the plaintiff to assert, as against a third person who was not a party to the proceedings, proprietary interests in property held by the defendant, in respect of which property the third person had or may have had a competing claim.
Ground 2:
•(A) On 19 June 2003 the practitioner Richard James Larry McCormack was guilty of unsatisfactory conduct by unprofessional conduct in that while appearing as Counsel for the plaintiff in the proceedings he relied in support of the applications, on an affidavit sworn by the defendant on 18 June 2003 without disclosing to the Court that it would be unsafe to rely on the affidavit by reason of the following matters:
a)The practitioner knew, as was the fact, that as and from April 2003 the defendant was not represented in the proceedings;
b)The practitioner knew, as was the fact, that as and from April 2003 the defendant did not accept that the facts pleaded in the Statement of Claim filed in the proceedings were correct;
c)The practitioner knew, as was the fact, that as at 18 June 2003 the defendant did not accept the factual basis for the orders sought in the Summons for Declarations or a minute of proposed consent orders dated 18 June 2003 in terms of the Summons for Declarations (the Minute of Declaratory Consent Orders);
d)The Summons for Declarations was filed at the Court on 18 June 2003 for return at 9.15 am on 19 June 2003;
e)On 18 June 2003 the practitioner prepared, without instruction from the defendant, a draft of an affidavit for swearing by the defendant in support of the Summons for Declarations ("Draft Affidavit");
f)The Draft Affidavit contained the following, 'I have taken independent legal advice and understand the consequences of the orders sought, as explained to me by my solicitor, Michael Tudori', which in substance meant that he had taken independent legal advice on the merits of the application;
g)On 18 June 2003 the practitioner was advised, as was the fact, that Mr Tudori was not acting for the defendant in the proceeding and that Mr Tudori was not providing and would not provide any advice to the defendant in respect of the Summons for Declarations or the orders being sought by the plaintiff against the defendant in the Summons for Declarations;
h)On 18 June 2003 the practitioner prepared, without instruction from the defendant, a revised version of the Draft Affidavit for swearing by the defendant in support of the Summons for Declarations ("Final Affidavit");
i)The Final Affidavit contained the following, 'I have taken independent legal advice and understand the consequences of the orders sought in the chambers summons', which in substance meant that he had taken independent legal advice on the merits of the application;
j)The Final Affidavit was sent by the practitioner to his instructing solicitor (Mr Levy) at 3.12 pm on 18 June 2003;
k)At 4.45 pm the practitioner was advised by Mr Levy that the defendant had sworn the Final Affidavit and had provided it to Mr Levy;
l)The matters the subject of the Summons for Declarations were factually complex and could not be properly mastered by a legal practitioner who was not already familiar with the matter in 90 minutes;
m)It was impracticable and impossible for the defendant to have received independent legal advice such that he understood the consequences of the orders sought in the Summons for Declarations between 3.12 pm and 4.45 pm on 18 June 2003;
n)The practitioner made no inquiry of the defendant on 19 June 2003 prior to the hearing on that day of the application as to whether the defendant had received independent legal advice such that he understood the consequences of the orders sought in the Summons for Declarations.
(B) The conduct set out in paragraph (A) occurred in circumstances where the affidavit was false.
Particulars of Falsity
The defendant had not received independent legal advice (the reference to which in the Final Affidavit in substance meant that he had taken independent legal advice on the merits of the Application) prior to the making of the orders on 19 June 2003, but deposed that he had.
Ground 3:
•On 19 June 2003 the practitioner Richard James Larry McCormack was guilty of unsatisfactory conduct by unprofessional conduct in that while appearing as Counsel for the plaintiff in the proceedings he was recklessly indifferent as to whether the Final Affidavit, on which he relied in support of the application, was true in circumstances where the Final Affidavit was false.
Particular of Falsity
The defendant had not received independent legal advice, (the reference to which in the Final Affidavit in substance meant that he had taken independent legal advice on the merits of the application), prior to the making of the orders on 19 June 2003, but deposed that he had.
Particulars of the Practitioners Reckless Indifference
a)The practitioner knew, as was the fact, that as and from April 2003 the defendant was not represented in the proceedings;
b)The practitioner knew, as was the fact, that as and from April 2003 the defendant did not accept that the facts pleaded in the Statement of Claim filed in the proceedings were correct;
c)The practitioner knew that as at 18 June 2003 the defendant did not accept the factual basis for the orders sought in the Summons for Declarations or the Minute of Declaratory Consent Orders;
d)The Summons for Declarations was filed at the Court on 18 June 2003 for return at 9.15 am on 19 June 2003;
e)On 18 June 2003 the practitioner prepared, without instruction from the defendant, the Draft Affidavit;
f)The Draft Affidavit contained the following, 'I have taken independent legal advice and understand the consequences of the orders sought, as explained to me by my solicitor, Michael Tudori', which in substance meant that he had taken independent legal advice on the merits of the application;
g)On 18 June 2003 the practitioner was advised, as was the fact, that Mr Tudori was not acting for the defendant in the proceeding and that Mr Tudori was not providing and would not provide any advice to the defendant in respect of the Summons for Declarations or the orders being sought by the plaintiff against the defendant in the Summons for Declarations;
h)On 18 June 2003 the practitioner prepared, without instruction from the defendant, a Final Affidavit;
i)The Final Affidavit contained the following, 'I have taken independent legal advice and understand the consequences of the orders sought in the chambers summons', which in substance meant that he had taken independent legal advice on the merits of the application;
j)The practitioner sent the Final Affidavit to his instructing solicitor (Mr Levy) at 3.12 pm on 18 June 2003;
k)At 4.45 pm the practitioner was advised by Mr Levy that the defendant had sworn the Final Affidavit and had provided it to Mr Levy;
l)The matters the subject of the Summons for Declarations were factually complex and could not be properly mastered by a legal practitioner who was not already familiar with the matter in 90 minutes;
m)It was impracticable and impossible, as the practitioner knew or ought to have known, for the defendant to have received independent legal advice such that he understood the consequences of the orders sought in the Summons for Declarations between 3.12 pm and 4.45 pm on 18 June 2003;
n)The practitioner made no inquiry of the defendant on 19 June 2003 prior to the hearing on that day of the application as to whether the defendant had received independent legal advice such that he understood the consequences of the orders sought in the Summons for Declarations.

Factual background

The following constitutes the background and context in which the three allegations against the practitioner are made. It also constitutes findings of the material facts for the purpose of determining the issue. Additional findings of material facts appear in the later sections of these reasons that deal with specific grounds.
On 12 July 2002 the Supreme Court (McKechnie J) made a freezing order under the Criminal Property Confiscation Act 2000 (WA) (CPC Act) on the application of the Director of Public Prosecutions for Western Australia (DPP) against the property of one Nigel Cunningham Mansfield.
The freezing order so made affected, amongst other property, all property owned or effectively controlled by, and all funds in financial institution accounts standing to the credit of:
•Glentown Nominees Pty Ltd 097 179 756;
•PacTech Ltd;
•Worldline Pty Ltd 098 942 413;
•Allerton Pty Ltd 090 975 956; and
•Addison Corporation Pty Ltd 098 832 145.
The freezing order was made upon the ex parte application of the DPP and the practitioner was not engaged to appear, at least initially, in those proceedings.
On 14 August 2002 certain parties, including one John Kizon, as first objector, and the Fitzroy All Trust (Trust), as second objector, filed a notice of objection to the freezing order pursuant to the CPC Act (objection proceedings or CPC Act proceedings). The solicitors on the record for the first objector and the second objector were Laurie Levy & Associates.
On about 24 October 2002, the practitioner received a brief to advise generally from Laurie Levy & Associates concerning the duties of Fitzroy All Pty Ltd, of which Mrs Anastasiou (mother of Mr Kizon) was the sole director, as trustee of the Trust in circumstances where the freezing order had been made.
The practitioner considered the duties of the corporate trustee were extremely important and required immediate action to be taken to protect and preserve the assets of the Trust which, as he was instructed, were affected by the freezing order. The practitioner took the view that a civil claim should be made in respect of those assets on behalf of the Trust.
On 5 November 2002 the practitioner provided his instructing solicitors with an advice, a draft writ and indorsement of claim. By his advice the practitioner dealt with a number of matters that affected the claimed right of the Trust to certain property the subject of the freezing order. The practitioner also touched on the question of any priority that a freezing order made under the CPC Act might have. He advised that:
Although, in the absence of decided authority, it cannot be concluded that the issuance of legal proceedings, in terms of the enclosed writ and indorsement of claim, will in fact give priority over a claim under the CPC Act, it is, in any event, positive, and, in terms of stating your clients' legal claims, a necessary, step which will assist position each of the plaintiffs so as to gain such advantage as may be available in relation to priority matters, vis-à-vis the assets frozen by the order of McKechnie J on 12 July 2002.
On 14 November 2002 Fitzroy All Pty Ltd as trustee for the Trust (hereafter also called, for convenience, the 'plaintiff in the action against Mr Mansfield' or 'plaintiff') lodged a writ of summons in the Supreme Court of Western Australia against Mr Mansfield (hereafter called the 'Trust's action') which proceedings were given the action number CIV 2565 of 2002.
The writ of summons contained an indorsement of claim in which the plaintiff claimed:
•damages for breach of contract in the sum of $1,592,628, being moneys due and owing;
•damages for negligence;
•damages for breach of fiduciary duty, including equitable compensation;
•exemplary damages;
•damages pursuant to s 79 of the Fair Trading Act 1987 (WA) for contravention of s 10 of that Act and further, or alternatively, the analogous provisions under the Australian Securities Investment Commission Act 1989 (Cth) (ASIC Act);
•such declaratory and other relief, directions, orders and accounts 'as this Honourable Court may deem appropriate' pursuant to law, under the Supreme Court Act 1935 (WA), in equity and under s 77 of the Fair Trading Act or the analogous provisions of the ASIC Act;
•interest on any monetary award at commercial overdraft rates under the Supreme Court Act 1935 or in the inherent jurisdiction of the court or by way of inclusion as a particular head of damage;
The indorsement of claim on the writ was signed on behalf of the practitioner.
The writ was then served on Mr Mansfield who, by his then solicitors Marks & Sands, entered an appearance that was filed in the Supreme Court on 19 November 2002, although - as explained below - not served on the plaintiff's solicitors until some time later.
The practitioner then prepared for his instructing solicitors an application on behalf of the plaintiff for an extension of time in respect of the filing and service of the statement of claim and the making of an application for summary judgment. This application was lodged in the court on 6 December 2002.
This application was supported by an affidavit of Mr Levy in which, amongst other things, he stated that on 26 November 2002 he caused a letter to be sent by facsimile transmission to Mr Mansfield's solicitors putting them on notice that the plaintiff would apply for default judgment if a memorandum of appearance was not served on the plaintiff's solicitors by close of business on 27 November 2002. The memorandum of appearance was then served on the plaintiff's solicitors, even though it had been earlier lodged in the court on 19 November 2002.
Mr Levy also stated in his affidavit that on 5 December 2002 he had been informed that Justice Barker would be delivering judgment on 9 December 2002 on an application for discovery in the CPC Act proceedings, to which the plaintiff's statement of claim and application for summary judgment were related directly or indirectly.

On 9 December 2002 the practitioner was briefed by his instructing solicitors to attend to take the judgment of Justice Barker on discovery issues raised by the first objector and the second objector in the CPC Act proceedings.
The practitioner was then briefed by his instructing solicitors to prepare a statement of claim for lodging in the Trust's action. He eventually settled a draft of the statement of claim and provided it to his instructing solicitors on 29 January 2003. On 30 January 2003 the plaintiff's solicitors lodged the statement of claim in the court.
By the time the statement of claim was settled the practitioner had the benefit of, at least, his brief from Mr Levy, conferences with Mr Kizon and his mother, and another solicitor Mr Shane Brennan (who was then acting for Mr Kizon and Fitzroy All Pty Ltd in the CPC Act proceedings), and the judgment of Justice Barker on the discovery issues in the CPC Act proceedings.
The statement of claim expanded on the range of remedies claimed in the indorsement of claim on the writ of summons by seeking also:
•an account of all share trading and profits achieved by the defendant as a result of the proceeds of share trading and of any shares remaining unsold by the defendant;
•an order for payment by the defendant to the plaintiff of all sums found to be due from the defendant to the plaintiff on the taking of the account;
•an order for delivery up by the defendant to the plaintiff of those shares found to be unsold by the defendant on the taking of the account, or for payment of their value;
•further or other relief, including all necessary or appropriate accounts, enquiries and directions and tracing in equity and also such declaratory relief and orders as may be appropriate in respect of any constructive trust as may be imposed by the court in relation to the matters pleaded and claimed.
On 30 January 2003 the practitioner's instructing solicitors also lodged in the court the plaintiff's application for summary judgment that the practitioner had settled. The application for summary judgment sought:
•leave to enter summary judgment against the defendant in an amount to be assessed by a registrar of the court consequent upon the taking of an account;
•leave to enter judgment against the defendant as claimed on the basis of damages other than in a liquidated sum, subject to such damages awarded being assessed by a master of the court;
•directions for the purposes of the account to be prepared by the plaintiff's solicitors;
•directions for the purposes of assessment of damages to be prepared by the plaintiff's solicitors.
The application for summary judgment was supported by affidavits of Mr Kizon, sworn 14 March 2003, and Mrs Anastasiou, sworn 17 March 2003.
At about the time the statement of claim was filed in the Trust's action, the practitioner conferred with his instructing solicitor, Mr Levy, and Mr Kizon and his mother. Amongst other things, the question of possible settlement with Mr Mansfield was discussed. The practitioner encouraged early compromise in the interests of saving legal costs.
Subsequently, apparently as a result of dealings between Mr Mansfield and Mr Kizon, Mr Levy advised the practitioner (and presumably Mr Kizon) that he did not approve of Mr Kizon speaking with Mr Mansfield by reason of an alleged attempt by Mr Mansfield to 'blackmail our clients'. Mr Levy sent the practitioner a note to that effect dated 4 April 2003.
Nonetheless, by 8 April 2003, Mr Mansfield had filed his own affidavit in the Trust's action - he no longer being legally represented by Marks & Sands in those proceedings - in which he acknowledged and conceded as follows:
I acknowledge and concede the claim made against me by the Plaintiff herein in the Writ of Summons dated 14 November 2002 and do not intend to defend this matter further.
On 7 April 2003, Mr Mansfield also signed a memorandum of consent order pursuant to Order 43 R 16 of the Supreme Court Rules in the proceedings.
Mr Mansfield's affidavit sworn and filed 8 April 2003 was apparently prepared by the defendant himself, although it betrayed some legal assistance. At the time the affidavit was filed Mr Mansfield was no longer represented by Marks & Sands. However, as explained below, Mr Michael Tudori, solicitor, had begun advising Mr Mansfield in relation to his CPC Act proceedings, and he had a limited role in advising Mr Mansfield in relation to this affidavit.
By advice dated 9 April 2003, the practitioner advised his instructing solicitors that the acknowledgement and concession was:
very welcome news indeed because, whereas the defendant could have acknowledged the debt, and done so without any admissions, in my view, the words set out above … are tantamount to an express admission of liability in respect of each of the separate causes of action referred to in the indorsement of claim ….
In that advice the practitioner also expressly dealt with the question of 'judgment' in the following terms:
Judgment
A matter of some significance is the need, at this stage, in light of the acknowledgement of debt and concession of claim, for terms of judgment to be sought as against the defendant, to be carefully thought through.
As you are aware, the chamber summons dated 30 January 2003 claims relief on the basis of an amount to be assessed by a Registrar of the court, consequent upon the taking of an account.
In practical terms, in the absence of documents, or at least full documentation concerning the defendant's affairs, as relevant to the plaintiff's claim of moneys advanced, and share trading activity, judgment may need to be entered in terms which provide, in procedural terms, for a step by step, as it were, approach.
This, indeed, is reflected in the orders sought in the summons, which require damages to be assessed by a Master of the Supreme Court, following the taking of an account by a Registrar of the court, with various directions sought, including discovery and interrogatories.
A further matter which needs to be considered is the fact that the claim in the indorsement is for $1,592,628.00, whereas in para 7 of the statement of claim, the amount pleaded as having been advanced to the defendant is in the total sum of approximately (AUD) $1,190,000.00, together with any profits due to be paid to the plaintiff by the defendant, as a result of any trading activities, less the 50% component that the defendant was entitled to retain, and less any capital losses as may have been occasioned as a result of the trading activity engaged in pursuant to the Agreement [note omitted].
When regard is had to these issues, application could be made to bring the matter on for entry of summary judgment, in advance of the special appointment (15/5/03), and that is, subject to co-operation by the Civil Listings at the Supreme Court, able to be done, possibly on a listing in general chambers, but to be heard at the end of the list, as it probably would involve a little time to explain to the court relevant issues, and the terms of the judgment sought, and this would be the case even if the matter was unopposed.
However, as I refer to above, there are some issues which do need to be considered carefully with regard to the specific terms of the summary judgment, and I should appreciate an opportunity of meeting with you in conference to discuss same.
On 15 April 2003, the practitioner on behalf of the plaintiff appeared before Master Sanderson in chambers in the court on the summary judgment application. The practitioner prepared written submissions and a list of authorities for the court, which he handed up to the Master on the day.
The practitioner says it was his intention to explain to the Master the background to the application for judgment, relevant statutory provisions involved and, in particular, the impact of Order 30 of the Supreme Court Rules on admissions, and the role of s 25(6) of the Supreme Court Act1935 as to declarations of right able to be sought from the court without being expressly claimed.
The practitioner says he was also aware of and was in a position to refer the court if necessary to relevantly decided case law such as that referred to in Cairns: Australian Civil Procedure (4th ed, 1996) at 449 under the heading Consent Judgment and, in particular, footnote 126 referring to Kinch v Walcott [1929] AC 482; and Frackleton v McQueen; Re a solicitor [1910] StR Qd1.
On 15 April 2003, when the practitioner appeared before Master Sanderson, he was instructed by Mr Levy, who was present together with Mr Kizon. Mr Murray of Marks & Sands also attended and informed the court that it was the intention of his firm to make application that day to be removed from the record as solicitors for the defendant Mr Mansfield, and that Mr Mansfield would thereafter be represented by Mr Michael Tudori. Mr Murray asked for, and was granted, leave to withdraw, but before he did so the practitioner requested him to introduce Mr Mansfield to the court, which he did.
The practitioner says he then handed up to the Master an outline of submissions, list of authorities, and a minute of proposed orders for summary judgment and proceeded with the application for summary judgment. The Master subsequently made orders in the terms proposed.
The practitioner recalls that Mr Mansfield sat at the bar table and, when Master Sanderson enquired of him whether he wished to say anything about the application, informed the court that he agreed with all of the orders sought and confirmed his affidavit of 8 April 2003.
The practitioner also says he believes that the orders then made by Master Sanderson for summary judgment were made on the basis that the application had been contested, rather than by consent, in the sense that the court was apparently satisfied from the material before it that it was appropriate for summary judgment to be entered. The orders expressly included an order for liberty to apply generally in relation to execution of the orders and specifically for judgment in respect of all other claims.
In his advice dated 15 April 2003, sent by 'facsimile/email' to his instructing solicitors, the practitioner reported on what had transpired before the Master that morning, in the following terms:
I also note Mr Mansfield's advice to me this morning after court, that he proposed to lodge application to be included as an objector in the freezing order proceedings, on the basis of legal advice he had received which cast real doubt on the validity of that order.
It is partly because of developments such as Mr Mansfield challenging the freezing order, that I recommended in my recent letter to you of 9 April 2003, that I be instructed to participate with your good self in relation to the position of your clients in the freezing order action generally.
The judgment obtained today is a very significant step in the recovery of the moneys advanced by the plaintiff to Mr Mansfield but not returned, particularly:
•in assisting with obtaining priority against later claims on Mr Mansfield's assets; and also
•because of the common, or at least related, substratum of facts obtained as between Mr Mansfield's involvement, as pleaded in the statement of claim in CIV 2565 of 2002, and the involvement of Mr … in providing accounting advice to Fitzroy All Pty Ltd as trustee for the Fitzroy All Trust, John Kizon and his mother Ms Marika Anastasiou. (emphasis in original)
The practitioner further reported to his instructing solicitor by email dated 16 April 2003 mentioning that the specific declaratory relief obtained was consistent with the claimed constructive trust and the associated remedy of tracing in equity and they could proceed under the liberty given to apply to the court for further orders.
The practitioner in the following days provided further advice to his instructing solicitors in relation to the CPC Act proceedings and the Trust's action, and in relation to the lodgement of a caveat over certain property on behalf of their clients.
On 24 April 2003, the practitioner sent to his instructing solicitors by facsimile a draft of an affidavit for consideration by Mr Mansfield, as well as a draft of an affidavit to be made by Mr Kizon, for filing in the Trust's action.
In this regard, as of 24 April 2003, the practitioner was advised by Mr Tudori that he was acting for Mr Mansfield, and also understood from a discussion with Mr Levy that Mr Levy and the practitioner could be of assistance to Mr Tudori in Mr Mansfield's challenge to the freezing order. Mr Tudori apparently also told the practitioner that another barrister, Mr Simon Watters, would call the practitioner to discuss the matter on the understanding that there was a degree of general co-operation and mutual interest in Mr Mansfield being able to set aside the freezing order.
The practitioner apparently also asked Mr Tudori whether he had an awareness of Mr Mansfield considering a supplementary affidavit in the Trust's action, to which he said 'no', but that he had been involved in preparing the affidavit sworn by Mr Mansfield on 7 April 2003, and had limited involvement in that action.
In a further file note of 24 April 2003, concerning the Trust's action, the practitioner noted that he telephoned Mr Levy following the apparent response of Mr Mansfield to the contents of the draft affidavit which he had settled that day. He made the note:
It appears that Mr Mansfield does not agree with all of the contents of the statement of claim, but at this stage we do not know whether they are minor or major issues.
The practitioner further noted:
We do not want to lose the benefit of the existing position, which is summary judgment was entered on 15 April 2003, at which time the statement of claim had been served on Mr Mansfield, and when he appeared in court before Sanderson M, he said that he agreed with the plaintiff's claim against him, and it was on this basis that judgment was entered, and there is liberty to apply to enter a judgment in respect of all other claims.
The practitioner further noted that he thought the issue now raised by Mr Mansfield was 'more apparent than real, given the express reference to the statement of claim in sub-para 4(b) of the summary judgment'.
The practitioner apparently discussed this aspect in a further telephone conversation with his instructing solicitor, Mr Levy, who was to revert to him as matters developed the following week.
By para 4 of Mr Mansfield's draft affidavit as settled by the practitioner on 24 April 2003, Mr Mansfield was again to acknowledge and concede each of the claims of the plaintiff as contained in the statement of claim dated 30 January 2003, including all facts, matters and circumstances contained therein.
On 28 April 2003, the practitioner was advised by his instructing solicitor's office that Mr Mansfield had delivered a number of documents to that office including a draft supplementary affidavit of some six pages with about 20 pages of annexures.
In an email from the practitioner to his instructing solicitor dated 28 April 2003, the practitioner again made reference to the concerns of Mr Mansfield as to 'matters in the statement of claim not being accepted by him'. After confirming his view that the terms of the summary judgment dealt with those concerns, the practitioner added:
In any event, if there is a dispute of substance over the contents of the statement of claim, I suggest that you not proceed in endeavouring to gain Mansfield's execution of the affidavit in that regard, but, rather, restrict it to the freezing order and related matters which are needed for assistance in John Kizon's tax position, and also that of, I assume, Fitzroy All Pty Ltd as trustee for the FA Trust and Marika Anastasiou.
On 8 May 2003, the practitioner, on instruction from his instructing solicitors, appeared for his clients on the return of Mr Mansfield's application to set aside or strike out the freezing order in the CPC Act proceedings. In the course of that appearance before Justice Heenan in the Supreme Court, according to a note the practitioner made of his appearance on 8 May 2003, his Honour made the point that if a summary judgment had been ordered, that was strong evidence of entitlement to the monies the subject of the judgment. The practitioner in his note observed that the summary judgment, being a 'consent judgment' has the same binding force as a judgment given after a contested hearing, and referred to the precedent case of Kinch v Walcott. He also noted:
This has the effect of creating an estoppel as the matters finalised by it, and it can be enforced by all the execution procedures provided for the enforcement of judgments.
In his note he also referred to Cairns: Australian Civil Procedure (4th ed, 1996) at 449.
The question of the summary judgment being by consent of the defendant, although somewhat at odds with the expressed view of the practitioner that he initially considered summary judgment had been ordered by the Master after an assessment of the application as though it were contested, was now plainly considered of some significance by the practioner and he again referred to this in an email to his instructing solicitors dated 12 May 2003. Master Sanderson's summary judgment order as extracted did not include any reference to it being 'by consent'. The practitioner then recommended to his instructing solicitor that he ascertain from the court reporting services whether the proceedings were recorded in order to clarify this point.
The practitioner on 14 May 2003 advised his instructing solicitor about the relevance of the summary judgment and 'deemed admissions of issues arising therefrom' to their client's interests in the CPC Act proceedings.
As of 23 May 2003, it appears the practitioner had spoken with Mr Simon Watters, counsel instructed to appear for Mr Mansfield in the CPC Act proceedings on Mr Tudori's instructions. This is evident from the letter the practitioner wrote to Mr Levy dated 23 May 2003, in which he indicated he had discussed with Mr Watters, on a without prejudice basis, the issue of the summary judgment arguably entitling Mr Mansfield to have the freezing order set aside.
As of 6 June 2003, the practitioner confirmed with his instructing solicitors his availability to appear for his clients in the CPC Act proceedings at a directions hearing in the Supreme Court on 10 June 2003. He also confirmed that in his view the res judicata and issue estoppel benefits arising from the summary judgment in the Trust's action would be enhanced significantly in setting aside the freezing order.
On 10 June 2003, the practitioner appeared before Justice Scott in the Supreme Court on the hearing of the DPP's application for programming orders in the CPC Act proceedings.
The practitioner mentioned in his report to his instructing solicitor dated 10 June 2008 that he had spoken to Mr Kizon who informed him that Mr Levy had instructed David Grace, QC of the Melbourne Bar, to appear on another matter on 15 July 2003. The practitioner noted Mr Kizon had already approached Mr Grace QC with a view to his appearing as Senior Counsel in the second objector's application on 16 July 2003. The practitioner indicated he would be available to assist Mr Grace if required.
On 16 June 2003, the practitioner wrote to Mr Levy and Mr Grace concerning the Trust's action and his views thereof. He dealt in particular with the question of declaratory relief. The practitioner expressed the view that the existence of the summary judgment and declaratory orders, if made, in the Trust's action, would have the effect of narrowing the issues before the court in the CPC Act proceedings.
The application for declaratory relief and other orders and directions prepared by the practitioner for the purpose of the Trust's action, sought, by consent of the parties, declarations, among other things, that certain property was at all times since August 2000 the property of the plaintiff, Fitzroy All Pty Ltd. The property concerned included:
•Challenge Bank cash management account;
•Challenge Bank classic plus account;
•Macquarie Bank cash management trust account;
•Shares and options in Reefton Mining NL, Glentown Nominees Pty Ltd, PacTech Ltd, Worldline Pty Ltd, Allerton Pty Ltd and Addison Corporation Pty Ltd;
•All funds and Challenge Bank business accounts;
•All funds and financial institution accounts standing to the credit of Glentown Nominees Pty Ltd, PacTech Ltd, Worldline Pty Ltd, Allerton Pty Ltd and Addison Corporation Pty Ltd; and
•All shares, stocks, bonds, rights and options in property owned or effectively controlled by Glentown Nominees Pty Ltd.

The minute of proposed consent order also sought the following further orders by consent:
•a declaration that Mr Mansfield had been given $1,190,000 to be utilised solely for the purchase of shares and other securities pursuant to the agreement included in the statement of claim;
•the declaration that the $1,190,000 referred to in paragraph 1 of the summary judgment was the same claim in paragraph 7 of the statement of claim;
•a declaration that since at least 12 July 2002 the plaintiff was by reason of its various claims entitled to real estate property in Adderson Street, South Perth and Eric Street, Como;
•an order that the defendant pay the plaintiff the sum of $375,000 by way of damages for breach of contract as pleaded in the statement of claim;
•the declarations do not restrict the plaintiff's entitlement to make further applications in the proceedings under the liberty to apply provisions.
On 17 June 2003, the practitioner sent an email or fax to his instructing solicitors and Mr Grace QC, attaching an amended draft of the plaintiff's chamber summons for declaratory relief in the Trust's action. In his letter he noted that, as discussed with Mr Grace, he included a specific declaration in relation to breach of fiduciary duty, thereby providing a 'firmer foundation' for the constructive trust aspect, as well as a specific declaration dealing with the breach of the agreement as referred to in para 3 in the statement of claim, and in particular the specific terms as pleaded in subpargraphs 3(a), 3(b)(i), 3(b)(ii) and 3(b)(iii).
On 18 June 2003, the practitioner sent an email or fax to his instructing solicitors recommending that the chamber summons of the plaintiff dated 17 June 2003 and returnable the following day (19 June 2003), be supported not only by the minute of proposed consent orders to be signed by Michael Tudori on behalf of Mr Mansfield, but also by a further affidavit of Mr Mansfield, a draft of which he provided.
The draft affidavit prepared by the practitioner assumed Mr Mansfield was legally represented by Mr Tudori. Accordingly it provided in para 4(b) as follows:
in so consenting, I have taken independent legal advice and understand the consequences of the orders sought, as explained to me by my solicitor, Michael Tudori.
The practitioner in his email or fax also referred to the fact that Mr Mansfield had sworn the earlier affidavit on 7 April 2003, upon which the summary judgment was effectively based, admitting the debt and acknowledging the claims. The practitioner further noted in his email or fax:
In view of the fact that the declaratory relief, and other orders and directions, sought in the plaintiff's chamber summons, to be heard tomorrow, are extensive, and involve an underlying matrix of facts, matters and circumstances arising out of the plaintiff's claims, as now pleaded in the statement of claim dated 30 January 2003, in my view, it would be prudent to anticipate that the court may make direct enquiry of the defendant's legal representatives as to the precise position of the defendant.
Accordingly, I have prepared a short affidavit and suggest that this be raised by you with Michael Tudori on the basis that declaratory relief is important to obtain, and this is particularly so in view of the real risk that the defendant's strike-out application against the freezing order, as listed to be heard on 21 July 2003, will not succeed, and, thus, the success of the plaintiff's application to set aside the freezing order in part. (note omitted) (emphasis in original)
The practitioner then added in his email or fax that he anticipated that the DPP may well reconsider its position entirely in regard to the freezing order generally if declarations were obtained and put before the court in the CPC Act proceedings. The practitioner added that, put shortly, there was much to recommend Mr Mansfield's cooperation in the exercise, 'assuming, of course that he was so advised by Michael Tudori & Associates'.
Later, on 18 June 2003, the practitioner emailed or faxed to his instructing solicitors a further, revised affidavit that he had prepared for Mr Mansfield to sign in the Trust's action, which he said 'reflects your advice to me this afternoon that the defendant is not legally represented in CIV 2565 of 2002'. The practitioner stated in his letter to his instructing solicitors:
I shall leave it to you to bring the draft affidavit and revised minute to the attention of the defendant, in such manner as you may deem appropriate.
I will attend court tomorrow at 9.15 am, and understand that that is before Master Newnes, in the Old Supreme Court Building.
In view of the fact that Mr Mansfield is not legally represented, I assume, as on the occasion summary judgment was centred against him on 15 April 2002, he will personally attend court.
I should also be grateful if you would attend, as instructing solicitor.
What occurred between preparation of the first draft affidavit on 18 June 2003 and the preparation of the revised draft affidavit on 18 June 2003 was that, as the practitioner explained, Mr Levy had called him to advise that Mr Mansfield would not be legally represented at the hearing on 19 June 2003. The practitioner says that up to that point he understood and believed that Mr Mansfield was represented by Mr Tudori and Mr Watters of counsel in the objection proceedings, and they presumably were advising Mr Mansfield in relation to the Trust's action as well. The practitioner says he was fortified in that belief because he had been conferring with both Mr Tudori and Mr Watters up to that point in relation to the terms of the proposed orders for declaratory relief, amongst other things, and had engaged in the without prejudice meeting with his instructing solicitor and Mr Tudori and Mr Watters on 7 May 2003.
The practitioner sent a fax to Mr Levy with the revised draft affidavit at 3.11 pm on 18 June 2003. He then telephoned Mr Levy at 4.45 pm. He understood from his conversation with Mr Levy that Mr Levy had received the sworn affidavit of Mr Mansfield in the meantime and that Mr Levy would provide a copy of it to the associate to Master Newnes. Mr Levy also advised that he would also attend the hearing the next morning before Master Newnes. Mr Levy also advised that Mr Mansfield would be attending the hearing in person.
The affidavit then made by Mr Mansfield and later filed in the proceedings contained a revised para 4 as follows:
(a)I refer to the plaintiff's application by chamber summons dated 17 June 2003, wherein certain declaratory relief orders and directions are sought.
(b)I confirm that I consent to each of the orders sought in the said chambers summons being made and I have signed a minute of consent orders to that effect. Annexed hereto and marked … is a true copy of the minute of consent orders I have signed.
(c)In so consenting, I have taken independent legal advice and understand the consequence of the orders sought in the chambers summons.
When compared with the earlier draft affidavit prepared by the practitioner, when he believed Mr Tudori would be appearing for Mr Mansfield at the hearing, para (c) states that Mr Mansfield has taken 'independent legal advice' and 'understands the consequences of the orders sought'.
The practitioner made a note of his telephone conversation and advice to Mr Levy at 4.45 pm on 18 June 2003. His note, confirmed by the practitioner in evidence, was that he cautioned Mr Levy in the following terms:
I cautioned Laurie I could not guarantee the success of the application for the declarations, as it was a fairly novel application with wide ranging orders, but that with the summary judgment, coupled together with the consent nature of the summary judgment and the consent application for declarations, all of which is brought under the liberty to apply, as directed by Master Sanderson, there was a reasonable prospect that the court would make the orders as sought.
On 19 June 2003 at 9.15 am, the practitioner appeared as counsel on the application for Fitzroy All Pty Ltd in the Trust's proceedings. Mr Levy was present in court. Mr Mansfield was also in attendance in person, without a legal representative.
What then happened may conveniently be stated by referring to the account of events the practitioner gave his instructing solicitors by letter later on 19 June 2003, as follows:
Mr Mansfield announced his appearance to the court [footnote omitted], and informed the court that he had sworn an affidavit confirming his consent to the orders sought in the minute I put forward to the court on behalf of the plaintiff.
Master Newnes expressed a concern that the original affidavit not be handed to the court, rather a copy, and I assisted by providing an undertaking on behalf of Laurie Levy and Associates to ensure the original affidavit was filed with the Supreme Court Registry before leaving the court precinct. I understood from Laurie's report to me after the hearing, that Mr Mansfield duly attended to that aspect.
Orders
After:
•informing Master Newnes of the fact that the orders sought were consequent upon the liberty to apply, as reserved in para 4 of the summary judgment orders of Master Sanderson made 15 April 2003; and also
•enquiring of Master whether he had read the affidavit of the defendant, which he confirmed;
orders were made in terms of the minute, which reflects the orders sought in the chambers summons. (emphasis in original)
For the purposes of the hearing before Master Newnes, the practitioner had noted on the front of his copy of the chamber summons the basis of the application. On his court pad he had also made a shorthand note of the authorities to which he intended to refer the Master (as he had Master Sanderson on the summary judgment application), including Kinch v Walcott and Cairns: Australian Civil Procedure (4^th ed, 1996) at 449 under the heading 'Consent Judgment' and the authorities there listed.
The practitioner says when the matter was called on he told Master Newnes that the defendant was present in person and that there was an affidavit sworn by him concerning the orders and declarations sought in the minutes of proposed orders and deposing that he had taken independent legal advice.
A copy of the affidavit was then handed up to Master Newnes who requested the original be filed. Mr Mansfield then announced his appearance and informed Master Newnes that he had sworn an affidavit consenting to the orders sought. Master Newnes said he had read it.
The practitioner told Master Newnes that Master Sanderson had previously granted summary judgment with liberty to apply for further relief, which was the subject of the present application.
The practitioner asked Master Newnes whether he had had a chance to read the court documents on the file and said that, if not, he would take the Master through them. Master Newnes then said that he had read all the court documents and it was not necessary to take him through them.
The practitioner then sought to take Master Newnes to the statutory basis of the application, s 25(6) of the Supreme Court Act 1935 (WA) and to explain the circumstances in which orders for declarations of right could be sought. He also proposed to refer the Master to the provisions of the CPC Act, as the freezing order was expressly pleaded in the statement of claim, and detailed in the minute of proposed orders. He thought that Master Newnes would be aware of those proceedings from the express terms of the minute of proposed orders which referred to the freezing order of McKechnie J and the proceedings in which it was made, and also would be aware of the claim in the statement of claim. He also had available copies of the relevant passages in Cairns: Australian Civil Procedure (4th ed, 1996).
The practitioner says that when he set out to do these things Master Newnes interrupted him and said he did not require him to do so as he had read the materials and understood the matter was by consent, and was satisfied that Mr Mansfield understood the effect of the orders and had obtained independent legal advice, and he was prepared to make orders in terms of the minute.
In those circumstances, the practitioner says he considered there was nothing more he could usefully add and that he had discharged his duty to the court. The practitioner says in light of Master Newnes' statement to him, which was quite clear and in peremptory terms, he considered he could move to conclude the matter, which he then did.
In these circumstances, the practitioner says he ceased to address the Master who made the orders sought in the minute of orders and declarations.

Unprofessional conduct

The conduct of the practitioner complained of by the Committee occurred in June 2003, when legal practice in Western Australia was governed by the Legal Practitioners Act 1893 (WA) (1893 Act).
On 1 January 2004, the 1893 Act was repealed by the Legal Practice Act 2003 (WA) (LP Act), which then came into force.
On 1 January 2005, the State Administrative Tribunal came into operation and for the purposes of the LP Act replaced the Legal Practitioners Disciplinary Tribunal.
The application currently before this Tribunal was made on 21 December 2007.
The application before the Tribunal was made pursuant to s 180(1) of the LP Act.
The Tribunal has jurisdiction under s 185 of the LP Act to deal with conduct occurring before 1 January 2004, as 'unsatisfactory conduct' provided the alleged unsatisfactory conduct is a species which rendered the practitioner liable to sanction under the 1893 Act - that is, illegal conduct, unprofessional conduct, or undue delay or neglect in the practice of law - and imposes sanctions only to the extent permitted under the 1893 Act.
The allegations made against the respondent are that he engaged in 'unprofessional conduct'. It follows the Tribunal has jurisdiction to deal with the application: see Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 at [1], [19] - [20], [141], [147] and [161] - [172].
The essence of unprofessional conduct is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competence: Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [61].
There are two distinct limbs therefore in the statement of what constitutes unprofessional conduct. Satisfaction of either limb is sufficient to establish that conduct is unprofessional: Quigley (A practitioner) v Legal Practitioners Complaints Committee [2003] WASCA 228 (Quigley) at [13].
The Western Australian Bar Association (Inc) Conduct Rules (Bar Conduct Rules) and the Professional Conduct Rules of the Law Society of Western Australia (Professional Conduct Rules) in the terms in which they existed at the time of the conduct of the practitioner the subject of this application, may be regarded by the Tribunal as a guide to what at the time was considered by the Bar Association (of which the practitioner was a member) and the legal profession generally, to be proper behaviour. To this extent they are relevant to the determination of whether the respondent engaged in unprofessional conduct: D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 at 214; Quigley at [17].
However, the question as to whether the conduct of a practitioner is unprofessional will not necessarily be answered by determining if there was a breach of the relevant provisions of the Bar Conduct Rules or the Professional Conduct Rules as a breach of either may not satisfy either of the limbs of the above statement of what constitutes unprofessional conduct. There must be an assessment by the Tribunal of the seriousness of the misconduct to determine whether it is in truth conduct which falls within one or other of the standards indicated: Quigley at [18].
The Committee bears the burden of proving on the balance of probabilities that the practitioner engaged in unprofessional conduct. The Tribunal, must, in accordance with the so-called Briginshaw standard, feel an actual persuasion of the occurrence or existence of a relevant fact in determining whether or not the case has been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 - 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449.
Lawyers, in particular counsel as officers of the court, have a duty to the court which is paramount: Rondel v Worsley [1969] 1 AC 191 at 227; Giannarelli v Wraith (1988) 165 CLR 543 at 555 - 556; GE Dal Pont, Lawyers Professional Responsibility [3^rd ed, 2006] at [17.10]; Bar Conduct Rules, r 1 and r 4.
In particular, counsel should be aware of the legal principles relevant to a matter on which he or she is appearing and must be aware of the requirements of the applicable rules of court: Kennedy v McGeechan [1978] 1 NSWLR 314 at 315; Lawyers Professional Responsibility at [17.75]; DA Ipp 'Lawyers' Duty to the Court' (1998) 114 Law Quarterly Review 63 at 78; Professional Conduct Rules, r 5.7 and r 14.5. In the article by Justice Ipp, at 79, the point is also made that counsel is expected to be experienced in his or her particular legal fields.
Further, counsel must do what they can to ensure that the law is applied correctly to the case. This involves researching the relevant law thoroughly and properly instructing the judge so as to reduce the possibility of judicial error: Re Gruzman; Ex parte the Prothonotary (1968) 70 SR (NSW) 316 at 323; R v Dick [1982] TAS R 252 at 255; Bar Conduct Rules, r 18(c) and r 25; Professional Conduct Rules, r 14.5.
Also, counsel must not make any statement or allegation for which there is, in his or her opinion, insufficient evidentiary foundation; Lawyers Professional Responsibility at [17.170]; Bar Conduct Rules, r 35(a).
Nor must counsel intentionally mislead or deceive the court in any manner, or prepare or otherwise be a party to or place reliance upon an affidavit that to his or her knowledge contains an untruthful or misleading statement: Kyle v Legal Practitioners Complaints Committee at [60]; Bar Conduct Rules, r 3, r 20 and r 21; Professional Conduct Rules, r 3.1 and r 14.2.
If counsel is put on inquiry as to the truth of facts stated in an affidavit which he or she has prepared or is otherwise a party to, or upon which he or she intends to place reliance, counsel should where practicable check whether those facts are true: Kyle v Legal Practitioners Complaints Committee at [60].
Bearing these principles in mind, each of the grounds alleged against the practitioner will now be considered.

Ground 1

The Committee's case: The Committee contends that none of the documents that were before the court at the time of the hearing of the summons for declarations before Master Newnes on 19 June 2003, either alone or in combination with each other, contained evidence that justified the making of the declarations specified in para 3 - 5 and para 8 of the minute of declaratory consent orders. The Committee says that, at best, the various documents filed in the Trust's action (including the statement of claim and the affidavit of Mr Kizon sworn 14 March 2003, and the affidavit of Mrs Anastasiou sworn 17 March 2003) constituted evidence of a relationship of debtor and creditor between the plaintiff and the defendant and a failure by the defendant to re-pay the loan that had been made to him by the plaintiff for the purpose of engaging in share transactions on the plaintiff's behalf. The plaintiff's allegations that the defendant breached a fiduciary duty owed to the plaintiff (para 5 and para 13), and that the defendant held identified funds or assets as constructive trustee for the plaintiff (para 19) did not somehow convert the essential facts as pleaded in para 1 - 4 and para 7 - 9 of the statement of claim into evidence that provided a basis for the making of the declarations. Nor, says the Committee, did the plaintiff's claim in the statement of claim for tracing and declaratory relief.

In this regard the Committee seek to draw some support or at least some comfort from the observation of Wheeler J in her judgment in Director of Public Prosecutions for Western Australia v Mansfield [2003] WASC 173, at [32], where her Honour stated:
To the extent that the declarations appear to me to be inconsistent with the statement of claim, they do not have even evidentiary value as against the State. The extravagant nature of the orders consented to, and their lack of consistency overall with the statement of claim, is clearly illustrated in the eighth of the orders made, which is to the effect that the plaintiff has been since July 2002 'by reason of its various claims as made in the statement of claim' entitled to claim a legal and/or equitable interest in certain house properties, one of which I understand to be the ordinary residence of Mr and Mrs Mansfield. Absolutely no basis for such an order appears in the statement of claim.
The Committee says that Mr Mansfield's acknowledgement and concession, in his affidavit dated 8 April 2003, of the claim made against him in the writ of summons did not constitute evidence that supported or justified the conclusion that it was appropriate as a matter of law to make the declarations. By acknowledging and conceding 'the claim' made against him, the defendant, so far as is relevant, did no more than acknowledge and concede the plaintiff's alleged causes of action and the plaintiff's claim for unspecified declaratory and other relief 'as deemed appropriate by the court': see para 6 of the prayer for relief in the endorsement of claim. The affidavit did not constitute an admission that declaratory relief of any sort was appropriate.
The Committee says that consistent with the facts as disclosed in the statement of claim and the affidavit sworn in support of the summary judgment application, the summary judgment order obtained against the defendant was that Mr Mansfield pay to the plaintiff the sum of $1.19 million together with interest. A further order made, as part of the summary judgment order, was that the plaintiff have liberty to apply for orders and directions in respect of the taking of an account of profits made by the defendant by reason of the share trading and 'the judgment in respect of all other claims'. Accordingly, the Committee says the summary judgment did not provide an evidential basis for the making of the subsequent declarations.
As to the further affidavit sworn by Mr Mansfield on 18 June 2003, the Committee says Mr Mansfield merely confirms that in his affidavit of 8 April 2003, he had admitted the claim and acknowledged the debt. This statement added nothing to the contents of the affidavit sworn on 8 April 2003. The Committee says that if anything it suggested that the defendant's acknowledgment of the claim was intended to be limited to the claim for a debt due and owing.
Further, the Committee says that the defendant's bare consent to the making of orders in his affidavit sworn 18 June 2003, cannot be construed as providing an evidential foundation for the making of the declarations.
Moreover, the Committee says the declarations specified in para 4 and para 5 of the minute of declaratory consent orders purported to declare rights from August 2000, that is, the year before the oral agreement between the plaintiff and the defendant was allegedly made, as pleaded in para 3 of the statement of claim, and at least a year before any money was paid by the plaintiff to the defendant pursuant to the alleged agreement. Indeed, according to the statement of claim, the bulk of the money was not paid over until May 2002: see para 3 and para 7 of the statement of claim.
The Committee says that given the detailed knowledge of the practitioner by reason of his involvement in this matter from soon after the making of the freezing order in the CPC Act proceedings, he must have known, or at least ought to have known, that the evidence that was before the court at the time of the hearing of the summons for declarations did not justify the making of the declarations. Indeed, the Committee submits that the evidence establishes that the practitioner was alive to the prospect that the affidavit sworn by the plaintiff on 8 April 2003 did not justify the making of the declarations and that this is apparent from his letter to Mr Levy dated 9 April 2003, his email to Mr Levy dated 16 April 2003, his letter to Mr Levy dated 6 June 2003; his file memo dated 16 June 2003 and his file memo dated 18 June 2003.
The Committee, further, does not accept that the practitioner ever held the understanding that Mr Mansfield's admission and reaffirmation of the admission of the claim made against him for a debt due and owing, constituted an admission of the 'whole' of the plaintiff's claim in the Trust's action.
The Committee says the respondent was an experienced barrister in the civil jurisdiction with expressed expertise in areas of law relevant to the Trust's action. The legal principles relating to the making of declarations must have been well know to him, or at least ought to have been well known to him. All the respondent had to do, to familiarise himself, was consult a number of well known texts.
In that regard the Committee says that the following principles are, or should have been, clear:
•the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances calling for their making: Ibeneweka v Egbuna [1964] 1 WLR 219 at 224 225; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 438; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355 - 359; Direct Factory Outlets Pty Ltd v Westfield Management Ltd (2003) 132 FCR 428 at 433 – 435; (2003) FCA 1095 at [17] [18]; C Kendall and J Curthoys, Civil Procedure in Western Australia [18.16.2] (Seaman);
•there is no absolute bar to a court granting declaratory relief in default of defence or by consent or on admissions. This is so even in those cases where the declarations sought relate to public rights, rights in rem or other analogous rights. Nonetheless, the well established general rule, which is a manifestation of the principle just outlined, is that a declaration should not be granted merely where it is sought in default of defence, or on admissions, or by consent, but rather only if the court is satisfied by evidence that it is appropriate as a matter of law to do so: Chilton v Corporation of London (1878) 7 Ch D 735 at 740; Williams v Powell [1894] WN 141; Wallersteiner v Moir [1974] 1 WLR 991 at 1029 and 1030; Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 527, 529 - 530 and 534 535; Metzger v Department of Health and Social Security [1977] 3 All ER 444 at 451; BMI Ltd v Federated Clerks Union of Australia(NSW Branch) (1983) 51 ALR 401 at 412 414; Patten v Burke Publishing Co Ltd [1991] 2 All ER 821 at 822 - 823; PW Young, Declaratory Orders (2nd ed, 1994) at 601; Meagher Gummow and Lehane, Equity Doctrines and Remedies (4th ed, 2002) at 19 160; Zamia and Woolf, The Declaratory Judgment (2nd ed, 1993) at [7.30].
Accordingly, the Committee contend that the general rule, as stated above, is the starting proposition. There ought to be a positive reason expressed to the court as to why a declaration ought to be made by a court on the basis of consent or admissions. The general rule does not apply only in those cases where the declarations sought relate to public or analogous rights. It is not doubted that judicial power exists to make a declaration as to a public or private right on the basis of consent or admissions. The existence of such a power does not, however, establish that the general rule contended for does not exist. The Committee contend that the general rule is less obviously to be departed from when the declaration sought is in 'wide terms' or involves serious allegations such as fraud. The allegations made against Mr Mansfield in the Trust's action were of the most serious kind, involving allegations of, amongst other things, breach of fiduciary duty and various statutory duties.
The Committee further says that it is irrelevant whether one describes this rule as a rule of practice or a rule of law, as the rule applied to the conduct of the practitioner in either case.
The Committee says that even if the practitioner did not know the burden of these principles, he was recklessly indifferent to them and ought to have known. The Committee draws attention to the fact that a person is recklessly indifferent to the truth or falsity of a fact when he or she does not care if the fact is true or false: Derry v Peek (1889) 14 App Cas 337 at 374; Van Den Esschert v Chappell [1960] WAR 114 at 115; Snarski & Snarski v Barbarich [1969] WAR 46.
The Committee accepts that a person cannot be said to have been recklessly indifferent to the truth or falsity of a fact if he or she does not realise that there is a risk that the fact is false. However, if a person does realise the risk of falsity, he or she will be held to have been recklessly indifferent to the falsity: R v Caldwell [1982] AC 341 at 358; Banditt v R [2005] HCA 80; (2005) 224 CLR 262 at 265 266.
An allegation that a party 'ought to have known' something implies that the party knew of facts and circumstances from which the requisite knowledge should have been acquired: Smith v Littlemore (1996) 15 WAR 289 at 300.
The Committee makes clear that it does not, as part of its case, allege:
•that the Trust's proceedings were commenced for an improper purpose;
•that at the time of the hearing of the summons for declarations before Master Newnes, a third party, namely, the State, had a proprietary interest in the property of Mr Mansfield;
•that at the time of the hearing of the summons for declarations the State did not know of the proceedings and their connection to the freezing order proceedings;
•that the practitioner was obliged to inform the State of the plaintiff's claim to the defendant's property; or
•that at the time of the hearing of the summons for declaration the court was unaware of the existence of the CPC Act proceedings.
The Committee does say, however, that while the existence of the freezing order and its relevance to the Trust's action was revealed by the court documents that were before Master Newnes at the time of the hearing of the summons for declarations, it is not the case that it was clear on the face of the documents that the declarations sought, if made, were going to be used by the plaintiff in the CPC Act proceedings to assert against the State proprietary interests in the property held by the defendant. The Committee says none of the pleadings or affidavits filed in the civil proceedings contained a statement to this effect. The evidence is that this was never stated to Master Newnes by the practitioner.
The Committee says the practitioner knew that if the declarations were granted, the plaintiff intended to use them to assert as against the State in the CPC Act proceedings proprietary interests in the property the subject of the freezing order and knew that the State had or may have had a competing claim to the property. To put it another way, the Committee says the practitioner knew the plaintiff intended to use the declarations to support its application to set aside the freezing order.
In summary, the Committee says that the respondent had a duty to inform the Master hearing a summons for declarations that the evidence before the court did not justify the making of the declarations and that as a general rule the court should not make declarations of right on admissions or by consent but only if the court is satisfied by evidence that it is appropriate to make the declarations. The practitioner failed to comply with its duty. If the respondent had discharged its duty, it is highly likely that the court would not have made the declarations sought.
The Committee says the practitioner did not discharge his duty to the court by merely offering to take the Master through the court documents and background to the application. The practitioner's submission to this effect reflects a failure on his part to appreciate the paramount nature of his duty to the court. In the circumstances it was incumbent on him, notwithstanding the Master's statements that he did not need to be taken through the documents or have explained to him the background, to insist on informing the Master of the matters referred to. There is a fundamental difference between being rebuffed by a judicial officer when offering to take the court through the history or background of a matter and asserting that, consistent with counsel's duty, the court is required to be directed to certain propositions of law or practice. Of relevance, also, is the uncontested evidence of Mr Mansfield in his statement that he did not in fact receive legal advice as to the matters the subject of the summons for declarations, that had he been able to afford it he would have had a lawyer acting, and he did not understand when he appeared before Master Newnes that the effect of the orders sought was the making of proprietary orders in relation to various properties.
The Committee says the practitioner's failure to comply with this duty constituted unprofessional conduct and that it was conduct which fell below to a substantial degree the standard of conduct that would ordinarily be observed by members of the profession of good repute and competence.
The practitioner's case: Counsel for the practitioner notes that the Committee says in its final written submissions that the court does have the power to grant declaratory relief 'in default of defence or on admissions'. Counsel contend that the so-called 'general rule' - which at its highest is one of practice - is no more than one view which counsel might take. Any alleged general rule of practice cannot be formulated without a statement of the cases in which it does not apply.
Counsel for the practitioner say that the submissions made on behalf of the Committee about what additional steps the practitioner should have taken when appearing before Master Newnes ignore the fact that there was before the court, at least in the honest and reasonable expectation of the practitioner - and of the Master - sufficient evidence to justify the making of the declarations.
In that regard, counsel submit there is no evidence to suggest that Master Newnes was misled, or indeed that he was unaware of the so-called 'general rule'. It was open to him to make the orders that he did.
Counsel for the practitioner also contend that submissions made on behalf of the Committee gloss over the significance of:
•the signed consent of Mr Mansfield;
•Mr Mansfield's affidavit, that he had obtained independent legal advice; and
•Mr Mansfield's presence in the court, where he appeared in person and implicitly (if not expressly) affirmed his affidavit and consent.
Counsel for the practitioner also says it was obvious from the material before the Master that the purpose of the declaration was that it would be used in the freezing order proceedings, even though it is not contended by the Committee, in its grounds, that the practitioner ought to have informed the Master that this was the intended use.
On behalf of the practitioner, counsel submit the court documents before the Master clearly revealed an intention to protect proprietary interests in assets the subject of the freezing order, in the following respects:
•the endorsement to the writ of summons referred to moneys subjected to the freezing order and after referring to breaches of fiduciary duty and breaches of trust referred to the money or moneys worth being held on constructive trust, and further relief including the equitable relief that was sought. The statement of claim in para 8 - para 10 identified the property the subject of the freezing order as property, which by becoming a subject of the freezing order, was in breach of the agreements and obligations pleaded in the earlier paragraphs. Paragraph 13 specifically pleaded breach of fiduciary duty and para 19 specifically pleaded constructive trust over the assets of Mr Mansfield, a claim which was repeated in para 4 of the relief;
•Mr Kizon in his affidavit, having referred to the advance of funds and other transactions concerning Mr Mansfield, refers to his becoming aware of Mr Mansfield's assets becoming subject to a freezing order and he annexes a copy of the freezing order, verifies the statement of claim and seeks summary judgment;
•Mr Levy's affidavit in the Trust’s action of 19 March 2003 contains many references to the freezing order and in para 8(c) he states:
I advise the DPP that the objector is claimed to have an interest to the combined value of approximately $1,130,000 with respect to the assets the subject of the freezing order.
•The chambers summons, annexure LML-6 to Mr Levy's affidavit, for order of objection in the confiscation proceedings, sought that the freezing order be set aside and property owned by the objectors or moneys equally the value of such be returned forthwith;
•Counsel's submissions before Master Sanderson at para 7 sought ancillary relief to identify and support a constructive trust; and
•The chambers summons for declaratory relief sought amongst other things a declaration for a constructive trust in respect of certain assets particularised at para 8 in the statement of claim (there identified as assets the subject of the freezing order) and further sought at para 5 a declaration that, as at the date of the freezing order, Mr Mansfield did not own that property, and those orders were reflected in the minute of orders and declarations made by Master Newnes.
Counsel for the practitioner say it is not contended that it was 'unprofessional conduct' to seek the declarations for that purpose. The Committee merely says that this intended purpose 'simply heightened the need for the respondent to inform the court … of the general principle.' Counsel say no explanation is given for that proposition. Counsel further submit the submissions fail to mention that the State had been put on notice of the Trust's action and was therefore aware of their possible use in the freezing order proceedings, as against the State. However, the State did not seek to intervene or be heard before the Master.
Counsel further contends that the assertion by the Committee that, had the practitioner referred to the 'general rule', it is 'highly likely' that the court would not have made the declarations is unfounded speculation. Rather, it is far more likely that, if such a general rule exists, it ought to have been known to any competent counsel and that the Master - an experienced and competent counsel in a former life - did know of it but considered that the material before him justified making the declarations in accordance with the common practice of the court.
Tribunal's findings: The first part of Ground 1 alleges the practitioner engaged in unsatisfactory conduct on 19 June 2003 by not advising Master Newnes, 'as was the fact', that the evidence did not justify the making of the declarations, when he knew or ought to have known of this fact.
The second part of Ground 1 alleges in effect that the practitioner should have informed the court that as a general rule declarations of right should not be made on the admissions of a party or by consent unless there is supporting evidence to satisfy the court.
Each of these allegations is coupled with the further allegation that the practitioner knew that the declarations were to be used in advancing the client's interests in the CPC Act objection proceedings.
The Tribunal accepts and finds that there were various reasons why, as a matter of fact, the evidence did not justify the making of all the declarations. For example, as the Committee says, the declarations specified in para 4 and para 5 of the minute of declaratory consent orders purported to declare rights from August 2000, that is, the year before the oral agreement between the plaintiff and the defendant was allegedly made, as specified in para 3 of the statement of claim, and at least a year before any money was paid to the defendant Mr Mansfield pursuant to the alleged agreement. According to the statement of claim, the bulk of the money was not paid over until 2002: see para 3 and para 7 of the statement of claim.

The Committee contends that it is simply not the case, as asserted in the practitioner's answer, that nothing in the Committee's statements or documents suggests that the practitioner was informed of any limitation on Mr Tudori's instructions from Mr Mansfield in relation to the Trust's action. The Committee refer to the fact that Mr Tudori, when he apparently first spoke with the practitioner on or about 24 April 2003, told him that he was not aware of Mr Mansfield considering a supplementary affidavit in the Trust's action (this being a reference to the draft affidavit the practitioner had settled with the aim that Mr Mansfield would swear the same and thus make clear that he conceded the plaintiff's claim as pleaded in the statement of claim) and that he had 'limited involvement' in those proceedings.
The Committee, while accepting that the practitioner had a without prejudice meeting with his instructing solicitor and Mr Tudori and Mr Watters on 7 May 2003, does not accept the practitioner's characterisation of these dealings as involving extensive conferrals with those practitioners acting for Mr Mansfield in the freezing order proceedings.
The Committee submits that even if the Tribunal declines to find that the practitioner knew as and from 8 April 2003, that Mr Mansfield was not represented in the Trust's proceedings, it is not in dispute that the practitioner was informed of this fact by Mr Levy on the afternoon of 18 June 2003, prior to the hearing of a summons for declarations the next day.
The practitioner's contentions: The practitioner contends that it was not the fact that as and from April 2003, Mr Mansfield did not accept that the facts pleaded in the statement of claim were correct, nor that, at 18 June 2003, Mr Mansfield did not accept the factual basis for the orders sought in the summons for declarations and orders or the minute of proposed consent orders contrary to the particularised allegation to this effect in ground 2(a), (b) and (c), and ground 3(b) and (c).
The practitioner contends there is no evidence by Mr Mansfield or Mr Tudori that Mr Mansfield did not accept the factual basis in the statement of claim and the other documents. Nor is there evidence that the practitioner knew this.
On behalf of the practitioner it is submitted that the Committee's documents show that on or after 18 April 2003, the practitioner was not informed of any identified or particular issues, major or minor, that Mr Mansfield had concerning the statement of claim or the factual issues in it.
Rather, Mr Tudori received instructions from Mr Mansfield to prepare, and prepared, Mr Mansfield's affidavit sworn 7 April 2003 and the minute of consent orders. In that affidavit Mr Mansfield swore that he acknowledged and conceded the plaintiff's claim and did not intend to defend the matter further. Neither Mr Mansfield nor Mr Tudori suggested that the April affidavit was in any way incorrect or not prepared on instructions and legal advice. Mr Tudori in his statement says that he acted for Mr Mansfield in a limited capacity in the Trust's action, received instructions and prepared the affidavit and minute conceding the claim.
The practitioner contends that nothing in the Committee's statements or documents suggested the practitioner was informed of any limitation on Mr Tudori's instructions.
The practitioner says that up until the afternoon of 18 June 2003, Mr Levy believed that Mr Tudori was acting for Mr Mansfield in the Trust's action and he also believed before and after he received the affidavit of Mr Mansfield on 18 June 2003, and when he called on 19 June 2003, that Mr Mansfield had received legal advice from Mr Tudori or elsewhere and had no reason to doubt that Mr Mansfield, as he swore, got legal advice.
The practitioner points out that at the hearing before Master Newnes, Mr Mansfield voluntarily appeared in person, signed the minute of orders and did not say anything to cast doubt on his affidavit.
The practitioner's view on 23 April 2003 and subsequently was that Mr Mansfield could not have had any major issues concerning the factual correctness of the statement of claim at the time of the summary judgment or the subsequent application.
Tribunal's findings: The evidence discloses, as noted above, that after the earlier appearance before Master Sanderson when summary judgment was ordered, the practitioner knew that the defendant was no longer represented by the firm of Marks & Sands, but understood that Mr Tudori, solicitor, had been instructed in relation to the matter. Mr Murray from Marks & Sands told the Master this in the practitioner's presence.
On 24 April 2003 the practitioner had a conversation with Mr Tudori concerning the freezing order and whilst Mr Tudori had no awareness at that time of Mr Mansfield swearing a supplementary affidavit, he confirmed that he had been involved in the preparation of the earlier affidavit sworn by Mr Mansfield on 8 February 2003.
On 23 May 2003, the practitioner had a meeting with Mr Watters of counsel, whom he then was told was briefed to act for Mr Mansfield. There were discussions about the freezing order and, it seems, its relationship with the summary judgment. The practitioner was aware that Mr Tudori had instructed Mr Watters and, in the circumstances, the practitioner reasonably understood that Mr Mansfield was receiving advice from both counsel and his solicitor in relation to the freezing order and the interrelationship of the freezing order proceedings with the Trust's action. The context was one of 'general cooperation'.
Whether or not Mr Tudori was on the record as acting for Mr Mansfield in the Trust's action, there is no reason to doubt the practitioner's statement that, in these circumstances, he believed, up until the afternoon 18 June 2003, that Mr Mansfield was receiving legal advice in relation to the Trust's action, and the Tribunal so finds this was the practitioner's belief.
The practitioner was then advised by Mr Levy at 3.12 pm on 18 June 2003, that Mr Tudori had told Mr Levy that he was not acting for the defendant in the Trust's action. Prior to that time, the practitioner had received every indication that Mr Mansfield was being advised in relation to matters in which the practitioner knew Mr Mansfield was involved. The Committee seeks to have the Tribunal infer from the practitioner's notes of discussions with Mr Tudori and Mr Watters, that particular (a) is established. The Tribunal does not consider such reference can be sustained in the face of the practitioner's and Mr Levy's direct evidence.
While the practitioner appreciated there was no solicitor 'on the record' for Mr Mansfield in the Trust's action in the Supreme Court, the Tribunal considers that it was, in the circumstances, reasonable for the practitioner, until advised to the contrary on 18 June 2003, to believe Mr Mansfield had legal advice - and, in that sense, 'representation' - available to him. At the least, this is not self-evidently a case where the practitioner had reason to think up to this point that Mr Mansfield was without legal advice.
Accordingly, the Tribunal finds particular (a) is not established.

Particular (b) and (c)

Particular (b):

The practitioner knew, as was the fact, that as and from April 2003 the defendant did not accept that the facts pleaded in the Statement of Claim filed in the proceedings were correct.

Particular (c):

The practitioner knew, as was the fact, that as at 18 June 2003 the defendant did not accept the factual basis for the orders sought in the Summons for Declarations or a minute of proposed consent orders dated 18 June 2003 in terms of the Summons for Declarations (the Minute of Declaratory Consent Orders):

Committee's contentions: The Committee contends the documentary evidence before the Tribunal establishes that as from 24 April 2003, the respondent knew that the defendant did not accept as correct some of the facts as pleaded in the statement of claim. Consequently, he also knew from the statement of claim that the defendant did not accept in its entirety the pleaded factual basis for the orders sought in the summons for declarations.
Practitioner's contentions: The practitioner's contentions are laid out in the earlier paragraphs of these reasons dealing with particular (a).
The practitioner, through counsel, also points out that there is in fact no evidence, as suggested on behalf of the Committee, that in fact either as from 24 April 2003 or as of 18 June 2003, Mr Mansfield did not accept some of the facts pleaded in the statement of claim. Mr Mansfield when called by the Committee to give evidence in the Tribunal did not say that. Accordingly, the only 'evidence' that can be relied on is the hearsay assertion of what Mr Levy apparently told the respondent on 24 April 2003 as to what he had heard or understood the position to be. The question was never raised again. Mr Mansfield never said it to the practitioner, nor did he give any evidence to that effect in the Tribunal.
Tribunal's findings: Mr Mansfield was called by the Committee to give evidence before the Tribunal. He did not assert that he disagreed in any respect with any fact pleaded in the statement of claim. The origin of the allegation appears to be the hearsay assertion that Mr Levy had heard or understood as at 24 April 2003 that there might be some question raised, which he conveyed to the practitioner. The practitioner was uncertain as to the source of this information. The practitioner reasonably left it to his instructing solicitor Mr Levy to pursue and nothing further eventuated. This was the basis upon which allegation (b) was made and no evidence was led to confirm the fact from the only appropriate witness.
The practitioner was not shown to have held the belief at all.
Accordingly, the Tribunal finds particulars (b) and (c) are not established.

Particulars (d), (e), (f), (h) and (i)

Particular (d):

The Summons for Declarations was filed at the court on 18 June 2003 for return at 9.15 am on 19 June 2003.

Allegation (d) is not controversial. It is a matter of fact.

Particular (e):

On 18 June 2003 the practitioner prepared, without instruction from the defendant, a Draft of an Affidavit for swearing by the defendant in support of the Summons for Declarations (draft affidavit).

Particular (f):

The Draft Affidavit contained the following, 'I have taken independent legal advice and understand the consequences of the orders sought, as explained to me by my solicitor, Michael Tudori', which in substance meant that he had taken independent legal advice on the merits of the application.

Particular (h):

on 18 June 2003 the practitioner prepared, without instruction from the defendant, a revised version of the Draft Affidavit for swearing by the defendant in support of the Summons for Declarations (Final Affidavit);

Particular (i):

The Final Affidavit contained the following, 'I have taken independent legal advice and understand the consequences of the orders sought in the chambers summons', which in substance meant that he had taken independent legal advice on the merits of the application:

Committee's contentions: The Committee note that the question of the 'merits of the application' is raised by each of these particulars. The Committee says the meaning of this phrase is clear. It refers to the substantial right and wrong of the application or, to use the wording of the practitioner in his answer, the factual and legal basis for the application and the availability to the plaintiff of the orders sought.
The Committee says the practitioner does not dispute that the affidavit contained the statements quoted in the particulars. Rather, he asserts, in effect, that when he drafted the affidavit it was not his intention to convey by the words used, and he did not understand the words to convey, that the defendant had taken independent legal advice 'on the merits of the application'. The practitioner contends that by inserting these words into the affidavit, he was intending to convey only that the defendant had taken legal advice 'as to the consequences for him' of the declaratory orders being made and nothing more. The practitioner further contends that this is the meaning of the words used in the affidavit.
The Committee says the practitioner's contentions should be rejected. First, the Committee says this is not what the words say: 'I have taken independent legal advice and understand the consequences of the orders sought', with emphasis on the word 'and'. The legal advice is not limited to the consequences of the orders. Secondly, the Committee says the practitioner's purpose in preparing the revised draft affidavit was to strengthen the plaintiff's position on the application. The position would not be significantly strengthened if the defendant's affidavit could only be put before the court on the basis that the defendant had taken independent legal advice as to the consequences of the orders sought as opposed to the merits of the application. Thirdly, the Committee asks how could any legal practitioner provide advice as to the consequences of the orders without understanding the basis on which the claims have been made? It would be required at the very least to consider the terms of the writ, statement of claim and the affidavit evidence sought to be relied upon. Fourthly, the Committee says it is to be doubted that a layperson would have understood that the words meant this. Is it the case that a layperson is to seek legal advice on the terms of an affidavit which states that they have not received legal advice? The Committee says it is therefore inconceivable that the practitioner, when he prepared the revised draft affidavit, did not intend for the words in question to convey precisely what they did convey, namely that the defendant had taken independent legal advice on the merits of the application.
The Committee says that the fact that the practitioner, when he appeared at the hearing before Master Newnes on 19 June 2003, informed the Master without qualification that Mr Mansfield had sworn an affidavit deposing that he had taken legal advice, serves to further demonstrate that the practitioner did not intend for the words to convey only that Mr Mansfield had taken legal advice as to the consequences for him of the proposed declaratory orders.
Practitioner's contentions: The practitioner contends in relation to Grounds 2(f) and (i), as well as (l) and (m), and related grounds in Ground 3, that the affidavit properly construed stated that Mr Mansfield had obtained advice as to the 'merits of the application', whereas the literal wording of the affidavit was that he had 'obtained independent legal advice and understand the consequences of the orders sought'. The further allegation by the Committee is that Mr Mansfield only had 90 minutes to obtain that advice before the affidavit was sworn.
The practitioner contends that 90 minutes was sufficient time for advice sufficient to enable Mr Mansfield to 'understand the consequences of the orders'. This is because the giving of such advice does not require detailed knowledge and advice or an examination of the factual and legal matters underpinning the summary judgment which had been obtained, the availability of the orders sought or any challenge which might be made to them, or of the history and legal and factual merits of the original application and summary judgment. Rather, the consequences of the orders are apparent on their face to any lawyer with some knowledge of trust and property law.
The practitioner says that the construction of the Committee is wrong, insofar as it suggests that the affidavit conveyed that Mr Mansfield had taken independent legal advice on the merits of the application going beyond the consequences of the orders sought and that this necessarily involved or required advice by a legal practitioner not already familiar with the matter for that advice to be given in a short time, even 90 minutes. The practitioner says the preceding paragraphs of the affidavit, especially para 2 and para 3, preclude the nonliteral construction on which the applicant relies. Paragraphs 2 and 3 of the affidavit of 18 June 2003 state as follows:
2.In my first affidavit, I admitted the claim and acknowledge the debt to the plaintiff, as claimed.
3.On 15 April 2003, summary judgment was entered against me, on a consent basis, by Master Sanderson. I was present in court on that occasion and orally confirmed to Master Sanderson my consent to the judgment being entered against me.
Tribunal's findings: The allegations in (e), (f) and (i) are not controversial as to the facts contained in them. However, the allegation, wrapped up in the concluding phrase of (f) and (i), is a conclusion drawn by the Committee as to what the statement quoted from the affidavit should be construed to mean, and this conclusion is in dispute.
Counsel for the practitioner has described this phrase as 'putting a gloss on Mr Mansfield's affidavit', with which characterisation the Tribunal agrees. The phrase is repeated in particular (i) and is discussed further below.
The allegations contained in particulars (h) and (i) follow a similar format to (e) and (f) and are factually accepted. What is not accepted is the extent of the advice that Mr Mansfield was supposedly claiming to have received.
It is immaterial what actual advice Mr Mansfield did or did not receive, as the practitioner had no actual knowledge of the activities of Mr Mansfield or Mr Tudori on the afternoon in question. He knew only what he was told by Mr Levy. The significance of the meaning contended for by the Committee is that it is required, as a foundation for the argument, that such advice could not have been obtained in the time available.
The practitioner, in drafting that paragraph of the affidavit, considered that it referred to the consequences of the orders, which is precisely what it says. Strictly speaking, the wording of the paragraph would include the deponent having taken legal advice generally and necessarily not linked to the matter in issue, but this would be to ignore the context. The Tribunal does not accept that there is any basis to import the words 'on the merits of the application' into the paragraph after the words 'legal advice', as the contention of the Committee would require.

Particular (g):

On 18 June 2003 the practitioner was advised, as was the fact, that Mr Tudori was not acting for the defendant in the proceeding and that Mr Tudori was not providing and would not provide any advice to the defendant in respect of the summons for declarations or the orders being sought by the plaintiff against the defendant in the Summons for Declarations.

Committee's contentions: The Committee point out that particular (g) is in two parts: first, whether the practitioner was advised on 18 June 2003 that Mr Tudori was not acting for Mr Mansfield in the Trust action or on the application before Master Newnes; and secondly, whether the practitioner was advised on 18 June 2003 that Mr Tudori had and would not be providing advice to the defendant in those proceedings or on the application before Master Newnes.
The Committee point out that as to the first, it is not in dispute that the respondent was advised by Mr Levy that Mr Tudori was not acting for Mr Mansfield in those proceedings.
As to the second, the Committee concedes that the material before the Tribunal is not sufficient to prove that on 18 June 2003 the practitioner was advised that Mr Tudori was not providing, and would not provide, any advice to the defendant in respect of the summons for declarations or the orders being sought by the plaintiff against the defendant in those proceedings.
Tribunal's findings: It is not disputed by the practitioner that he was informed by Mr Levy during on the afternoon of 18 June 2003 that Mr Tudori was not acting for the defendant in the Trust's action. Mr Levy in his evidence stated that a facsimile was received at his office from Mr Tudori advising him that 'he did not act on Mr Mansfield in CIV 2565 but would provide documents to him as a matter of courtesy'. This was in the context of there having been a suggestion that Mr Tudori himself would sign the minute of consent orders.

The Committee concedes, in its closing written submissions, that there was no evidence sufficient to prove that the practitioner was advised that 'Tudori was not providing and would not provide any advice to the defendant in respect of the summons for declarations or the orders being sought'. This second part of this particular goes much further than the apparent available evidence, was not made out on the evidence and was rightly conceded.
Contrary to the allegation, the practitioner in evidence was clear as to his understanding of the involvement of Mr Tudori, and Mr Watters, in advising Mr Mansfield generally, if not specifically on the afternoon in question, as the Tribunal has noted and accepted in relation to particular (a) above.

Particular (j), (k), (l) and (m)

Particular (j):

The Final Affidavit was sent by the practitioner to his instructing solicitor (Mr Levy) at 3.12 pm on 18 June 2003.

Particular (k):

At 4.45 pm the practitioner was advised by Mr Levy that the defendant had sworn the Final Affidavit and had provided it to Mr Levy.

Allegations (j) and (k) are not controversial and form part of the chronological sequence of events, but define the time period for the purposes of the following particular.

Particular (l):

The matters the subject of the Summons for Declarations were factually complex and could not be properly mastered by a legal practitioner who was not already familiar with the matter in 90 minutes.

Particular (m):

It was impracticable and impossible for the defendant to have received independent legal advice such that he understood the consequences of the orders sought in the Summons for Declarations between 3.12 pm and 4.45 pm on 18 June 2003.

Committee's contentions: The Committee contend that the terms of the statement of claim and the affidavit sworn by Mr Kizon in support of the summary judgment application and the minute of declaratory consent orders, demonstrate clearly the complexity of the matters the subject of the summons for declarations. It cannot sensibly be contended that a practitioner who had no familiarity with the civil proceedings could sufficiently master the subject matter of the summons for declarations so as to be able to properly advise Mr Mansfield as to either the merits of the application, or even only the consequences for the defendant of the declaratory orders being made, within a period of 90 minutes.
The Committee says that one only has to look at the terms of the declaration sought and the references contained therein to paragraphs of the statement of claim and the terms of the summary judgment to realise that it is simplistic to suggest, as the practitioner does, that the consequences for the defendant of the orders sought are 'apparent from their face to any lawyer with some knowledge of trust or property law'.
The Committee contends it is clear that the minute of proposed consent orders which contained the references to Mr Tudori was provided to the defendant by Mr Tudori on the afternoon of 17 June 2003. The practitioner therefore contends that Mr Mansfield had approximately 24 hours to obtain independent legal advice. The Committee asks how the practitioner could have thought that Mr Mansfield had obtained independent legal advice as to the merits of the application when he drafted the affidavit on the basis that Mr Tudori was to give such advice when the redraft deleting reference to Mr Tudori was sent by the respondent to Mr Levy at 3.12 pm on 18 June 2003.
The Committee contend that regardless of when Mr Mansfield first received a copy of the minute which identified Mr Tudori as his solicitor, the fact is he had not as at 3.12 pm on 18 June 2003 obtained any independent legal advice in relation to the application. More significantly, in the context of the allegation made against the respondent in Ground 2, the practitioner must have known this to be the case as a result of being informed by Mr Levy at some time after 10.19 am on 18 June that the defendant was not legally represented.
Practitioner's contentions: These have been set out to a large extent in the account of the practitioner's contentions in relation to particular (f) above.
The practitioner further says that a period of almost 24 hours over which Mr Mansfield had the minute of orders and declarations proposed was ample time for him to obtain advice. The practitioner had forwarded the minute to Mr Levy on 17 June and had reasonably assumed that Mr Tudori and Mr Watters would have advised Mr Mansfield in relation to the relief sought. The Committee, by putting a gloss on Mr Mansfield's affidavit of 18 June 2003 equating the phrase 'consequences of the orders sought' with 'the merits of the application', seeks argumentatively to impose a heavier burden on a practitioner asked to give advice on the 'consequences of the orders sought' than would need be the case for giving proper advice. To do so, the practitioner would not need to know the complete history of the proceedings from their inception, or assess the evidence, proceedings or history as a whole, or the evidence upon which summary judgment was obtained.
The practitioner says the contention that he 'must have known that Mr Mansfield had not obtained independent legal advice' is based on an inference which it is suggested may be drawn from the fact that the practitioner was told on 18 June 2003 that Mr Mansfield was not (then) legally represented, but he remained represented in the freezing order proceedings; and had been receiving advice from his lawyers. Furthermore, the suggested inference is totally rejected by the practitioner's direct evidence.
The practitioner says that the inference on which the Committee relies is also inconsistent with the dealings of the practitioner with Mr Tudori and Mr Watters in relation to the orders to be sought in the civil proceedings for assistance in the freezing order proceedings.
The practitioner notes that the Committee concedes that there is no evidence that on 18 June 2003 the practitioner was advised that Mr Tudori was not advising and would not provide any advice to Mr Mansfield in respect of the summons for declaration and the orders being sought. Accordingly, an essential part of the factual substratum of particular (g) cannot be proved. The Committee presumably knew this when the amendments introduced in Grounds 2 and 3 and the particulars were made.
The practitioner also contends that documents relied upon by the applicant are consistent with the fact that as from April 2003 both the practitioner and Mr Levy assumed that Mr Tudori was acting for, or at least providing advice, to Mr Mansfield in the Trust's action and would go on the record in those proceedings. The second group of references, contrary to the Committee's contentions, do not show that the practitioner and Mr Levy knew that Mr Tudori was not providing advice to Mr Mansfield in the Trust's action, but merely that he had not formally entered an appearance as solicitor on the record.
The practitioner also contends that, as to Mr Mansfield's consent, and the practitioner's knowledge and belief as to that consent, the Committee's submissions do not refer to:
•the content of Mr Mansfield's affidavit of 8 April 2008, which was prepared by his then solicitor, which stated that he acknowledged and conceded the claim made against him and stated 'I do not intend to defend this matter further', which phrase is susceptible of only one meaning namely, an intention not to defend the whole matter further; and
•the reaffirmation by Mr Mansfield of the consent in his affidavit of 18 June 2003 which precedes his express consent to the orders in the minute of order annexed to his affidavit.
The practitioner points out Mr Mansfield has not sought to set aside the orders made by Master Newnes in the five years since they were made. He has not given evidence of any matter which he does not accept and the evidence of his affidavits and conduct is to the effect that he does not challenge the consent judgment or the orders and declarations made before Master Newnes.
Tribunal's findings: The Tribunal has already found that the extended meaning of the paragraph argued for by the Committee should not be accepted in the circumstances. Therefore, this particular does not carry the meaning contended for by the Committee. The Tribunal does not find that this particular, which appears to be more a matter of opinion than fact, has been established. There is no evidence to support it.
The Committee contends that the advice required was upon the merits of the application and would require a thorough assessment of the evidence and the entities concerned. The Tribunal does not accept that argument. The orders were extensive, but it cannot be said that it would have been impossible to obtain some workable advice as to what effect they would have in the time available.
The practitioner expressed the view that any competent equity or property lawyer could advise as to the consequences of the orders after reading them. This was clearly the view firmly held by the practitioner. The Tribunal accepts that this was his view, and that there were reasonable grounds to hold it, in the context that Mr Mansfield had been concerned with the freezing order, had been obtaining advice on that and its interrelationship with the Trust's action. It is, in the Tribunal’s view, unrealistic to suggest that the type of advice required would have involved a complete review of the litigation, and that the practitioner should have known this.
The Tribunal finds this particular is not established.

Particular (n):

The practitioner made no inquiry of the defendant on 19 June 2003 prior to the hearing on that day of the application as to whether the defendant had received independent legal advice such that he understood the consequences of the orders sought in the Summons for Declarations.

Practitioner contentions: The practitioner further submits that Grounds 2 and 3 are based on the surprising, if not untenable proposition that the practitioner, without instructions from his instructing solicitor or client, and contrary to the interests of his client, should (without the factual basis particularised) have doubted the sworn evidence of Mr Mansfield, the opposing party, and enquired whether the opposing party who was present in person and was a literate and experienced professional and litigator, was telling the truth or had perjured himself.
The practitioner contends in the circumstances he was not under any duty to inform Master Newnes that it was 'unsafe' to rely on Mr Mansfield's affidavit sworn 18 June 2003. Further, he would have been in breach of his duty to his client if he had done so, and moreover, he would have been in breach of his duty to his client if he had made enquiry of Mr Mansfield as particularised.
The practitioner says in the circumstances the practitioner was not recklessly indifferent as to whether the affidavit was true.
Tribunal's findings: It is alleged by the Committee that the practitioner should have made inquiry of the defendant Mr Mansfield on 19 June 2003, because of the implication that the practitioner had been put on notice as to the truth of the affidavit by the other matters alleged in the particulars. Further, in oral submissions it was suggested on behalf of the Committee that is was not enough to simply accept an affidavit where 'orders were of an extravagant nature' and there was an admission of breach of fiduciary duty by an unrepresented party and that counsel should have made enquiry and satisfied himself that independent legal advice had in fact been obtained.
The Tribunal has not upheld those parts of the particulars which would impute to the practitioner the knowledge sufficient to put him on inquiry, and so that part of the basis that he should have made any further enquiry falls away.
The practitioner had knowledge of the history of Mr Mansfield's involvement with Mr Tudori and Mr Watters, and had seen him dispense with legal representation at the last moment on the previous appearance before Master Sanderson. Mr Mansfield had also earlier sworn that he did not intend to defend the matter further, in his affidavit of 8 April 2003. On 19 June 2003, the practitioner was instructed that Mr Mansfield had sworn an affidavit drafted by the practitioner the previous afternoon. Mr Mansfield was present in the court and appeared. Nothing in what he did or said is suggested to have given the practitioner reason to suspect that he had sworn a false affidavit. To place an obligation on counsel to make independent examination of the opposing party, in the circumstances that the Tribunal has found existed, would be to extend the practitioner's duty beyond what is required by law and practice.
Accordingly, the Tribunal finds this particular is not established.
Tribunal's finding on Grounds 2 and 3: In light of the Tribunal's rejection of the various key particulars alleged, the Tribunal finds that Grounds 2 and 3 are not established.
The Committee contends that the only inference that can reasonably be drawn from the facts is that the practitioner must have known that there was, at the very least, a risk that the defendant's affidavit sworn on 18 June 2003 was false. This it is said would amount to 'reckless indifference' - the basis of Ground 3.
As noted earlier a person will be found to be recklessly indifferent to the truth or falsity of a fact where the person does not care if the fact is true or false: Derry v Peake at 374.
In the context of a legal practitioner appearing before a court, this is a serious allegation of professional misconduct.
The Tribunal, for the reasons set out above is not satisfied that the allegations in the key particulars, which are the same for Grounds 2 and 3, are made out to the required standard to establish that the practitioner presented to the court an affidavit in respect of which he did not care if the contents were true or false. Accordingly, there is a lack of evidence to support the allegation that the practitioner was recklessly indifferent as to the truth of the affidavit.
As it transpires, the evidence of Mr Mansfield to this Tribunal in fact supports the proposition that he did not, at the time, understand fully the orders proposed, in particular that they had proprietary effect. In deposing to his understanding of the effects of the orders, therefore, the affidavit was in fact false. However, as to the time the relevant events concerning the practitioner took place in June 2003, it has not been established to the Tribunal's comfortable satisfaction that the practitioner knew or ought to have known of this circumstance, or was recklessly indifferent to it.

Conclusion and Orders

The Tribunal finds the allegations of unsatisfactory conduct by unprofessional conduct are not established, and the application should be dismissed.
The Tribunal orders that:
(1)The professional disciplinary proceedings against Richard James Larry McCormack are dismissed.
(2)There is no order as to costs.

I certify that this and the preceding [252] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT

[2009] WASAT 4

16 January 2009