Legal Profession Complaints Committee and Giudice
[2015] WASAT 10
•5 FEBRUARY 2015
LEGAL PROFESSION COMPLAINTS COMMITTEE and GIUDICE [2015] WASAT 10
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 10 | |
| LEGAL PROFESSION ACT 2008 (WA) | |||
| Case No: | VR:113/2011 | 6 NOVEMBER 2014 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) MS S GILLETT (MEMBER) MR C PHILLIPS (SENIOR SESSIONAL MEMBER) | 5/02/15 | |
| 38 | Judgment Part: | 1 of 1 | |
| Result: | Finding upon reconsideration of professional misconduct against the practitioner | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PROFESSION COMPLAINTS COMMITTEE PETER GEORGE GIUDICE |
Catchwords: | Legal practitioner Disciplinary proceedings Affidavit containing a false statement Reckless disregard as to whether statement was true or false Meaning of recklessness Subjective assessment of actual state of mind Professional misconduct Unsatisfactory professional conduct |
Legislation: | Criminal Code Act Compilation Act 1913 (WA), s 169 Legal Practice Act 2003 (WA) Legal Profession Act 2008 (WA), s 438(1), s 622, Pt 13 State Administrative Tribunal Act 2004 (WA), s 58 |
Case References: | Fidock v Legal Profession Complaints Committee [2013] WASCA 108 Giudice and Legal Profession Complaints Committee [2014] WASCA 115 Legal Profession Complaints Committee and Giudice [2012] WASAT 144 Legal Profession Complaints Committee and Guidice [2012] WASAT 144 (S) Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 |
Orders | On the application referred to Deputy President, Judge Sharp, Member S Gillett and Senior Sessional Member C Phillips on 5 February 2015, it is ordered that:,1. There is a finding that Mr Peter George Giudice is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) when he caused to be prepared under his supervision and caused to be sworn, filed and served in court proceedings an affidavit sworn by his client which contained a false statement and he recklessly disregarded whether the statement was true or false. This conduct involves a substantial failure to reach a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.,2. The Legal Profession Complaints Committee is to file and serve any submissions on penalty and costs within 21 days of publication of these reasons.,3. Mr Giudice is to file and serve any submission on penalty and costs within 21 days of service of the Legal Profession Complaints Committee's submissions.,4. Subject to any further order of the Tribunal, the question of penalty and costs is to be dealt with on the papers. |
Summary | Mr Peter George Giudice, a legal practitioner, was found guilty by the Tribunal in 2012 of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA). An affidavit by one of his clients was prepared under his supervision, which he then caused to be sworn, filed and served in court proceedings. The Tribunal found that the affidavit contained a false statement and the Tribunal found that the practitioner had recklessly disregarded the truth or falsity of that statement. ,The practitioner applied to the Court of Appeal for leave to appeal from that decision. Leave to appeal was granted, the appeal was allowed and the decision of the Tribunal was set aside. The Court of Appeal remitted the matter to the Tribunal for further consideration in accordance with the Court's reasons. ,The Tribunal reconsidered the evidence before it, without hearing further evidence, and confirmed its decision that the affidavit prepared under the practitioner's supervision contained a false statement. The Tribunal also confirmed its decision that, while the practitioner did not deliberately include the false statement, he recklessly disregarded whether the statement might be false. ,The Tribunal also reconsidered its previous finding that the practitioner's conduct constituted unsatisfactory professional conduct. The Tribunal concluded that the practitioner's conduct is properly characterised as professional misconduct.,The Tribunal ordered that the parties file submissions on the appropriate penalty following the Tribunal's reconsideration. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and GIUDICE [2015] WASAT 10 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)
- MS S GILLETT (MEMBER)
MR C PHILLIPS (SENIOR SESSIONAL MEMBER)
- Applicant
AND
PETER GEORGE GIUDICE
Respondent
Catchwords:
Legal practitioner Disciplinary proceedings Affidavit containing a false statement Reckless disregard as to whether statement was true or false Meaning of recklessness Subjective assessment of actual state of mind Professional misconduct Unsatisfactory professional conduct
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 169
Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 438(1), s 622, Pt 13
State Administrative Tribunal Act 2004 (WA), s 58
Result:
Finding upon reconsideration of professional misconduct against the practitioner
Summary of Tribunal's decision:
Mr Peter George Giudice, a legal practitioner, was found guilty by the Tribunal in 2012 of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA). An affidavit by one of his clients was prepared under his supervision, which he then caused to be sworn, filed and served in court proceedings. The Tribunal found that the affidavit contained a false statement and the Tribunal found that the practitioner had recklessly disregarded the truth or falsity of that statement.
The practitioner applied to the Court of Appeal for leave to appeal from that decision. Leave to appeal was granted, the appeal was allowed and the decision of the Tribunal was set aside. The Court of Appeal remitted the matter to the Tribunal for further consideration in accordance with the Court's reasons.
The Tribunal reconsidered the evidence before it, without hearing further evidence, and confirmed its decision that the affidavit prepared under the practitioner's supervision contained a false statement. The Tribunal also confirmed its decision that, while the practitioner did not deliberately include the false statement, he recklessly disregarded whether the statement might be false.
The Tribunal also reconsidered its previous finding that the practitioner's conduct constituted unsatisfactory professional conduct. The Tribunal concluded that the practitioner's conduct is properly characterised as professional misconduct.
The Tribunal ordered that the parties file submissions on the appropriate penalty following the Tribunal's reconsideration.
Category: B
Representation:
Counsel:
Applicant : Mr MD Cuerden
Respondent : Mr DR Williams QC AO with Mr ILK Marshall
Solicitors:
Applicant : Legal Profession Complaints Committee
Respondent : Altorfer & Stow
Case(s) referred to in decision(s):
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Giudice and Legal Profession Complaints Committee [2014] WASCA 115
Legal Profession Complaints Committee and Giudice [2012] WASAT 144
Legal Profession Complaints Committee and Guidice [2012] WASAT 144 (S)
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
Introduction
1 In June 2011, the Legal Profession Complaints Committee (Committee) made an application to the Tribunal seeking a finding that the respondent (practitioner) had engaged in professional misconduct pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (Act), together with consequential orders. The grounds upon which the finding was sought were set out in an annexure to the application. One of the allegations of the Committee was that:
The practitioner … engaged in professional misconduct, in that he substantially failed to reach the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner:
(i) on or about 17 February 2009, by causing to be prepared under his supervision, settling and causing to be sworn, filed and served in Family Court proceedings an affidavit ('the affidavit') sworn by … ('the client') which contained a false statement, when the practitioner knew that the statement was false or, alternatively, recklessly disregarded whether the statement was true or false.
…
2 On 26 July 2012, the Tribunal made a finding that this allegation had been made out and that the practitioner was guilty of unsatisfactory professional conduct (rather than professional misconduct) contrary to the Act; see Legal Profession Complaints Committee and Giudice [2012] WASAT 144 (originaldecision).
3 The Committee's other allegations of professional misconduct which it made against the practitioner in the same application were dismissed by the Tribunal.
4 In essence, the finding which the Tribunal had made against the practitioner was that the practitioner caused to be prepared under his supervision, sworn, filed and served in court proceedings an affidavit of his client which contained a false statement. The Tribunal found that the practitioner recklessly disregarded whether the statement was true or false and thus failed to reach a reasonable standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner.
5 The Tribunal then on 23 October 2012 published a supplementary decision ordering that the practitioner be reprimanded, pay a fine of $8,000 and pay the Committee'scosts.
6 The practitioner appealed against the Tribunal's findings. On 4 June 2014, the Court of Appeal allowed the appeal; see Giudice and Legal Profession Complaints Committee[2014] WASCA 115 (Court of Appeal's decision). The Court of Appeal's decision was delivered in three separate judgments by Martin CJ, Buss JA and Edelman J.
7 The Court then ordered that the decision of the Tribunal be remitted to the Tribunal as originally constituted for further consideration and determination in accordance with the reasons of the Court.
The further hearing of the matter and the Tribunal's deliberations
8 The Tribunal held a hearing on 6 November 2014 to allow the parties to make submissions prior to our further consideration of the matter. The Committee filed its outline of submissions on 2 October 2014 and the practitioner's outline of submissions was filed on 17 October 2014. Counsel for both parties summarised their written submissions at the hearing.
9 The Tribunal has considered the matter in accordance with the reasons set out in the Court of Appeal's decision. The Tribunal's decision on reconsideration and its reasons follow. The Tribunal's decision was made by Judge Sharp and Member Gillet in accordance with s 58 of the State Administrative Tribunal Act 2004 (WA). That section relevantly provides that where the Tribunal is constituted by two or more sitting members then a question they are required to decide is resolved according to the opinion of the majority of them. Senior Sessional Member Phillips did not share the view of the majority and his decision and the reasons for it are set out in an appendix to these reasons.
Facts
10 The Court of Appeal's decision contains a summary of the findings of fact made by the Tribunal relevant to the charge found against the practitioner. It is convenient to repeat that summary here.
11 The practitioner's client separated from his wife in October 2006. The client and his wife had two children of their union. In addition, two children of the client's wife from a prior relationship were ordinary members of the household. Following the separation of the client and his wife, all four children continued to live with the client's wife at the former matrimonial home.
12 In November 2008, the practitioner's client was charged with seven charges of indecently dealing with, and two charges of sexual penetration of, a child under the age of 13 years. In each case, the complainant was one of the children of the client's wife from her previous relationship. Following his arrest, the client was granted bail in the Magistrates Court subject to a number of conditions, one of which was a condition to the effect that the client was 'not to contact or attempt to contact the complainant or the complainant's family by whatever means'.
13 The client retained the practitioner to act on his behalf shortly after the grant of bail. Subsequently, the client instructed the practitioner that he intended to plead guilty to the charges which had been brought against him, and that he wished to have the bail conditions varied so as to allow him to have contact with his children.
14 In early January 2009, the practitioner represented the client in the Magistrates Court and, in accordance with instructions, entered pleas of guilty to all charges which had been brought. The client was remanded to appear in the District Court for sentencing some months later. Bail was renewed on the same terms, including the condition precluding any contact between the client and his children.
15 In the meantime, without informing the practitioner, the client had filed an application for a variation of the conditions of bail. That application came on for hearing in the Magistrates Court on 19 January 2009. Mr Arndt, who was a lawyer employed in the practitioner's office, happened to be in Court on another matter and, with the consent of the client, appeared on his behalf on the hearing of the application to vary the conditions of bail. At that hearing, the magistrate adjourned the application for some days to enable a report to be obtained.
16 The matter came back on for hearing on 22 January 2009. Mr Arndt again appeared on behalf of the client. After hearing evidence and submissions, the magistrate agreed to vary some of the conditions of bail to enable the client to retrieve some personal effects.
17 In relation to the application to vary the condition of bail which prohibited contact between the client and his children, the magistrate said:
I don't disagree with much of what Mr Arndt said that it is inevitable that there be some contact between [the Client] and his children and that is likely to be resolved in family law proceedings. For those reasons and because of the suitability of family law proceedings resolving the appropriate interests of the parties, I would be prepared to vary bail only to this extent to provide that there be no contact or attempt to contact the complainant or the complaint's family by whatever means except as regards [the Client's children] as provided in any order made in proceedings under the Family Law Act to which [the Client's Wife] is a party [31].
18 Mr Arndt made a handwritten note of the proceedings which included a reference to this aspect of the magistrate's decision. He also made an electronic entry in the records maintained by the practitioner's firm in relation to his appearance before the magistrate on behalf of the client. That note recorded an order by the magistrate to the effect that the client was 'not to contact the complainant or siblings, except as regards the two natural children, as ordered in any Family Court proceedings to which the wife is a party'.
19 Mr Arndt also wrote to the client reporting upon the arguments which had been presented during the hearing, including the fact that the client's wife was concerned that contact with the client might have a detrimental effect upon the children, that the Department for Child Protection had concerns with respect to the emotional risks to the children, although they had the capacity to supervise any contact, and that the prosecutor had opposed any variation to the conditions of bail. The letter reported:
The Magistrate formed the view that it was not appropriate to vary your bail conditions to allow the contact you sought, but was prepared to vary your bail so that you may have contact with the children as provided by any order of a Court exercising powers under the Family Law Act to which their mother is a party.
20 In early February 2009, the client retained the practitioner to act on his behalf for the purposes of applying to the Magistrates Court, sitting as the Family Court of Western Australia. The client was seeking an order permitting him to have contact with his biological children prior to him being sentenced in the District Court, and to have telephone contact with those children after being sentenced. The practitioner delegated the task of drafting the application and the affidavit of the client in support of that application to a law clerk. The law clerk, Ms Armstrong, had only been working with the practitioner for a few weeks and had no prior experience as a law clerk. She prepared the client's affidavit under the supervision of the practitioner and with some assistance from Mr Arndt and another law clerk. Paragraph 20 of that affidavit asserted:
My original bail conditions of 27 November 2008 were that I was not to contact or attempt to contact the complainant or the complaint [sic] family by any means, [sic] On 22 January 2009 my bail conditions were varied so that I may spend time with the children supervised.
Tribunal's original decision
21 In the Tribunal's original decision, these are the findings which the Tribunal made.
Did the affidavit contain a false statement?
22 The Tribunal concluded that the affidavit at paragraph 20 contained a false statement. The magistrate did not vary the client's bail conditions to allow the client to 'spend time with the children supervised'.
Did the practitioner know that the affidavit contained a false statement?
23 The Tribunal found at [65] of the original decision:
[65] The Tribunal's view is that it is unlikely that the Practitioner was actually aware that the statement in paragraph 20 of the affidavit was false at the time when he settled its terms. To find otherwise would suggest some deliberate act on the part of the Practitioner to mislead the Court or another practitioner. We can think of no reason why the Practitioner should do such a thing and nothing was put before us which might persuade us to this view. We think that it is more likely that this was not a deliberate act.
Did the practitioner recklessly disregard whether the statement was true or false?
24 The Tribunal found at [66] - [72] of the original decision:
[66] The issue then is whether the Practitioner recklessly disregarded whether the statement was true or not. Somewhat obviously, if the Committee is to succeed in making this allegation the Committee must satisfy the Tribunal on the balance of probabilities that the Practitioner not only disregarded whether the statement in question was true, but did so recklessly.
[67] The word 'disregarded' does not present any great difficulty, but when qualified by the word 'recklessly' it perhaps presents a more challenging task of interpretation.
[68] It is clear from the authorities (see, for example, Pollard v Commonwealth Director of Public Prosecutions & Anor (1992) 28 NSWLR 659 at 669, 672 675) that whether or not an act was done with 'reckless disregard' will depend on the particular circumstances and requires a subjective approach.
[69] The ordinary meaning of reckless is 'heedless of the consequences of one's action or of danger'; Shorter Oxford English Dictionary (6th ed, 2007). The Tribunal also accepts that recklessness involves more than carelessness and more than negligence; see R v Staines (1974) 60 Cr App Rep 160.
[70] We therefore venture to suggest that the Committee must show that in all the circumstances the Practitioner should have been aware that the statement might be untrue and made that statement without satisfying himself that it was true and regardless of the consequences.
[71] As far as the circumstances are concerned, the words in paragraph 20 of the affidavit were settled by a very senior practitioner with some 30 years' experience who knows the importance of the document being complete, accurate and having no potential to mislead (T:127; 29.05.12). The Practitioner appears to have spent in excess of an hour with Ms Armstrong settling the terms of the affidavit (T:94; 29.05.12). There is no evidence of any mitigating circumstances.
[72] The Tribunal considers that the Practitioner, being a practitioner experienced in matters of this kind, should have considered that the words of the affidavit, in the light of the offences of which the Client was accused, namely indecently dealing with and sexual penetration of a child under the age of 13, warranted at least some further inquiry. Paragraph 20 did not reflect what he had been told had occurred in the Magistrates Court on 22 January 2009. Even a cursory examination of the transcript of that hearing would have alerted him to the problem. By not making further inquiry, the Practitioner was more than careless and showed a culpable indifference as to whether it was true and to the consequences.
25 The Tribunal noted the serious consequence of the practitioner's conduct for his client, who was subsequently charged with making a false statement under oath. Further, the Tribunal found that while the probability of the Court actually being misled by the affidavit was small, the risks were very grave.
26 The Tribunal found, in conclusion, that this constituted a failure to reach the standard of competence and diligence that a member of the public is entitled to expect from the practitioner. However, the Tribunal was not satisfied that this was a substantial or consistent failure and, although the Committee alleged professional misconduct, the Tribunal found the practitioner guilty of unsatisfactory professional conduct.
The appeal against the Tribunal's decision
27 The practitioner appealed against these findings. The practitioner's ground of appeal, as amended, was that the Tribunal had erred in law in the following respects:
a) no reasonable Tribunal could have found that the [practitioner] recklessly disregarded whether the statement was true or false; and
b) the Tribunal applied the wrong test in concluding that the [practitioner] recklessly disregarded whether the statement was true or false.
The Court of Appeal's decision
Unreasonableness
28 Martin CJ treated the first aspect of the amended ground as, in effect, an assertion that there was no evidence upon which the Tribunal could have made the relevant finding: Court of Appeal's decision at [36].
29 His Honour noted at [37] that there were two aspects to the Tribunal's conclusion that the practitioner recklessly disregarded the truth or falsity of the relevant portion of the client's affidavit. The first is a finding that the relevant portion of the client's affidavit was false. The second component involved a finding that the practitioner recklessly disregarded the truth or falsity of the relevant portion of the affidavit.
30 In relation to the finding that the relevant portion of the affidavit was false, Martin CJ held at [38] that '[i]t cannot be asserted that there was no evidence on which the Tribunal could have arrived at this aspect of its conclusion'. In relation to the finding that the practitioner recklessly disregarded whether paragraph 20 of the affidavit was true or false, his Honour held that there was 'ample evidence' on which the Tribunal could have based this conclusion. Indeed his Honour stated at [40] that the evidence 'could have sustained a finding that the practitioner was aware of the falsity of par 20 of the client's affidavit'.
31 For those reasons, his Honour held that the first aspect of the amended ground was not sufficiently arguable to justify the grant of leave to appeal, and leave was refused in relation to the first aspect.
32 Buss JA at [114] agreed that paragraph (a) of the practitioner's amended ground was without merit. His Honour in particular stated that:
… it cannot be reasonably concluded by this court that, on the application of the correct test, it would not be open to the Tribunal to make findings adverse to the [practitioner] in relation to those elements.
33 Edelman J also agreed, holding at [159] that '[a]n inference of recklessness was reasonably open to the Tribunal'.
The test for 'recklessness'
34 In relation to the assessment of whether the practitioner acted recklessly, Martin CJ stated at [44] that:
[T]he word 'reckless' requires that a particular state of mind be subjectively established. In Fidock v Legal ProfessionalComplaints Committee [2013] WASCA 108 this court held that an allegation of reckless disregard of the truth by a legal practitioner could only be made out if it was established that the practitioner's actual state of mind was that of indifference to the truth of the relevant statement or, in the more colourful language of Le Lievre v Gould [1893] 1 QB 491:
… not caring in the man's own heart and conscience whether it was true or false - and that would be wicked indifference and recklessness.
- His Honour went on to state at [47] to [48]:
I have set out above all relevant portions of the Tribunal's reasons relating to the issue of reckless disregard. At the commencement of that portion of the reasons, reference is made to two authorities in which a subjective approach was taken to the question of 'reckless disregard' and the Tribunal expressly acknowledged that a subjective approach was required.
However, the process which follows strongly suggests that in fact the Tribunal adopted an objective approach to the question which it was required to resolve.
Significantly omitted is any finding that the practitioner did in fact consider that the words warranted further inquiry but made no such inquiry because he was indifferent to their truth … Put another way, the observation suggests that the Tribunal approached the question of recklessness on the basis that it might be established by careless conduct of a particular quality or character, such that it could be characterised as culpable, rather than by reference to a finding of fact as to the practitioner's state of mind.
36 In concluding, His Honour stated at [52] that 'a finding as to the practitioner's state of mind cannot be extracted from the reasons given by the Tribunal'.
37 Notably, his Honour stated at [50] that:
The conclusions which I have drawn from this analysis of the Tribunal's reasons are reinforced by the Tribunal's conclusion that the practitioner was not guilty of professional misconduct, but only of unsatisfactory professional conduct, because his conduct did not involve a substantial failure to comply with the standards of competence that might be expected. As I have already indicated, that would be a surprising conclusion if the Tribunal had found that the practitioner was wilfully indifferent to the truth or falsity of the paragraph in the affidavit which he settled.
38 Buss JA was also 'satisfied that, despite a reference in its reasons to a ''subjective approach'' being necessary in assessing ''whether or not an act was done with reckless disregard'', the Tribunal applied the wrong test in deciding that the appellant had recklessly disregarded whether the statement was true or false': Court of Appeal's Decision at [104].
39 He said at [95] that the allegation that the practitioner recklessly disregarded whether paragraph 20 of the affidavit was true or false comprises two subjective elements:
a) the practitioner was aware that there was a risk that the statement in paragraph 20 of the affidavit was untrue or false; and
b) the practitioner consciously disregarded the risk.
40 He found that the Tribunal applied the wrong test and 'did not focus on the appellant's actual state of mind in relation to the false statement in par 20': see Court of Appeal decision at [104].
41 Edelman J also agreed at [134] that while the Tribunal started with the correct test at paragraph [68] of the Tribunal's decision, the Tribunal applied a test which 'was not subjective and which suggest[ed] that the Tribunal considered that recklessness could also be proved without making a determination about the actual state of the practitioner's mind (which it could not)'.
The orders of the Court of Appeal
42 The orders made by the Court of Appeal on 4 June 2014 were as follows:
1) Leave to appeal be granted.
2) The appeal be allowed.
3) Order 1 of the orders of the State Administrative Tribunal ('the Tribunal') made on 26 July 2012 in respect of VR 113 of 2011, and the orders of the Tribunal made on 2 November 2012 be set aside.
4) Application VR 113 of 2011 is remitted to the Tribunal for reconsideration of all matters arising within the application made to the Tribunal, without the hearing of further evidence and in accordance with the reasons of this Court.
5) The Tribunal reconsidering VR 113 of 2011 is to be constituted by the members who made the original decision.
6) The application for costs of the appeal is reserved. The question of costs is to be considered by the Court on the basis of the arguments put orally by counsel on 4 June 2014 and recorded in the transcript of that hearing.
43 At a hearing on 4 June 2014, Martin CJ explained:
[W]hen it goes back to the Tribunal, as it were, all bets are off in the colloquial expression and … the Tribunal can reconsider anything that arises within the application having regard to the way in which the case was conducted before the Tribunal and the reasons of the Court of Appeal. (T:56; 04.06.14)
44 Counsel for the Committee at that hearing questioned whether it was open to the Tribunal to reconsider the finding of unsatisfactory professional conduct if the allegation of recklessness was upheld. In response, his Honour stated:
Well, the matter is at large, but subject to the way in which it was conducted before the Tribunal.
The Tribunal's findings following reconsideration
45 The Tribunal, constituted by the members who made the original decision, has reconsidered the matter in accordance with the reasons of the Court of Appeal and these are the Tribunal's findings.
Did the affidavit contain a false statement?
46 The Tribunal maintains its finding that the affidavit at paragraph 20 contains a false statement. The magistrate did not vary the client's bail conditions to allow the client to 'spend time with the children supervised'.
47 As Martin CJ said in the Court of Appeal decision at [38], the conclusion that the relevant paragraph of the affidavit was false was compelled by the findings of fact made by the Tribunal based on uncontested evidence. Buss JA at [113] agreed, saying that this is the only conclusion reasonably open to the Tribunal when the transcript of the relevant proceedings in the Magistrates Court is compared with the terms of paragraph 20 of the client's affidavit.
Did the practitioner know that the affidavit contained a false statement?
48 The Tribunal found at [65] of the original decision that, for the reasons given, it is unlikely that the practitioner was actually aware that the statement in paragraph 20 of the affidavit was false at the time when he settled its terms. We do not understand either party to be contesting this finding and we confirm that this finding is also unchanged.
Did the practitioner know that there was a risk that the affidavit contained a false statement?
49 The Tribunal finds that the practitioner, at the time when he settled the affidavit, knew that paragraph 20 did not reflect the contents of the materials that he had before him, namely Mr Arndt's file note and his letter to the client. He did not have complete knowledge of the bail conditions independent of that file note and letter and so he did not know whether the statement in paragraph 20 of the affidavit was correct or whether it was the information in that file note and that letter which was correct.
50 The Tribunal has therefore concluded that the practitioner was aware when he settled the affidavit that there was a risk that the statement in paragraph 20 was untrue or false.
51 Our reasons for this finding are derived from the evidence which was before us at the time of the original hearing and from inferences which can be drawn from the relevant circumstances.
52 In April 2009, the client was charged under s 169 of the Criminal Code Act Compilation Act 1913 (WA) with making a false statement under oath. On being informed of this, the practitioner on 27 May 2009 wrote to the Geraldton Police (Committee's Book of Documents pages 5556). The practitioner told the police what his understanding of the situation was at the time when he settled the affidavit. He said that when settling the affidavit he had checked with Mr Arndt and had satisfied himself that 'bail had been so varied to exempt contact pursuant to a family court order'. He explained that what was meant by paragraph 20 of the affidavit 'is that because the bail had been varied to allow "contact with the children as provided by any order of a Court … under the Family Law Act" the bail conditions no longer precluded an order for contact being made.' He went on to say that '[t]he contents of clause 20 of the affidavit are a mistake by this office …'.
53 In the practitioner's response of 17 August 2009 (Committee's Book of Documents pages 64 - 73) to the Committee's enquiries concerning the matter, he reiterated that last statement.
54 The practitioner's evidence before the Tribunal, however, was inconsistent with that position. In his witness statement, the practitioner said that the wording of paragraph 20 'would not have concerned me as Mr Arndt had mentioned that bail had been varied … Also, I had asked Ms Armstrong to check the bail conditions with Mr Arndt and would have assumed he advised her of that': Practitioner's witness statement paragraph 120.
55 His evidence in cross-examination was at times contradictory. He at first said that it was his understanding ('it was in my head') at the time when he settled the affidavit that the magistrate had varied the bail conditions to enable the client to have supervised contact with his biological children under an order of a family law magistrate (T:210; 30.05.12). He had seen no reason to include in paragraph 20 the words 'under the order of a family law magistrate'.
56 This would suggest that the practitioner, through carelessness, incorrectly formed the opinion that paragraph 20 of the affidavit was true.
57 However, we do not make that finding, because the practitioner also expressly conceded that, at the time of settling the affidavit, his knowledge of the client's existing bail conditions was not complete. He said in cross-examination that at the time he settled the draft affidavit he did not think he had enough knowledge to ensure that the affidavit was truthful (T:105; 29.05.12). He confirmed that the only documentation he had before him concerning the bail conditions when he settled the affidavit was Mr Arndt's file note and Mr Arndt's letter to the client (T:231; 30.05.12). He said that he did not look at the bail conditions and that his knowledge of the terms of the bail conditions was based on what Mr Arndt had told him (T:104; 29.05.12).
58 We do not accept the practitioner's evidence that he read paragraph 20 of the affidavit to mean that the bail conditions were varied to enable the client to have supervised contact under an order of a family law magistrate. This is inconsistent with what he told the police and then the Committee at the relevant time.
59 Nor do we accept the practitioner's evidence in cross-examination when he said that he considered the affidavit was not false or that 'it's true as far as it goes' (T:125; 29.05.12). Again, this is entirely inconsistent with what he told the Committee and the police shortly after the event.
60 We find that all that the practitioner knew of the terms of the bail conditions at the relevant time was derived from Mr Arndt's file note, his letter to the client and his conversation with Mr Arndt. However, the contents of that note and letter are contrary to what is asserted in paragraph 20 of the affidavit. It follows that the practitioner knew that either the statement in paragraph 20 was wrong or the information in the letter and file note was wrong. We find that the practitioner knew that there was a risk that the statement in paragraph 20 of the affidavit might have been wrong.
Did the practitioner consciously disregard that risk?
61 We find that the practitioner consciously disregarded the risk that the affidavit contained a false statement.
62 First, the practitioner agreed that the application and affidavit were prepared by Ms Armstrong under his supervision. He also accepted, at least initially, that his supervisory role was to ensure that those documents were accurate, truthful and complete (T:100; 29.05.12). However, he then told the Tribunal that he did not regard it as part of his function in settling the affidavit to check its accuracy (T:103105; 29.05.12).
63 We do not accept that evidence. We do not believe that the practitioner thought that he was responsible for the truthfulness and completeness of the affidavit but not its accuracy. The practitioner on his own admission is a highly experienced legal practitioner. He knew that Ms Armstrong had no legal experience. He also knew of the importance and significance of the application. We consider that the practitioner knew that it was his responsibility to ensure the truthfulness, completeness and accuracy of the application and, therefore, the affidavit.
64 This is supported by the practitioner's own evidence. In his witness statement, the practitioner said that he 'put a lot of time into drafting the application'. He said that he checked the affidavit but made no change to its content. He merely amended some grammar and 'setting out' (practitioner's witness statement paragraphs 119 and 120).
65 Second, the practitioner admitted that the affidavit was 'worded in a way that unfortunately has been interpreted differently'. However, he disagreed with the suggestion put to him that it was 'worded in a way that cannot help but mislead' (T:207; 30.05.12). He said that he believed that the Family Court could work out what it needed to know (T:207; 30.05.12). He said that there was 'every chance that we were going to end up before Magistrate Flynn again, wearing his family law hat' (T:207; 30.05.12). He said '[w]ell, we were before the family court. [The magistrate] seemed to know what had gone on' (T:210; 30.05.12). He said that he did not consider that the magistrate could possibly be misled by paragraph 20 (T:212; 30.05.12).
66 He said that even if the matter had come before a different magistrate, it would have been obvious to any Family Court magistrate that the bail conditions had not been varied as described. He said that the magistrate when considering the application would have implied into paragraph 20 of the affidavit the words 'under the order of a family court magistrate'. Otherwise, the practitioner says, the magistrate would have said to him '[w]hy are you asking for an order for suitability for supervision when you've already got one?' (T:233; 30.05.12).
67 We find that the practitioner, knowing that there was a risk that the affidavit contained a statement which might be untrue or false, consciously disregarded that risk when he settled the affidavit and caused it to be sworn, filed and served in the Family Court proceedings. We consider that the practitioner made a decision that he would not check the original bail conditions, even though he knew that paragraph 20 of the affidavit might contain an incorrect statement, because the court could work the matter out for itself.
Disciplinary outcome
68 Section 622 of the Act provides that Pt 13 (Complaints and Discipline) applies to conduct consisting of a contravention of the Legal Practice Act2003 (WA) (2003 Act) as if the conduct consisted of a contravention of the Act. The relevant conduct in this matter all occurred before the commencement of the Act.
69 The Tribunal has found, for the reasons given, that the practitioner caused to be prepared under his supervision, settled and caused to be sworn, filed and served an affidavit by the client which contained a false statement and the practitioner recklessly disregarded whether the statement was true or false.
70 In the original decision, the Tribunal made the same finding. The Tribunal concluded in the original decision that this conduct amounted to a failure to comply with the standards of competence and diligence expected of a legal practitioner. It was unsatisfactory conduct within the inclusive definition of that term under the 2003 Act and also falls within the definition of unsatisfactory professional conduct under the Act.
71 However, following our reconsideration, the Tribunal now finds that the practitioner's conduct represents a substantial failure to reach the standard of competence and diligence expected of a legal practitioner by members of the public. That also constitutes a contravention of the 2003 Act. However, the 2003 Act, unlike the Act, does not recognise the concepts of professional misconduct and unsatisfactory professional conduct, instead adopting an inclusive definition of unsatisfactory conduct. We nonetheless consider that if, following our finding about the practitioner's conduct, Pt 13 of the Act is to be applied then the practitioner's conduct must be categorised as professional misconduct under the Act.
72 The practitioner is an experienced practitioner and he was supervising a person with no legal experience in the preparation of an important court document. The importance of the document cannot be understated. It was an application for variation of bail conditions so that a man, who had just pleaded guilty to seven charges of indecent dealing with a child under the age of 13 years and two charges of sexual penetration of a child under the age of 13 years, could have contact with his children. It would be obvious to a legal practitioner in these circumstances that the greatest of care had to be exercised to ensure that the decisionmaker, in this case a Family Court magistrate, was fully and properly informed of the circumstances.
73 Further, the practitioner also knew that there could be serious consequences of allowing his client to provide a false statement under oath. One consequence was that the client was in fact subsequently charged with a criminal act for so doing.
74 Finally, the practitioner misled the court. It is well established that a legal practitioner owes duties of candour and honestly to the court. A practitioner's duty not to mislead the court is at the heart of his or her duty as an officer of the court; Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61].
75 As Martin CJ, Newnes and Murphy JJA explained in Fidock v Legal Profession Complaints Committee [2013] WASCA 108 at [100], a legal practitioner who misleads the court may engage in professional misconduct even though the practitioner did not knowingly mislead the court. Their Honours at [100] referred by way of an example, to 'a solicitor [who] swears an affidavit recklessly, careless whether it be true or false in the sense discussed in the authorities on fraudulent misrepresentation'. In these circumstances, their Honours said at [100] that the practitioner's conduct 'will generally properly be characterised as professional misconduct'.
76 The Tribunal's decision that the practitioner's conduct constitutes professional misconduct rather than unsatisfactory conduct is consistent with what was said in the Court of Appeal's decision. Martin CJ said at [50] that the Tribunal's finding in the original decision that the practitioner was guilty of unsatisfactory professional conduct 'would be a surprising conclusion if the Tribunal had found that the practitioner was wilfully indifferent to the truth or falsity of the paragraph in the affidavit which he settled.'
77 Buss JA said at [115] that 'it would be open to the Tribunal to conclude that, in the circumstances revealed by the record of the proceedings before it, [the practitioner] had engaged in professional misconduct or unsatisfactory professional conduct'.
78 Edelman J said at [151]:
A finding of subjective recklessness would have been an extremely serious finding that a legal practitioner settled an affidavit without caring about the truth of an assertion by his client that 'my bail conditions were varied so that I may spend time with the children supervised'. The finding would be even more serious in circumstances in which the client had informed the practitioner two months earlier that the client intended to plead guilty to seven charges of indecently dealing with a child under the age of 13 years, and two charges of sexual penetration of a child under the age of 13 years. It is difficult to see how a finding of recklessness, if intended in a subjective sense, could have been considered to involve a failure to reach or maintain a reasonable standard of competence and diligence but not to involve a 'substantial' failure.
The appeal against the Tribunal's supplementary decision on penalty
79 The Court of Appeal's decision included a finding that of necessity the Tribunal's supplementary decision contained in Legal Profession Complaints Committee and Guidice [2012] WASAT 144 (S) must also be set aside. That supplementary decision was in respect of the penalty imposed by the Tribunal upon its findings in the original decision, along with the Tribunal's orders as to costs.
80 The Tribunal will therefore hear from the parties as to the appropriate penalty following our reconsideration of the matter. We will also hear from the parties in respect of the appropriate orders for the costs of the original proceedings.
81 We are prepared to receive also the parties' submissions as to costs in respect of the proceedings in the Tribunal following the Court of Appeal's decision. However, our provisional view of that issue is that there should be no orders as to those costs.
Orders
1. There is a finding that Mr Peter George Giudice is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) when he caused to be prepared under his supervision and caused to be sworn, filed and served in court proceedings an affidavit sworn by his client which contained a false statement and he recklessly disregarded whether the statement was true or false. This conduct involves a substantial failure to reach a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
2. The Legal Profession Complaints Committee is to file and serve any submissions on penalty and costs within 21 days of publication of these reasons.
3. Mr Giudice is to file and serve any submission on penalty and costs within 21 days of service of the Legal Profession Complaints Committee's submissions.
4. Subject to any further order of the Tribunal, the question of penalty and costs is to be dealt with on the papers.
I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT
APPENDIX
Reasons of Senior Sessional Member Phillips in dissent
1 The broad facts and history of this matter together with the principles of law to be applied are set out at paragraphs 1 - 44 of the Reasons for Decision of Deputy President Sharp and Member Gillett of the Tribunal in this matter above.
2 In relation to the Court of Appeal's decision I would add the words of Edelman J at [151]:
… A finding of subjective recklessness would have been an extremely serious finding that a legal practitioner settled an affidavit without caring about the truth of an assertion by his client that 'my bail conditions have been varied so that I may spend time with my children supervised'. The finding would be even more serious in circumstances in which the client had informed the practitioner … that the client intended to plead guilty to seven charges of indecently dealing with a child under the age of 13 years and two charges of sexual penetration of a child under the age of 13 years.
The ambit of the enquiry
3 In considering the state of mind of the practitioner in accordance with these principles I must consider (see the Court of Appeal's decision Edelman J at [159]) in light of the nature and seriousness of the allegations , the practitioner's evidence as to his state of mind and all of his evidence that may be relevant, but also all the surrounding circumstances including (relying to some extent on the words of Buss AJ at [99] in addressing what should be taken into account in determining the degree of misconduct of which the practitioner may be guilty) the relevance and materiality of the statement, the other documentation prepared and filed at the time, the type and magnitude of the risk, the duties owed as a practitioner to the Court and the intended use (to the practitioner's knowledge) of the affidavit in Family Court proceedings.
4 As Edelman J pointed out at [156]:
… The practitioner's evidence, if accepted, was that he was not reckless. Any conclusion that the practitioner was reckless could only be drawn as a matter of inference from other facts.
The burden of proof
5 As this Tribunal held in its earlier Reasons for Decision [64] the Committee must prove its case on the balance of probabilities but the seriousness of the matter and its consequences is to be taken into account in assessing the strength of the evidence necessary to establish a fact required to meet that standard; Legal Profession Complaints Committee and Caine [2010] WASAT 178 at [29].
6 As Justice Dixon held in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 62:
… the seriousness of the allegation made , the inherent unlikelihood of an occurrence of a given description ,or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
The previous decision and current parameters
7 When hearing this matter in 2012 I concluded that the practitioner was in general terms a reliable witness but I formed an impression that the practitioner was reluctant to admit that the statement in paragraph 20 of the affidavit was false. He seemed reluctant to admit that it had the possibility to mislead. He appeared prima facie to be reluctant to admit that it was his responsibility to ensure the truth of the statement. The practitioner had delegated responsibility to an untrained inexperienced clerk to draft the affidavit. He accepted that his knowledge of the bail conditions was incomplete.
8 The practitioner's evidence appeared to me as somewhat casual to what was an extremely serious issue. The practitioner had settled paragraph 20 of the affidavit by including only that part of the Criminal Court Magistrate's order that was favorable to his client.
9 The provisions of the order which were protective of the children of his client included relevantly that the bail the client was seeking (to have contact with his children) was refused at the time of the application for bail, that bail would be varied if the Family Court so ordered and further that the variation would only apply if the client's wife was a party to the Family Court proceedings (the protective provisions).
10 These considerations deflected me from the enquiry as to what was actually in the practitioner's mind and caused me to give little or no attention to some evidence which I now see as crucial.
11 To further cloud the picture the practitioner gave evidence (for example, at T:228; 30.05.12) that when he heard that the client's wife, her solicitors, and the police were all of the view that the affidavit was false at paragraph 20 he assumed at first that contrary to his understanding when he settled the affidavit, Mr Arndt must have got the Magistrate's decision wrong, and that '… bail had not been varied in any way at all.'
12 The practitioner averred that given this assumption he went into a spin and proceeded at first on that basis to confess to the police that he had made a mistake in drafting the affidavit. Later when he read the transcript of the proceedings before the Magistrate he took the view (T:229; 30.05.12) that Mr Arndt had made no such mistake.
13 At first I reached a conclusion that it was rather glib of the practitioner to rely on that scenario to argue that there was no mistake when, as I had concluded, paragraph 20(in leaving out the protective provisions of the orders made by the Magistrate on the bail application) was false.
14 Finally during cross examination it was put to the practitioner at least at first (T:128; 29.05.12) that on 22 January 2009 the Magistrate (whilst indicating a preparedness to vary bail) did not in fact make an order varying bail to allow the client contact with his children subject to the protective provisions, and this further complicated the task of evaluating the evidence of the practitioner.
15 However on this point the Committee conceded in submissions at the end of the hearing that the paragraph set out in the letter of Mr Arndt to his client after the bail application on 22 January 2009 was accurate for the purposes of our analysis of the case. The relevant words are set out at paragraph 19 of the Tribunal's Reasons for Decision of Deputy President Sharp and Member Gillett in this matter.
16 On the remittal hearing to take submissions from each party the Committee's counsel confirmed that the Committee proceeds on the basis, favorable to the practitioner, that it was reasonable for the practitioner to assume that the Magistrate had made the orders that Mr Arndt recorded him as having made, so the falsity alleged is that the protective provisions were not recorded in the affidavit.
The terms of the application and affidavit
17 Taken on its own the second sentence in paragraph 20 of the affidavit was gravely misleading.
18 However in determining what was in the mind of the practitioner I need to have regard to the case the practitioner prepared for his client to put to the Family Court.
19 In the application filed with the affidavit concerned, the client sought final orders including (Respondent's Book of Documents (RBOD) at page 197):
4. Provided Centrecare Geraldton assesses the Applicant suitable for supervised contact the children spend time with the Applicant until he is sentenced in the District Court … Such contact to be supervised by and in accordance with the directions of Centrecare … .
6. The parties contact Centrecare Geraldton within 7 days and arrange an appointment for assessment for suitability for supervised contact …
11. The type and level of supervision of contact shall be as determined by Centrecare Geraldton.
20 A similar provision was sought for interim orders (RBOD at page 204).
21 The affidavit as filed was in these terms:
1. I [the client] of [address], [occupation] being duly sworn make oath and say as follows;
2. I am the Applicant Father herein.
3. I swear this affidavit in support of my Form 1 Application for Final Orders and Form 2 Application in a Case that the children [B] born 8 December 2000 and [G] born 21 September 2002 ('the children') spend time with me.
THE HISTORY OF THE RELATIONSHIP
4. The mother of the children is [the client's wife] (J).
5. We began living together in early 2001, just after the birth of [B].
6. Patricia has two children from a previous relationship, [M] and [Z].
7. We also had our own children [B] and [G], the children subject of this application.
8. We were married on 1st July 2006.
9. We separated in October 2006.
10. On 19 November 2007 parenting and property orders were made in the Magistrates Court at Geraldton whereby [the client's wife] and I share equal responsibility for the long term care welfare and development of the children and that the children live with [the client's wife] and I spend reasonable time with them as agreed.
11. Now annexed hereto and marked with the letter 'A' is a copy of those orders dated 19 November 2007.
12. On 17 October 2008 an agreement was reached between the parties at the Family Relationship Centre stating that the children shall spend time with their father every alternate week.
13. Now annexed hereto and marked with the letter 'B' is a copy of the agreement dated 17 October 2008.
14. I have never had any sexual feelings towards [B] or [G].
REASONS FOR THE APPLICATION
15. On 21 November 2008 I was charged with 7 counts of indecently dealing with [M] being a child under 13 years and 2 counts of sexual penetration of [M] being a child under 13 years.
16. [M] is now 15 years old and born 8 November 1993. She was 11 and 12 years old when the offences have alleged [sic] to have taken place.
17. Now annexed hereto and marked with the letter 'C' is a copy of the Statement of Material Facts in relation to those charges.
18. I admitted to these offences and pleaded guilty to them on 8 January 2009.
19. [M] was also residing with us, while the Respondent Mother and I lived together from early 2001 until we separated in October 2006.
20. My original bail conditions of 27 November 2008 were that I was not to contact or attempt to contact the complainant or the complainant family by any means, On 22 January 2009 my bail conditions were varied so that I may spend time with the children supervised.
21. I am due to be sentenced on 4 May 2009.
22. I have been told by my lawyers it is likely that I will be imprisoned, and that this imprisonment could be 5 years or more.
23. I want to maintain a relationship with the children by spending time with the children and I realise that the Respondent Mother and the Court would require supervision ideally each weekend before I am sentenced and imprisoned.
24. I wish to see the children before I am imprisoned as it may be a long time before I am released and am able to see them again.
25. I have taken advice from the Centacare Geraldton Co-ordinator and I will be guided by the experts as to what I say to the children in the event that they ask me about the offences or any matter arising such as imprisonment. I tend to the view that if I do not have to say anything I won't, but as I say I will be guided entirely by expert advice.
26. I want to be able to tell the children that I love them, that I am proud of them and that I am sorry, although as I said I will be strictly guided in that last respect.
27. There has been no illegal, immoral or inappropriate behaviour of any kind toward [B] and [G] and our relationship has been happy and caring.
28. I also would like to maintain contact with the children through regular phone contact with them while I am in prison and in time personally by way of prison visits to ensure that when I am released from prison they know who I am and we can continue to have a relationship.
22 It is clear from the terms of this affidavit read with the orders sought that the affidavit is drawn with a frank disclosure of what the risks are for the children the subject of the application and is drafted on the presupposition that the applicant does not have the right at this stage to have contact with his children but (by implication) that the Family Court is being called upon to make an order which for the first time since the client's remand on 22 November 2008 and plea of guilty on 8 January 2009, will permit the client to have contact with his children on a supervised basis.
23 An affidavit should not be read alone but with the application the affidavit is designed to support, a point which I regrettably overlooked in our decision in 2012.
24 In analysing (in disciplinary proceedings concerning an alleged false statement) words in an affidavit filed in Court the affidavit should always be read in the context of the application the affidavit is filed to support because the terms of the application determine the purposes for which the affidavit is filed and therefore are essential in interpreting the meaning to be given to the words of the affidavit.
25 Amalgamating paragraph 20 of the client's affidavit with paragraphs 4, 6 and 11 of the final orders sought by the client in his application to the Family Court, the practitioner's case is that the thrust of paragraph 20 is that:
[W]hilst bail has been provisionally varied to allow contact with my children, supervised, this is subject to this Court (The Family Court) satisfying itself that I am suitable to have such contact in accordance with proper expert assessment and then making an order for that type and level of assessment of contact for which I may be found suitable.
26 When paragraph 20 of the affidavit is read in the context of the application and the other terms of the affidavit there is a stark inconsistency between the ordinary meaning of the words used in paragraph 20 and this context which alerts the reader to look for another meaning. The alternative meaning is that the Criminal Court Magistrate has given a clearance to a grant of bail for the client to contact his children (the words: 'if the Family Court so orders' being absent but necessarily implied in the full context of this application to the Family Court.)
Information the family court would require in the affidavit
27 As noted the second sentence of paragraph 20 said that '… my bail conditions have been varied so that I may have contact with my Children supervised' but neglected to specify the protective provisions.
28 One provision protective of the children was that Bail was refused for the client to have contact with his children until the Family Court ordered otherwise.
29 As discussed this provision was arguably unnecessary to record in the affidavit as this was presupposed in the context of the whole of the documentation filed.
30 If the Criminal Court Magistrate had permitted bail on 22 January 2009 there would have been no need for the practitioner to make the application the subject of the affidavit because the practitioner could merely have written to the mother proposing contact arrangements, as the practitioner explained (T:211 and 233; 30.05.12).
31 Another provision protective of the children was that the bail could not be varied unless in the relevant Family Court proceedings the client's wife was a party. In the application concerned here the client's wife was in fact a party. Therefore there was arguably no need for the practitioner to incorporate this provision in the affidavit (T:211; 30.05.12).
32 The Committee must therefore persuade this Tribunal in accordance with the degree of exactitude of evidence required that the practitioner was reckless in failing to add at paragraph 20 of the client's affidavit, in the practitioner's words (T:188; 30.05.12) '… pursuant to a Family Law Order', or (T:207; 30.05.12) '… by order of a Family Court Magistrate'.
The risk and the consequences
33 In determining whether the practitioner was aware in his own mind that there was a risk that the statement in paragraph 20 was false I ask whether the absence of the words '… by order of a Family Court Magistrate' could have misled the Family Court in the context of all the terms of the affidavit and the application filed with the affidavit.
34 In this context those words so left out were a reference to the very requirement the applicant was actually addressing in the Family Court proceedings. That is the applicant was seeking an 'order from a Family Court Magistrate' by the filing of the subject application and affidavit.
35 When read out of context the statement in paragraph 20 of the affidavit was false and gravely misleading. When read in context the statement could arguably be seen to be true enough for the circumstances in that by necessary implication, from the fact of the application and its terms, and read with the whole of the affidavit, an order of the Family Court was a prerequisite to bail being granted to the client to have contact with his children. In that context it could be argued that paragraph 20 carried with it, from an objective and informed perspective, no inherent risk that it might mislead either the Court or the client's wife.
36 There was significantly more to the bail terms than the protective provisions, for example the terms about allowing the client on certain conditions to clear out his house, but the practitioner's case is that these terms were not pertinent to the Family Court application. I agree.
37 Whilst the practitioner's knowledge was incomplete of all the bail terms the practitioner had no need for a complete knowledge of those terms in settling this affidavit .Thus when the practitioner says in his evidence that he left certain details of bail terms to others in his office when settling the affidavit that is of no consequence in this case.
The responsibility assumed by the practitioner
38 I accept that the Family Court only needed to know the protective provisions which would have been adequately encapsulated in the words added to paragraph 20 of the affidavit 'by order of a Family Court Magistrate'.
39 The practitioner accepted in his evidence (T:127128, 204, 205, 207, 210; 30.05.12) )that he was well aware of this requirement when he settled the affidavit. He would otherwise not have been making the application to the Family Court on behalf of his client.
40 He also accepted , as the Committee submitted, full responsibility for the wording of the affidavit (T:124; 29.05.12).
41 In those circumstances in my opinion the fact that the novice law clerk or any other officer had been involved in preparing the draft affidavit is not to the point and the amount of time the practitioner spent settling the affidavit is also irrelevant.
The practitioner's case
42 In summary the practitioner's case was that to allege he intentionally or recklessly settled a false statement to inform the Court or indeed to inform the client's wife by leaving out a stipulation as to the very matter he was addressing in the affidavit on behalf of his client, an application to the Family Court for orders for contact with his children, makes no sense.
43 The practitioner said in his evidence in re-examination (T:228; 30.05.12):
… that sentence in paragraph 20 should be looked at in the context of the whole of the documentation including the application and that what it really is saying is that bail was varied in the sense that the prohibition against me seeing my children has been removed, it's gone enabling me to obtain, have supervised contact with my children as ordered by a magistrate in the Family Law jurisdiction”
44 As the practitioner saw it the words '… by order of a Family Court Magistrate' would have been superfluous.
45 This may be seen to be a careless approach and a clumsy effort given the possibility that the client's wife for example might easily misunderstand the intended import of the paragraph as she did in fact in the circumstances.
46 However it appears to be an understandable attitude on the part of the practitioner given the above conclusions and it sheds light on the manner in which the practitioner answered some questions in cross examination. On this view the practitioner in his evidence was not evading responsibility for anything or denying the importance of the truth, but was genuinely mystified that so much could be made of the absence in the affidavit of the provisions in the Bail order that he was actually addressing in his client's application to the Family Court.
47 The practitioner's purpose in incorporating the second sentence in paragraph 20 of his client's affidavit was not to encompass all the terms of the bail orders made by the Criminal Court Magistrate but to inform the Family Court that the preclusion on bail being allowed for the client to see his children was lifted if and so far as the Family Court so ordered.
The practitioner's evidence - credibility
48 The practitioner relied on others for accuracy of the affidavit (T:103, 193, 194; 29-30.05.12) but on the salient point as to amplifying paragraph 20 of the affidavit to record the requirement for a Family Court order(T:207; 30.05.12) he was quite clear in his own mind and had a correct understanding of the relevant orders of the Criminal Court Magistrate.
49 The practitioner admitted that his knowledge of the bail conditions was not complete (T:104 29.05.12) but the bail conditions (aside from the clause included in paragraph 20 and the protective provisions) were not relevant as discussed above.
50 The cross-examination of the practitioner as to whether and what notes he had read of Mr Arndt (T:203-205; 30.05.12) is not relevant given the practitioner admits that he knew and had well in mind the protective provisions(T:207 and 210; 30.05.12).
51 The following passage of cross examination is relied on by the Committee to prove the practitioner agreed that he did not think he had enough knowledge to ensure that affidavit was truthful. (T:105; 29.05.12):
Counsel '…you thought at the time you read the affidavit, you had enough knowledge to ensure that the affidavit was truthful?---I didn't think that.'
52 I interpose here to comment that in my view he did have enough knowledge to ensure that the affidavit was truthful in relevant particulars. Further he may have been conveying that he 'did not just think that … [he] knew it was true'. He may have been conveying that he was relying on Mr Arndt's report and was reluctant to say that he thought his own direct knowledge was sufficient to ensure the accuracy and truthfulness of the affidavit. The practitioner may simply mean in his answer that whilst he always ensures the truth of affidavits he drafts, he did not turn his mind specifically to thinking about whether or not he had sufficient knowledge to be sure it was truthful on that occasion. In order to draw an inference adverse to the practitioner from that passage in my opinion the practitioner would have to be asked whether he was saying positively that he was in a position where he did not have sufficient knowledge to ensure that the affidavit was truthful and if so in what respect.
Counsel continued:---Settling the affidavit requires you to be able to be sure that it is truthful, doesn't it?---That's your interpretation of settling that it requires me---
My question was---?---to make sure that it is truthful.
My question was---?---I would have – anyway, yes.
53 These answers do not necessitate a conclusion that the practitioner is saying he denies that his role is to ensure the affidavit is truthful because in the context of the cross examination he did not finish his sentence as to what counsel's interpretation of settling the affidavit was. He may have simply been wary of admitting that he should have included some of those bail conditions which were in his view superfluous or irrelevant and he confirms he would have ensured the truthfulness of the affidavit anyway. See also the practitioner's agreement that it was important for the affidavit to be accurate, complete and not mislead. (T:127; 29.05.12).
54 Also I note the practitioner's evidence in cross examination immediately preceding the above passage of evidence (T:104; 29.05.12):
Counsel continued: You did not consider that you needed to have a complete knowledge of the bail conditions to settle this affidavit?---That's right.
You thought you knew enough about the bail conditions to ensure that this affidavit was accurate?---That's right.
You thought that you knew enough about the bail conditions to ensure the affidavit was truthful?---I thought that I could rely on Ryan to communicate to Amanda what the bail situation was, and when I read this it accorded with what he had told me.
55 Further the practitioner expressly asked the Family Court in the application(RBOD at page 197) on behalf of his client (accompanying the affidavit) to order that the client be assessed to determine whether the client might be suitable for supervised contact with his children. This gives an innocent explanation for the practitioner's apparent reluctance to admit there was anything untruthful in paragraph 20 and negates the conclusion the Committee asks us to draw that the practitioner's whole approach to his cross examination was one of abdicating responsibility for ensuring the affidavit was truthful.
56 Seen in this light and with great respect to those who take the contrary view I have concluded that my opinion formed after the hearing in 2012 was wrong.
57 The practitioner's case was that it would be clear to the Family Court from the application and the whole of the affidavit (T:211; 30.05.12) that bail had to that point been refused unless and until the Family Court so ordered.
58 Given my conclusion that the practitioner had an understandable belief to justify not recording the requirement for a Family Court Order in the affidavit because that was precisely what he was addressing in the application, I make no adverse finding against the practitioner in relation to his refusal to admit that the paragraph 20 was false or to admit that it was likely to mislead (see T:124, 127, 128, 207, 209, 212; 29-30.05.12, the practitioner saying that it was '…true as far as it goes.')
59 I am satisfied that adverse inferences against the practitioner cannot be drawn from the cross examination as the implications of the terms of the application filed with the affidavit, which the affidavit was drafted to support, were not the subject of cross examination of the witness in the circumstances to establish the recklessness alleged.
60 I turn again to that passage relied on by the Committee to establish the practitioner's reckless attitude to the task he had in settling the terms of the affidavit (T:105; 29.05.12). The practitioner in saying 'that's your interpretation of settling ,that it requires me …' was I think in substance the practitioner beginning to say that the Committee was interpreting the words he had used in paragraph 20 and the fact that he had failed to mention the bail provisions protective of the children in paragraph 20 , out of context and in particular without reference to the application filed with the affidavit which, with the affidavit ,truthfully set out the relevant matters for the Court and the client's wife.
61 In my opinion if that was the practitioner's thinking the practitioner was right. This was the interpretation the Committee was putting to the practitioner, but if this is unfair to the Committee it was in any event a reasonable conclusion for the practitioner to reach in cross examination.
62 I note that in the letter of the practitioner to Detective Keals of 27 May 2009 (RBOD at page 55) the practitioner said
In the context of … [the letter of Mr Arndt to his client dated 23 January 2009] … what is meant by paragraph 20 of the affidavit is that because bail has been varied to allow 'contact with the children as provided by any order of a court … under the Family Law Act' the bail conditions no longer precluded an order for contact being made.
63 This appears consistent with the practitioner's evidence at the Tribunal hearing as to what he thought paragraph 20 meant.
64 In the letters sent by the practitioner to the Committee dated 17 August 2009 (RBOD at page 66) and 26 February 2010 (RBOD at page 89) the practitioner focused on the apparent mistake in relation to the Magistrate not making the order that he said he was prepared to make on the bail application on 22 January 2009. The practitioner did not say he thought paragraph 20 was true or true enough.
65 But I am unable to deduce from this that he should not be believed at the hearing of this matter when he averred that he had in his mind at the time he settled paragraph 20 that paragraph 20 read in context was true enough. At the time of writing these letters there was confusion over the question whether the Magistrate had made the relevant order and I do not think the practitioner was specifically addressing the question of what he had in his mind at the time he settled paragraph 20.
66 Also in the practitioner's evidence in chief by statement (Exhibit 4) at paragraphs 120 and 157 and following he only addresses the issue of whether there was a mistake made in assuming the Magistrate had made an order when it could be said that no order had been made. It seems to me consistent with his evidence that he believed the Committee were saying that this was where the falsity lay and that he did not think that the Committee was alleging the falsity lay in failing to mention in paragraph 20 the protective provisions, or at least this suggests he did not think that allegation carried such weight as to need an answer. His failure to address what was in his mind as to the meaning to be given to the second sentence in paragraph 20 when he settled it, does not warrant a conclusion that he must have known there was a risk the statement was false.
The practitioner's evidence of what was in his mind
67 The evidence of the practitioner as to what was in his mind appears especially in his cross examination (T:207-211; 30.05.12).
68 The practitioner had in his head at the time he settled the affidavit that there was no need to put in the bail provisions protective of the children of his client, which would have been neatly encapsulated in the words 'pursuant to an order of the Family Court', because in the context of the application and affidavit terms and given that was precisely what the client was now seeking, those words were superfluous.
69 When he read the draft of paragraph 20 of the affidavit (T:104; 29.05.12) nothing indicated to him that there was anything wrong with it.
70 In addition the evidence of the practitioner was (T:226228; 30.05.12) that the path taken of applying to the Criminal Court Magistrate to, in short, get a clearance from that Court to vary bail if and so far as the Family Court should order, was a common one in Geraldton and this goes to the practitioner's state of mind.
71 On the hearing of the parties' submissions on the remittal of this matter to this Tribunal, counsel for the practitioner submitted that the explanation the practitioner gave was that he had misread in effect paragraph 20 of the affidavit (T:38; 06.11.14).
72 Counsel for the Committee then submitted that that was not the evidence of the practitioner. Counsel for the Committee submitted: 'At no point in his evidence did (the practitioner) ever suggest that he considered the accuracy of paragraph 20.' His sworn evidence was: 'I reviewed the affidavit only for grammar and to make sure that all the relevant material matters were in there, but I did not review the affidavit for its accuracy or truthfulness.'
73 Counsel for the practitioner then responded: '… if I said his evidence was that he misread it, I withdraw that. I agree.'
74 In my opinion whilst the practitioner never said in his evidence that he misread paragraph 20, that was because he thought the ordinary meaning was not open (in the context that the client is making his application to the Family Court and given the terms of that application) and that the meaning he assigned to paragraph 20 was therefore true enough and the only meaning available. Thus I conclude that in all likelihood the practitioner would say that if it were held that the ordinary meaning should prevail with its attendant falsity, then he did in fact at the time misread paragraph 20.
75 As will be seen from the analysis especially at paragraphs 51 to 55 above the practitioner in my opinion never admitted that he lacked the knowledge in salient respects to settle accurately and truthfully paragraph 20 of the affidavit nor was his evidence to the effect that he did not review the affidavit for its accuracy or truthfulness in relevant respects.
Conclusion
76 The allegation that the practitioner actually knew in his own mind that there was a risk that the statement was false then proceeded to arrange for the statement to be sworn and filed not caring in his heart and conscience whether it was true or false is unsustainable as it is illogical in circumstances where the practitioner has left out in one sentence in an affidavit supporting an application to the court points of truth rendering the ordinary meaning of that sentence false yet by the very fact of making the application and by the words of that application he clarifies or reveals or performs those points of truth.
77 To the practitioner the statement is rendered true enough by the action of making the application and by the words of the application and the whole of the affidavit and it can therefore be stated positively that the practitioner thought in his mind that at the time of making the application the Court was being fully and aptly informed of the whole truth.
78 The points of truth concerned were that the Magistrate sitting in the criminal Jurisdiction had varied bail conditions so that bail no longer precluded the client having contact with his children if and in so far as the Family Court, (in proceedings to which the client's wife is a party) so ordered, and the applicant needed an order from the Family Court before he may have contact with his children and that in view of the seriousness and relevance of the charges to which he had pleaded guilty, expert opinion would be required to determine whether and to what extent contact may be suitable before any such order could be made.
79 Therefore I conclude the practitioner was not aware of the risk that the statement was false when he settled paragraph 20 of the affidavit and it follows that he did not proceed in conscious disregard of any such risk.
Should the issues of whether the statement was false and whether the evidence leaves open a finding of recklessness, be revisited
80 In relation to whether paragraph 20 of the affidavit was false and if so whether it is open to the Tribunal to find that the practitioner recklessly made the statement, the Supreme Court has answered those questions in the affirmative and it is not open to this Tribunal to determine otherwise.
81 However, I am unsure whether the Supreme Court was addressed on the inconsistency that becomes apparent in accepting the ordinary meaning of the words in paragraph 20 when paragraph 20 is read in the context of the application and the whole of the affidavit .
82 Also I played a part in a range of conclusions of the Tribunal after the first hearing in this matter from which I now resile so in conscience I must raise the issue.
83 Should the second sentence in paragraph 20 be characterized as false (for the purpose of these disciplinary proceedings) in a material particular when read in the full context of the affidavit and the application?
84 Can it be said that a practitioner is deliberately risking concealing a truth with one hand (concealing a truth in the sense of being aware the statement may be false and proceeding nevertheless to arrange for the swearing, filing and serving of the statement not caring in his heart and conscience whether it be true or false) which very truth he is contemporaneously revealing or performing with the other hand?
85 Would the more apt complaint be that the practitioner was negligent in the circumstances (although questions of duty and foreseeability then arise)? However, negligence was not alleged in this case.
86 These questions are raised because, on the analysis I have now undertaken, if I were to simply read the affidavit and application I would find it difficult to conclude that this complaint was proved even if I went on to hear all the other evidence and were to find the practitioner not to be believed on his oath. The practitioner caused his client to reveal or perform by other means those points the absence of which rendered the statement, in its ordinary meaning and on its own, false.
Result
87 I would dismiss the complaint.
Senior Sessional Member Phillips
2 February 2015
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