Loomis and Thurston and Anor
[2016] FamCA 269
•27 April 2016
FAMILY COURT OF AUSTRALIA
| LOOMIS & THURSTON AND ANOR | [2016] FamCA 269 |
| FAMILY LAW – EVIDENCE – Subpoena – Whether the husband should be granted leave to use subpoenaed material – Where the documents intended to be used to support appeals to the Full Court and applications to Legal Services Commission, Government and Police authorities – Where the subpoenaed documents not in evidence before the Court at first instance – Where husband would have to seek leave from the Full Court to adduce fresh evidence – Where the husband alleges the wife’s former solicitor has committed perjury, “disentitling conduct” and “professional misconduct” – Where the husband’s application designed to “harass, annoy and/or cause detriment” to the wife’s former solicitor – Application dismissed. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 92A(2), 102Q, 102QB & 118 Legal Profession Act 2007 (QLD) Part 3.3 Division 6 |
| CDJ v VAJ (1998) 197 CLR 172 Marsden & Winch (2013) FLC 93-560 |
| APPLICANT: | Mr Loomis |
| RESPONDENT: | Ms Thurston |
| INTERVENER: | Mitchell Lawyers |
| FILE NUMBER: | BRC | 1010 | of | 2012 |
| DATE DELIVERED: | 27 April 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 19 April 2016 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
| SOLICITOR FOR THE INTERVENER: | Mr Mitchell Mitchell Lawyers |
Orders
That the application brought by Mr Loomis for leave to use documents produced by Mitchell Lawyers to this Court in November 2015 pursuant to subpoena in his appeals NA 064/15 and NA 7/2016 and in the Legal Services Commission and other Government and Police authorities is dismissed.
Mr Loomis shall forthwith return any and all copies of those documents produced by Mitchell Lawyers to this Court pursuant to subpoena in November 2015 to the Court.
The Registry Manager of the Brisbane Registry of this Court shall return the documents produced by Mitchell Lawyers to this Court pursuant to subpoena in November 2015 along with any and all copies of those documents returned to this Court by Mr Loomis pursuant to paragraph (2) hereof as soon as practicable.
Mr Loomis shall be heard in respect of the application by Mitchell Lawyers for him to pay their costs of and incidental to the hearing and determination of these applications.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Loomis & Thurston and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1010 of 2012
| Mr Loomis |
Applicant
And
| Ms Thurston |
Respondent
And
| Mitchell Lawyers |
Intervener
REASONS FOR JUDGMENT
On 25 January, 2016, Mr Loomis was given leave by me to file an Application in a Case and supporting affidavit in these proceedings. That came before me in my judicial duty list on 15 February, 2016.
By paragraph 3 of that Application in a Case, Mr Loomis seeks the Court’s leave to use documents produced pursuant to subpoena by Mitchell Lawyers in the appeal to be heard by a single judge (who I was informed will be Justice Murphy) in appeals NA 064/15 and NA 7/2016 and “any subsequent hearings before the Legal Services Commission or any hearings in relation to Contempt and Perjury in this matter”.
On 12 February, 2016, Mitchell Lawyers filed an Application in a Case in the matter, in which the following orders are sought:
1.That Mitchell Lawyers has leave to intervene.
2.That Application filed on 25 January 2016 by the Applicant [Mr Loomis] in relation to Mitchell Lawyers is a vexatious application.
3.The Application filed on 25 January 2016 by the Applicant in relation to Mitchell Lawyers is dismissed and the Applicant shall pay the costs of Mitchell Lawyers to be assessed.
4.The Applicant is restrained, and an injunction is hereby granted restraining him, from using the documents produced to this court as a result of the subpoena served by the Applicant upon Mitchell Lawyers and he is restrained from using in any way any information derived from those documents.
5.Within 2 days the Applicant shall deliver to Mitchell Lawyers all copies the Applicant has in his possession of the document produced to this court as a result of the subpoena served upon Mitchell Lawyers.
6.The Applicant [Mr Loomis] shall pay to Mitchell Lawyers the sum of $1,568.52 in relation to the costs of complying with the subpoena to produce documents served by the Applicant upon Mitchell Lawyers.
7.The unpaid balance of any amount owed by the Applicant to Mitchell Lawyers under an order made in any court shall be a charge against any money ordered to be paid to [Mr Loomis] pursuant to any final orders made by this court for the division of property.
On 15 February, 2016, Mr Mitchell, the Principal of Mitchell Lawyers, appeared on his own behalf in response to the application Mr Loomis had included in paragraph 3 of his Application in a Case just referred to. Mr Loomis appeared on his own behalf and Ms Thurston appeared on her own behalf.
The hearing of Mr Loomis’ application in respect to the Mitchell Lawyers documents and the Mitchell Lawyers’ cross-application was adjourned that day on Mr Loomis’ request to be heard in my judicial duty list on 18 April, 2016. Mr Loomis asserted he had not had enough notice to consider, and prepare to meet, Mitchell Lawyers’ application. That is why it was adjourned.
The background
Mr Loomis and Ms Thurston have been parties to parenting orders, child support departure orders and property adjustment orders proceedings in this Court and the Federal Circuit Court (“the FCC”) now for several years. Those proceedings have been highly conflictual, productive of many applications and masses of affidavit material and extraordinarily time consuming for the registry staff and judicial officers of the two courts.
The parenting orders proceedings took place in the FCC and have been concluded. The trial in the property adjustment and child support departure proceedings took place before me over four days commencing on 7 December, 2015. I reserved my judgment at the end of the proceedings when the evidence was completed. I made provision for written submissions to be filed and served by each party with the final set of written submissions to be before me by sometime in January of this year and my judgment in the matter remains reserved.
At various times over the last few years, Ms Thurston has been represented in the proceedings in both courts by Mitchell Lawyers. On 19 November, 2015, I made some procedural orders as part of the preparation for the trial that was to take place before me in December, 2015. That day, documents had been produced to the Court pursuant to subpoena by Mitchell Lawyers. That subpoena had been issued out of the Court on the application of Mr Loomis after previously having come to Court seeking leave for such a subpoena to issue.
Mitchell Lawyers had lodged an Objection to the production of the documents. Mr Mitchell had prepared and filed written submissions in support of the objection. He did not appear on 19 November to make any oral submissions. I dismissed the objection and gave leave to each of the parties to inspect and photocopy, if required, the documents produced under subpoena by Mitchell Lawyers.
A little concerned about Mr Loomis’ intentions in respect of the documents, I explained to him that it is a contempt of court to use documents obtained by way of disclosure or subpoena in court proceedings for an ulterior purpose. After telling me he understood that, I sought an assurance from him that he would not use any of the documents obtained for purposes other than connected with the preparation of his case for the trial that was going to take place before me.
Mr Loomis gave me that assurance and I noted that in paragraph 5 of my orders made that day. Now, Mr Loomis wants to use some of the documents produced by Mitchell Lawyers on that day for other purposes.
First, he wants to be able to seek leave to put them into evidence on the hearing of appeals he has filed against costs orders made against him in favour of Mitchell Lawyers by Judge Howard in the FCC.
Second, he wants to be able to use them, in conjunction with affidavits filed by Mr Mitchell in the FCC, to present a case to the Legal Services Commission that Mr Mitchell has been guilty of professional misconduct.
Third, he wants to be able to use them, in conjunction with the affidavits filed by Mr Mitchell, to present complaints to the Queensland Attorney-General and Queensland Police Service (nominated by Mr Loomis as the persons he wishes to present complaints to) that Mr Mitchell has committed perjury in his affidavits.
Mr Loomis’ Appeals
By Applications in a Case filed in the FCC towards the middle of last year, Mr Loomis sought to reopen the parenting proceedings after the trial but whilst Judge Howard’s judgment remained reserved. Additionally, he sought to join in the proceedings in respect of costs issues, Mitchell Lawyers, as well as another firm of solicitors who had acted for the mother in the court proceedings at some point in time and Mr Peter Baston, a barrister who had acted for the mother in the proceedings from time to time.
The matter was before Judge Howard on 1 July, 2015. On that day, Mr Loomis informed the Court that he would not be proceeding against the lawyers and was no longer seeking that any of them be joined. Mr Mitchell applied for costs against Mr Loomis on behalf of Mitchell Lawyers. Mr Peter Baston applied for costs against Mr Loomis. There had been no appearance by the other solicitors.
Judge Howard reserved his judgment and made directions for the filing of written submissions. On 28 August, 2015, Judge Howard delivered his judgment. The orders he made that day included an order that Mr Loomis pay the costs of Mitchell Lawyers of and incidental to the applications filed by Mr Loomis on 18 June, 2015, 30 June, 2015 and 8 July, 2015, including the hearing on 1 July, 2015 and any submissions/affidavits pertaining to the applications.
On 22 September, 2015, Mr Loomis filed an appeal against that order. It is NA 064/2015.
Mr Loomis then filed an Application in a Case in the FCC seeking a stay of the order pending the hearing and determination of his appeal. That was heard by Judge Howard on 13 November, 2015 and dismissed. Mr Mitchell appeared that day. He again asked for a costs order against Mr Loomis.
Judge Howard ordered Mr Loomis to pay Mitchell Lawyers’ costs of and incidental to the unsuccessful stay application, fixed in the amount of $2,500.
That same day, Mr Mitchell asked Judge Howard to fix, by quantum, the costs that Mr Loomis was to pay pursuant to the costs order his Honour had made in Mitchell Lawyers’ favour on 28 August, 2015 that was already under appeal.
Judge Howard did that. He fixed the quantum of those costs at $5,441.
On 1 December, 2015, Judge Howard issued orders amending the orders made on 13 November, 2015. Included in the amended orders was an order that Mr Loomis pay Mitchell Lawyers’ costs fixed in the amount of $7,991 within sixty (60) days of that date (1 December 2015).
Mr Loomis lodged an appeal against that order. That, I understand, is NA 7/2016.
Mr Loomis’ affidavit in support of his application for the order to be able to use the documents in his appeals against the costs orders does not exhibit either of the two Notices of Appeal. He simply says in his affidavit that “one of the grounds of appeal is disentitling conduct” and that “the documents produced under subpoena are relevant to disentitling conduct on the part of Mitchell Lawyers in the aforementioned appeals. He then does set out what he asserts is one of the grounds of appeal. It is:
1. The Respondent was not entitled to costs due to disentitling conduct. I particularise their actions which invoke a disentitlement in accordance with the below authorities :-The most common circumstance in which the presumption may be displaced is evidence of disentitling conduct on the part of the successful party: Oshlack v Richmond River Council, above, at [40] and [69]; G R Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263. The disentitling conduct does not necessarily need to amount to misconduct: it may simply be any conduct “calculated to occasion unnecessary expense”: Lollis v Loulatzis (no 2) [2008] VSC 35 at [29]: Keddie v Foxall [1955] VLR 320 at 323-4. If considering a departure from the ordinary rule, the court should have regard to the principles of fairness underlying the making of any costs order: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]: Turkmani v Visalingam (No 2) [2009] NSWCA 279 at [13].
a. In Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 at [97]-[98]. Campbell JA set out the following (non-exhaustive) list of factors relevant to ousting the presumption that costs follow the event, as identified by McHugh J in Oshlack v Richmond River Council at [69]:2. where the successful party effectively invited the litigation (see Ritter v Godfrey [1920] 2 KB 47)
3. where the successful party unnecessarily protracted the proceedings
4. where the successful party prosecuted the matter solely for the purpose of increasing the costs recoverable.
With respect, Mr Loomis’ affidavit did not reflect an understanding on his part of the difficulties he faces in the appeals. He appeals discretionary determinations on costs. His appeals do not mean the costs matters will be heard afresh. He will have to persuade the judge of the Full Court that Judge Howard’s discretion erred, having regard to a long line of authority in which the applicable principles that apply to the determination of appeals against discretionary decisions have been well established.
Clearly, the documents produced by Mitchell Lawyers to this Court on 19 November, 2016 pursuant to subpoena were not in evidence before Judge Howard when he made either of the costs orders under appeal. Accordingly, Mr Loomis will only be able to put those, or any of them, into evidence in the appeals in the Full Court if he is granted leave to do so.
In considering his application to be given leave to use Mitchell Lawyers’ documents, or any of them, in the appeals, I am satisfied that I must have regard to this fact. Mr Loomis will not automatically be given leave to adduce further evidence in the appeals. The principles applicable to the reception of further evidence by the Full Court on appeals are set out in the High Court’s decision in CDJ v VAJ (1998) 197 CLR 172. It was said there, in respect of the statutory provision relating to the receipt of further evidence in s 93A(2) of the Family Law Act, as follows:
109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court’s jurisdiction is neither purely appellate nor purely original … Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
Mr Loomis’ further application in response
On 14 April, 2016, Mr Loomis filed a Response to an Application in a Case responding to Mitchell Lawyers’ application against him. The orders he sought from the Court in that document were as follows:
1.That the Application in a case by Mitchell Lawyers is dismissed.
2.That Mitchell Lawyers pay the amount of $8963 into the trust account of Rosen Lawyers forthwith to be held on account of the Applicant and Respondents in these instant proceedings.
In the Alternate to Order number 1
3.That Mitchell Lawyers Application in a case is adjourned and summarily dismissed if failing to comply with the below sub-paragraphs within 30 days.
i.That Mitchell Lawyers file a Financial Statement.
ii.That [Mr] Mitchell File a Financial Statement
iii.That Mitchell Lawyers provide their Audited Accounts for the years 2012 to 2015 inclusive and Management Accounts for 2016.
iv.That [Mr] Mitchell provide copies of his individual Tax Returns for the years 2012 to 2015
v.That Mitchell Lawyers produce Bank Statements reflecting the receipt of the amounts of interest received from monies held in trust on behalf of the parties.
vi.That [Mr] Mitchell identify the property reflected in the bank accounts of Mitchell Lawyers for which debits are directed to Mortgage Payments.
vii.That Mitchell Lawyers identify the Financial Institution and Account Numbers of any Accounts held Jointly or Solely in his Personal Name and any associated business.
viii.That Mitchell Lawyers produce the correspondence between themselves and Andrew Burrows of ABA Lawyers.
ix.That Mitchell Lawyers produce all correspondence between themselves, [Ms Thurston] and Mr PP and any party in respect of the sale of the [Boat].
4.That the court grant leave to use the material supplied under Subpoena and any Affidavits and transcripts and further material produced under these orders, supplied by and relative to Mitchell Lawyers in the Appeal to be heard by a single Judge in a matter of Mitchell Lawyers vs Loomis Appeal NA 064/15 and NA 7/2016 and any submissions to and hearings before the Legal Services Commission and relevant Government and Police Authorities.
5.That a Subpoena be issued to NAB Bank for the provision of Mitchell Lawyers Business Account from February 2012 to present date.
6.That a Subpoena be issued to the Financial Institutions identified in sub-paragraph 3 (v) above for the provision of Bank Statements February 2012 to present date.
Mr Loomis filed an affidavit in support of that document.
At the hearing on 18 April, 2016, Mr Mitchell initially objected to the short notice he was given to respond to this, but then conceded that the Court could go ahead that day to hear and determine those applications as well.
Mr Loomis’ evidence and submissions
Point 1 – Evidence establishing perjury and “disentitling conduct”
In his first affidavit filed in support of his application, Mr Loomis quotes parts of affidavits filed by Mr Mitchell. He says Mr Mitchell swore in May 2013 “I am the former lawyer for [Ms Thurston]” and went on to swear in the same affidavit “when I was last involved in this matter in Mid-April[2013]”.
Mr Loomis also quotes part of an affidavit he said Mr Mitchell swore in June 2015. He said Mr Mitchell swore “I was the solicitor for [Ms Thurston] from the 13th February 2012 to (approximately 23 April, 2013) and then from about Mid-September 2013 to 23rd October 2013. I also appeared in the Family Court at Brisbane on 24th April 2014 on behalf of [Ms Thurston] when an interim application was heard by Mr Justice Forrest. I also attended the parenting hearing on the 27th May 201 (sic) and sat in the court listening to the evidence during the afternoon”.
Mr Loomis also quotes part of an affidavit he said Mr Mitchell swore in November 2015 in which Mr Mitchell said “after 25th June 2012, I represented Ms Thurston for another approximately six months”.
I am satisfied that Mr Mitchell swore those matters attributed to him in various affidavits.
Mr Loomis then quotes from an affidavit of Ms Thurston. He says she said “although it is irrelevant why Mitchell Lawyers ceased to act for me, the reason is that once Mr Mitchell saw [Mr Loomis] was acting for himself he said to me that [Mr Loomis] would cost me a fortune in legal fees if I did not act for myself. I decided to act for myself. Mr Mitchell was right”.
Mr Loomis took me to some of the Mitchell Lawyers documents produced under subpoena. Those were copies of Memoranda of Account from February 2012 to October 2014. Those show that Mitchell Lawyers billed Ms Thurston in respect of substantial amounts of professional service provided to her for each of the months of February 2012 through to April 2013. They show that the firm billed her for some professional services provided to her in May, June, July and August of 2013 before billing her, again, in respect of substantial amounts of professional service provided to her in September, October, November, and December 2013. They then show the firm billing her for a far lesser amount of professional service in the months of February, March and April, 2014, before billing her for a substantial amount of professional services in May 2014.
Mr Loomis’ submission in respect of the quoted parts of the affidavits of Mr Mitchell and the Memoranda of Accounts produced by Mitchell Lawyers was that the billing of Ms Thurston for professional services provided to her by the firm in May, June, July, August, November and December of 2013 evidenced by those Memoranda of Accounts proves that Mr Mitchell perjured himself by swearing falsely in his affidavits in the passages quoted above.
In short, Mr Loomis submitted that by perjuring himself in that way, Mr Mitchell had acted in a way that amounts to “disentitling conduct”, one of the grounds of Mr Loomis’ appeals against Judge Howard’s costs orders. He submitted that this should entitle him to put the memoranda of accounts and the affidavits before the Full Court on the appeals.
In response, Mr Mitchell submitted that the accounts referred to by Mr Loomis do not prove that he has sworn false affidavit evidence. He submits that he is entitled to provide professional services to a client, as he did with Ms Thurston, from time to time, whilst she “represents” herself in proceedings in the Court. He submitted that the accounts do show that he billed Ms Thurston for work such as telephone advice, perusal of emails and the like during months that were not included in the months that he included in his affidavit assertions as to when he was representing her or acting for her in the Court proceedings, but that they do not prove that he was “acting for her” or “representing her” in the court proceedings at that time. He told the Court that he filed a Notice of Address for Service when he was representing her in the proceedings and that the court file would reflect that. He told the Court that Ms Thurston filed a Notice of Address when she was representing herself.
Being the solicitor on the record for a party and representing them in proceedings in the FCC or this Court at one point in time during proceedings in the court, does not, in my judgment, disentitle a solicitor from providing some professional services on a fee for service basis for legal work connected with the proceedings when no longer being the solicitor on the record representing a party in those proceedings. Proof that the solicitor has done that does not prove that the solicitor has still continued to “represent the party” or “act for the party” in the proceedings.
Mr Mitchell’s choice of words used in the affidavits was not as precise as it could have been. Even Mr Mitchell conceded, if the intent was, as I am satisfied it was, to convey to the reader when it was that Mr Mitchell “represented “ or “acted for” Ms Thurston in the Court proceedings that the language he used in the affidavits could have been more precise. That said, I do not accept that those documents produced under subpoena referred to by Mr Loomis establish, even on a prima facie basis, that Mr Mitchell has perjured himself or acted in any way that might be described as “disentitling conduct”, “professional misconduct” or “perjury” such that Mr Loomis ought now be able to use them in his appeals in the Full Court or against Mr Mitchell in the Legal Services Commission or with the Police or other prosecutorial authorities.
Point 2 – NAB Bank Statements and few clients
Although Mr Loomis had said nothing about this in his affidavit filed 25 January, 2016 in support of the application, he took me to copies of NAB bank account statements produced by Mitchell Lawyers pursuant to the subpoena. They commence June 2012 and end November 2014. They are copies of just those statements that evidence receipt of payments into the Mitchell Lawyers’ general account from Ms Thurston.
Mr Loomis’ submission was that the accounts show very few deposits of money from other people, demonstrating that Mitchell Lawyers had very few clients during this period. Without more, Mr Loomis made the remarkable submission that the Court could conclude, therefrom, that Mr Mitchell had reason to be deliberately running up fees in respect of his work for Ms Thurston and in respect of his work for her in the proceedings against Mr Loomis. Such a conclusion, submitted Mr Loomis, also supports a finding of “disentitling conduct” on the part of Mitchell Lawyers that Mr Loomis seeks to be able to use in the appeals against Judge Howard’s costs orders.
I reject that submission.
Point 3 – Bank account entries and emails from July 2014
Again, without having said anything about this in his supporting affidavit, Mr Loomis took me to the NAB bank account statement in the subpoenaed documents from Mitchell Lawyers for the month of July 2014. It shows two payments totalling $12,300 being deposited to the account on 24 July referenced to Ms Thurston, with one of those deposits, the smaller sum of $1,000, being referenced “final payment”. It also shows another payment of $30 being deposited to the account on 28 July 2014 referenced to J Thurston. Finally, it shows three internet transfers out of the account over 28, 29 and 30 July 2014 totalling $13,330 and referenced to J Thurston.
Mr Loomis then took me to an email exchange between Mr Mitchell and Ms Thurston . The first email was from Ms Thurston to Mr Mitchell at 4:58 pm on July 24, 2014. It reads:
Dear [Mr Mitchell],
I feel I have to put the $13,330 into your account this was the balance of the deposit that the agent paid directly to me from the sale of [1 F Street].
I have transfered (sic) this to you in to (sic) lots $12,330 and $1030.00 in a seperate (sic) account.
I think i (sic) may have paid it into your account rather than your trust account- sorry.
I need to obtain a statement from you showing money held to support my affidavit, once all the money is in your account can you please send me a statement along with the affidavit you refered (sic) to during our conversation the other day please.
Thank you
[Ms Thurston]
The second email was from Mr Mitchell to Ms Thurston at 10:58 am on 25 July, 2014. It reads:
[Ms Thurston]
My business account had two payments received into it from you: $12,300 and $1,000 – total $13,300.
I take it those amounts are what you were paying into my trust account and so they have been paid into the wrong account. If those funds were meant for my trust account, I’ll transfer them into the trust account. Once that occurs I will confirm receipt of the payment for everyone and detail the total amount held.
Regards
[Mr] Mitchell
The third email was from Ms Thurston to Mr Mitchell at 11:26 am on 28 July, 2014. It reads:
Dear [Mr Mitchell],
I needed to put $13,330.00 into your trust account and forgot the $30. I have transferred this into your cheque account as I only have these details with me.
Once you have the full amount please transfer into your trust account and send me a statement showing funds held.
Kind regards
[Ms Thurston]
Mr Loomis then made the equally remarkable submission that these documents evidence a conspiracy between Mr Mitchell and Ms Thurston relating to an application Ms Thurston made to this Court in August 2014 for some money to be able to buy a house for her and the parties’ child to live in. I heard and determined that application in 2014. I remember it.
Without more, it is difficult to understand Mr Loomis’ thinking. He took me to no other evidence and he made no further submission about this, despite being given ample opportunity (the hearing on Monday went from 2:15 PM until 6:15 PM).
Mr Loomis tried to make much of something rather odd that Mr Mitchell said during his submissions about this point. When discussing the bank statement from July 2014 and the debit and credit entries, Mr Mitchell surprisingly said he could not remember who had been responsible for the three internet transfers out of the account on 28, 29 and 30 July, saying at one point that he thought it was Ms Thurston.
I say that was a surprise to hear as I would not expect anyone but Mr Mitchell or an authorised employee or agent of his firm to be able to transfer funds out of the firm’s general bank account into another account. I could only presume that the money was being transferred across to the firm’s Trust Account as discussed in the emails referred to above. In my judgment, Mr Mitchell had to be wrong in respect of his memory on that.
However, Mr Loomis forcefully submitted that demonstrated that Mr Mitchell would do or say anything and that nothing he said could be believed. With respect to Mr Loomis, I do not accept that assertion. Again, without more, I simply consider that to be explained by a lapse in Mr Mitchell’s memory or thought process late on that Monday afternoon.
I do not accept Mr Loomis’ submissions on this point and completely reject the idea that these documents evidence a conspiracy to somehow mislead the Court or to achieve some other improper purpose such that they should be able to be used by Mr Loomis to try to demonstrate “disentitling conduct” or “professional misconduct” on Mr Mitchell’s part.
Point 4 – The Bendigo Bank statements and interest payments
Mr Loomis refers to the Bendigo Bank statements for the Mitchell Lawyers Trust Account that are part of the bundle of documents produced by Mitchell Lawyers that he wants to be able to use further.
He seeks to rely on them, as I understand his case, for two reasons. First, he says they also evidence “disentitling conduct” on the part of Mr Mitchell because they show interest being earned on the Loomis – Thurston’ money being held in trust that has not been accounted for back to them. Second, they also support his application that Mr Mitchell be made to repay that interest to them.
Mr Mitchell was given leave, over Mr Loomis’ objection, to file and read a further affidavit on the day of the hearing. In responding to this particular point, in that affidavit Mr Mitchell informed the Court that the interest earned on his firm’s trust account is not retained by him or his firm but is paid by the bank to the Queensland Department of Justice and Attorney General. Mr Mitchell then deposed to the fact that the Department then uses this money to pay for things such as Legal Aid funding.
I accept that Mr Mitchell is correct. Part 3.3, Division 6 of the Legal Profession Act 2007 (Qld) regulates the collection and use of interest earned on solicitors’ trust accounts by the Department of Justice.
Mr Mitchell also deposed to having been informed by an officer of the Queensland Law Society that the interest transactions should not be recorded on the statements issued by a bank on a solicitor’s trust account. Mr Mitchell informed the Court that he did not know why it does on his trust statements.
In the end, Mr Loomis seemed, albeit begrudgingly, to accept that he has no point in respect of this and that his view that Mr Mitchell was personally retaining and using to his own benefit the interest earned on money in trust was totally wrong and completely misguided.
Discussion
All of these allegations made by Mr Loomis are very serious attacks on the character and professional integrity of Mr Mitchell who is an officer of the Court, a solicitor of the High Court of Australia and of the Supreme Court of Queensland. They are pursued by Mr Loomis after Judge Howard made costs orders against him in favour of Mitchell Lawyers. They are made after a point in time when Mr Mitchell swears Mr Loomis said to him in the precincts of this Court “I am going to take you down, if it is the last thing that I do”. This is an allegation of fact made by Mr Mitchell that Mr Loomis does not dispute or take issue with in his affidavit in which he responds to Mr Mitchell’s evidence about the conversation in which that is alleged to have been said. Furthermore, at the hearing, Mr Loomis did not deny having said it. I am left with little doubt that Mr Loomis did utter those words to Mr Mitchell in the precincts of this Court in November last year.
I am indeed also conscious that s 140 of the Evidence Act 1995 (Cth) provides that the standard of proof applied in civil proceedings such as this is on the balance of probabilities and that s 140 (2) provides:
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence, and
(b)the nature of the subject-matter of the proceeding, and
(c)the gravity of the matters alleged.
As I have observed, the matters alleged by Mr Loomis against Mr Mitchell are grave indeed. The evidence must be carefully considered by the Court. There has not been any cross-examination and I did not allow Mr Loomis to cross-examine Mr Mitchell when he asked to. That said, I point out that in my judgment there are really no disputed allegations of critical fact. The evidence Mr Loomis relies upon are Mr Mitchell’s affidavits and the documents produced by Mitchell Lawyers pursuant to subpoena.
The problem for Mr Loomis is that he makes huge conjectural and speculative leaps when going from that evidence to the submissions about what he says the evidence supports. That, unfortunately, reflects more of how Mr Loomis feels about Mr Mitchell and this matter than about Mr Loomis’ forensic and advocacy skills. Here I am reminded of the evidence given by Dr OO, psychiatrist, in the parenting proceedings in the FCC, where he expressed the opinion in a report prepared that Mr Loomis possesses some “significant obsessional personality traits” and that Mr Loomis even considers those traits, as beneficial to him in these proceedings.
Ultimately, I am just not satisfied at all to the requisite degree that the documents that Mr Loomis seeks leave to use provide any evidence supportive of perjury or any form of “disentitling conduct” or “professional misconduct” on the part of Mr Mitchell.
Should Mr Loomis nevertheless be allowed to use them as he seeks?
During the hearing, I asked the question of Mr Mitchell as to whether Mr Loomis ought not be entitled to use the documents in support of his appeals and in complaints to the Legal Services Commission and the Police even if I am satisfied that they do not prove perjury, disentitling conduct or professional misconduct on Mr Mitchell’s part. This question arose out of my initial thoughts that Mr Loomis would be wasting his time and efforts taking these documents to other places trying to prove misconduct against Mr Mitchell, but that such a course is a matter of choice for him.
Essentially though, I understood Mr Mitchell’s submission in response to be that I ought to be satisfied that Mr Loomis is motivated not by good faith but by malice towards Mr Mitchell and that, as he said to Mr Mitchell, he will stop at nothing in his efforts to take Mr Mitchell “down”. Mr Mitchell told the Court that Mr Loomis first complained to the Legal Services Commission about Mr Mitchell’s conduct early in 2014 and was given no joy in response but told to await the outcome of the proceedings he was engaged in. He submitted that I would not be satisfied that Mr Loomis was telling the truth when he gave the assurance on 19 November, 2015 that he would not use any of the documents for any other purpose than preparing for the property trial or that he was telling the Court the truth at the hearing on Monday when he maintained that he had no other intention when he gave the Court that assurance on 19 November 2015, particularly given his remark made on 13 November 2015 about “taking [Mr Mitchell] down”.
Mr Mitchell submitted that Mr Loomis’ application and his intended use of the documents is vexatious and malicious and therefore should be stopped to save Mr Mitchell any further distress, inconvenience, time and expense.
Interestingly, Mr Loomis told the Court he had no idea at all whether the Legal Services Commission had any powers at its disposal to somehow recompense a legal practitioner for expenses, time and inconvenience in circumstances where vexatious, frivolous or unfounded complaints were dismissed or rejected by the Commission. Clearly, Mr Loomis did not care if the Commission did or did not.
Documents produced to the Court under subpoena are, until they are returned to the person who produces them, within the custody and control of the Court. The party who causes the subpoena to issue does so because he or she considers that the documents sought to be produced might be relevant to the matters in issue in the proceedings. To that end and that end only, the Court may give the parties leave to inspect and photocopy the documents, so that they might be used in preparing the case for trial and, if considered necessary by the party, be tendered as evidence at the trial.
The Court does not relinquish control of those documents that have been produced because a party has copies of them in his or her possession. The Court maintains supervisory control over those photocopies just as it does over the original documents that were produced whilst they remain in the possession of the Court. In this case, just as was required, Mr Loomis has had to make application to the Court for orders pertaining to those documents of which he possesses photocopies so that he might use them for other purposes. In the circumstances, it is perfectly legitimate and, indeed, in my view, a proper exercise of the Court’s supervisory control of those documents, to consider all matters relating to the proposed use of the documents by the applicant for the leave to so use them, in order to determine whether that leave should be granted.
In this case, having given Mr Loomis the opportunity to carefully make out his case for leave to be able to use the documents for the proposed purposes, he has been unable to satisfy me that he can establish, using those documents, even a prima facie case that Mitchell Lawyers and Mr Mitchell have acted dishonestly, unprofessionally, or in a manner that could be described as “disentitling” in respect of the costs orders made against Mr Loomis in the FCC. In the circumstances, I consider it an appropriate exercise of my discretion to refuse Mr Loomis leave to use the documents in the ways that he proposes, particularly so as to save Mr Mitchell further expenses, time and inconvenience in having to deal with matters arising from Mr Loomis’ use of them and also to save the Full Court, the Legal Services Commission and the Queensland Police Service the time and inconvenience of having to consider matters arising from Mr Loomis’ use of them that I consider to be without substance and doomed to fail.
Mr Mitchell’s application against Mr Loomis
Mr Mitchell sought leave to intervene in the property adjustment proceedings in which judgment is reserved as a creditor of Mr Loomis through the costs orders in his favour made by the FCC Judge, even though those orders are under appeal. He also sought an order that any amount Mr Mitchell is owed by Mr Loomis pursuant to costs orders be a charge against any money ordered to be paid to Mr Loomis in the property adjustment proceedings pursuant to any final orders made by this Court in those proceedings.
Mr Loomis offered no meaningful submission against the making of an order that permitted Mr Mitchell to intervene. I made that order. As a creditor of at least one of the parties, I consider he has a right to intervene in the proceedings, even at this stage of them.
I do not make an order that money owing to him is a charge against any money ordered to be paid to Mr Loomis in the final orders. I consider that premature. First, Mr Loomis has appealed the costs orders. He might be successful. The costs orders might not exist anymore after the appeal. Second, I do not know at this point whether or not Mr Loomis will be the beneficiary of a final order that he be paid some money. He might not. Ms Thurston seeks orders for payment by Mr Loomis to her. She might be successful and he may receive nothing. That is all yet to be determined.
I informed Mr Mitchell that as an intervening creditor his interests in the matter are noted and that he would be given proper notice at the appropriate time when orders might be made that impact upon his interests and he would be given a right to be heard. Mr Mitchell seemed satisfied with that assurance.
Mr Mitchell had also sought an order that Mr Loomis be ordered to pay Mitchell Lawyers the sum of $1,568.52 in relation to the costs of complying with the subpoena to produce documents in the first place. I refused that application on the day of the hearing, satisfied that Mr Mitchell should have made that application either before or at the time that he complied with the subpoena and that it was too late for him to raise it as part of this application.
Mr Mitchell sought a few other orders. He sought an order that Mr Loomis’ application be declared a vexatious application. He further sought an injunction restraining Mr Loomis from using the documents produced to the Court by Mitchell Lawyers and “from using in any way any of the information derived from those documents”. He further seeks an order that Mr Loomis deliver up to Mitchell Lawyers all copies he has in his possession of those documents.
Mr Mitchell orally submitted that Part XIB of the Family Law Act 1975 (Cth) applies and that the Court would be satisfied of the matters under s 102QB so as to declare Mr Loomis’ proceedings against him vexatious.
Pursuant to s 118 of the Family Law Act, which is not within Part XIB, the Court has the power to dismiss proceedings if it is satisfied that they are frivolous or vexatious and to make such order as to costs as the Court considers just. Although Mr Mitchell seeks orders that Mr Loomis’ application against him be declared vexatious and dismissed with costs being ordered against Mr Loomis, all of which are within the power conferred on the Court by s 118, it is quite clear to me, from the oral submissions of Mr Mitchell, that he is actually seeking to invoke the Court’s powers contained in Part XIB.
Section 102QB(2) of Part XIB gives the Court the power to make an order staying or dismissing all or part of any proceedings in the Court already instituted by the person, to make an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act and/or any other order the Court considers appropriate in relation to the person. In order to exercise this power, the Court must, relevantly, be satisfied that the person has “frequently instituted or conducted vexatious proceedings in Australian courts or tribunals” (s 102QB(2)(1)).
Section 102Q(1) includes a definition of “vexatious proceedings”. It includes:
"vexatious proceedings" includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
I have been judge-managing the Loomis/Thurston proceedings in this Court since they were transferred to this Court in early 2014. I can say that I am quite satisfied that Mr Loomis has brought applications before me in the last two years that had no reasonable prospects of success. I am reluctant to say though, without more, that he has done that “frequently”. I am also prepared to say that I am satisfied that this application by Mr Loomis against Mr Mitchell did not have reasonable prospects of success and has been, at least in part, motivated by a determination to harass, annoy and/or cause detriment to Mr Mitchell. The difficulty for Mr Mitchell is that I simply cannot say that Mr Loomis has brought applications against him, or others such as Ms Thurston, such as this one, on a frequent basis.
In short, I am not prepared to say that I am satisfied as required by s 102QB(1) so as to be able to make a vexatious proceedings order against Mr Loomis on this application. In any event, as I have pointed out, Mr Mitchell simply seeks a declaration that the application was vexatious along with an order dismissing it and a costs order against Mr Loomis. He has not sought an order that Mr Loomis be prohibited from instituting any further proceedings under this Act against him in particular, which is an order that could be made under the section if satisfied of the matters required.
I have already determined that I will exercise my discretion to refuse Mr Loomis the leave he seeks in respect of the documents produced by Mitchell Lawyers and in doing so I am also prepared to say that I am satisfied that Mr Loomis’ application had no reasonable prospects of success and was frivolous and vexatious as those terms are understood (see Marsden & Winch (2013) FLC 93-560 at [79]).
I am also satisfied that the Court has the power to make the remaining orders that Mr Mitchell seeks pursuant to its supervisory control of subpoenaed documents and the use to which they may be put.
None of the documents from the bundle produced by Mitchell Lawyers were tendered into evidence by Mr Loomis or Ms Thurston at the trial before me late last year. Even though my judgment remains reserved, I am satisfied that the documents produced can be returned by the Registry Manager to Mitchell Lawyers and I will order as much. I am also satisfied that Mr Loomis should no longer retain copies of the documents and I will order him to return all such copies in his possession to the Court immediately and for them to be returned by the Registry Manager to Mitchell Lawyers along with the original documents produced by Mitchell Lawyers to the Court.
I will not make an order that restrains Mr Loomis from using the copies of those documents that he has in his possession as my order will be that he return those copies to the Court immediately. Mr Loomis is quite aware of the fact that if he uses those copies of the documents or any information he has obtained from them for a purpose outside of the proceedings in which the documents were produced that he commits a contempt of Court. I do not consider it necessary to make an order restraining him from committing an act that would constitute a contempt of court if it is committed.
The other orders sought by Mr Loomis in his response filed 14 April 2016
During the hearing, I made it clear to Mr Loomis that I was against him on all of the applications included in his response to Mitchell Lawyers’ application that he filed on 14 April, 2016, save for the more substantive one contained effectively in paragraph 4 of that document that I have determined by this judgment.
Mr Loomis begrudgingly conceded to the Court that he would not press them in the circumstances. Then he vacillated. It would have to be said that his position was left unclear.
In the interests of clarity, his application that Mitchell Lawyers pay $8,963.14 into the trust account of Rosen Lawyers is without any proper foundation, it being tied to his mistaken belief that Mitchell Lawyers was using the interest generated on the funds in its trust account. As to the other orders sought, Mr Loomis did not identify any proper basis upon which Mitchell Lawyers should be ordered to do all of the matters Mr Loomis seeks of them in that document. I am, furthermore, satisfied that there is no proper basis.
Indeed, I am satisfied that all of those applications had no prospects of success and were also frivolous and vexatious and improperly motivated.
I will hear Mr Loomis as to why he should not be ordered to pay Mitchell Lawyers’ costs of and incidental to the hearing and determination of his application brought in respect of the Mitchell Lawyers’ documents and of the hearing and determination of Mitchell Lawyers’ application in response.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 April 2016.
Associate:
Date: 27 April 2016
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