McConvill v Legal Profession Board of Tasmania
[2022] TASFC 9
•19 September 2022
[2022] TASFC 9
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | McConvill v Legal Profession Board of Tasmania [2022] TASFC 9 |
| PARTIES: | McCONVILL, James Andrew |
| v | |
| LEGAL PROFESSION BOARD OF TASMANIA | |
| FILE NO: | 1396/2022 |
| DELIVERED ON: | 19 September 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 29 August 2022 |
| JUDGMENT OF: | Blow CJ, Pearce J, Brett J |
| CATCHWORDS: |
Family Law and Child Welfare – Injunctions – Interlocutory injunctions – Asset preservation order made by Federal Circuit Court of Australia – Whether extinguished by transfer of proceedings to Family Court
of Australia.
Family Law Act 1975 (Cth), s 114(3).
Federal Circuit Court of Australia Act 1999 (Cth), ss 15, 39.
Cardile v LED Builders Pty Ltd [1999] HCA 18, 198 CLR 380; Janssen and Janssen [2015] FamCAFC 168,
300 FLR 247, distinguished.
In the marriage of Waugh [2000] FamCA 1183, 158 FLR 152; Deputy Commissioner of Taxation & Kliman
[2002] FamCA 629, 29 Fam LR 301, referred to.
Aust Dig Family Law and Child Welfare [411]
REPRESENTATION:
Counsel:
Appellant: T Cox Respondent: K Cuthbertson SC
Solicitors:
Appellant: Carter Newell Lawyers Respondent: Tremayne Fay Rheinberger
| Judgment Number: | [2022] TASFC 9 |
| Number of paragraphs: | 72 |
Serial No 9/2022
File No 1396/2022
JAMES ANDREW McCONVILL v LEGAL PROFESSION BOARD OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
PEARCE J
BRETT J
19 September 2022
Order of the Court:
1 Appeal dismissed.
Serial No 9/2022
File No 1396/2022
ANDREW JAMES McCONVILL v LEGAL PROFESSION BOARD OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
19 September 2022
1 This is an appeal from a determination made by Jago J during a hearing in disciplinary proceedings under the Legal Profession Act 1997. It concerns a question of law as to the status and enforceability of a "freezing order" made by a judge of the Federal Circuit Court of Australia[1] in proceedings under the Family Law Act 1975 (Cth).
[1] Pursuant to s 8 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the Federal Circuit Court of Australia
2 The appellant, Dr McConvill, is a Victorian legal practitioner. At all material times he was the sole principal and sole director of an incorporated legal practice named James McConvill & Associates Pty Ltd. During 2017, he and that company acted for a murderer named Klaus-Dieter Neubert in an action for damages that was brought against him in the Supreme Court of Tasmania. Mr Neubert is the complainant in the disciplinary proceedings. In the proceedings at first instance, the Legal Profession Board of Tasmania is seeking a declaration that the appellant is guilty of professional misconduct, or alternatively of unsatisfactory professional conduct, orders that he be reprimanded, pay a fine, and undertake not to practise law in Tasmania without the written approval of the Board, and orders for compensation and costs. The Board's application relates to the conduct of the appellant in acting for Mr Neubert in the damages action.
3 During 2014, Mr Neubert's wife commenced property settlement and maintenance proceedings against him in the Federal Circuit Court. In those proceedings, on 17 November 2014 Judge Baker (as Her Excellency then was) made some consent orders, including an order in the following terms:
"2
That the Husband be and is hereby restrained by injunction from selling, encumbering or in any way in dealing with the following assets until further order or agreement:
(i) Real property at 68 Nichols Rd, Lymington in Tasmania (ii) Kauri timber supply (iii) Any bank account in the name of or under the control of the Husband (other than for the purposes of day to day living expenses)."
4 In the proceedings at first instance, the Board contends that that order was contravened in 2017 by the making of several payments from a bank account of Mr Neubert to James McConvill & Associates Pty Ltd. Most, but not all, of the allegations of misconduct made by the Board in the disciplinary proceedings relate to alleged contraventions of the freezing order.
5 At an early stage in the hearing before Jago J, senior counsel for the appellant sought orders that the Board not be permitted to continue with certain of the allegations of misconduct, but not all of them, arguing that, whilst the freezing order was validly made, it ceased to have effect on 7 September 2016 as a result of Judge Baker making an order that day for the property and maintenance proceedings to be transferred to the Family Court of Australia. Her Honour heard submissions in relation to that contention. On 26 May 2022 her Honour determined that the freezing order remained operative as at
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March 2017, and that the Board was therefore not prohibited from pursuing the allegations that were the subject of the preliminary argument. This is an appeal from that determination.
Refusal of an adjournment
6 This appeal was listed for hearing before this Court on 29 August 2022. On that day, Mr Cox of counsel appeared for the appellant and applied for the hearing of the appeal to be adjourned, either
sine die or to the next appeal term (3–14 October 2022). The application was opposed. After
submissions from both parties, this Court refused the application and announced that reasons for the refusal would be published when judgment was given in the appeal. Our reasons for refusing the adjournment are set out below.
7 The adjournment was sought because of a recent and significant deterioration in the appellant's mental health which resulted in his legal representatives not being able to obtain instructions from him in relation to the appeal. The Court received evidence that on 17 August 2022 the appellant learned that officers of the Victorian Legal Services Board and Commissioner had refused to renew his practising certificate and had restricted him from applying for a practising certificate for two years. Before that date, counsel for the appellant and the Board had filed and served thorough written outlines of their submissions in relation to the appeal. The outline for the appellant was provided by Mr Wyles QC and Mr Cox. They had been briefed to appear on the hearing before Jago J.
8 In support of the adjournment application, Mr Cox provided the Court with a brief report from a psychiatrist, Dr Thomas. The psychiatrist opined that the appellant was suffering from an adjustment disorder with mixed anxiety and depressive symptoms; that the events of 17 August had exacerbated his depression; and that he had become overwhelmed, incapable of making significant life decisions, unable to concentrate on complex legal issues, and unable to provide instructions to his solicitors and counsel concerning this appeal, the disciplinary proceedings, and the decision to terminate his Victorian practising certificate. He opined that the appellant's ability to deal with these stressors might improve with specialist treatment and time. He said that under favourable conditions, he would expect to see significant improvement over a six-month period.
9 Mr Cox informed the Court that, although his only instructions were to appear and seek an adjournment, he had been retained as junior counsel for the appeal, and therefore, if the adjournment was refused, he would not be entitled to apply for leave to withdraw.
10 The Court identified a number of factors that weighed in favour of refusing the adjournment,
as follows:
The appeal related only to a question of law. It did not directly concern the appellant's conduct. No evidence was to be received. It was unlikely instructions would be needed from the appellant at any time during the hearing of the appeal.
The Court had the benefit of a ten-page outline of submissions prepared by senior and junior
counsel for the appellant. Mr Cox was in a position to appear on the hearing of the appeal if the adjournment was refused. The appellant's solicitor, who practises in Brisbane, was able to watch and hear the proceedings
by means of an audio visual link. It appeared quite likely that the appellant's mental state would not substantially improve by the
time of the October appeal term.3 No 9/2022
The appeal raised an important question of law. If the appellant's contentions were correct, transfers of Family Law Act proceedings from the lower court to the higher court would result in some or all interlocutory orders being automatically discharged unless new orders were made for them to continue in force. The effect of the appeal had been to fragment and delay the proceedings before Jago J. She had adjourned the hearing of the Board's application after hearing submissions as to the preliminary point, and has not resumed that hearing. Delaying the hearing of the appeal would inevitably further delay the hearing before Jago J.
11 It is, of course, desirable that litigants should be able to attend court proceedings when the outcome might affect their interests, and should not be prevented from attending such proceedings by physical or mental health problems. It is also desirable that litigants should be able to choose whether to discontinue court proceedings, and able to choose the level of representation that they will receive in proceedings instituted by them. However we concluded, having regard to the factors listed above, that the appellant would suffer no prejudice as a result of not attending the hearing of the appeal, and not being able to give instructions relating to the hearing of the appeal. We also concluded that it was in the interests of justice for the appeal to be heard and determined without delay.
Chronology
12 After the making of the freezing order on 17 November 2014, the following events occurred.
13 On 14 May 2015, Mrs Neubert was driving through Hobart with a friend, Josephine Cooper, when Mr Neubert saw her, forced her to stop her car, shot her dead, and shot Ms Cooper to the hand. Mr Neubert was immediately arrested and has been in prison ever since.
14 Later in 2015, Ms Cooper commenced an action for damages against Mr Neubert in the Supreme Court of Tasmania.
15 In June 2015, Mr Neubert granted an enduring power of attorney to a Dr David Perlman.
16 On 17 July 2015, Holt AsJ made another "freezing order" in the proceedings instituted by Ms Cooper. Amongst other things, he ordered that Mr Neubert was not to remove from Australia or in any way dispose of, deal with or diminish the value of any of his assets in Australia up to the unencumbered value of $1.5 million. The order expressly allowed him to dispose of or deal with Australian assets so long as the total unencumbered value of his Australian assets continued to exceed that amount. The order also expressly permitted him to pay a sum to be assessed for his reasonable legal expenses and costs pertaining to the preservation of assets. That order was varied on 1 September 2015 by Holt AsJ when he made consent orders providing, amongst other things, for Mr Neubert to be allowed to pay reasonable legal expenses including disbursements in relation to Ms Cooper's action, criminal proceedings relating to the shootings, and the Federal Circuit Court proceeding.
17 The property settlement proceedings commenced by Mrs Neubert did not abate as a result of her death. On 23 October 2015, Judge Baker ordered that a solicitor, Mr Bradfield, be substituted as her legal personal representative pursuant to s 79(8) of the Family Law Act. He became the applicant in the property proceedings. Ms Cooper subsequently became a party to those proceedings as an intervener.
18 On 7 September 2016, counsel for the three parties to the property proceedings (Mr Bradfield, Mr Neubert and Ms Cooper) sought and obtained consent orders for the transfer of the proceedings to the Family Court. The orders were made by Judge Baker. The transfer order was an order that "This matter be transferred to the Family Court of Australia at Hobart." Some ancillary orders were made,
4 No 9/2022
but they did not relate to the discharge or continuation of the freezing order or any other interlocutory
order.19 On 15 February 2017, Mr Neubert was found guilty of murdering his wife and causing grievous bodily harm to Ms Cooper.
20 Ms Cooper's action was listed for a trial to commence on 27 March 2017. In the proceedings below, the Board contends that on or about 16 March 2017, Dr Perlman, Mr Neubert's attorney, contacted James McConvill & Associates Pty Ltd and gave instructions for that practice to represent Mr Neubert in defending the action commenced by Ms Cooper. It is common ground that the company sent Dr Perlman invoices for sums totalling $75,000 on 25, 26 and 28 March 2017, and that those invoices were paid. The Board contends that Dr Perlman paid them by transferring money from Mr Neubert's Commonwealth Bank account to the company's ANZ account in six instalments over the period from 25 to 31 March 2017.
21 At the times of the alleged payments, Mr Neubert was in custody awaiting sentencing, the property proceedings were pending in the Family Court, and no order had been made in the family law proceedings expressly discharging Judge Baker's freezing order or authorising any payments relating to the damages action.
The legislation
22 As at September 2016, the power to transfer proceedings from the Federal Circuit Court to the Family Court was contained in s 39 of the Federal Circuit Court of Australia Act 1999 (Cth). That section contained the following relevant sub-sections:
"(1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to the Federal Court or the Family Court.
(2) The Federal Circuit Court of Australia may transfer a proceeding under this
section:
(a) on the application of a party to the proceeding; or (b) on its own initiative. (3) …. (4) In deciding whether to transfer a proceeding to the Family Court under
subsection (1), the Federal Circuit Court of Australia must have regard to:(a) any Rules of Court made for the purposes of subsection 40(4); and
(b) whether proceedings in respect of an associated matter are pending in the Family Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(5) If an order is made under subsection (1), the Federal Circuit Court of Australia may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Court or the Family Court, as the case requires."
23 In her reasons, at [17], Jago J made the following observations as to s 39:
5 No 9/2022
"There is nothing within that section to suggest an order transferring proceedings to the Family Court has the effect of nullifying orders previously made by the Federal Circuit Court if such orders were made at a time when it was vested with jurisdiction. It is true that pursuant to s 39(5), the Federal Circuit Court could have made transitional orders but I have been referred to no authority which suggests the failure to state that previously made orders of a Court of competent jurisdiction continue to have operation, has the effect of nullifying previously made orders. Indeed s 39(5) clearly contemplates that orders made contemporaneously to the transfer order will continue to have validity pending the ultimate disposal of the proceeding by the Family Court. I see no logical reason why an order made contemporaneously with the transfer order would retain its legal status, but an order made prior to the transfer order would not."
24 On the hearing of the appeal, Mr Cox submitted that the freezing order of 17 November 2014 was not an injunction granted pursuant to s 114 of the Family Law Act, but was a different sort of order that was made pursuant to s 15 of the Federal Circuit Court of Australia Act.
25 Section 114 of the Family Law Act contains provisions relating to injunctions. The relevant sub-sections read as follows:
"(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage; (b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides, are suited; (c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage; (d) an injunction for the protection of the marital relationship; (e) an injunction in relation to the property of a party to the marriage; or (f) an injunction relating to the use or occupancy of the matrimonial home. …. (3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate."
26 Paragraph (e) of the definition of "matrimonial cause" in s 4(1) of that Act reads as follows:
"(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB)".
27 The proceedings instituted by Mrs Neubert were not proceedings falling within paragraph (e) of the definition of "matrimonial cause". They were proceedings with respect to the property of the parties to a marriage and maintenance that fell within paragraphs (c) and (ca) of the definition of
6 No 9/2022
"matrimonial cause". It follows that the freezing order was not an injunction granted pursuant to s 114(1). If it constituted an injunction, power to grant it was conferred by s 114(3). The Board contends that it was an injunction and that the Federal Circuit Court had the power to grant it pursuant to s 114(3).
28 Section 15 of the Federal Circuit Court of Australia Act has recently been repealed. At all times material to these proceedings it provided as follows:
"15 Making of orders and issue of writs The Federal Circuit Court of Australia has power in relation to matters in which
it has jurisdiction, to:
(a) make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate; and (b) issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia thinks appropriate."
As will be seen, the statutes that established the Federal Court and the Family Court contained provisions very similar to this section.
29 Mr Cox argued that s 15 was the sole source of power for the making of the freezing order by the Federal Circuit Court. However, the Board contends that the power to make that order was conferred both by that section and by s 114(3) of the Family Law Act.
The case law
30 In the proceedings before Jago J, Mr Wyles QC relied heavily on the decision of the Full Court of the Family Court in Janssen and Janssen [2015] FamCAFC 168, 300 FLR 247. In that case, a judge of the Federal Circuit Court had made an order transferring proceedings for parenting orders to the Family Court. Some months after the transfer order, the same judge purported to make an interim parenting order in the transferred proceedings. On appeal, the Full Court of the Family Court held that, following the transfer of the proceedings, the Federal Circuit Court was no longer seized of the proceedings, and that the purported orders were made in excess of jurisdiction. When a superior court of record makes an order in excess of jurisdiction, the order remains valid until set aside unless there is a statutory provision to the contrary: New South Wales v Kable [2013] HCA 26, 252 CLR 118 at
[32]– [33]. However, the Federal Circuit Court was not established as a superior court of record, and
as a result any order made by a judge of that court in excess of jurisdiction is a nullity. On that basis,
the Full Court held that the purported interim parenting order was a nullity.31 In the proceedings below, Mr Wyles QC submitted to Jago J that Janssen stood for the proposition that the statutory powers of the Federal Circuit Court came to an end upon a transfer, and that it followed that the freezing order ceased to have effect upon the transfer in the absence of any order to the contrary under s 39(5). However, Janssen concerned a purported order made by a judge of the Federal Circuit Court after proceedings had been transferred out of that court, not the status after a transfer of an order validly made before that transfer.
32 Mr Cox relied on a series of High Court decisions relating to the nature of Mareva orders[2]. The earliest of those cases was Jackson v Sterling Industries Limited (1987) 162 CLR 612. That case concerned an order by a judge of the Federal Court requiring a respondent to provide security in the sum of $3 million for the satisfaction of any judgment that might be entered against him. The High Court, by majority, held that the order should not have been made because the purpose of a Mareva order was not to require a defendant to provide security, but to prevent a defendant disposing of assets so as to frustrate the process of the court by depriving the plaintiff of the fruits of any judgment that
7 No 9/2022
might be obtained. Section 23 of the Federal Court of Australia Act 1976 (Cth) was relied upon as a source of the Federal Court's jurisdiction to make Mareva orders. That section was in similar terms to s 15 of the Federal Circuit Court of Australia Act. It provided as follows:
"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."
[2] Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213.
33 It was held that that section empowered the Federal Court to make Mareva orders: by Mason CJ at 616; Wilson and Dawson JJ at 617-619; Brennan J at 621; Deane J at 623-625. Some of the judges made comments to the effect that, even in the absence of s 23, the Federal Court would have had the power to make a Mareva order in an appropriate case: Wilson and Dawson JJ at 617; Deane J, with whom Mason CJ agreed, at 623.
34 In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30, 195 CLR 1 at [35], Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ referred to s 23 of the Federal Court of Australia Act and commented that the Mareva injunction "is the paradigm example of an order to prevent the frustration of a court's process".
35 Section 23 was also regarded as a source of the power of the Federal Court to make Mareva orders in Cardile v LED Builders Pty Ltd [1999] HCA 18, 198 CLR 380. In that case, Gaudron, McHugh, Gummow and Callinan JJ examined the doctrinal basis for Mareva orders, particularly orders directed against non-parties, and commented, at [42], that "to avoid confusion as to its doctrinal basis, it is preferable that references to 'Mareva orders' be substituted for 'injunctions'." Their Honours were concerned with distinctions between Mareva orders and injunctions granted in the exercise of traditional equitable jurisdiction.
36 The nature of asset preservation orders was considered by the Full Court of the Family Court in In the Marriage of Waugh [2000] FamCA 1183, 158 FLR 152. That case concerned property and maintenance proceedings in which a judge made interlocutory injunctions requiring a husband to pay rent from certain properties into a specified bank account, and prohibiting him from otherwise dealing with money held in certain bank accounts except in certain limited ways. An appeal from those orders was successful as the judge had not considered the fundamental question of whether there was any evidence that the husband might dispose of assets and thereby defeat the wife's claims. The Full Court considered the jurisdictional basis for interlocutory orders requiring the preservation of assets, referring to Jackson v Sterling Industries Limited (above) and Cardile v LED Builders Pty Ltd (above). Section 34(1) of the Family Law Act was also referred to. It was in similar terms to s 15 of the Federal Circuit Court of Australia Act and s 23 of the Federal Court of Australia Act. It empowered the Family Court "in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate". Their Honours said at [32]:
"We think it is also important to bear in mind that the jurisdiction to grant interlocutory injunctions under the Act [the Family Law Act] is a statutory jurisdiction derived from s 114(3) and/or s 34(1) of the Act."
37 The source or sources of the Family Court's jurisdiction to make interlocutory asset preservation orders was again considered by its Full Court in Deputy Commissioner of Taxation & Kliman [2002] FamCA 629, 29 FamLR 301. In that case the Deputy Commissioner had been granted leave to intervene in property settlement proceedings. The husband had a very substantial income tax liability. In 1999, the Deputy Commissioner obtained orders in the Family Court restraining both the husband and the wife from disposing of property pending the determination of the property proceedings. In 2001 the Deputy Commissioner sought to have those orders varied, whereupon the husband objected that the Court had no jurisdiction to make such orders. A second judge accepted that there was no jurisdiction, and discharged the 1999 orders. The Deputy Commissioner successfully appealed to the Full Court. The principal judgment was delivered by Coleman J. His Honour held, at [130], that the Court had
8 No 9/2022
jurisdiction to make injunctive orders of the type in question under s 114(3). At [132] to [135] he examined what was said in the High Court in Cardile and in Patrick Stevedores. He said the following at [136]:
"If it be, however, that what the High Court was saying in Cardile (supra) (and also in Patrick Stevedores (supra)) that s 34(1) is the true source of the power in the Family Court to make an order preserving assets pending the making of final orders in property settlement proceedings (including orders in favour of, or for the benefit of, an intervening judgment creditor (as in the present case), then I see no reason why that section could not be relied on to support the preservation orders sought in this case."
38 In a joint concurring judgment, Ellis ACJ and Finn J observed at [50] that no submission had been developed on behalf of any party in relation to s 34, and said that it would therefore not be appropriate to determine whether s 34, rather than s 114(3) was "the true source of power in the Act to make asset preservation orders in all or at least certain cases".
Effect of the transfer order
39 The appellant's principal contentions in this appeal can be summarised as follows:
That, in the light of Cardile, an asset preservation order must be regarded as something different
from an injunction. That the "freezing order" of 17 November 2014 was therefore not an injunction granted to
pursuant to s 114. That the purpose of that order was to prevent the husband from disposing of assets so as to frustrate the process of the Federal Circuit Court by depriving the wife of the fruits of any final order that might be obtained against him in that Court, and therefore the sort of order that was within the scope of s 15 of the Federal Circuit Court of Australia Act – the equivalent of s 34 of the Family Law Act and s 23 of the Federal Court of Australia Act. That, since the purpose of the order was to facilitate the enforcement of any final orders that might be obtained in the Federal Circuit Court, it ceased to have effect at the time of the transfer in September 2016, after which there were no pending or completed proceedings in the Federal Circuit Court, and that Court had no jurisdiction in relation to Mr Neubert's assets. 40 That reasoning must be rejected, for a number of reasons.
41 First of all, it is significant that the injunctive powers given by s 114 to courts exercising jurisdiction under the Family Law Act are powers to grant statutory injunctions. The section did not confer the jurisdiction of a court of equity on any court. The "doctrinal basis" for a s 114 injunction has nothing to do with the development of remedies in the Court of Chancery and its successors.
42 The restraining order made on 17 November 2014 was expressed to be an injunction. It said
that Mr Neubert was" restrained by injunction from … dealing with … Any bank account in the name
of or under the control of the Husband", subject to an exception in relation to living expenses. If the word "injunction" in s 114(3) is to be given its ordinary literal meaning, that order was an injunction, and not something different.
43 There is no reason why s 114(3) and s 15 of the Federal Court of Australia Act should not both be regarded as conferring the power to make an interlocutory asset preservation order. There is no reason in principle why provisions in two different statutes should not confer identical or overlapping powers on a court. Within the meaning of s 15, the freezing order was an interlocutory order that the Federal Circuit Court thought appropriate in a matter in relation to which it had jurisdiction. Within the meaning
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of s 114(3) the order was an injunction, in the form of an interlocutory order made by a court exercising jurisdiction under the Family Law Act in a case in which it appeared to that court to be just or convenient to make that order.
44 As Jago J observed, there was nothing in the language of s 39 of the Federal Circuit Court of Australia Act to suggest that an order transferring proceedings to the Family Court had the effect of nullifying valid interlocutory orders previously made by the Federal Circuit Court. It would be ludicrous if a transfer order had the effect of nullifying interlocutory orders, particularly orders for interim maintenance, or orders for costs that had not been complied with. In enacting s 39, the Commonwealth Parliament created a regime whereby significant numbers of property applications commenced in the Federal Circuit Court would ultimately be heard and determined in the Family Court. Against that background, asset preservation orders should not be regarded as being made for the limited purpose of facilitating the later enforcement of orders of the Federal Circuit Court alone. Since the proceedings could ultimately be heard and determined in the Family Court, the purpose of an asset preservation order made in the Federal Circuit Court should be seen as facilitation of the enforcement of a final order made in the proceedings by any court of competent jurisdiction, rather than one particular court.
45 If, upon a transfer of proceedings from the Federal Circuit Court to the Family Court, interlocutory orders would cease to operate unless continued or replaced under s 39(5), the results would be absurd. If orders sought under s 39(5) were opposed, parties would frequently have to re-litigate issues. There would be arguments as to whether there had been sufficient changes of circumstances to warrant re-litigation of interim questions, or whether parties seeking to re-litigate were abusing the process of the court. An interpretation of s 39 consistent with the transfer of proceedings generally being effected smoothly is to be preferred.
46 It follows that the "freezing order" was a form of statutory injunction; that the Federal Court was empowered to make that order both by s 114(3) of the Family Law Act and s 15 of the Federal Circuit Court of Australia Act; and that the injunction continued in force after the transfer of the property and maintenance proceedings to the Family Court.
Other matters
47 One of the appellant's grounds of appeal relates to s 105 of the Family Law Act, which concerns the enforcement of orders. That section begins with the following sub-sections:
"Enforcement generally
(1) Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act. Note: For example, the Federal Circuit Court of Australia can enforce decrees made
by the Family Court of Australia.(2) Except as prescribed, a court shall not entertain a proceeding under this Act for the enforcement of a decree made by another court unless the decree is registered in the first-mentioned court in accordance with the regulations."
48 Section 4(1) of the Family Law Act defines "decree" to include an order.
49 In her reasons, Jago J, at [18], referred to s 105 and concluded that the freezing order "was made under the provisions of the Family Law Act and could be enforced by a Court having jurisdiction under the Act, including obviously, the Family Court of Australia".
50 Ground (d) of the appellant's grounds of appeal asserts that her Honour erred in law in making that finding "notwithstanding that the respondent had adduced no evidence that the Mareva order had
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been registered pursuant to the Act and in accordance with regulation 17 of the Family Law Regulations
1984, as required by section 105(2) of the Act".51 For the reasons stated above, the order in question must be regarded as a decree that was made under s 114(3) of the Family Law Act.
52 The regulation relied upon by the appellant reads as follows:
"17 Registration of decrees (1) A decree (other than a divorce order or a decree of nullity of marriage) may be registered in any court having jurisdiction under the Act by filing a sealed copy of the decree in that court.
(2) For the purposes of subregulation (1), a decree may be filed: (a) by a party to the proceedings in which the decree was made;
(b) by a child entitled to benefit under the decree;
(c) by an officer of the court;
(d) by an officer, authority or person entitled under paragraph 125(1)(f) of the
Act to take proceedings for the enforcement of the decree; or
(e) with the leave of the court, by any other person.
(3) A decree filed and registered under subregulation (1) shall be numbered in
accordance with the applicable Rules of Court."
53 An order made under the Family Law Act may be enforced, following a contravention of that order, in a number of ways. A contravention of an injunction can be punished as a contempt pursuant to s 112AP of the Family Law Act. Sanctions, including fines and imprisonment, can be imposed under s 112AD of that Act. There is nothing in the relevant legislation that requires registration or any other formal step to have taken place before a contravention in order for those powers to be exercised. It follows that an absence of registration cannot make any difference to any question as to whether any of the appellant's conduct constituted professional misconduct or unsatisfactory professional conduct. It also follows that Jago J did not err in concluding that the injunction could have been enforced by the Family Court. The enforcement process might have required registration of the order, but a lack of registration at the time of contravention could not have made the order unenforceable.
54 Counsel for the appellant also sought to rely on the High Court's decision in R v Ross-Jones, ex-parte Green (1984) 156 CLR 185. That reliance was misplaced. That case concerned an injunction that had been granted by a judge of the Family Court in excess of jurisdiction. The High Court granted prohibition and certiorari. In this case the order relied upon by the Board was made within jurisdiction and remained effective and enforceable at all material times.
55 Counsel for the appellant also made submissions referring to orders of Holt AsJ. Once the first of those orders was made, Mr Neubert was restrained by orders of two courts from depleting his assets. The Supreme Court orders contained exceptions relating to legal costs in general and the costs of defending Ms Cooper's action in particular. However nothing ordered by Holt AsJ could affect the scope of the order made by Judge Baker. Unless neither order restrained Mr Neubert from making a particular payment, he was obliged not to make that payment. The existence of the orders of Holt AsJ therefore cannot make any difference to the status and effect of the freezing order made by Judge Baker.
11 No 9/2022
Conclusion
56 For all of these reasons, the appellant's submission should be rejected. I would therefore dismiss
the appeal.
12 No 9/2022
File No 1396/2022
JAMES ANDREW McCONVILL v LEGAL PROFESSION BOARD OF TASMANIA
REASONS FOR JUDGMENT PEARCE J
19 September 2022
57 This appeal arises from an order made by Jago J in disciplinary proceedings brought by the Legal Profession Board against the appellant under the Legal Profession Act 2007. The appellant challenges her Honour's refusal of his application that the Board "not be permitted to continue with" some of the allegations made in the proceedings. On 29 August 2022 I joined in the order refusing the appellant's application for an adjournment of the appeal. My reasons for doing so are the same as those now stated by Blow CJ. I also agree with his Honour that the appeal must be dismissed. For the reasons stated by his Honour, none of the grounds of appeal are made out. However, I would add my own reasons for concluding that the appeal must be dismissed regardless of the correctness of the central contention advanced by the appellant.
58 The sole contention advanced in support of the application made by the appellant to the primary judge was that the identified allegations depended upon the order made by Judge Baker (as her Excellency then was) on 17 November 2014 in the Federal Circuit Court continuing in force following transfer of the matrimonial proceedings to the Family Court on 7 September 2016. Senior counsel for the appellant submitted that the order did not continue in force, and thus "the factual predicate on which each of the subject allegations is founded is not available as a question of law." In written submissions
to the primary judge, the appellant contended that "allegations 1-5 and 8… are predicated on the Baker
injunction being enforceable and operative upon Mr Neubert as a party to Family Court proceedings as
at 25–28 March 2017."
59 I agree with Blow CJ that the learned primary judge was correct to conclude that the Federal Circuit Court order remained in force following transfer of the proceedings to the Family Court. However the application to, in effect, summarily dismiss the allegations identified by the appellant could not have succeeded in any event because it was based on a false premise. None of the Board's allegations depended, for their force, on the formal validity of the order.
60 The provisions which govern complaints about the conduct, and discipline of, legal practitioners are contained in the Legal Profession Act, Chapter 4. Complaints may be made by any person and are made to the Board, unless they are made by the Board: s 427. The Board may dismiss a complaint if, for example, it finds that the complaint is vexatious, misconceived, frivolous or lacking in substance, or requires no further investigation: s 433. Otherwise, the Board is required to investigate complaints: s 440. If, during an investigation, the Board considers that any matter which is the subject of the investigation may amount to professional misconduct, it is to make an application for the matter to be heard and determined either under s 464 by the Disciplinary Tribunal or under s 486 by the Supreme Court.
61 Disciplinary proceedings before the Supreme Court are subject to Part 4.4 of Chapter 4. Any person may make an application to the Supreme Court to hear and determine a complaint: s 486(1). Such an application, unless the Supreme Court otherwise orders, is to be heard in open court and in accordance with the Supreme Court Rules 2000. In this case the application was made by the Board. It alleged that the conduct of the appellant amounted to professional misconduct or alternatively unsatisfactory professional conduct. Unsatisfactory professional conduct is defined in s 420 to include conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. Professional misconduct is defined in s 421 to
13 No 9/2022
conduct involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and conduct which, if established, would justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
62 The matrimonial proceedings in which Mrs Neubert sought financial orders for division of property and spousal maintenance from Mr Neubert were commenced in 2014 in the Federal Circuit Court. As it was relevant to this appeal, the order made on 17 November 2014 was that, until further order, Mr Neubert be "restrained by injunction from selling, encumbering or in any way dealing with the following assets until further order or agreement." The assets listed included "any bank account in the name of or under the control of the husband (other than for the purposes of day to day living expenses)."
63 After Mrs Neubert was murdered by Mr Neubert on 14 May 2015 the proceedings were continued by her legal personal representative who was substituted as the applicant by an order made by Judge Baker on 23 October 2015. On 7 September 2016 Judge Baker ordered, in the Federal Circuit Court, that the "this matter be transferred to the Family Court of Australia at Hobart." Thereafter, the matrimonial proceedings continued in the Family Court.
64 The disciplinary proceedings against the appellant are based, as is relevant to this appeal, on the following factual contentions. On the day on which Mrs Neubert was shot and killed, Mr Neubert also shot and badly injured Josephine Cooper. Ms Cooper commenced proceedings in the Supreme Court of Tasmania against Mr Neubert claiming damages for personal injury. Before the matrimonial proceedings were transferred to the Family Court, Ms Cooper had become a party to those proceedings as an intervener. Ms Cooper's civil action was listed for trial in the Supreme Court on 27 March 2017. On about 16 March 2017, Mr Neubert contacted James McConvill & Associates Pty Ltd, the incorporated legal firm of which the appellant was sole principal and director. The appellant's firm was engaged to act for Mr Neubert, including in Ms Cooper's civil action. Between 16 March 2017 and 28 March 2017 various professional and non-professional employees undertook legal work for Mr Neubert. On 25 March 2017 a barrister was engaged and instructed to apply for an adjournment of the trial.
65 On 11 June 2015 Dr David Perlman was appointed as Mr Neubert's attorney. The appellant's firm sent three invoices to Dr Perlman:
Saturday 25 March 2017 for $28,209.00; Sunday 26 March 2017 for $20,322.50; Tuesday 28 March 2017 for $26,468.50.
66 By transfers made between 25 March 2017 and 31 March 2017 Dr Perlman paid all of the accounts from the appellant's firm in full from Mr Neubert's bank account.
67 The complaint to the Board about the appellant's professional conduct was made by Mr Neubert. To avoid the risk that I will inaccurately summarise the Board's conduct allegations I will set out in full those which were the subject of the appellant's application, using the same numbering referred to by the parties:
"1
That the [appellant] and/or the employees of the law practice, knowing of the existence of an injunction made in family law proceedings in respect of the complainant's property at Lymington and bank accounts, billed the
complainant's attorney … for work done by the law practice in the civil matter and received payment from the attorney for such work in circumstances where:
i
the payments received were from a bank account that the complainant was restrained from dealing with by an order made in the Federal
Circuit Court of Australia on 17 November 2014…; and 14 No 9/2022
ii the [appellant] and/or the employees of the law practice did not take reasonable steps to investigate the terms of the Federal Circuit Court injunction in order to ensure that the complainant did not breach the Federal Circuit Court injunction by making such payment, and/or the law practice and/or the attorney did not make or receive such payment from a bank account subject to the Federal Circuit Court injunction; or in the alternative iii the respondent and/or the employees of the law practice knowingly or recklessly received money from the attorney sourced from a bank account subject to the Federal Circuit Court injunction. 2 That the [appellant] and/or the employees of the law practice failed to provide the complainant and/or the attorney with competent and diligent legal advice about the effect of the Federal Circuit Court injunction; and/or
3 That the [appellant], by his affidavits sworn on 5 and 24 April 2017, deliberately or recklessly misled the Federal Circuit Court of Australia as to the date that he and/or the employees of the law practice first became aware of the Federal Circuit Court injunction by failing to disclose when he and/or the employees of the law practice first became aware of the existence of an injunction made in family law proceedings in respect of the complainant's property at Lymington and bank accounts; and/or
4 That the [appellant], by his affidavit dated 23 August 2017, deliberately or recklessly misled the Supreme Court of Tasmania as to the date that he and/or the employees of the law practice first became aware of the Federal Circuit Court injunction by failing to disclose when he and/or the employees of the law practice first became aware of the existence of an injunction made in family law proceedings in respect of the complainant's property at Lymington and bank accounts; and/or
5 That the [appellant], by his affidavit dated 23 August 2017 which he provided to the [Board] as part of his response to the complaint made by the complainant, deliberately or recklessly attempted to mislead the [Board] as to the date that he and/or the employees of the law practice first became aware of the Federal Circuit Court injunction by failing to disclose when he and/or the employees of the law practice first became aware of the existence of an injunction made in family law proceedings in respect of the complainant's property at Lymington and bank accounts; and/or
…
8 That the [appellant] and or the employees of the law practice retained and utilised the funds received from the attorney in circumstances where he and/or the employees of the law practice knew that the funds so received were obtained from a bank account that was subject to the Federal Circuit Court injunction."
68 No reference was made to the basis upon which, if the Board's application was to be determined in accordance with the Supreme Court Rules, summary dismissal was justified. The proceedings were commenced by originating application. Subject to contrary order, originating applications do not require pleadings. However in this case, particulars in the nature of a pleading were provided. Assuming that the Rules, with any necessary variations applied, r 258 permitted the judge to strike out unnecessary or scandalous matters, and r 259 permitted the judge to stay or dismiss the application or strike out the pleading if it failed to disclose a reasonable cause of action. The Court also had an inherent power to prevent an abuse of the process of the Court by bringing groundless claims: Batistatos v Roads & Traffic Authority (NSW) [2006] HCA 27, 226 CLR 256. Thus, to justify an order that the application "not be permitted to continue", if that meant striking out, a stay or dismissal of part of the application, it was necessary for the appellant to demonstrate to the primary judge that there was no reasonable basis upon
15 No 9/2022
which the conduct relevantly identified in the application could have amounted to professional
misconduct or unsatisfactory professional conduct.69 The primary judge disallowed the application for summary dismissal after determining the argument about the continuing force of the Circuit Court order adversely to the appellant. However, as I have already stated, the identified allegations did not, in any event, depend on the continuing force of the order. The clearest demonstration of that proposition concerns the allegations made in paragraphs 2 to 5 inclusive. The allegation made in paragraph 2 was an allegation of a failure to provide advice about the effect of the order. The allegations in paragraphs 3, 4 and 5 of the application alleged a lack of candour to the Federal Court, the Supreme Court and the Board. Counsel for the appellant submitted that, if the injunction was not operative, that may "flavour the complaints". However, regardless of the correctness of that contention, there was no proper basis for a contention that the misconduct allegations to which I have just referred, involving a failure to advise and a lack of candour, could not succeed if the order did not continue in effect after the transfer of proceedings to the Family Court on 7 September 2016.
70 The dismissal application, as it applied to the remaining allegations in paragraphs 1 and 8 of the application, suffered from the same flaw. The substance of those allegations is that the appellant misconducted himself by sending invoices to Dr Perlman and receiving payment for them knowing of the order, without taking reasonable steps to investigate the terms or effect of the order and knowingly or recklessly receiving and utilising the funds which were subject to the order.
71 The issue of the formal validity of the order was first raised with the primary judge by senior counsel for the appellant on 20 May 2022. Detailed written submissions were prepared on the same day. In my respectful opinion, it remained at least arguable that the question of whether the appellant misconducted himself by acting in the manner alleged depended on his state of mind at the time of the relevant conduct, not on an argument which seemingly later emerged about the technical force and effect of the order. If, for example, the primary judge were to be satisfied that the appellant knew of the order and believed it to be in effect, or was reckless or careless about its force and effect, issue of invoices and receipt of payments might constitute professional misconduct or unsatisfactory professional conduct even it was later demonstrated that the technical force of the order somehow did not survive transfer of the proceedings from the Federal Circuit Court to the Family Court. Part of the Board's contentions were that the appellant did not address his mind to the terms and effect of the order at all. It was open to contend that, if the appellant was or should have been aware of the order, it was professional misconduct or unsatisfactory professional conduct to act contrary to the terms of the order believing, being careless about or without properly considering whether he was required to comply with its terms. Determination of such questions required the primary judge to make findings of fact about the appellant's state of mind: his knowledge and belief. Those circumstances compelled refusal of an application for summary dismissal of the application.
16 No 9/2022
File No 1396/2022
JAMES ANDREW McCONVILL v LEGAL PROFESSION BOARD OF TASMANIA
REASONS FOR JUDGMENT BRETT J
19 September 2022
72 The reasons expressed by Blow CJ with respect to the decision of this Court to refuse the appellant's application for an adjournment, accurately reflect my reasons for joining in that decision. I agree also that the appeal should be dismissed. In this regard, I agree with the reasons expressed by Blow CJ and Pearce J.
a)
is now named the Federal Circuit and Family Court of Australia (Division 2), and the Family Court of Australia is now named the Federal Circuit and Family Court of Australia (Division 1). In this judgment those courts will be referred to by the names that they had at the relevant times.
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