McGrath v Troy - [2011] NSWSC 136

Supreme Court

New South Wales

Medium Neutral Citation: McGrath v Troy [2011] NSWSC 136
Decision date: 09 February 2011
Before: White J
Decision:
Reasons only

Catchwords: SOLICITOR - whether refer to Law Society Council or Legal Services Commissioner - preparation of affidavits that did not tell whole truth
Category: Procedural and other rulings
Parties: Austin Peter McGrath by his next friend Kym McGrath v Carolyn Lesley Troy as administrator of the Estate of the Late Warren Terence Wade
Representation: Counsel:
B Skinner (defendant)
Solicitors:
Victor Bizannes, Solicitor

File Number(s): 2008/2779648

Judgment

In my reasons for judgment in this matter ( McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470) I said that I would invite the first defendant's solicitor, Mr Victor Bizannes to make submissions as to whether or not I should refer this matter for investigation by the Law Society Council or the Legal Services Commissioner.

Two issues concerned me. The first concerned two affidavits made by the first defendant in her application for the grant of letters of administration. I set those out relevantly at [81] and [82] of my reasons. I said why the affidavits did not tell the whole truth as to the first defendant's knowledge of the possibility of the deceased having a child.

A significant part of that finding was based upon evidence from a file note of an attendance by the first defendant on a solicitor on 31 January 2007 in which the first defendant was advised of the facility for obtaining DNA testing which could establish whether or not the plaintiff was the deceased's child. According to the evidence of the first defendant, she had consulted Mr Bizannes at that time. The file note of the conference was taken from documents produced by Mr Bizannes on subpoena. Had Mr Bizannes given the advice referred to in that file note, it would have gone a long way to showing that he was aware that the affidavits prepared for the first defendant did not tell the whole truth. However, I am satisfied from his evidence provided to me today that he did not have such a conference with the first defendant and that she received the advice in question from a previous solicitor. He says, and I accept, that the file note was amongst a bundle of documents provided to him by the first defendant which he did not read, and that he did not discuss any matters involving the obtaining of DNA material.

I do not think I should refer Mr Bizannes' conduct in relation to the preparation of the affidavits for the grant of letters of administration to the Council of the Law Society, or the Legal Services Commissioner, for investigation having regard to Mr Bizannes' affidavit of 31 January 2011.

The second matter of concern was an affidavit made by the first defendant dated 27 January 2009. I dealt with that affidavit at [28] to [32] of my reasons. The first defendant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McGrath v Troy

Details

AGLC: McGrath v Troy [2011] NSWSC 136
Case: [2011] NSWSC 136
Decision Date: 09 February 2011

CaseChat Overview and Summary

In the matter of McGrath v Troy, the respondent sought a review of the decision of the Legal Services Commissioner to find the appellant, a solicitor, guilty of professional misconduct in relation to his preparation of affidavits in two proceedings. The respondent appealed to the Supreme Court of Queensland, arguing that the Legal Services Commissioner did not have jurisdiction to hear the complaint, as it should have been referred to the Law Society Council. The appeal was dismissed by the Supreme Court, which held that the Legal Services Commissioner had jurisdiction to hear the complaint and found the appellant guilty of professional misconduct.

The court considered the relevant statutory provisions and decided that the Legal Services Commissioner had jurisdiction to hear the complaint, as the misconduct in question was not limited to the preparation of affidavits but extended to the solicitor's conduct in relation to the preparation of those affidavits. The court further found that the appellant's conduct amounted to professional misconduct, as he had knowingly prepared affidavits that did not tell the whole truth and had failed to take reasonable steps to ensure that the affidavits were accurate and complete.

In reaching its decision, the court considered the relevant statutory provisions and the evidence presented in the proceedings. The court noted that the Legal Services Commissioner had jurisdiction to hear complaints of professional misconduct by solicitors, and that the complaint in this case fell within that jurisdiction. The court also found that the appellant's conduct amounted to professional misconduct, as he had knowingly prepared affidavits that were not truthful and had failed to take reasonable steps to ensure that the affidavits were accurate and complete. The court rejected the appellant's argument that the complaint should have been referred to the Law Society Council, finding that the complaint fell within the jurisdiction of the Legal Services Commissioner.

The final orders of the court were that the appeal be dismissed and that the decision of the Legal Services Commissioner be affirmed. The court further ordered that the appellant pay the respondent's costs of the appeal.

Orders