Percival & Percival (No 3)
[2023] FedCFamC2F 670
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Percival & Percival (No 3) [2023] FedCFamC2F 670
File number(s): BRC 4896 of 2020 Judgment of: JUDGE COATES Date of judgment: 2 June 2023 Catchwords: FAMILY LAW – Property – All applications dismissed – solicitor for applicant called on to determine whether he should be referred to Legal Services Commission – submissions – referral. Legislation: Family Law Act 1975 (Cth)
Legal Profession Act 2007 (Qld)
Australian Solicitors Conduct Rules 2012
Cases cited: Oldfield v Keogh 941 NSWSR 206
Percival & Percival (No 2) [2022] FedCFamC2F 1734
Division: Division 2 Family Law Number of paragraphs: 48 Date of last submission/s: 3 May 2020 Date of hearing: 3 May 2020 Place: Brisbane Counsel for the Applicant: Mr P Solicitor for the Applicant: C Lawyers Respondent: Appearance excused ORDERS
BRC 4896 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PERCIVAL (DECEASED)
Applicant
AND: MR PERCIVAL
Respondent
order made by:
JUDGE COATES
DATE OF ORDER:
2 JUNE 2023
THE COURT ORDERS:
1.That the Registrar of the Federal Circuit and Family Court of Australia refer the conduct of Mr C to the Legal Services Commission of Queensland.
2.That the Registrar of the Federal Circuit and Family Court of Australia provide to the Legal Services Commission of Queensland a copy of:
(a)The Reasons for Judgment delivered on 21 July 2022;
(b)The Reasons for Judgment delivered on 15 December 2022;
(c)The Reasons for Judgment delivered on 2 June 2023; and
(d)All documents and transcripts contained on the file Percival & Percival (BRC489/2020).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Percival & Percival has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COATES:
On finalisation of a property matter under the Family Law Act 1975 (Cth) (“the Act”), the court called on the solicitor for the applicant to file submissions about his conduct of the case, to determine whether he should be referred to the Legal Services Commission of Queensland.
The judgment finalising matters was delivered 15 December 2022, Percival & Percival (No 2) [2022] FedCFamC2F 1734.
Orders were made that day dismissing an application to appoint a substitute party for the deceased applicant, as well as dismissing the substantive proceeding.
The ground of dismissal for each matter was that there was no reasonable prospect of success.
The decisions were not appealed.
The judgment dealt with the factual and legal matters in both applications, and in doing so, addressed the possible breach by the applicant’s solicitor of his duties, both inherent and as stated in the Legal Profession Act 2007 (Qld).
Paragraph 99 of the judgment stated:
99The acts here may amount to unsatisfactory professional conduct with regard to the filing of a case which appears to fall short of the standard of competence and diligence that members of the public, including the litigants being represented, are entitled to reasonably expect, by a reasonably competent solicitor.
The wording used in that paragraph comes from s.418 of the Legal Profession Act.
The related litigation provides the context of the matter now before the court.
The wife, born in 1953 and the husband, born in 1949 married in 1971 and separated on a date unknown which I found was probably in 1994 or 1995, although the wife claimed it was in 1998, the actual date not relevant to the final decision.
A lengthy period passed before they divorced in 2019.
They had two children, Mr B aged 47 as at the date of the delivery of the judgment and Ms F, aged 44 as at the date of delivery of the judgment.
The wife filed her application for alteration of property interests with a supporting affidavit 1 May 2020.
She died in 2021.
Mr B made application to be substituted in place of the wife (his mother) on 8 March 2022.
The solicitor was called upon to provide submissions as to why he should not be referred because of claims made in the affidavit material filed on behalf of the wife and to a lesser extent by Mr Percival.
At all times the solicitor, as practice manager of his firm, had control and responsibility for material filed, and not only approved the preparation of the material, but acted as counsel during each of the appearances.
The difficulties in the deceased’s wife’s case, and subsequently for the son who sort to be substituted in her place, began with her swearing to the truth of various matters which impugned the reputations of people, without any supporting evidence which would allow the alleging of such claims.
In doing so, and without proper legal advice as to the making of such statements, there is no doubt that the wife was given a false hope that she may have a case, the creation of such false hope not being part of the role of a solicitor, an officer of the court, in representing a person and giving professional advice on the law and prospects on the evidence to hand.
The salient issues causing the hearing now were addressed in the following paragraphs of the final judgment:
(1)At paragraph 48 I stated that the wife’s evidence was presented in such a way that it was “was designed to allow for a case that post-separation she was swindled by the husband, aided by his solicitor and her solicitor”;
(2)At paragraph 49 I referred to her claim that the husband’s girlfriend “broke into her house and stole her marriage and birth certificates, using these identity documents to buy goods and causing a debt in her name of $25,000”;
(3)At paragraphs 50 and 51 I referred to the wife’s claims that she was granted a short term bankruptcy on the debt and raised the issue of why there was no complaint to police if in fact identity fraud had caused the debt in her name;
(4)At paragraph 52 I referred to the wife’s claim “that she sought legal advice for a property settlement and a mediation occurred. She then alleged that the husband, his solicitor and her solicitor (Ms N) started attacking her and she found out later that the solicitors were having an affair”;
(5)At paragraph 54 I referred to the wife’s claim that the marital home, in both names, was sold by the husband without her knowledge, that a real estate agent knocked on the door and told her she had 24 hours to vacate the premises and that the real estate agent purchased the property;
(6)At paragraph 56 I referred to the wife’s claim that the husband used sale of the marital property to purchase another property in the husband’s father’s name and which he eventually inherited;
(7)At paragraph 58 I referred to the wife’s claim that the a woman claiming to be the husband’s other daughter, a Ms L, had a house supposedly bought for her by the husband and she was paid $1,000 a week cash.
In referring to these as well as other matters, including a settlement conference between the parties, I stated this in the judgment:
95.The evidence is in a form where it should have been apparent to the solicitor for the wife and [Mr B] that it should never have been filed, or at least particularised or withdrawn after the evidence of the husband was filed.
96.It is permissible, and required, that the wife and [Mr Percival] give evidence of those issues going to an alteration of property interests, but it is not permissible to simply allow the litigants to make wild, scandalous and fanciful allegations about the husband, the [wife’s] solicitor [Ms N] or the husband’s solicitor at the time the settlement conference was held or the woman identified as [Ms L], if that is her surname.
97.It is not the solicitor’s role to merely repeat any and every allegation that a client gives – the role is to represent them and prepare a case with regard to the particular claim the court has jurisdiction to determine.
98.The role is to assess what a client asserts to be the case, what is asserted as fact, what is mere assertion which requires proof and examine what evidence is available to support facts and assertions and give appropriate advice. Case preparation does not include, as has occurred here, allegations of fraud for which there is simply no basis, or allegations which impugn the character of the other party or other people unless evidence of credit is an issue to be determined or make stupid claims about bankruptcy proceedings. It is called case preparation.
99.The acts here may amount to unsatisfactory professional conduct with regard to the filing of a case which appears to fall short of the standard of competence and diligence that members of the public, including the litigants being represented, are entitled to reasonably expect, by a reasonably competent solicitor.
100.This case began with so many unaddressed difficulties, with the parties having been separated for at least 25-26 years and claims of significance, that such was the starting point for the competent collection of facts and assertions and then assessment as to how such would be presented, if at all. It seems to be a case in which the solicitor has allowed the [litigants] to say what they want instead of presenting a case, and so I will consider referring the solicitor to the Legal Services Commission, but give him 28 days in which to put before the court reasons as to why I should not.
Having made those decisions, I ordered the solicitor to provide reasons as to why he should not be referred to the Legal Services Commission for unprofessional or professional misconduct.
The solicitor filed an affidavit which simply said the separation occurred a long time ago and there were difficulties in getting materials.
Given that the affidavit did not address professional practice issues, acts and omissions identified in the judgment, I allowed him to make oral submissions.
On appearing to give oral submissions on 4 April 2023 I suggested an adjournment, which was accepted, so the solicitor could be represented by counsel.
On 3 May 2023, the solicitor appeared, having directly briefed counsel rather than seek independent legal advice.
I concluded the brief was a direct brief, without intervention or assistance of case preparation by an independent solicitor, despite counsel stating that he was briefed by the solicitor’s own law firm.
Counsel submitted that a referral to the Legal Services Commission was not to be punishment, but for the best interests of the public.
Counsel repeated his instructions – the same submissions made previously by the solicitor - that the solicitor had difficulty getting instructions.
Counsel referred to many cases, none of which were helpful other than by way of general knowledge of decisions dealing with acts of practitioners appearing before various disciplinary bodies.
Counsel did not address the specified acts and omissions in terms of those very serious duties undertaken by an officer of the court in assuming the grave responsibility of representing people in a legal matter.
There have been many matters now addressed by courts and commissions established in the various states of Australia, dealing with the duties of solicitors.
In an older case, Oldfield v Keogh 941 NSWSR 206 Maugham L identified principles developed over time as to counsel’s independent duty to the court, stating:
Written pleadings are frequently sent to counsel for revising containing serious allegations of fraud, dishonesty, or misconduct. The consequence of lodging such pleadings in Court may be to cause irreparable injury to the person thus publicly accused. For an advocate to allow such charges to be launched with his name attached to them without the fullest investigation would be to abuse the absolute protection against actions for slander which the law affords counsel. Counsel is not worthy of that protection unless he justifies it by the most scrupulous care in his written or oral attacks on character. He must insist upon being supplied with all the information which is thought by his client to justify the attack, and then he must decide for himself whether the charges made are such as con be justifiably made. In exercising his judgment in such a matter the advocate is fulfilling one of the most delicate duties to society which his profession casts upon him. It is no small responsibility which the State throws upon the lawyer in thus confiding to his discretion the reputation of the citizen. No enthusiasm for his client’s case, no specious assurance from his client that the insertion of some strong allegations will coerce favourable settlement, no desire to fortify the relevance of his client’s case, entitles the advocate to trespass, in matters involving reputation, a hair’s-breadth beyond what the facts as laid before him and duly vouched and tested will justify. It will not do say lightly that it is for the Court to decide the matter. It is for counsel to see that no man’s good name is wantonly attacked.
These statements are applicable to the specific duties and undertakings of counsel and solicitor alike, and given that the judgment-in-consideration addressed similar issues - allegations of fraud, dishonesty and misconduct - these were the issues the court expected to be addressed and not simply brushed over in sweeping statements that evidence was difficult to get because time had gone by.
Unfortunately it seems necessary to state that if there is no evidence, then there is no evidence.
Allowing a potential litigant to make any and every wild statement that comes to mind is not the role of the practitioner and is in reality anathema to the role of the legal practitioner, who carries a very heavy responsibility to ensure that far reaching legal powers are not exercised needlessly or on an uninformed basis.
Even when supplied with documents secured by the husband in his response documents, as stated in the judgment, documents not helping her case, it appears that no consideration was given to withdrawing the wife’s case.
Instead her case continued to make serious allegations of people including a real estate agent, a women not named but identified as the husband’s girlfriend, a woman by the name of Ms L and solicitors previously involved in mediation proceedings, such allegations claiming illegal acts such as fraud, break and enter, stealing and possibly acts amounting to the perversion of justice when touching on the mediation proceedings.
The claims cannot be accepted as merely the context or narrative of the dispute.
At all times since the judgment was delivered, the solicitor has been on notice that the court had grave concerns about his acts and omissions with regard to representing both the applicant and the applicant for substitution.
Knowledge of the Australian Solicitors Conduct Rules 2012 would have suggested to the solicitor that the shortcomings pointed out as to conduct were issues about which the court sought submissions and explanation.
Rule 3 and 4 of those rules make clear that the fundamental duties of the solicitor – the officer of the court – encompass the duty to the court and the administration of justice and that such duty is paramount and prevails to the extent of any inconsistency over other duties.
In other words, that fundamental duty subsumes other ethical duties, such as serving the best interests of the client and to deliver legal services competently and with diligence.
Even a glance at those rules by way of refresher, particularly Rule 21 and 32, remind practitioners that allegations are not to be made suggesting fraud or serious misconduct or similar against another practitioner, without reasonable grounds to support a proper basis for making such allegations. Mere allegations are not a reasonable ground. Having some evidence may be a reasonable ground.
The materials referred to by the solicitor and the case put forward by counsel did not address the possibility that the conduct referred to in the judgment was that which may fall short of the standard of competence and diligence that members of the public are entitled to expect of a reasonably competent practitioner, both under the rules and as developed over a long period of time by the courts and the professional societies for solicitors.
If it did, then I would have expected to see evidence of remedial actions taken by the solicitor, in whatever form that may occur, to give the public confidence that the court will ensure all rights and privileges encompassed by the legal system are upheld.
In the absence of any useful submissions explaining what appears to be conduct within the meaning of ss.418 or 419 of the Legal Profession Act, conduct which affects unknowing, unprepared and very possibly naive litigants, as well as diverting valuable court time in dealing with such conduct, I will refer the relevant material to the Legal Services Commission of Queensland, such to include the judgments and all filed documents and transcripts.
I will also state that a submission was put that the Legal Services Commission was unlikely to take action against the solicitor. Such submission in my view is wrongly based for two reasons. Firstly, it is not the court’s place to usurp the Commission’s role. The Commission will assess the nature of this judgment and will apply its reasoning, as it is legislated to do, as to the solicitor’s discharge of his duties. The judgment merely provides the framework in which the Commission’s jurisdiction is enlivened, and does not restrict the exercise of its independent determinative powers. Secondly, such submission treats the acts and omissions identified as being minor in nature, which in itself may misunderstand the absolute and fundamental importance of legal practitioners properly representing their clients. While courts are expected and do impose a discipline upon proceedings underway, as they must do to maintain the rule of law, matters such as this are those properly referred too disciplinary bodies.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coates. Associate:
Dated: 2 June 2023
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