Potocki v Pham

[2025] NSWSC 229

Supreme Court

New South Wales

Medium Neutral Citation:	Potocki v Pham [2025] NSWSC 229
Hearing dates:	14 March 2025
Date of orders:	20 March 2025
Decision date:	20 March 2025
Jurisdiction:	Equity
Before:	Parker J
Decision:	See [75]
Catchwords:	OCCUPATIONS — legal practitioners — misconduct and discipline — client brings proceedings concerning alleging loan to former solicitor and solicitor’s wife — solicitor’s wife purportedly unrepresented in proceedings — affidavit from wife prepared by unqualified paralegal employed by solicitor — affidavit copied from solicitor’s own affidavit — proceedings settled — unresolved questions of conflict of interest, “shadow” representation of purportedly unrepresented litigant, employment of unqualified persons, and use of one witness’ affidavit to prepare another’s — papers referred to Law Society
Cases Cited:	Sebie v Pham (No 3) [2021] NSWCA 277
Category:	Consequential orders
Parties:	Andy Vuong Duc Pham (Show-Cause Applicant/First Defendant) Maria Potocki (Contradictor/Plaintiff)
Representation:	Appearances: S Titus (Solicitor-Advocate) (Show-Cause Applicant/First Defendant) D E Baran (Counsel) (Contradictor/Plaintiff) Solicitors: Carneys Legal (Show-Cause Applicant/First Defendant) Bartier Perry Lawyers (Contradictor/Plaintiff)
File Number(s):	2022/227968
Publication restriction:	Nil

JUDGMENT

1. These proceedings settled following three days of hearing in December last year. Before the Court is an application by one of the parties, who is a solicitor, to show cause as to why the papers in the matter should not be referred to the Law Society.

2. The applicant solicitor, Mr Andy Vuong Duc Pham, is a sole practitioner who practises under the name “Andy Pham Lawyers” from offices in Fairfield. He has been a solicitor for 23 years.

3. Mr Pham was the first defendant in the proceedings. His wife, Mrs Thi Huong Giang (“Giang”) Pham, was the second defendant. The plaintiff, Ms Maria Elena Potocki, was a former friend of the Phams. Mr Pham had also previously acted for her and for members of her family in his professional capacity.

Background and procedural history

4. The proceedings arose out of an advance of $1 million made by Ms Potocki in June 2021. The money was withdrawn by Ms Potocki from her bank by means of two bank cheques for $500,000 each, which Ms Potocki provided to Mrs Pham.

5. Within a few days, a contract was entered into to purchase a two-storey commercial building on Great Northern Road, Five Dock, for $1,750,000. The idea seems to have been that Mrs Pham would use the property for some sort of business venture.

6. The initial contract was in the name of Ms Potocki as purchaser and she paid the deposit of $175,000, but the purchase was eventually completed in the name of a company, MGP Investments Group Pty Limited (“MGP”), which was incorporated for that purpose. Mr Pham acted as solicitor on the purchase. He was also responsible for incorporating the company, in which Mrs Pham and Ms Potocki were recorded as equal shareholders. On settlement, Ms Potocki contributed a further $825,000. The remaining moneys presumably came from the $1 million which had been previously advanced by Ms Potocki.

7. Some interest payments were made to Ms Potocki on her loan, but they ceased. The Five Dock property fell vacant and control of MGP was deadlocked. Ms Potocki consulted solicitors, and the proceedings were commenced on her behalf in August 2022.

8. Initially, Mr Pham and Mrs Pham were the only defendants. MGP was joined as third defendant at a later point to allow an application to be made for it to be wound up.

9. At the time of the transactions which gave rise to the proceedings, the Phams were involved in other litigation in this Court. That other litigation formed an important part of the background to Ms Potocki’s claims, and is also a significant factor in the present show-cause application.

10. The litigation arose out of the purchase by the Phams in 2014 of a residential property at Chiswick, which they intended to use as their family home. The contract was dated October 2014. The vendor was Mr Robert Sebie.

11. Mr Sebie failed to complete the contract and instead transferred the property to an associated company. The Phams brought proceedings against him and the company to set aside the transfer and enforce specific performance of their purchase.

12. The proceedings resulted in what can only be described as a forensic horror story. The proceedings were commenced in February 2015. In April 2017 the Phams obtained a judgment in their favour. Orders were made setting aside the transfer to Mr Sebie’s company and requiring the property instead to be transferred to the Phams in accordance with the contract. The contract was eventually completed and then the purchase moneys were paid into Court (albeit, apparently, after a contempt application had to be made). But this did not bring the litigation to an end.

13. The Phams pressed for orders that their costs (assessed on a lump sum basis) be paid out of the funds in Court. Mr Sebie resisted. He also counterattacked with allegations that other associates of his had proprietary interests in the moneys in Court which would prevail over any costs liability to the Phams. The dispute grew to include appellate proceedings.

14. By this stage Mr Sebie was acting for himself. He appears to have been extraordinarily persistent. A summary of the litigation up to October 2021 is found in the judgment of the Court of Appeal in Sebie v Pham (No 3) [2021] NSWCA 277, which was delivered in November of that year. The judgment records that by that point over 35 judgments had been given, and the litigation did not end there. Later it spread to other courts. It was not until November last year that the High Court dismissed the last special leave application.

15. According to Ms Potocki the $1 million advance she provided in June 2021 was a loan to both the Phams, not merely to Mrs Pham. Ms Potocki alleged that the advance followed a request from Mr Pham for her to lend him money because he was in financial difficulties owing to the costs incurred in the Sebie litigation (at that stage the costs orders in the Phams’ favour were still the subject of contest and had not been satisfied).

16. Mr Pham acted for himself in the proceedings. He filed a notice of appearance and a defence for himself as first defendant in October 2022. In the documents he described the “legal representative for filing party” as himself giving the firm as “Andy Pham Lawyers” and his own name as contact solicitor. No appearance, nor defence, was entered for Mrs Pham at that point. At least so far as the record was concerned, she was unrepresented.

17. Ms Potocki’s affidavit in chief was served at the end of January 2023. Mr Pham’s affidavit in response was affirmed by him on 16 June and e-filed on the same day.

18. In early August, a defence was filed for Mrs Pham. The covering page described Mrs Pham as “self-represented” and gave her personal phone number and email by way of contact details. Large portions of that defence were identical in form to Mr Pham’s defence.

19. Shortly afterwards, Mrs Pham affirmed her affidavit in response to the case against her. The affidavit was dated 14 August 2023. Mrs Pham’s signature was witnessed by Mr Pham. The covering page of the affidavit again described Mrs Pham as “self-represented”, and provided her personal contact information.

20. This affidavit played a critical role in the trial and is also relevant to the present application. There is no record of it having been filed with the Court, although the plaintiff’s legal representatives certainly had a copy of it by the time they came to prepare for the hearing. The evidence before me on the present application does not identify how and when a copy of the affidavit was provided to Ms Potocki’s legal representatives.

21. In April last year, the proceedings were fixed for trial before me to begin on 3 December. I conducted a pre-trial directions hearing on 22 October, and further directions hearings took place in November.

22. In the course of these pre-trial hearings, the statement of claim was amended to simplify Ms Potocki’s claim. As ultimately presented, the claim was for judgment against both Mr Pham and Mrs Pham for repayment of the principal and outstanding interest on the loan. An order was also sought for the winding up of MGP.

23. There were also changes to the Phams’ representation. Mr Pham retained counsel to act for him, and on 6 November Mr Le, a solicitor, entered an appearance for Mrs Pham. Mr Le retained separate counsel for Mrs Pham who appeared for her at the trial.

24. The simplification of Ms Potocki’s claim resulted in the simplification and clarification of the Pham’s respective defences. As presented at trial, Mr Pham’s defence was to deny that he had been a party to the loan. Mrs Pham admitted that the $1 million was a loan to her, but alleged that the time for repayment as agreed between her and Mrs Potocki had not yet arrived.

25. The hearing duly began on 2 December. I first dealt with objections to the affidavits. Extensive parts of Mr Pham’s and Mrs Pham’s 2023 affidavits were objected to as being bad in form. I upheld the objection. The result was that there was no evidence from either defendant on most of the critical conversations and dealings in the case.

26. Ms Potocki then gave evidence, as did her former husband Mr Potocki, who had made an affidavit in support of her case. Both of them were cross-examined and the plaintiff’s evidence closed on the second day.

27. Meanwhile, counsel for both Mr Pham and Mrs Pham produced affidavits in an attempt to repair the evidentiary gap in the case left by the successful objections. These affidavits dealt extensively with the relevant transactions. I allowed the affidavits to be filed. But given that they were produced so late in the litigation, and would have required the adjournment of the hearing, I felt obliged to refuse to allow them to be read into evidence.

28. Mr Pham was cross-examined by counsel for Mrs Potocki. The cross-examination was extensive and lasted until the middle of the following day.

29. Upon resumption after the adjournment, I was told that the parties had conferred and had agreed on a settlement, apart from the “final mechanics”. I adjourned the proceedings at their request and on the following (fourth) day consent orders were made for the resolution of the claims against the Phams. The settlement also called for MGP to be wound up. I was satisfied that this order was appropriate and proceeded to make it, thereby resolving the whole of the proceedings.

30. One of the topics on which Mr Pham was cross-examined was the preparation of Mrs Pham’s affidavit. The issue was raised because large parts of Mrs Pham’s affidavit were the same as Mr Pham’s affidavit. This included some of the critical conversations.

31. Furthermore, during his evidence, Mr Pham said that his wife’s principal language was Vietnamese. He described her English as “vocational” only. The affidavit, however, was prepared in English and did not contain the interpreter’s certificate required for witnesses unable to speak the language. It also contained, in the passages which were the same as Mr Pham’s affidavit, sophisticated wording which appeared unlikely to have been part of Mrs Pham’s vocabulary, if her English language skills were as her husband described.

32. Counsel for Ms Potocki asked Mr Pham whether he had in fact prepared his wife’s affidavit by copying his own. Mr Pham denied this. He said that he had not been involved in the preparation of the affidavit. Instead, he had asked his daughter, Vanessa Pham, to prepare it.

33. Ms Pham is a university student who is employed in her father’s practice. She has no legal qualifications but appears to have worked as a paralegal. In that capacity she had access to the firms records, including Mr Pham’s affidavit, which was on the firm’s server. The inference was that she had used Mr Pham’s affidavit to prepare her mother’s affidavit, but Mr Pham said he had nothing to do with this. Although he witnessed the affidavit, he did not read it at the time.

34. Counsel for Ms Potocki did not accept Mr Pham’s explanation. Counsel continued to suggest that Mr Pham had prepared the affidavit himself. Mr Pham continued to maintain to the contrary.

35. At various points in his evidence Mr Pham was asked about the degree to which he supervised Ms Pham. His evidence included:

Q. … what to your knowledge did she do by way of assistance to help your wife in drafting her affidavit?

A. Well as far as I am - I knew my daughter asked me "what sort of form to be used for an affidavit", and I advised her that the relevant form for the Supreme Court.

…

Q. … you knew that your daughter was assisting your wife?

A. I ask her to assist, ask her to use the right form and she has access to the folder, the Supreme Court folder and she's been assisting me for more than a year, so she's—

…

Q. You told me that the Supreme Court folder is a folder of documents relating to this particular case.

A. Yes, your Honour, yes.

Q. So it wouldn't have a standard form affidavit that's just a blank form in it, I'm assuming.

A. No, it was a completed affidavit of mine, yes.

Q. So you referred her to that document, did you?

A. Correct, yes, your Honour.

Q. And what did you say to her?

A. Say well, you know, "Just assist mum to finalise the affidavit and using the correct UCPR form required by the Supreme Court", yes.

Q. Why did you refer her to that affidavit, rather than any other Supreme Court affidavit that you might have had?

A. Because at the time the - I think my wife, she has not settled any affidavit in the proceeding, so I ask my daughter quite clearly to assist mum to that extent.

Q. But I've understood that you were saying you wanted her to make sure that she used the right form, rather than say using a District Court form or something like that.

A. No, I ask, I refer her to the Supreme Court folder, yes.

Q. But that's the point. You didn't refer her just to a blank form, you referred her to your specific affidavit.

A. Using the affidavit, the form, similar that what I deposed in my affidavit, yes. Similar form, yes.

Q. Tell me exactly what document you refer to, what did you say to her?

A. I can't recall the exact wording that I used to my daughter, or I said to my daughter, but I said, "Well you need to use the correct form in accordance with the UCPR rule, and the correct form that I used in my affidavit is the form that you need to also compare and use".

Q. And did you say anything else to her?

A. No, nothing else, yes.

…

Q. What can you tell me what you asked her to do that you can remember?

A. Well, I said, well, there are certain forms, uniform civil procedure rules, using by the District Court or Supreme Court or at the High Court, but, well, you need to use the same form that I used, you know, and then you can download the form from the Supreme Court website, or you look at the folder, Supreme Court folder, and there's some forms, the blank form that I downloaded in the Supreme Court folder. Because when I downloaded the forms, the forms may contain a notice of appearance, affidavit, a blank form, or any other forms.

Q. That would make sure she got the right form.

A. Yes.

Q. But the form would be just blank?

A. Yes.

Q. Is that all you asked her to - is that all the instruction you gave her?

A. Yes, your Honour. Yes, the form that I specifically asked her to use is the affidavit forms, yes.

Q. But you told her to use the affidavit form, but you referred her not to a blank form, but to your particular affidavit that had already been completed, is that right?

A. Well, similar forms that I used, but don't use the wrong form. I said to her, "Don't use the wrong form".

Q. But you could have referred her just the blank affidavit form, couldn't you?

A. Could have, yes.

Q. But you didn't do that?

A. Well, because I said, well, there's number of forms downloaded from the Supreme Court.

36. I found this evidence difficult to follow. By the end of it, Mr Pham had made it clear that he did in fact draw his affidavit to his daughter’s attention in the context of asking her to prepare her mother’s affidavit. He insisted that this was only for the purpose of ensuring that she used the correct form. It seems strange for him to have placed so much emphasis on this point when it would have been obvious (not least from Ms Potocki’s affidavit, which Mrs Pham was supposed to be responding to) that the proceedings were pending in this Court. And if the point was so important, that still does not explain why it needed to be made by reference to Mr Pham’s own affidavit rather than the blank court form.

37. The settlement of the claims between Ms Potocki and the Phams left unresolved the questions arising out of the preparation of Mrs Pham’s affidavit. They also left unresolved the broader questions raised by Ms Potocki’s claims against Mr Pham, which, if true, would have meant that Mr Pham had borrowed money from his own client. In approving the settlement, I indicated that I would require Mr Pham to show cause why the papers in the proceedings should not be referred to the Law Society for investigation, and, if thought necessary, disciplinary action.

38. The show-cause hearing came before me on 14 March. The application was supported by an affidavit from Mr Pham and from his daughter Ms Pham. Mr Pham retained a separate firm to act for him on the application. Mr Titus of that firm appeared as Solicitor-Advocate at the hearing. Mr Baran of counsel, who had appeared for Ms Potocki at the trial, appeared to make submissions in opposition to the show-cause application.

Show-cause application

39. Mr Pham’s affidavit: Mr Pham deposed that following his admission in 2002 his experience as a solicitor was limited to dealing with conveyancing and immigration matters. He had no experience in litigious matters. In fact his first experience with litigation was as a party, together with Mrs Pham, in the litigation with Mr Sebie.

40. Mr Benjamin Zipser of counsel acted for the Phams in the Sebie litigation. Affidavits prepared for the purpose of the litigation were largely prepared by Mr Zipser with some assistance from Mr Pham. As Mr Pham put it, he learned about litigious matters through his involvement in the litigation with Mr Sebie.

41. Mr Pham deposed that Mrs Pham had been living in Vietnam (presumably to attend to her business interests there) from 2008 onwards, and only occasionally visiting Mr Pham and their children thereafter. It seems, however, that one of her visits to Australia coincided with the outbreak of the Covid-19 pandemic in 2020. Mrs Pham remained in Australia until 2022, when she returned to Vietnam to resume attending to her business interests there, with only occasional visits to Australia.

42. In his affidavit, Mr Pham focussed on how Mrs Pham’s August 2023 affidavit came to contain passages taken from his June affidavit. He deposed that at the time he was “managing” the Sebie litigation for himself and his wife, which involved complex proceedings in various courts, as well as conducting his practice as a sole practitioner. He stated:

Due to my demanding workload and the constraints of my sole practice, I engaged my daughter, Vanessa Pham, in a paralegal capacity to assist in administrative and preparatory tasks under my supervision.

43. Mr Pham’s explanation concerning his wife’s affidavit in these proceedings was essentially the same as that which he had given in cross-examination in December last year. He deposed:

In the course of assisting with an affidavit for my wife required for the proceeding in July and August 2023, my daughter mistakenly relied on an existing affidavit of mine as a reference when she should have prepared a wholly independent document. I acknowledge that because of the stress of the personal Sebie litigation which was going on at that time and running my practice, my instructions to my daughter were cursory. They are set out in the transcript. I was not acting for my wife who was a Defendant in the proceedings. ...

As a result, certain passages from a prior affidavit of mine were inadvertently transposed into the new document, compromising the intended independence of the affidavit.

My wife returned from Vietnam to Australia for the purpose of swearing her affidavit. I had not seen it and had no part in it being prepared. However, I witnessed her signature. I did not read the body of her affidavit.

…

I was cross examined in relation to the affidavit prepared on behalf of my wife with the input from my daughter in the Supreme Court. The answers that I gave there were correct. I knew it was not proper for me to act for my wife. I did not act for my wife.

44. Mr Pham continued:

It was only a few weeks before the trial commenced in late 2024 when I received the Court Book and I saw the affidavit for my wife in it that I realised for the first time the similarity or actual copying of material from my affidavit into her affidavit. I did not take any steps to notify the Court about that fact. I was concerned about the litigation. I had the other litigation with Mr. Sebie on foot and was under time pressure.

45. Mr Pham emphasised the expense, as well as the distraction, of the Sebie litigation. Over the whole period of the litigation, up to November last year, the total costs were approximately $1 million, of which only about 75% was actually recovered. He deposed that when Ms Potocki’s proceedings began he and his wife were still in a “challenging and financially difficult position” and that they were “not financially able to afford” counsel’s involvement in the litigation. Mr Pham deposed that he was also adversely affected by a loss of income during the covid pandemic. As well as the stress induced by the Sebie litigation, Mr Pham had to face a personal tragedy, namely the illness and death of his mother-in-law.

46. He summarised the position as follows:

The personal situation compounded the already significant pressures I was experiencing due to the multiple, ongoing legal matters involving both my wife and [me], which had reached a critical stage. The combined impact of my professional obligations and the personal loss of my mother-in-law created a level of stress and distraction that severely impacted my ability to maintain the necessary focus on every aspect of my professional duties. This context further explains why the oversight in the preparation of the affidavit occurred.

47. I do not doubt the stress caused to Mr Pham by the Sebie litigation, and by his mother-in-law’s illness and death. But his affidavit leaves the precise effect of these factors in August 2023 somewhat unclear.

48. So far as the Sebie litigation is concerned, there was no direct evidence about the nature of the proceedings which followed the Court of Appeal’s judgment in November 2021. Mr Pham in his affidavit said that in August 2023 he was dealing with litigation in this Court, the High Court and the Federal Circuit and Family Court of Australia. However, later in the affidavit, he stated that Mr Sebie brought proceedings in the Federal Circuit and Family Court in Brisbane, in an attempt to relitigate the specific performance proceedings in this Court, in August last year (which were dismissed at the end of October). The implication was that the final decision of the High Court, which was delivered in November last year, was an application for special leave engendered by those proceedings. Mr Pham did refer to a High Court decision in 2023 as well as the decision last year, but the precise nature of the proceedings with which he was dealing was August 2023 are not clear.

49. Similarly, Mr Pham’s evidence about the effect of his mother-in-law’s illness focussed on what he had to do at the time of her final hospitalization and death, which he described as having “occurred during the same period leading up to the trial in December 2024”. Again, the evidence does not describe precisely what stage her illness had reached, and what effect it was having on him, in August 2023.

50. In his affidavit Mr Pham apologised for what he described as an error relating to the “preparation and swearing of” Mrs Pham’s affidavit. He accepted that he was responsible for the “accuracy and integrity” of the document, as one “submitted to the Court under my supervision”.

51. Mr Pham deposed that he had engaged an independent consultant to conduct a review of his firm’s practices. But the report was not presented in an admissible form (it was unsigned and there was no affidavit from the person who had prepared it). I therefore did not admit it into evidence.

52. Mr Pham however did depose:

I have also instituted new internal procedures to ensure that all affidavits are reviewed in full by me personally before submission, regardless of workload pressures.

Additionally, I have ceased delegating affidavit drafting tasks to my daughter and have sought external professional paralegal assistance where necessary.

53. Ms Pham’s affidavit: Ms Pham is 21 years old and has completed one year of a business degree at TAFE. She deposed that she had placed her course on hold to help her father in his legal practice and that she worked for him for about three years (that is, since 2022).

54. Ms Pham’s affidavit, like her father’s, concentrated on the use of copied material in her mother’s affidavit. She deposed:

My father … instructed me to prepare an affidavit for my mother based on an interview I conducted with her in Vietnamese, translating her responses into English for the affidavit. I recall that my father was very busy at the time. I cannot recall that he gave me specific instructions. My mother was overseas. I believe that I was requested by my father to call my mother and obtain information from her in relation to her dealings with Maria Potocki, in relation to the business the subject of the Court case. I would call my mother. As I am not that fluent in Vietnamese, it was difficult. I would then type up what she told me.

I had no prior experience with affidavits. I was expected to use a blank affidavit template from the templates folder to draft my mother's affidavit independently.

Instead of selecting a blank affidavit template, I mistakenly accessed the case folder, which contained affidavits related to the matter, including an affidavit previously prepared by my father in his own defence.

While interviewing my mother and noting her evidence, I realised that many of the facts she provided were consistent with those in my father's affidavit.

To save time, I copied and pasted relevant paragraphs from my father's affidavit into my mother's affidavit, rather than drafting those sections anew.

At the time, I did not inform my father that I had used sections of his affidavit in my mother's affidavit.

I read the completed affidavit back to my mother to confirm its accuracy and then presented it to my father for witnessing. I emailed to her the affidavit. I was not involved in the process whereby the affidavit was sworn by my mother with the witness being my father.

55. Like her father’s affidavit, Ms Pham’s affidavit is light on detail. There seems to be no doubt that Mr Pham instructed Ms Pham to prepare the affidavit, but what else was said between them remains unclear. Ms Pham only says that she “believes” her father asked her to call Mrs Pham and obtain “information” (unspecified) from her “in relation to her dealings with” Ms Potocki “in relation to the business the subject of the court case”. She does not say how she was to decide what was relevant for the purposes of preparing the affidavit.

56. Ms Pham’s account also leaves unclear how it was that she came to be aware of the contents of her father’s affidavit. She says that she was told to use the blank Supreme Court form as what she describes as the “templates folder” on the firm’s server. She says that she “mistakenly” used the case folder which contained affidavits, including her fathers. She does not say what the actual “mistake” was.

57. Submissions: Mr Titus took me through the affidavit evidence in support of the application. He submitted that the use of Mr Pham’s affidavit to draft Mrs Pham’s, whilst erroneous and regrettable, did not involve any deliberate or conscious wrongdoing on Mr Pham’s part. He also submitted that, having regard to the extraordinary strains which Mr Pham had been under at the time, his contrition, and the administrative steps he had taken to avoid any repetition, there was no need for referral to the Law Society.

58. Mr Baran reminded me of how the issue concerning Mrs Pham’s affidavit had come out. The affidavit had been prepared by Ms Pham, an unqualified person, on Mr Pham’s instructions. Mr Pham had been involved in putting the affidavit forward by serving it. Even when, on Mr Pham’s own account, he became aware of the duplication in the affidavit prior to the trial, he took no action. Mr Baran submitted that the disclosure should have been made, at the latest, by that point. Had that occurred, the affidavit would undoubtedly have been withdrawn and re-sworn.

59. Mr Baran noted Mr Pham’s claim that he had participated in the preparation of the affidavit only as a witness. He observed that this version of events had had to be extracted from Mr Pham in cross-examination. Regrettably, in Mr Baran’s submission, having regard to the way in which Mr Pham’s evidence came out, it should not necessarily be accepted as truthful. Mr Baran submitted that the more likely explanation remained that Mr Pham had directly instructed Ms Pham to use the existing affidavit for the purpose of preparing the new one.

60. Mr Baran submitted that in these circumstances it was important for the whole affair to be investigated by the Law Society. This should include the substantive basis of Mrs Potocki’s claim against the Phams, which raised serious professional questions about Mr Pham’s conduct.

61. In presenting these submissions, Mr Baran was sensitive and restrained. Properly, however, he reminded me of the importance of ensuring the highest standards of professional practice among solicitors of this Court. He also noted the effect on his client, who had had to deal with an affidavit (including by extensive, but not inappropriately so, cross-examination) which should never have been presented.

62. Mr Baran acknowledged that ultimately the Law Society might take no action against Mr Pham. But he submitted that if that was to be the decision, it should be a decision made by the Law Society after a full opportunity to consider the matter.

63. Conclusion: In my view these submissions have force. I think four points stand out.

64. First, I am not confident that the Court has received a full account of the circumstances surrounding the preparation of Mrs Pham’s affidavit. It may be accepted that Ms Pham actually did the interviewing of Mrs Pham and the copying of Mr Pham’s affidavit. But it is harder to accept that Mr Pham could have exercised no direction or control whatsoever over the process.

65. One would expect that a solicitor in Mr Pham’s position who was delegating to a junior employee the preparation of an affidavit of a party responding to allegations against that party would, in the ordinary course, give the junior solicitor a detailed briefing about the allegations and potential lines of response. One would also expect the solicitor to supervise the drafting process, or, at least, to check the affidavit before attestation. In the present case the party in question was Mr Pham’s own wife and the employee had no legal qualifications, which would, one would have thought, only have made the need for guidance and supervision more obvious. One would also expect the process to have left documentary traces, such as drafts and (possibly) file notes.

66. In the present application, no documentary records concerning the preparation of the affidavit have been produced, and there is not even any evidence before the Court as to whether any such documents still exist. I have already commented on the sketchy nature of the affidavit evidence. It does not contain any clear statement, even in gist form, from Mr Pham or Ms Pham of what they actually recall was said between them.

67. The only thing which was clear from the evidence given by Mr Pham at the trial was that he instructed Ms Pham to prepare the affidavit, and, in that context, he referred her to his earlier affidavit. His attempt to explain why he did so raised more questions than it answered. The further affidavit evidence from Mr Pham and Ms Pham does not, in substance, take matters any further.

68. Nor do I find compelling the explanation Mr Pham offered for failing to disclose the copying of his affidavit when he says he became aware of it before the trial. He may well have been under personal strain but disclosure would not have been difficult or time-consuming.

69. While I do not go so far as to accept the submission from Mr Baran that Mr Pham gave false evidence about how the affidavit came to be prepared, that submission was undoubtedly an available one on the material which has been presented to the Court. I do not think that the doubts surrounding what happened have been dispelled. I still cannot be satisfied that I have been provided with the full story.

70. The second point is that, on his own account Mr Pham procured the preparation of the affidavit, which was legal work, by an unqualified person, namely Ms Pham. To my mind this was a significant matter in its own right. Even if one accepts that Mr Pham was unaware of the copying which occurred, it is the very sort of thing which might have been expected if an unqualified person was asked to prepare an affidavit for the purpose of legal proceedings. Ms Pham cannot be blamed for not understanding the ethical obligations concerning the preparation of affidavits. Mr Pham ought to have known better than to put her in that position.

71. The evidence presented by Mr Pham in his show-cause application focused exclusively on the copying of Mrs Pham’s affidavit. He showed no appreciation that he never should have asked Ms Pham to prepare the affidavit in the first place, especially if, as he claims, he did not properly brief or supervise her.

72. The second point gives rise to a third, and related, point. It is unclear whether Mrs Pham ever had any defence of substance to Mrs Potocki’s debt claim. But defence or no defence, as a co-defendant and a co-participant in the transaction, Mr Pham clearly could not have acted for her.

73. Mr Pham in his own evidence acknowledges this. He insists that he did not act for Mrs Pham. But as a matter of substance, that was exactly what he was doing in making the resources of his firm available for the preparation of her affidavit. It is reasonable to infer that the same process was followed (by Mr Pham or someone working for him) in preparing Mrs Pham’s defence.

74. Again, this is not a point which was addressed in the show-cause application. Again, I think it is significant. It potentially involved misleading the Court and Ms Potocki’s legal representatives, while at the same time deriving a forensic advantage (by propounding a defence which a solicitor might not have been able to endorse as arguable).

75. It would have been understandable for the Phams to have been unwilling to incur the expense of paying for separate and independent legal representation for Mrs Pham. But the decision not to do so, and instead (it seems) for Mr Pham’s firm to provide “shadow” representation for Mrs Pham, ultimately did her a disservice as well. Again, this is the type of problem which Mrs Pham cannot have been expected to understand, but which should have been understood by Mr Pham as a solicitor. One wonders whether the full implications of that decision were ever discussed with her.

76. Finally, and most fundamentally, the allegations which gave rise to the proceedings have not been tested. Given the settlement, and the possibility of further investigation, I do not propose to discuss the evidence given by Mrs Potocki and the evidence given in response by the Phams in any detail. It is sufficient to say that the affidavits by Mr Pham leave questions unanswered and challenges, including challenges as to credit, available.

77. It is impossible not to be moved by the litigious and personal misfortunes that Mr Pham has suffered. But whether those misfortunes are sufficient to mitigate the need for disciplinary action, or to make disciplinary sanctions unnecessary, are not questions which should be answered now by the Court. They should be left to the Law Society to consider in the whole context of the case, including the results of any further investigations which the Society may choose to conduct.

78. For these reasons, I think the show-cause application fails. I propose to make an order referring the papers to the Law Society. It will be for the Society to decide whether it should investigate any of the issues raised in this judgment and, depending on the outcome, what further action to take.

Orders

79. The order of the Court is:

1. Order that the papers in these proceedings be referred to the Law Society for consideration in the light of the Court’s judgment.

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Decision last updated: 20 March 2025