Re B (A Solicitor) - [2012] FMCAfam 997

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RE B (A SOLICITOR)

[2012] FMCAfam 997

FAMILY LAW – Lawyers – duties as officers of the court – finding that a solicitor has knowingly misled the court – referral to the Legal Services Commission.

RE B (A SOLICITOR)

File Number:

TVC 136 of 2007

Judgment of:

Coker FM

Hearing date:

5 September 2012

Date of Last Submission:

5 September 2012

Delivered at:

Townsville

Delivered on:

5 September 2012

REPRESENTATION

Solicitor:

Appearing in Person

ORDERS

That the Registrar or Registry Manager of the Federal Magistrates Court at Townsville take all necessary steps to refer the transcripts and reasons for judgment of today’s proceedings and the proceedings of 29 August 2012 to the Legal Services Commission of Queensland for the Commission’s consideration.

IT IS NOTED that publication of this judgment under the pseudonym Re B (A Solicitor)is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

TVC 136 of 2007

RE B (A SOLICITOR)

REASONS FOR JUDGMENT

On 29 August 2012 a situation arose in relation to a most experienced legal practitioner appearing before me in relation to a matter listed for attention on that day. Mr B is a practitioner known to me for nearly 30 years, since the time I commenced practice in Townsville. I have never known him to be anything other than full and frank in his representation of his clients and in his court behaviour and demeanour. Accordingly, the situation that arose on 29 August 2012 was one which caused me very great difficulty and concern in relation to the matter that now I am required to deal with.
The matter of [S & R] was mentioned before me on 29 August 2012 on three occasions. It was mentioned between 9.56 am and 10.03am on that day. It was mentioned again between 11.05 am and 11.14 am and, finally, on that day, between 11.36 am and 11.50 am.
The concern that arose in relation to the matter was that Mr B had not been full and frank in relation to the position with regard to his client’s non-attendance before the court, and, in fact, that failure to make full and frank statements and disclosures in relation to the proceedings that were before the court directly led to the court being misled in relation to the attendance by Ms R, or perhaps more accurately, non-attendance by Ms R, before the court at 10 am, when the proceedings were to commence.
When the matter came back before the court at 11.03, the second occasion that the matter was mentioned, an exchange occurred in relation to this matter which commenced with the statement by me:
HIS HONOUR:   Perhaps I will ask Ms R direct. Ma’am, did you – you were here earlier today. Is that correct?
MS R:   Yes.
HIS HONOUR:   Yes. And you were not here at 10 o’clock when the matter was called on in relation to the matter. Why did you leave, ma’am?
MS R:   Because I had spoken with Mr B, and I told him that I wasn’t too well. And he told me to go home.
The transcript goes on to record:
HIS HONOUR:   Mr B, you find yourself in a very difficult position.
MR B:   I appreciate that, your Honour, in a very serious position.
HIS HONOUR:   Mr B, did you speak with your client at all this morning?
MR B:   I did, your Honour, and I ‑ ‑ ‑
HIS HONOUR:   You did not tell me that, Mr B.
MR B:   No, I appreciate that, your Honour, and I apologise for that and ‑ ‑ ‑
HIS HONOUR:   Mr B, you misled a court.
MR B:   I appreciate that, your Honour. I did, your Honour, I did not - your Honour – I don’t know what I can say, your Honour. The situation is that ‑ ‑ ‑
HIS HONOUR:   You told me, Mr B - - -
MR B:   Yes.
HIS HONOUR:   - - - we can have the transcript - you told me that you had attempted to contact your client - - -
MR B:   I had attempted to - - -
HIS HONOUR:   - - - and had not been able to - - -
MR B:   - - - contact my client by telephone and that is correct, your Honour, and I had not been able to contact my client by telephone, and I assumed last night that she was still in hospital or in - unavailable.
HIS HONOUR:   And you saw her this morning?
MR B:   Yes, your Honour, I did.
HIS HONOUR:   You misled me, Mr B.
MR B:   Yes, your Honour, I did, and I apologise, and it may well be your Honour will be taking certain action against me, but I was not told - I was told she was very sick - I can’t say anything more, your Honour.
The transcript then goes on in relation to other issues, but what arises of particular concern in relation to this matter, is that in my assessment at least, whilst statements made by Mr B earlier in the day were correct and truthful they were not full and frank, as would be expected in relation to proceedings before any Court. An officer of the Court finds themselves, in many instances, in a dual situation of difficulty. They have obligations and responsibilities to their client, but also as an officer of the Court, they have obligations and responsibilities to the Court.
And, of course, in all such situations there must be appreciated by a court that a statement made to a Court by an officer of the Court, fully discloses the circumstances that they relate to. To only partially provide information as to communication and here there was only partial disclosure of information when a rather specific statement was made that Mr B had been unable to speak to his client on the telephone and had not seen her in the precincts of the Court, failed to fully apprise the court of a very significant matter.
I am enormously troubled by the circumstances that, therefore, have arisen in relation to this matter. All courts in the land must be able to rely upon the complete integrity and frankness of the legal representatives that appear for parties before them on a daily basis. That is, perhaps, even more so in a court such as the Federal Magistrates Court which is one that deals with high volumes of cases and, primarily, family law matters which are, of course, fraught with the emotions of the parties. Reliance upon the integrity and the honesty of the legal representatives representing such parties is a cornerstone of the administration of justice.
In this particular matter, particularly in light of the statements that were made in relation to the proceedings and the indication given by Ms R that she had seen Mr B outside of the precincts of the court and had been advised to go home, I cannot find other than that one of the ultimate obligations of a legal representative, to be full and frank, to be truthful and to be honest with the courts and with the statements they make to the courts has not been met by Mr B in relation to this matter.
I am aware of our long interaction professionally with each other and, as I indicated at the commencement of these reasons, I have never in almost 30 years of involvement with Mr B, had reason to in any way question or be concerned as to his integrity or honesty. It was shattering for me on 29 August 2012 for that illusion to be disturbed and I have no doubt, as Mr B indicated in some of the statements that he has made in relation to this matter, that he also realises that there may be consequences in respect of the situation that arose.
It may be able, with greater opportunity on the part of Mr B, to be more fully explained. In fact, it was for that reason that I specifically stood the matter down to not before 11 am today, 5 September 2012, so as to enable Mr B, if he chose to do so, to seek legal advice from another practitioner or member of the bar. Mr B has not taken that opportunity and I find myself in a situation where in my assessment the only proper course that can be followed by me in relation to this matter, is that I should refer the transcript and the reasons of 29 August 2012, and of today to the Legal Services Commissioner of Queensland and I direct that the registrar or registry manager of this Court take such course in relation to the proceedings.
I will direct that my reasons, of course, also be published in respect of this and that they be included with documentation to be referred to the Legal Services Commissioner

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate:

Date: 13 September 2012