The Law Society of Tasmania v R (A Practitioner)
[2006] TASSC 108
•18 December 2006
[2006] TASSC 108
CITATION: The Law Society of Tasmania v R (A Practitioner) [2006] TASSC 108
PARTIES: LAW SOCIETY OF TASMANIA (THE)
v
R (A PRACTITIONER)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M128/2006
DELIVERED ON: 18 December 2006
DELIVERED AT: Hobart
HEARING DATE: 6 December 2006
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Professions and Trades – Lawyers – Misconduct unfitness and discipline – Disciplinary proceedings – Inherent jurisdiction of the Court – Tasmania – Pleaded conduct not established.
Re a Barrister and Solicitor (1979) 40 FLR 1; Re a Legal Practitioner (1981) 55 FLR 405, referred to.
Aust Dig Profession and Trades [134]
REPRESENTATION:
Counsel:
Applicant: D J Gunson SC
Respondent: P J Riordan SC and S R Worsley
Solicitors:
Applicant: Gunson Williams
Respondent: Wallace Wilkinson & Webster
Judgment Number: [2006] TASSC 108
Number of paragraphs: 31
Serial No 108/2006
File No M128/2006
THE LAW SOCIETY OF TASMANIA v R (A PRACTITIONER)
REASONS FOR JUDGMENT UNDERWOOD CJ
18 December 2006
The Law Society of Tasmania ("the Society") seeks an order that the respondent be disciplined for professional misconduct or unprofessional conduct. The Society relies solely on the inherent jurisdiction of the Court, a jurisdiction that is expressly preserved by the Legal Profession Act 1993, s93.
The background
The respondent was admitted to practice on 8 March 1999. Between March and June 2000, he was employed by a community legal centre, and between 26 June 2000 and 28 September 2001, he was employed by a firm of legal practitioners. His employment there was terminated on 28 September 2001.
The respondent commenced proceedings in the Industrial Commission ("the Commission") with respect to his dismissal. At the hearing he was self-represented. The firm of solicitors was represented by Mr S B McElwaine. The firm sought to justify the dismissal upon some nine grounds, all but one of which are not material for present purposes.
The Society's allegations of professional misconduct arise out of the evidence that the respondent gave the Commission during his cross-examination by Mr McElwaine. It is alleged that some of the answers given by the respondent, then a sworn witness, were false. Upon this hearing Mr Riordan SC, senior counsel for the respondent, accepted that the respondent was guilty of professional misconduct if he knowingly gave false evidence, or knowingly misled the Commission as alleged in the originating summons.
There is little dispute about what was said and done. There is a transcript of what was said in the Commission and largely undisputed affidavit material concerning the relevant events. The respondent did not read an affidavit that he filed in these proceedings and did not adduce any evidence.
The first allegation
The first allegation is pleaded in par15 of the annexure to the originating application. There are three parts to it. It provides:
"On the 13th May, 2002, in the course of those proceedings being heard before Commissioner Shelley, the Respondent denied on oath, whilst being cross examined by Mr Shaun McElwaine, Counsel for [the firm], that he had telephoned Allianz Australia Insurance Limited's Melbourne office on the 26th September, 2001.
He further denied on oath that he had:
(a) informed Ms Noble that [Mr T] was on holidays; and
(b) that he would make her client bankrupt."
The affidavit material deposes, and I find, that whilst an employee of the firm, the respondent was instructed by a Ms Clarke to commence proceedings against a Ms Davis to recover damages for the cost of the repairs to the former's motor vehicle incurred as a result of a collision between her car and a car driven by Ms Davis. The respondent commenced proceedings in the Magistrates Court on 6 June 2001 and ultimately obtained a judgment in default of delivery of defence for a certain sum. Ms Davis was indemnified by Allianz Australia Insurance Limited with respect to her liability to pay this sum. Mr T, a legal practitioner, was instructed to act for Ms Davis. He deposed, "my instructions were to represent the interests of Allianz Australia Insurance Limited". Those instructions were not received until after entry of the default judgment.
On 24 July 2001, Mr T spoke to the respondent, and I infer, told him that he was acting in this matter. The respondent told Mr T that he had served a bankruptcy notice on Ms Davis and that he had instructions to make her bankrupt after the time for compliance with the notice had expired. By letter dated the same day, the respondent sent Mr T a copy of the bankruptcy notice and reiterated his intention to proceed to petition for bankruptcy unless "the defendant or her insurer is willing to pay the sum disclosed in the bankruptcy notice …".
Next, Mr T wrote to the respondent and confirmed, "We act as agents for Kearney's in Melbourne" and said that he was awaiting instructions. There followed an exchange of correspondence culminating in an offer of compromise made by Mr T in a letter to the respondent dated 24 August 2001.
The next event occurred on 26 September 2001, nearly a month after the letter. That day, Mr T was in another city attending a directions hearing. The respondent telephoned the Melbourne offices of Allianz Australia Insurance Limited and there spoke to a claims consultant, Ms Kirsty Kendall, nee Noble. The respondent told Ms Noble (inter alia) that he had telephoned Mr T, but he was on holiday and that "[her] client is going to be bankrupt tomorrow".
In the Commission there was cross-examination about this phone call and these statements. That cross-examination was preceded by:
(i)the following opening made to the Commission by Mr McElwaine:
"… [the respondent] spoke direct to the insured defendant, knowing that her lawyer was on the record and made what we say were serious misstatements of fact to that person, and that was the subject of an express written complaint to the firm by the other practitioner concerned, whom we regard as a man of absolute impeccability."
In cross-examination on the proceedings before me, Mr McElwaine accepted that that part of his opening statement was in error in that he should have referred to the respondent speaking to the defendant's insurer, not "the insured defendant", Ms Davis.
(ii)the following "introductory cross-examination":
"mr mcelwaine: I suggest to you Alliance Insurance wrote to you and asked you if judgment had been entered against their client? --- Well, if that's in the file, I accept that.
And you responded that it had been? --- Well, if it's in the file, I accept that.
And subsequently [Mr T] was appointed as the solicitor on the record for the insurance company and the defendant, wasn't he? --- No, I don't believe so.
You deny that [Mr T] was appointed? --- I believe that … was appointed to act for the defendant, not an insurer.
[Mr T]? --- … [Mr T], I understand was acting for the defendant in the matter.
You didn't understand that they were acting for the insurer? --- I don't believe they were.
You say the file doesn't disclose that they were acting for the insurer? --- I'll go with what's on the file.
All right? --- If you have something on the file like that then that's it.
You accepted earlier that you were bound by the normal professional responsibilities that applied to solicitors in your employment? --- Yes.
One of those was that if the solicitor is acting on the other side you must not contact their client personally; did you understand that? --- That's correct.
You contact [sic] [Mr T's] client personally, didn't you? --- No, that's incorrect. This has been explained to the society already.
…
mr mcelwaine: The question was, did you contact the client of [Mr T] at a time when you knew [Mr T] was appointed at [sic] that person's solicitor? --- As far as I was aware, no, and it's been the subject of a Law Society investigation."
Then follows this passage which the Law Society claims is evidence of professional misconduct:
"Did you contact [Mr T's] client on 26 September 2001? --- As far as I know, no. As far as I am aware, no.
Did you tell her, or do you deny that you contacted her? --- As far as I am aware I didn't contact anybody's client. That's the answer. No. I'll repeat it again. No.
I suggest to you that you did, and that you told her that you were contacting her directly, because [Mr T] was on holidays? --- I'll repeat it again. No.
Do you deny that? --- You asked me whether I contacted some one's client, and I say no.
Did you – I suggest to you that you also told her that you would make her bankrupt today if the monies were not paid? --- As I say, I didn't contact anybody's client and the answer's no."
By par18 of the annexure to the originating application, the Society alleges:
"The Respondent's answers to the questions by Counsel for [the firm] and set out in paragraphs 14 and 15 hereof were untrue."
At the hearing, this paragraph was amended so that it referred to pars15 and 16 instead of pars14 and 15.
I have set out par15 of the annexure to the originating summons earlier in these reasons for judgment. It alleges that the respondent telephoned an insurance company and that the respondent denied that he did so. The complaint in par18 is that this denial was false. The short answer to this allegation is that although the respondent was asked several times if he had contacted "Mr T's client", or if he had contacted "her", he was never asked if he had telephoned Allianz Australia Insurance Limited's Melbourne office on 26 September 2001. In Re a Barrister and Solicitor (1979) 40 FLR 1 at 18, the Full Court of the ACT Supreme Court made it clear that the ambit of proceedings such as these is governed by the particulars of the pleading. In Re a Legal Practitioner (1981) 55 FLR 405 at 420, the Full Court of the Supreme Court of the Northern Territory stated that, "We take the ambit of these proceedings to be limited by the terms of the notice of motion and the particulars given. [This has] narrowed the issues to be litigated on this motion." This is not a general enquiry into the conduct of the respondent. It is an enquiry into whether the respondent lied on oath when making the identified statements in answer to questions put to him.
With respect to the second and third parts of the complaint as set out in par15 of the originating application, the first issue is whether the respondent denied that he had:
· informed Ms Noble that [Mr T] was on holidays; and
· that he would make her client bankrupt.
Again the answer is no. The respondent was never asked about any conversation with a Ms Noble. He was asked whether he told "Mr T's client", or "her" that Mr T was on holidays and whether he told "Mr T's client" or "her" that he would make her client bankrupt.
Further, with respect to all matters of complaint in par15 of the annexure to the originating application, the respondent's answers have to be viewed in the light of:
· It was common ground in the Commission that Ms Davis was [Mr T's] client.
· Mr McElwaine's erroneous opening statement to the Commission that the allegation was that the respondent had spoken directly to the "insured defendant".
· By his answers to the "introductory cross-examination" the respondent did not accept that Mr T was appointed to act for anybody other than Ms Davis.
It might be said that in giving the answers that are the subject of the complaint in pars15 and 18 the respondent was being less than frank, but given the matters that I have just set out, it is reasonably possible that the respondent believed that Mr T's only client was Ms Davis, or thought that Mr McElwaine was referring to Ms Davis when he spoke of Mr T's client and referred to the client as "her" in which case his answers were not false.
The Society tendered in evidence par2(i) and (j) of an affidavit sworn by the respondent and filed in these proceedings. Paragraph 2(j) concerns the allegation made in pars15 and 18 of the annexure to the originating application. It provides:
"As to par 18, I do not understand the reference to paragraph 14, otherwise I accept that my statements were incorrect but deny that there was any element of dishonesty such as the sort to be conveyed by the use of the word 'untrue'."
Paragraph 14 should be construed as a reference to par15. Mr Gunson SC, who appeared as counsel for the Society, submitted that par2(j) of the respondent's affidavit was an admission upon which the Society could rely to establish misconduct. It is clear from the affidavit material filed in support of the application that as well as Ms Davis, Allianz Australia Insurance Limited was a client of Mr T, and so it is now clear that the answers that the respondent gave the Commission were incorrect. I do not see par2(j) of the respondent's affidavit as establishing any more than that. It does not establish that in the Commission, the respondent was asked about what he said to Ms Noble, nor does it establish that he then knew that the questions concerned a conversation with Ms Noble.
The second allegation
Paragraphs 16 and 17 of the annexure to the originating application read as follows:
"Further, in the course of the proceedings before Commissioner Shelley in the Tasmanian Industrial Commission on the 13th May, 2002, when cross examined by Counsel for [the firm], Mr Shaun McElwaine, as to whether he had worked for the [community legal centre] after June 2000 as a part time employee of the [community legal centre] and whilst also employed by [the firm] at the same time, he denied on oath that he had done so.
The Respondent had in fact worked on the 4th, 10, 17th and 24th July for the [community legal centre]."
I find that whilst the respondent was an employee of the community legal centre, he worked 30 hours per week. Upon application for employment with the firm, the respondent explained that he suffered from Chronic Fatigue Syndrome and could only work four days per week. It was agreed between the respondent and the firm that the respondent would start work with the firm on 26 June 2000 and work Tuesday to Friday inclusive, each week until he felt well enough to work five days a week.
The Society contended that the respondent worked with the community legal centre on 4, 10, 17 and 24 July 2000 and although the evidence to support this proposition was far from clear, this fact was accepted as correct in written closing submissions by senior counsel for the respondent. Resort to a calendar shows that 4 July 2000 was a Tuesday. It seemed to be common ground that if the respondent worked at the community legal centre on any day after he had started with the firm, that day must have been a Monday. Therefore, it is highly unlikely that the respondent was working at the community legal centre on Tuesday, 4 July, the first working day of his second week with the firm. I shall deal with this allegation on the basis that the evidence establishes that the respondent worked at the community legal centre on four of the five Mondays in July 2000.
It appears that by 18 July 2000, the first working day of the respondent's fourth week with the firm, a partner of the firm had found out about the respondent working at the community legal centre. The partner's diary note for that day records that he spoke to the respondent and said he had heard that the respondent had been working at the community legal centre. The respondent told the partner that he had worked there for "the last two Mondays" as he had some files to be completed. The partner expressed the view that the respondent should not continue working at the community legal centre, that Mondays off work were agreed to in order to assist the respondent recover from his illness, and that the firm wanted him to work full time as soon as possible.
In his evidence to the Commission, the respondent said he did not start full time work with the firm until January 2001, and it appears that this is accepted as being correct by both the Society and the respondent. Before referring to the evidence given by the respondent, it should be noted that the firm did not rely on the respondent's continuing work with the community legal centre as justification, or part justification, for his dismissal. It was not a primary issue at the hearing. Further, it is clear from the nature of the questions asked by Mr McElwaine that he was not just asking about working for the centre for four days in July. He was enquiring about working for the centre up until the respondent started full time work with the firm. This is the cross-examination relied upon by the Society to establish the second allegation of misconduct:
"mr mcelwaine: Did you continue after June 2000 as a part-time employee of the [community legal centre]? --- I understand no.
You did not continue working one day per week with the [community legal centre]? --- I tidied some matters up, which [Mr G] was aware of. Yes, I told him.
Answer my question now. Did you continue part-time employment with the [community legal centre] at one day per week? --- You said after June ---
After June 2000? --- and the answer is no. No.
I want to be very precise? --- Well, be precise.
I suggest to you that you worked four days per week at [the firm], and for an initial period after June 2000 continued to work one day per week at the [community legal centre]? --- I did, from recollection, and it has nothing to do with [the firm], I did two more days, which I told [G] about, because I left very quickly to work with him. He insisted that I come immediately, and I said, 'Well, I have things to tidy up,' and so I think I did work two days, but it certainly wasn't after June.
So two days was the limit on your evidence? You would deny therefore the proposition that you continued to work one day per week until you commenced five days per week with [the firm]? --- Do I need to repeat myself? I said two days, Mr McElwaine.
Just answer the question, please. Do you deny then you continued to work ---? --- I said two days.
--- one day per week at the [community legal centre] until you became full time with [the firm]? --- I'll repeat it for you, because you can't seem to hear. Two days. I was paid two days.
All right. Do I take that to be a denial then? --- No. Two days. After June no work; before that, two days."
Paragraphs 16 and 18 of the annexure to the originating application allege that the respondent's denial that after June he had worked as a part time employee of the community legal centre was untrue and, by implication, untrue to the respondent's knowledge.
The respondent deposed by his affidavit, par2(i):
"As to paragraph 16 and 17 I agree. I was simply mistaken. I did continue to work at [the community legal centre] for part of the day each week that I was not as [the firm]. There were matters that I felt I had to 'tidy up'. I am unsure when I told [Mr G] this but I believe it was within a couple of weeks of my commencing employment with [the firm]. [Mr G] wanted me to work full time. When he became aware of my continued work at [the community legal centre] he urged me to bring it to an end and become full time at his firm. I explained by I was doing it and whilst he accepted it, he was insistent that I become full time as soon as possible."
I find that the respondent's denial that he had worked as a part time employee of the community legal centre after June was untrue. However, the fact that the respondent gave an untrue answer while under oath does not amount to misconduct. The issue is whether, on the whole of the evidence, it is more probable than not that when he made the denial, the respondent knew it was untrue. The standard of proof is set out in the Evidence Act 2001, s140, although in applying that standard I bear in mind the seriousness of the allegations and the need to be "comfortably or confidently" satisfied that the respondent was aware of the falsity of his answer at the time he gave it, per Hardie J, Re Hodgekiss [1962] SR (NSW) 340 at 356.
The respondent deposed that he was mistaken when he gave that answer. As I have pointed out, continuing work with the centre was not a primary issue in the Commission. The impugned answer was given two years after the occurrence of the relevant events. The respondent did not have cause or opportunity to check any records prior to answering this question. Although the respondent said that he did not work with the centre after June, he admitted to working there for two days after he started with the firm. As he did not start with the firm until 26 June 2000, it follows that those two days must have been after the month of June. The substance of the answer was correct, except that the respondent worked for four, and not two days, and that the days worked were in July and not June. There was no motivation for the respondent to deliberately give a false answer as alleged. It is easy to be mistaken about dates and times when trying to recall events that happened two years earlier. Indeed, as Mr Riordan pointed out, when the partner of the firm who spoke to the respondent about this matter gave evidence in the Commission, he said that he spoke to the respondent about it not longer than "three or four months" after his initial engagement. This partner exhibited a copy of his diary note of this conversation to his affidavit filed in these proceedings. That showed that the conversation took place at the start of the respondent's fourth week with the firm, not three or four months after his initial engagement. Further, Mr T deposed in his affidavit filed in these proceedings that he was instructed to act for the defendant in July 2001 with respect to an accident that happened on 24 May 2001. He further deposed that his involvement in the matter commenced "after judgment had been entered on 2nd day of May 2001", which of course, was three weeks before the accident! I cannot say that it is more probable than not that the respondent's false denial that he had worked at the centre after June 2000 was to his then knowledge untrue.
The matters of fact pleaded in the annexure to the originating application, pars15 and 18, are not made out. The matters of fact pleaded in the annexure, pars16 and 18, are made out, but it is not established that the respondent knew that the denial was false at the time he made it. The alleged misconduct is not established and the application is dismissed.