Victorian Legal Services Board v Berry
[2024] VSC 778
•17 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW VDIVISION
GENERAL LIST
S ECI 2024 03725
| VICTORIAN LEGAL SERVICES BOARD | Plaintiff |
| v | |
| ELISA KATE BERRY | Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November 2024 |
DATE OF JUDGMENT: | 17 December 2024 |
CASE MAY BE CITED AS: | Victorian Legal Services Board v Berry |
MEDIUM NEUTRAL CITATION: | [2024] VSC 778 |
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LEGAL PRACTITIONERS – Application for removal of name and particulars from the roll of practitioners – Whether defendant shown not to be a fit and proper person to be a legal practitioner – Whether defendant shown to be likely to remain so for the indefinite future – Application not contested – Agreed facts stated – Exceptionally serious conduct incompatible with remaining on the roll – No explanation for conduct – Legal Profession Uniform Law (Victoria) s 23(1) – Legal Services Board v McGrath (2010) 29 VR 325, Victorian Legal Services Board v Gobbo [2020] VSC 692 and Victorian Legal Services Commissioner v Tan [2021] VSC 692, considered – Order made.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Stoller | Victorian Legal Services Board |
| For the Defendant | In person |
HIS HONOUR:
A. Introduction
Between dates in 2011 and 2017, Elise Kate Berry was employed as a conveyancer and trainee lawyer at a law firm (‘Law Firm 1’).
On 20 June 2017, Ms Berry was admitted to the legal profession and signed the roll of Australian lawyers maintained by the Supreme Court (‘the roll’).
From 25 June 2017 until 28 April 2022, Ms Berry held a practising certificate without trust authorisation that permitted her to work as an employee of a law practice, subject to a condition that she engage in only supervised legal practice.[1]
[1]Court book (‘CB’) 20.
From 11 July 2017 to 2 October 2020, Ms Berry was employed as a lawyer at a second firm (‘Law Firm 2’), and from 5 October 2020 to 4 April 2022 she was employed as a lawyer at a third law firm (‘Law Firm 3’).
On 28 April 2022, the Victorian Legal Services Board (‘VLSB’) suspended Ms Berry’s practising certificate and, on 14 June 2022, cancelled Ms Berry’s practising certificate and decided to prohibit her from applying for a practising certificate until 13 June 2027.[2]
[2]Ibid.
By originating motion filed on 19 July 2024, pursuant to s 23(1)(b) of the Legal Profession Uniform Law (Victoria) (‘LPUL’)[3], the VLSB applied for an order that Ms Berry’s name and other particulars be removed from the roll.
[3]Legal Profession Uniform Law Application Act 2014 (Vic) (‘LPUL’).
In that connection –
(a) the VLSB, which is the designated local regulatory authority, recommended that Ms Berry’s name and particulars be removed from the roll;[4]
[4]CB 12 [13].
(b) the parties stated facts agreed between them;
(c) the VLSB contended that Ms Berry is not a fit and proper person to be a lawyer and is likely to remain so indefinitely; and
(d) Ms Berry consented to the order sought, and did not make any other submissions.
On 28 November 2024, I made an order removing Ms Berry’s name and other particulars from the roll. These are my reasons for making that order.
B. Applicable principles
Section 23(1) of the LPUL provides –
The Supreme Court may order the removal of the name and other particulars of a person from the Supreme Court roll, on—
(a)its own motion; or
(b)the recommendation of the designated local regulatory authority; or
(c)the recommendation of the designated tribunal.
In Legal Services Board v McGrath,[5] Warren CJ stated –
[9]An exercise of the court’s discretion to remove a practitioner from the roll is made by reference to a number of longstanding principles. … Such a decision will only be made when the court is satisfied at the time of the hearing that the practitioner in question is shown “not to be a fit and proper person to be a legal practitioner” or is shown not to be a “fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor” and will likely remain so for the indefinite future. The person or entity bringing such an application bears the onus of satisfying the court of the requisite degree of indefinite unfitness on the balance of probabilities. ... While the onus of proof is a civil one, the court approaches the making of such decisions with caution and “meticulous care”, and with a great appreciation for “the possibly disastrous consequences of disbarment to the individual concerned”.
[10]… While the authorities indicate that the disciplinary power in question is entirely protective, that protection extends beyond protection of the public to include the legal profession as a group, the courts, the justice system and community confidence in that system. It is for this reason that striking off may follow where a practitioner’s conduct shows “a defect of character incompatible with membership of a self-respecting profession” …
[11]… The fundamental issue is whether the practitioner in question is fit and proper, or not.[6]
[5](2010) 29 VR 325.
[6](Citations omitted).
The applicable principles have been considered, explained and applied in a sequence of relatively recent decisions.[7]
[7]
In particular, in Victorian Legal Services Board v Gobbo,[8] Forbes J stated –
5The Court is not bound to accept the recommendation of the regulatory authority, but must independently exercise the power on the evidence before it. The Court must give the recommendation appropriate weight. The consent of the practitioner where it is appropriate, as here, is also relevant.
6The Court must be satisfied that at the time of hearing the practitioner is not a fit and proper person to be a legal practitioner and is likely to remain so for the indefinite future.
7The purpose of an order removing a practitioner from the roll is described as protective and not punitive. The protective nature of the power is broader than simply protection of the public from misconduct by practitioners. It is to ensure protection of the standing of the legal profession generally, and to strengthen community confidence in the legal system and its institutions including the courts and participants in the justice system both civil and criminal.
[8]Gobbo (n 7).
As to whether a person is likely to remain not to be a fit and proper person for the indefinite future, relevant considerations include –
(a) ‘the insight and capacity [of the person] to overcome and eradicate behaviour’; and
(b) the acknowledgement implicit in any consent to the order sought that ‘there is no prospect that in the future [the person] could take any step that might allow [them] to attain the status of a fit and proper person’.[9]
[9]Gobbo (n 7) [10], [53]. See also Tan (n 7) [62]-[63].
C. The conduct
As indicated, the parties presented a signed statement of agreed facts comprising 24 pages and 222 paragraphs of closely-spaced text together with a considerable number of pages of annexures.[10]
[10]CB 19-223.
It is not productive to reproduce the agreed statement in full. It is, however, appropriate to highlight some examples of the admitted conduct.
In doing so, at the request of the VLSB, in particular, I have endeavoured to ‘de-identify’ the firms and clients involved. I am conscious that, to a significant extent, the conduct concerned took place in the context of family law and related disputes.[11]
[11]Cf Family Law Act 1975 (Cth) pt XIVB.
Pre-admission conduct
Law Firm 1 period: prior to 20 June 2017
In December 2015, Ms Berry held instructions to conduct a transfer of ownership of real property. However, Ms Berry forged the signatures of her clients (the transferors) as well as those of the two transferees in two separate transfer of land documents and lodged those forged documents with Land Use Victoria.[12]
[12]CB 19 [2]-[4], 45-8.
Later, in April 2017, Ms Berry did not disclose that conduct when applying for a compliance certificate from the Victorian Legal Admissions Board in order that she might seek admission to practice.[13]
[13]CB 19-20 [5]-[7], 49.
Post admission conduct
Law Firm 2 period: 11 July 2017 to 2 October 2020
While employed at Law Firm 2, Ms Berry acted in the following particular matters –
(a) a family law dispute between her client (‘client A’) and his ex-wife (‘matter A’);[14] and
(b) a family law dispute between her client (‘client B’) and his ex-wife, as well as the sale and settlement of client B’s former matrimonial home (‘matter B’).[15]
[14]CB 20.
[15]CB 21-4.
In matter A, on 19 May 2020, Ms Berry received correspondence that stated that her client’s ex-wife did not agree to a particular proposed financial arrangement. However, on 7 August 2020, Ms Berry created a forged version of that letter in which the ex-wife agreed to the arrangement and then provided that letter to her client.
In matter B, in September 2020, Ms Berry told her client that his legal fees would be capped without seeking authorisation for such an arrangement. Over the months that followed, Ms Berry forged the statement of account and provided it to her client.
Law Firm 3 period: 5 October 2020 to 4 April 2022
While employed at Law Firm 3, Ms Berry continued to act in several matters in which she had been instructed while employed at Law Firm 2. Those matters included matter B, as well as –
(a) a family law dispute between her client (‘client C’) and his ex-wife (‘Ms C’) (‘matter C’);[16]
(b) a family law dispute between her client (‘client D’) and her ex-husband (‘Mr D’) as well as a conveyancing transaction (‘matter D’);[17] and
(c) a family law dispute between her client (‘client E’) and his ex-partner as well as related intervention order proceedings (‘matter E’).[18]
[16]CB 35-8.
[17]CB 24-7.
[18]CB 27-33.
Aspects of Ms Berry’s actions in those particular matters may be considered in turn.
Matter B
Ms Berry set up a false email address in her client’s name (‘falsified client B email address’) and input that as his contact email address in Law Firm 3’s records in order that invoices would then be sent to that address (and, therefore, Ms Berry), and not to her client. Consequently, client B’s invoices later fell overdue.
In April 2021, Ms Berry impersonated her client in an application for a legal finance loan. Ms Berry gave the falsified client B email address and her own phone number as the contact details, used her client’s identity documents and personal and financial information and then signed the loan contract in her client’s name.
In that context, Ms Berry authorised the lender to lodge a caveat on her client’s matrimonial home as security for the loan, arranged for the lender to pay the loan funds into Law Firm 3’s trust account and then caused those funds to be applied in payment of unpaid legal fees.[19]
[19]CB 22-3.
Later, in September 2021, client B became aware of the legal finance loan and caveat. Ms Berry did not disclose that she had taken out the loan in his name. Instead, Ms Berry advised her client to send an email to the lender (which she drafted, and which falsely stated that client B was aware of the loan in his name as well as the caveat over the property), and also advised him to send a letter to the mortgage broker (which she also drafted, and which falsely stated that client B was not liable for any repayments or outstanding amounts under the loan).[20]
[20]Ibid [41]-[47].
Between 6 and 20 October 2021, Ms Berry falsely advised client B that the lender had taken steps to remove the caveat.[21]
[21]CB 23 [47].
On 25 November 2021, Ms Berry effected settlement of a sale of client B’s former matrimonial home. In the process, Ms Berry caused substantial payments to be made from the proceeds of the sale to the lender’s solicitors and to Law Firm 2 without her client’s consent.[22]
[22]CB 23 [48]-[51]. As a consequence of Ms Berry’s conduct outlined at [21], client B was unaware that there were any unpaid legal fees owed to Law Firm 2 in his name.
In that connection, Ms Berry sent an email from the falsified client B email address to her own work email address in which she impersonated client B and approved the above payments.[23] Ms Berry thereafter forged a trust account statement which made it appear that the above payments had not been made and provided it to her client.[24]
Matter C
[23]CB 23 [52].
[24]Ibid [53]-[54].
On about 16 July 2021, Ms Berry forged her client’s signature on a minute of proposed consent orders directed to a purported financial settlement between her client and his ex-wife, Ms C. Ms Berry thereafter presented the forged orders to the Family Court (‘FCA’) where such orders were made by consent (‘purported FCA consent orders’).[25]
[25]CB 36 [158]-[160].
On 22 September 2021, Ms C applied to the Federal Circuit and Family Court of Australia (‘FCFCOA’) to enforce the purported FCA consent orders. Ms Berry did not notify client C of that application.[26]
[26]Ibid [161]-[162].
The application was listed to be heard on 3 November 2021. Ms Berry did not notify her client of the hearing, and appeared at it without instructions to do so. She there falsely represented that she held various instructions, including that her client agreed that he had failed to comply with aspects of the purported FCA consent orders. The FCFCOA made orders against client C based upon Ms Berry’s false submissions.[27]
[27]Ibid [161]-[164], 168-170.
On 19 November 2021, client C ceased instructing Ms Berry and instructed another solicitor. However, Ms Berry later represented to Ms C’s solicitor that she continued act for client C and, in so doing, demanded payment of money owed to client C into Law Firm 3’s trust account. Ms Berry only ceased doing so when Ms C’s solicitor stated that she had become aware that Ms Berry was no longer instructed.[28]
[28]CB 36 [165]-[168], 171.
Notwithstanding the above, from about January 2022, Ms Berry set up and maintained an email address in the name of client C in order to impersonate him (‘falsified client C email address’).
In that connection, on 17 January 2022, Ms Berry impersonated client C in an application for a legal finance loan, which conduct included using copies of client C’s identity documents and personal and financial information, and making false representations to the lender, including that she acted for client C and that her purported client was due to receive a substantial payment arising from orders made by the FCFCOA.[29]
[29]CB 37.
Ms Berry also falsely provided her client’s authority for the lender to place a caveat on the matrimonial home. However, the lender also required Ms C’s consent to do so. Subsequently, on about 1 February 2022, Ms Berry forged an email chain between herself and Ms C’s solicitor in which she purported to record such consent and she then gave the forged email chain to the lender.[30]
[30]CB 37-8 [179]-[181].
The loan funds were paid into Law Firm 3’s trust account and, on about 3 February 2022, Ms Berry applied the majority of those funds in order to effect the purchase of a property by a separate client, client D.[31] The remainder of the loan funds were applied in payment of client C’s unpaid legal fees.[32]
Matter D
[31]See below [41].
[32]CB 38 [182]-[191].
On about 1 October 2021, Ms Berry forged the signatures of Mr D and his solicitor on an affidavit relating to a divorce application. Ms Berry thereafter provided the affidavit to her client and advised her to file it, and the divorce application, in the FCFCOA.[33] On that basis, the FCFCOA made final parenting and property orders in connection with the separation of client D and Mr D. Ms Berry later created a forged (and substantially different) version of those orders and provided them to her client.[34]
[33]CB 24 [58]-[59].
[34]CB 24 [60]-[62].
In November 2021, Ms Berry set up an email address in the name of client D (‘falsified client D email address’) and used it to impersonate her. In that regard –
(a) between 25 November 2021 and 1 December 2021, Ms Berry generated a chain of emails between the falsified client D email address and her work email address that purported to authorise Ms Berry to deduct over $155,000 from funds held in trust for client D (‘client D falsified email chain’);
(b) on 1 December 2021, Ms Berry applied those funds to the purchase of a property by a separate client, client B;
(c) Ms Berry thereafter falsely recorded that client D had approved the transaction.[35]
[35]CB 25 [65]-[69].
Later, client D instructed Ms Berry to carry out a conveyance of a purchase of property. In light of the unauthorised deduction above, Law Firm 3 held insufficient funds in trust to carry out the conveyance. Consequently, and contrary to instructions, Ms Berry delayed settlement of the purchase on 15 occasions and, in so doing, falsely blamed the vendor’s bank for many of the delays.[36] Ultimately, on 3 February 2022, Ms Berry carried out settlement of the purchase by applying funds held in trust for client C.
[36]CB 26 [70]-[72].
Between February and May 2022, Ms Berry forged four sets of interim intervention orders, each purporting to prohibit Mr D from contacting, communicating or going within 200m of her client (client D) or their children. Ms Berry provided the forged orders to her client, representing that the orders were genuine and thus that client D was protected by the orders when Ms Berry knew that that was false.[37]
[37]CB 24-5 [63]-[64].
On an unspecified date, Ms Berry received a settlement offer from Mr D but failed to pass it on to her client.[38]
Matter E
[38]CB 26 [74].
On 13 October 2021, Ms Berry was instructed to file an initiating application in the FCFCOA in relation to a family law dispute between her client and his ex-partner. Contrary to instructions, Ms Berry did not commence the proceedings until 12 January 2022.[39]
[39]CB 27 [90]-[91].
Notwithstanding the above, Ms Berry thereafter falsely requested various instructions, representing to her client that the purported proceedings were on foot. On two occasions she sought instructions concerning purported proposed orders when, in fact, no proceedings were on foot and, therefore, no orders could be made.
Between 20 December 2021 and 30 March 2022, Ms Berry forged five sets of orders (one is undated), variously purporting to be orders of the FCA or FCFCOA, and provided the forged orders to her client.[40]
[40]CB 28 [92]-[94], 125-131. One of the forged orders, dated 8 February 2022, was the recovery order referred to at [51], below.
Between about 14 January 2022 and 31 March 2022, Ms Berry forged three email chains between herself and the FCFCOA in relation to the progress of the purported proceedings and provided copies of those forged email chains to her client.[41]
[41]Ibid [95]-[96], 132-135.
Mr Berry also forged an email from her opponent to the FCFCOA dated 21 February 2022, in which her opponent purported to take issue with certain orders, and then provided the forged email to her client.[42]
[42]CB 136-7. Cf CB 28 [97], being the statement of agreed facts, which states ‘[t]hat email purported to show [Ms Berry’s opponent] informing the Court that her client would not comply with orders of the Court.’ However, I do not accept that the email states as such.
Between about January and February 2022, Ms Berry falsely advised her client that an agreement had been reached for a change in custody of their children. Consequently, on three occasions, client E attended what he understood to be the agreed location in order that he could collect his children. On each occasion, his children were not there.[43]
[43]CB 29 [102].
On several occasions between February and April 2022, Ms Berry falsely advised her client that his ex-partner had kidnapped their children and absconded with them, or was otherwise preventing him from seeing them.[44]
[44]Ibid [101].
In that regard, Ms Berry falsely advised her client that it was necessary for him to seek a recovery order in order to obtain custody of his children,[45] and thereafter falsely advised him that she had filed such an application and that the order had been made.
[45]Ibid [103].
In that connection, Ms Berry created a forged order and gave it to her client[46] and falsely advised him that his ex-partner was in breach of the order.[47]
[46]CB 28 [92]-[94], 30-31, 127.
[47]CB 30-1.
During the period to which I have referred, Ms Berry falsely advised her client of certain consequences of the purported breach, including that –
(a) his children were missing and an alert had been issued in connection with their disappearance;[48]
[48]CB 31 [104u].
(b) a warrant had been issued by the FCFCOA;[49]
[49]CB 30.
(c) police had attended his ex-partner’s property;[50]
(d) police had taken steps to locate his ex-partner, including attempting to trace her mobile phone location and contacting Facebook, her email provider and her bank;[51] and
(e) Ms Berry had given a statement to police.[52]
[50]Ibid [104t].
[51]CB 31 [104v], [104x] and [104aa].
[52]CB 31 [104bb].
In that context, Ms Berry also fabricated emails purportedly sent to the school and childcare centre that his children attended,[53] failed to follow her client’s instructions, repeatedly lied to him[54] and caused various bills to be drawn for work that was never done.[55]
[53]CB 31. By doing so, Ms Berry made it appear to client E as if she had sent correspondence to the school and daycare centre, when she knew that the correspondence would not reach any recipient.
[54]CB 27-33.
[55]CB 32 [111]-[113].
Conduct post-employment and post-suspension
I have previously referred to Ms Berry’s employment with Law Firm 3 ceasing on 4 April 2022 and the suspension of her practising certificate from 28 April 2022.
On 24 April 2022, Ms Berry sent an email to Mr D in which she falsely represented that she remained employed by Law Firm 3 and that client D remained her client.
On the very day that her practising certificate was suspended, Ms Berry purported to appear on behalf of client E in an application by his ex-partner for a family violence intervention order heard in the Magistrates’ Court.[56] At the hearing, Ms Berry consented to an order that, among other things, prevented client E from contacting his ex-partner or children for 5 years, without instructions to do so.[57]
[56]On the statement of agreed facts, it is not clear whether Ms Berry had been notified that her practising certificate had been suspended prior to the appearance.
[57]CB 32 [107]-[110].
In April 2022, Ms Berry drew a false letter to client D’s employer and a further two false letters to client E’s employer, all of which purported to be on the letterhead of ‘Australian Family Lawyers’ and were signed by Ms Berry and attributed to her the false title ‘Associate Family Lawyer’.[58]
[58]CB 27 [81]-[84], 32 [114]-[117], 123, 138-39.
On 2 May 2022, Ms Berry wrote to the VLSB and falsely stated that she had not engaged in legal practice since 9 April 2022.[59]
[59]CB 26 [80].
Nonetheless, Ms Berry continued to purport to act for clients D and E and sought to mislead them concerning her entitlement to practice law. In that regard –
(a) on 5 May 2022, Ms Berry requested that client E pay her for legal services purported to have been provided following the cessation of her employment with Law Firm 3, and accepted payment of those fees into her personal bank account;[60] and
(b) on 23 May 2022, Ms Berry registered the website domain and established the email address [email protected] and, later that day sent an email advising client D of her purported new email address.[61] Notably, the website and email address appeared to correspond with Ms Berry being employed at Australian Family Lawyers.[62]
[60]CB 33 [119]-[121]. See also CB 20 [8].
[61]CB 27 [86]-[88], 124.
[62]See above [58].
D. Consideration
The above examples represent only a part of the conduct admitted by Ms Berry. Her admitted conduct traverses some 13 separate matters.
The overwhelming majority of that conduct is, quite frankly, exceptionally serious and alarming. It is not easy to convey in words the gravity of such a person having, among other things –
(a) impersonated multiple people, including her clients;
(b) effectively lied to her clients, professional colleagues and various public institutions, including the Land Use Victoria, VLSB and courts;
(c) acted contrary to the instructions of her clients;
(d) acted in the absence of instructions – including by consenting to court orders without instructions thereby entering the client unknowingly into significant financial obligations;
(e) created multiple false and forged documents;
(f) presented forged court orders to her clients – including orders which one client would wrongly have considered to afford her with a significant measure of personal protection from a risk of violence;
(g) misused trust funds;
(h) purported to conduct legal practice without any entitlement to do so; and
(i) so seriously abused and betrayed the public trust reposed in her.
It will broadly be apparent that –
(a) Ms Berry’s conduct appears to have escalated, particularly in late 2021 and early 2022;
(b) much of the conduct seems to have been occurring in multiple matters at about the same time;
(c) all of the conduct carries the appearance of calculation;
(d) the forgeries, in particular, were not of a kind that it would readily have been easy to detect;
(e) her clients were of an especially unsophisticated and therefore vulnerable kind; and
(f) her gross misconduct continued even after she ceased employment with Law Firm 3 and, shortly thereafter, lost any entitlement to practice.
Notwithstanding the above –
(a) albeit that Ms Berry has admitted the conduct and consented to the order sought, there is no clear admission that she benefitted in any distinctly material or other way, nor any plain suggestion to that effect by the VLSB; and
(b) in none of the material before me was any discernible explanation sought to be advanced.
In that regard, the circumstances are, in some ways, as deeply unsettling as they are utterly baffling.
Ms Berry’s conduct is, however, undeniably tragic; particularly for her clients and those involved in the affected matters.
The extensive nature of the conduct is, also, a stain that the entire profession must wear, as it necessarily strikes at the heart of the trust which ordinary members of the community daily, readily and very often unquestioningly, place in their legal advisors.
Having regard to the substance of the matters to which I have referred –
(a) Ms Berry is not a fit and proper person to be a lawyer;
(b) Ms Berry is likely to remain so for the indefinite future; and
(c) accordingly, I made the order striking Ms Berry’s name and particulars from the roll.
Legal Services Commissioner v PFM [2014] VSC 341 (Elliott J), Victorian Legal Services Commissioner v Horak [2016] VSC 780 (McMillan J), Victorian Legal Services Commissioner v Hession [2018] VSC 38 (J Forrest J), Victorian Legal Services Board v Gobbo [2020] VSC 692 (Forbes J) (‘Gobbo’), Bolitho v Banksia Securities Ltd (No 18) (2021) 69 VR 28 (John Dixon J), Victorian Legal Services Commissioner v Tan [2021] VSC 692
(Moore J) (‘Tan’), Victorian Legal Services Commissioner v Logan [2022] VSC 97 (John Dixon J) and Victorian Legal Services Board v Mericka [2024] VSC 1 (Harris J).
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