Wade and McPherson (No.2) - [2014] FCCA 2490

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADE & MCPHERSON (No.2)

[2014] FCCA 2490

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Whether actions of legal practitioner constitute unsatisfactory professional conduct or professional misconduct – where solicitor did not disclose to the Court that a decision of the Supreme Court of New South Wales that was the subject of submissions to the Court had been the subject of an application for leave to appeal which had been dismissed by the New South Wales Court of Appeal – where the solicitor had personal knowledge – referral to the Office of the Legal Services Commissioner.

Legislation:

Legal Profession Act 2004 (NSW), ss.496, 497

Cases cited:
Re Felicity [2012] NSWSC 494
Re Felicity (No.2) [2012] NSWSC 1561
Re Felicity [2013] NSWCA 21
Perov & McPherson [2014] FamCAFC 176
Wade & McPherson [2013] FCCA 1583
Wade & McPherson [2014] FCCA 1321

Applicant:

MS WADE

Respondent:

MR MCPHERSON

File Number:

SYC 1930 of 2013

Judgment of:

Judge Scarlett

Hearing date:

Heard in chambers

Date of Last Submission:

25 August 2014

Delivered at:

Sydney

Delivered on:

30 October 2014

REPRESENTATION

The Applicant:

No appearance

Solicitors for the Applicant:

Capellia Legal

The Respondent:

No appearance

Solicitors for the Respondent:

Little & Associates

ORDERS

The Principal Registrar is to forward to the Office of the Legal Services Commissioner in and for the State of New South Wales a copy of the Reasons for Decision in this matter with the request that the Legal Services Commissioner investigate whether Mr Perov [pseudonym], Solicitor, has demonstrated unsatisfactory professional conduct in his written and oral submissions to the Court on behalf the Applicant on 23 September 2013.

IT IS NOTED that publication of this judgment under the pseudonym Wade & McPherson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1930 of 2013

MS WADE

Applicant

And

MR MCPHERSON

Respondent

REASONS FOR JUDGMENT

The issue to be determined is whether the conduct of the Applicant’s solicitor in arguing the substantive Application in this case constitutes unsatisfactory professional conduct warranting the matter being reported to the Office of the Legal Services Commissioner.

Background

The substantive case was argued before the Court on 23^rd September 2013. A decision was handed down on 11^th October 2013, dismissing the Applicant’s Initiating Application and an Application in a Case.[1]
[1] Wade & McPherson [2013] FCCA 1583
The Respondent sought an order for costs, and that the costs should be ordered against the Applicant’s solicitor personally. On 25^th June 2014 I handed down a decision[2] in which I ordered that (inter alia):
(2)The Applicant’s solicitor, MR PEROV, is to pay the Respondent’s costs of the proceedings on an indemnity basis, fixed in the sum of $4604.00….
(4)The Applicant’s solicitor MR PEROV is to make a written submission to the Court within twenty-eight (28) days to show cause why a complaint should not be made to the Office of the Legal Services…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wade and McPherson (No.2)

Details

AGLC: Wade and McPherson (No.2) [2014] FCCA 2490
Case: [2014] FCCA 2490
Decision Date: 30 October 2014

CaseChat Overview and Summary

This matter concerned an application before Judge Scarlett in the Supreme Court of New South Wales. The applicant, Wade and McPherson (No.2), sought orders in relation to proceedings. The court's decision ultimately involved a referral to the Legal Services Commissioner concerning the conduct of a solicitor, Mr Perov, who represented the applicant.

The central legal issue before the court was whether Mr Perov, in his written and oral submissions made on behalf of the applicant on 23 September 2013, had demonstrated unsatisfactory professional conduct. This required the court to assess the quality and propriety of the legal arguments and representations made by Mr Perov.

Judge Scarlett ordered that a copy of the Reasons for Decision be forwarded to the Office of the Legal Services Commissioner. This was accompanied by a request for the Commissioner to investigate whether Mr Perov's conduct constituted unsatisfactory professional conduct. The court's decision therefore did not determine the substantive application itself but rather initiated a disciplinary process concerning the conduct of legal representation.

Orders

Orders of the court

The Principal Registrar is to forward to the Office of the Legal Services Commissioner in and for the State of New South Wales a copy of the Reasons for Decision in this matter with the request that the Legal Services Commissioner investigate whether Mr Perov [pseudonym], Solicitor, has demonstrated unsatisfactory professional conduct in his written and oral submissions to the Court on behalf the Applicant on 23 September 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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