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 23rd September 2013. A decision was handed down on 11th 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 25th 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…
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- AGLC
- Wade and McPherson (No.2) [2014] FCCA 2490
- Case
- [2014] FCCA 2490
- Decision Date
CaseChat Overview and Summary
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
1.
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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