Wade and McPherson (No.2)
[2014] FCCA 2490
•30 October 2014
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 Commissioner in respect of unsatisfactory professional conduct in his conduct of the proceedings.
[2] Wade & McPherson [2014] FCCA 1321
On 22nd August 2014 Mr Perov [pseudonym] filed an Application for leave to appeal against the order for indemnity costs.
On 25th August 2014 Mr Perov filed an Amended Submission in which he said:
As I mentioned, I am in the process of filing an appeal to the Full Court from the cost orders. Reporting me to the Legal Services Commissioner would be premature.[3]
[3] Mr Perov, Amended Submission page 2, paragraph [5]
On 15th September 2014 her Honour Justice Ainslie-Wallace handed down a decision dismissing the Application seeking an extension of time in which to file an appeal, with costs (Perov & McPherson)[4].
[4] [2014] FamCAFC 176
Consideration
The reason for requiring Mr Perov to show cause why a complaint should not be made to the Legal Services Commissioner arose from the arguments raised by Mr Perov in the substantive Application, Wade & McPherson[5]. As I pointed out at paragraph [24] of that decision,
Mr Perov had referred to the decision of White in the Supreme Court of New South Wales in a matter called Re Felicity[6], which he conceded was identical to the case to be decided. However, Mr Perov submitted that it should not be followed as it was wrongly decided. Mr Perov had appeared for the plaintiff in that matter.
[5] [2013] FCCA 1583
[6] [2012] NSWSC 494
What Mr Perov did not mention was that there had been two further proceedings, in both of which he had appeared:
a)Re Felicity (No.2)[7]; and
b)Re Felicity[8].
[7] [2012] NSWSC 1561
[8] [2013] NSWCA 21
Re Felicity (No.2) was a costs decision and, although Mr Perov did not see fit to mention the matter, little turns on that point.
However, the other decision was of much greater significance. On 17th September 2012 the plaintiff sought leave to appeal against the decision in Re Felicity. I dealt with those circumstances at paragraphs [40] and [41] of the decision made earlier this year:
…The summons was heard on 8 February 2013 and decided that same day. The Applicant, as she then was, required a substantial extension of time as the decision in Re Felicity was handed down on 1 May 2012 and the summons was not filed until 17 September that year. The summons seeking leave to appeal was dismissed with costs (Re Felicity[9]).
[9] Footnote omitted
The reasons for the decision were given by Macfarlan JA, with whom Beazley JA agreed. His Honour held at [3]:
It is unnecessary to consider discretionary considerations which may weigh against the applicant as I am of the view that the appeal sought to be brought has no realistic prospect of success. The reasons why the applicant failed at first instance are clearly described by White J’s thorough judgment. On her application to this Court, the applicant has not been able to advance any arguable basis for a conclusion that White J erred in any respect. The essence of the applicant’s argument is that s 69ZK of the Family Law Act 1975 (Cth) is inapplicable because, although the Children & Young Persons (Care and Protection) Act 1998 (NSW) is a “child welfare law” within the meaning of the section, that Act is invalid because it is inconsistent with the Family Law Act – see s 109 of the Constitution. However, as White J held, there is no such inconsistency because s 69ZK resolves any potential inconsistency.[10]
[10] [2013] NSWCA 21 at [3]
Mr Perov’s Submission
In his submission, Mr Perov referred to this issue by saying:
4. When referring to the decision in Re Felicity [2012] NSWSC in my submissions in this Court I have failed to refer to the subsequent decision of the Court of Appeal, refusing the application for leave to appeal, for the very reason that, firstly, it was the application for leave that was decided and, secondly, the application was heard by two judges of the Court of Appeal, however there was no elaborate submissions or judgment going into details of the substance of the matter. I do not consider that such a decision of a Court of Appeal in the substantive manner and is not authority as such. It was not an attempt by me to mislead the Court.
5. As I mentioned, I am in the process of filing an appeal to the Full Court from the cost orders. Reporting me to the Legal Services Commissioner would be premature.
6. Further, the matter in Re Felicity is currently in the High Court, awaiting the hearing of the application for special leave to appeal. Any further campaign against me may turn out to be an embarrassment to all those taking part in it if the High Court grants leave and the matter is heard before it. Therefore I suggest some restraint.[11]
[11] Mr Perov, Amended Submission page 2, [4]-[6]
Conclusions
The explanation given by Mr Perov is unacceptable. First of all, the application for leave to appeal to the Full Court of the Family Court has now been dismissed. It can no longer be said to be premature to consider the matter.
There is no need to wait until the application to the High Court for special leave to appeal the decision in Re Felicity is heard. That question is irrelevant to the matter under consideration.
The question for consideration is whether or not Mr Perov should have disclosed to this Court when the Application was being heard on 23rd September 2013 that there had been an application for leave to appeal the decision of White J in Re Felicity which had been dismissed on 8th February 2013, more than seven months prior to the hearing.
The answer to that question is in the affirmative. It is, in my view, disingenuous to say, as Mr Perov submits, that all that was dismissed was an application for leave to appeal and there were no elaborate submissions or judgment going into details of the substance of the matter. There was never going to be “a judgment going into details of the substance of the matter”.
An examination of the reasons given by their Honours in the Court of Appeal quoted above shows that the application was not dismissed just for some technical procedural reason, but because the Court had found that the appeal had no realistic prospects of success. The Applicant had not been able to advance any arguable basis for a conclusion that the trial judge had erred in any respect.
There was no appeal. The matter was over. The Applicant’s case for an appeal had been considered and summarily rejected by the Court of Appeal. How could that not have been relevant?
Mr Perov’s submission, in ignoring that decision, of which he was perfectly aware because he had argued the case before the Court of Appeal, was at least potentially if not actually misleading to the Court.
This Court cannot have any confidence in an advocate who withholds relevant information from the Court in the course of argument, particularly information which is within the advocate’s personal knowledge.
The performance by the solicitor in this case was so unsatisfactory as to be regarded as “unsatisfactory professional conduct”, as defined by s.496 of the Legal Profession Act 2004 (NSW).
Section 496 states:
For the purposes of this Act
“unsatisfactory professional conduct” includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
There is perhaps a question whether withholding relevant information so as to mislead the Court may amount professional misconduct as defined by s.497 of the Act. I note, however, that in fairness the solicitor has not been asked to make a submission as to whether his behaviour amounted to professional misconduct.
In my view, the solicitor’s conduct justifies a complaint to the Office of the Legal Services Commissioner and I intend to direct the Principal Registrar to forward a copy of these Reasons to the Office of the Legal Services Commissioner to investigate whether the solicitor has demonstrated unsatisfactory professional conduct in his conduct of the Applicant’s case.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 30 October 2014
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