Wright v Council of Qld Law Society Inc

[2002] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B18 of 2001

B e t w e e n -

WENDY ANN WRIGHT

Applicant

and

THE COUNCIL OF THE QUEENSLAND LAW SOCIETY INC

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 2002, AT 12.34 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.W. HACKETT, for the applicant.  (instructed by Morrow Petersen)

MR W. SOFRONOFF, QC:   May it please the Court, I appear with my learned friend, MR D.D. BATES, for the respondent.  (instructed by Clayton Utz)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, there are two points I wish to concentrate on in address.  The first might be called the distinguishing Sperway point.  The second might be called the failure to observe what would follow from an extension of Smith v Bar Association.  The second is one which is, of course, highly peculiar to the facts of this case.  It is in the nature of such a matter that it will turn upon the way in which rival versions are presented to the tribunal of fact at the primary level, the way in which they are then argued at the appellate level in order to ascertain the way in which the question of lie or something other than a lie is presented.

There is a general principle but I am bound to volunteer that Smith v Bar Association, calling in aid some already established principles concerning fairness, fact finding and logic, has already attended to this question and perhaps not coincidentally has done so in the context of professional fitness where candour and honesty is, of course, of a special and peculiar importance.  Why then special leave for this case?  Well, in our submission, it is because without special leave to appeal there is an individual injustice in this case because it was at the level of the Court of Appeal, in particular, that this error intruded.  That is not to say, however, that the foundation of the error for which we seek special leave in relation to the attribution of dishonesty is not laid in the Tribunal. 

May I take your Honours first as to that to page 23 of the application book.  I will be concentrating on charge 6, as, in effect, the litmus.  That is because, as Justice Davies said in the Court of Appeal, if anything, it is the most serious.  That is, if we cannot persuade your Honours in relation to charge 6 and special leave, then the same result, we concede, would follow for the others.

Charge 6 is, of course, that which is contained in the very serious allegation of suborning a witness.  At page 23, lines 22 and following, the allegation is set out, namely, that my client “sought to change the evidence of Johannes Hendriks”.  As your Honours know, that was by putting before him a second affidavit in order to explain, to use a euphemism, certainly to withdraw or take the sting out of, in an exculpatory way of herself, an affidavit which he had earlier supplied which was inculpatory of her.  It is said in the next paragraph, line 33, by the Tribunal making their primary finding of fact, having heard and seen the witnesses on this, that my client denied that the draft affidavit – because that is what she presented:

contained assertions which were false and which she knew were false.

So there was a factual issue joined by persons who gave testimony before the Tribunal on the critical component, which was not whether the assertions were false, but whether she knew they were false.  She gave evidence, which your Honours see summarised there, including at line 33, that she had been:

under the impression that Mr Hendriks had implicitly at least, agreed with the assertions she had drafted into the affidavit.

Those are assertions of a kind which is calculated to involve real issue as to the psychological state of somebody who it may be assumed for the purposes of argument is saying something which is demonstrably wrong.  “When you said it, did you have an impression” – particularly something which involves an impression of an implicit position of some other person – “which might have explained it by other than the explanation of a lie?”.  The whole of the reasoning of the Tribunal in that important and, for my client, critical question of fact is contained in lines 40 and following.  It is simply and solely a preference between competing pieces of testimony:

It was the evidence of Johannes Hendriks that he did not tell the Practitioner the facts contained in paragraph 3 . . . did not tell the Practitioner . . . that he would require a lengthy period of time . . . did not tell the Practitioner that the affidavit . . . was done in haste and did not convey the correct matters.

So, issue was joined on questions of fact of that kind.  Line 46 then concludes the issue so far as the Tribunal was concerned:

The Tribunal does not accept the Practitioner’s explanation of the circumstances which resulted in the preparation and presenting of the draft affidavit –

A plain but, in our submission, plainly excessively comprehensive preference of one set of testimony over the other, and then, in a way which, in our submission, betrays the illegitimate mode of reasoning, they conclude:

The Tribunal has already determined that Mr Hendriks was a credible witness.

This emphasised the fact that it was simply a matter of competing preference about matters of fact, had Mr Hendriks done this or not.

HAYNE J:   Well, had he said this or had he not said this.

MR WALKER:   When I say “done this”, I mean had he said these things to her which might be thought to have made it impossible for her to have drawn the draft affidavit had she understood what she had been told.

HAYNE J:   Not a question of understanding, was it, had certain statements been made?

MR WALKER:   Yes, but, your Honour, the fact that somebody has said something does not negative the proposition that one may have an impression that there is an implicit agreement to something else.  That was at the heart of the issue as to whether my client was suborning in the sense particularised, namely, preparing a draft affidavit containing assertions which were false, but then the critical matter, which she then knew to be false.  It is for those reasons that, in our submission, the question of lie comes up in relation to the simple competing of testimony to be preferred.

At page 62 of the application book your Honours will find part of the written submissions for the present respondent in the Court of Appeal.  In paragraph 25, which is in relation to charge 7 – that charge 7 relates to the knowing falsity of the letter to the Law Society, putting her side of the position, being the same position that she put before the Tribunal.  So, it was a prior consistent version to that which had been simply rejected by way of preferred testimony on this issue, but it was the subject of a particularised charge.  In paragraph 25 the argument is simply put at 30 and 31 which, in our submission, may contain the germ of the error in the Court of Appeal as we put it, namely:

It follows from the positive rejection of her explications –

being the reason why charge 7 ought to be made out.  Now, in our submission, that is precisely what Smith v Bar Association warned against, namely, finding that there had been a knowing putting forward of a false version in exculpation of oneself, finding that simply upon the preference of testimony about the substantive charge against the solicitor.  That, in our submission, was the way in which the case was put to the Court of Appeal.

In the Court of Appeal there are two pages only I need to take your Honours to, page 71 of the application book, again using as the litmus test of the application charges 6 and 7.  Slightly more full reference to the detail of the testimony is contained, for example, in paragraph [38], line 13:

She said she would prepare a response for him to look at and sign.

That is the preparation of the draft affidavit.  Paragraph [39], she said:

the affidavit she drafted was consistent with her understanding of a telephone conversation with Mr Hendriks earlier that day and that he had at least implicitly agreed with its content.

Now, it is not to the point that the telephone conversation is narrated in different terms by Mr Hendriks.  What is important is that preferring Mr Hendriks does not mean that it was a lie, a knowing falsehood on her part, to have reached the understanding – ex hypothesi the misunderstanding – which was reflected in the draft affidavit.  Neither the Tribunal nor the Court of Appeal, in its special form of appeal by way of rehearing, attended to that distinction.

Now, true it is Smith v Bar Association might be said to have established as a general principle the importance of that distinction but that is why the individual dictates of justice in this case loom so large.  My client has not had the proper approach followed even once in this case.  At paragraph [40] the way in which the Court of Appeal proceeded is exemplified and it is a fair example of the consistent approach:

Once more, the Tribunal rejected the appellant’s evidence, preferring that of Mr Hendriks.

Quite so.  That is all it was.  And, then:

That view was reasonably open.

That second sentence I have just quoted, your Honours, is what might be called the Court of Appeal’s discharge of its particular function in this litigation and, in our submission, it is manifestly deficient by reason of the nature of the appeal by way of rehearing for which the statute called.

GLEESON CJ:   Is that a convenient time, Mr Walker?

MR WALKER:   Yes, your Honour.

GLEESON CJ:   We will adjourn until 2.00 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, at page 71 of the application book the reasoning by the Court of Appeal is contained in a fashion which makes it clear that they were not approaching this as a finding of the facts for themselves.  At paragraph 40 the summation of the dismissal of the appeal is in the sentence:

That view was reasonably open.

That is a view being a preference for one set of testimony over the other by the Tribunal.

GLEESON CJ:   Mr Walker, on page 62 in paragraph 22 there is the summary of the respondent’s version of the facts relating to charge 6 and the subject matter about which the affidavit that your client tried to get Mr Hendriks to swear was such, was it not, that it was not something about which she could have been mistaken?

MR WALKER:   Does your Honour have in mind the powerful piece of corroborative evidence supplied by the parking station ticket, for example?  Because otherwise, with respect, being mistaken about a time of day is a very common human experience.

GLEESON CJ:   But when you relate it back to the earlier charges, that is, what she was representing to the District Court judge – I mean the gravamen of some of the earlier allegations against her was that she was telling the District Court judge about the unavailability of Mr Hendriks.

MR WALKER:   That very morning she, in effect, had not been able to contact him.

GLEESON CJ:   No, worse.  She said that his girl had refused to disclose where he was, where as his girl was her girl.

MR WALKER:   Yes, as your Honour says, it is worse.  However, as to the time point which is the subject of paragraph 22 on page 62 of the application book, it is not, in our submission, remarkable that somebody might be mistaken about a recollection as to time – even sequence of events.  However, what your Honour puts does raise the kind of matter which towards the end of, for example, Justice Deane’s reasons in Smith is highlighted, namely, that there are matters which might simply be seen as the conflict of testimony, where from the nature of the subject matter and the way the contest is presented and fought, that the mere preference, so‑called, as I put it in my argument, might carry with it, logically, a necessity to accept mendacity in the non‑preferred version.

That is not, in our submission, made good by the circumstance referred to in paragraph 22.  Importantly, that would not be the only one, in any event.  It is the ensemble of matters which led to the final orders against my client.  That is why we have selected, in particular, No 6 because of the importance that it assumed in the reasoning concerning the quality of the alleged misconduct and how that should result in a particular form of order.  At page 71 of the application book at the foot of paragraph [40], about line 29, indeed it is charge 6 that attracts from the learned President the description:

An attempt to suborn a witness to the Tribunal is a serious departure from the minimum standard of professional conduct expected from a practitioner.

Quite so.  All the more reason that the Court of Appeal, charged, as we put it, with a duty to find facts, does so for itself.  Charge 7, paragraph [42] on the same page is an illustration of the same approach being taken.  For example:

On the evidence this conclusion was plainly open –

as opposed to this is what her Honour would find, herself –

and supported a finding of guilt as to the appellant’s professional misconduct in knowingly making false claims –

An elision by failure to elaborate and discriminate between being mistaken, even unreasonably mistaken, on the one hand, and lying on the other, the kind of difference which in a related area, perjury, was explored in MacKenzie’s Case but with the special importance that this Court demonstrated in Smith’s Case is carried by the fact that the professional integrity and honesty issues are of peculiar importance in relation to the fitness to practice and the proper order to be made in cases of discipline.

Justice Davies, at page 76 of the application book, paragraphs [74] and [75], there sets out his concurring observations.  I would draw to attention the second sentence of paragraph [74]:

Proof of the charges before the Tribunal depended substantially on the Tribunal’s findings of credit.

No doubt it did, with respect, however, that is only the beginning of the exercise in relation to the finding of fact duty of the Court of Appeal.  That also leaves open the possibility, which in our submission is unsatisfactory from the point of view of the administration of justice in a particular case, that all that has been done is the mere preference across the board for one set of witnesses over another.  In paragraph [75] Justice Davies described all matters of being:

a very serious nature . . . Charge 6 was, if anything, even more serious –

and a quotation from the Chief Justice about:

such conduct “strikes audaciously into the heart of the judicial process” –

That is why it is an appropriate litmus for our present purposes. 

Your Honours, that brings me then to the second matter which, in our submission, justifies special leave.  The provision in question, the precise element of which is quoted at page 88 of the application book in our written submission, paragraph 3.1, is subsection 6Z(2) and it contains the direction for the appellate hearing to be:

by way of rehearing, unless all parties to the appeal accept the facts as found by the tribunal.

That is a provision that sets up two possibilities.  It is the first of those, that is, without the proviso, which applied in this case.

GLEESON CJ:   You want to argue that because the consequence of that would be that you did not need leave to adduce further evidence.

MR WALKER:   I do not want to press the fresh evidence argument in this context, your Honour.  I want to emphasise this, that that proviso emphasises that it is for the Court of Appeal on the rehearing to which otherwise the matters referred to by the Court in Sperway clearly do apply.  It is for the Court of Appeal to find facts, to adapt language from Warren v Coombes, not merely the power but the duty to find the facts for itself in that kind of appeal by way of a rehearing.

HAYNE J:   How is that consistent with what your client advanced at page 56, paragraph 6.4 and the disposition that the Court of Appeal should make, namely, set aside and remit?

MR WALKER:   Your Honour is there referring to set aside and remit?

HAYNE J:   Yes.  If they were to embark on their own fact finding, when would there have been occasion to remit?

MR WALKER:   Only if the court was not satisfied in a matter involving integrity and honesty, not satisfied that the reasons of the Tribunal justified, for example, a positive finding in favour of the appellant, bearing in mind that those findings as to lie or not should be dealt with by a primary tribunal of fact with witnesses in front of it.

HAYNE J:   You see, the impression I am left with from the submissions your client advanced in writing to the Court of Appeal, particularly page 41, is that your client had the disposition in the Court of Appeal that she sought and that it was a joint approach by the parties before the Court of Appeal for the Court of Appeal to approach it as they did.  Now, whether that is right in law, of course, may be a separate issue, but you got what you wanted.

MR WALKER:   No, and your Honour is only putting to me, of course, the method rather than the outcome.

HAYNE J:   Yes.

MR WALKER:   Yes.  Page 54, section 6 – which, of course, is concluded by the passage at 56 to which you have drawn attention – concerns an argument about, in effect, a form of procedural fairness very closely adapted from the Smith v Bar Association position and it would follow, in our submission, from an argument of that kind in the Court of Appeal, that is, the first appeal from the Tribunal, that remitter would at least be one of the possibilities in order, for example, as discussed in that case, for the charge to be appropriately framed.

Now, this was not a Smith Case directly because she was not the subject of an adverse order on the grounds of the way in which she had given testimony, that is, lying or not before the Tribunal, however, it was tantamount to that by reason of the charge relating to the letter to the Law Society, which letter, of course, was a prior consistent statement of the position she did take in testimony before the Tribunal.  That is my explanation, your Honour, for why 6.4 as a forensic stance is explained, namely, that had to do with the procedural fairness point.

On the question of fact finding, that is the failure to actually distinguish between lie and a mistake, lie and misunderstanding, which was critical to my client’s position, that is the duty to find facts which is not shown to have been discharged as the method of approach, notwithstanding the submissions from counsel below to the effect that the distinction between lie and mistake was at the heart of the matter, both as to adverse finding and as to the appropriate order to be made.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Sofronoff.

MR SOFRONOFF:   Your Honours, in Smith, in this Court, the majority said this:

On other occasions, other evidence may be of such a nature or of such a weight that, in combination with the rejection of some particular evidence, it will justify a finding that that evidence was fabricated.

That is, in our submission, what happened here and the court applied that uncontroversial process to its task, as had the Tribunal.  If your Honours go to page 69 of the book, what had happened was that the applicant’s client was attempting to resist summary judgment in the District Court.  The applicant had been told by Mr Hendriks, an engineer, that he might need three months to come to an opinion about incorrect works if a certain matter existed.  He swore an affidavit to that effect.  If that was the position, summary judgment could be avoided, at least postponed for three months.  But on the Friday before the Monday he rang her, so his evidence went, and said he did not need three months and the only rectification work was a minor sum of 5,000 which was of no use to resist summary judgment.

She asked him to attend at court on the Monday and his evidence was that he did and met her in the forecourt at about 10 o’clock.  She told him to go away.  His evidence, in that respect, was corroborated by a parking ticket stamped 10.15 when he left Brisbane City.  She immediately went before the court – and this is common ground – and told the judge what your Honours will see at the next page, page 70, paragraph [30]:

“We have made every attempt to get our experts here.

She was asking for an adjournment.

We couldn’t even get Mr Hendriks to come here today at such short notice . . . I believe I would have (to) subpoena Mr Hendriks –

Now, that is not a mistake about whether it was 10 past 10 or 10 past 11.  That is a fundamental matter going to the heart of whether she was telling the truth to Judge Robin or not.  The Tribunal accepted Mr Hendriks’ evidence.  Having accepted that evidence, it followed that when she said she saw him after court she must have been lying – at least it was open to the Tribunal to conclude that and they did.

Then she applied for an adjournment repeating, falsely, now, if Mr Hendriks’ evidence is accepted, that Mr Hendriks still needed three months to prepare his report.  Then the matter went off and a couple of years later the other disappointed opponent in the case for summary judgment complained to the Law Society and they got Mr Hendriks to sign an affidavit deposing to the matters that I have outlined.  She then contacts Mr Hendriks on the telephone and your Honours will see at page 23 in the passage that my learned friend directed your Honours’ attention to, just below line 40, that she sent him a draft in which he was expected to sign and swear that he had told her:

that he would still require a lengthy period of time –

and that his earlier affidavit given to the opposing solicitors:

was done in haste and did not convey the correct matters.

He said he never told her any such thing and the consequence of accepting that evidence, of course, is that her suggestion that it was all a mistake – or one open finding is that her evidence to that effect was a calculated lie.  Then, if your Honours go to page 71, she in the face of his affidavit to that effect at paragraph [41] persists in that same lie:

that she believed Mr Hendriks was unable to attend court . . . only becoming aware of his presence at court after the adjournment of the summary judgment application –

when she gives evidence to the Law Society or submits her explanation to the Law Society.  So that evidence of Mr Hendriks that he told her he did not require any further time and there was nothing in any set‑off or defective work, that he turned up at court at her request, was sent away by her and then she appeared before the judge and informed the judge falsely that she could not get him there unless she had obtained a subpoena, those are matters that are mutually exclusive to the extent that it was open to the Tribunal to conclude that the other evidence, including the parking ticket, may be of such a nature or of such a weight that in combination with the rejection of some particular evidence it will justify finding that the applicant’s evidence was fabricated.

So, in our submission, this case involves the application of an uncontroversial principle to facts in circumstances where there have been concurrent findings by the Tribunal and by three of their Honours in the Court of Appeal with the consequence that there is, firstly, no error shown on the face of the – no special leave point shown with that in that respect, and, secondly, no prospect that an appeal could succeed in the face of those findings. 

As to the rehearing point and the nature of the hearing, the applicant submitted at page 41 of the record, in the passage that was discussed a moment ago, that the appeal should be by way of rehearing in the sense given by Justice Mason in Sperway and the passage is then set out – rehearing as opposed to hearing de novo – and all the relevant passages are set out there.

GLEESON CJ:   If it had been conducted as a hearing de novo, all the evidence would have had to be given again.

MR SOFRONOFF:   That is right.  Instead, what happened was their Honours applied uncontroversial fact‑finding principles on a rehearing where findings of credit have been made and that explains why when their Honours deal with all of these, which depended on findings of credit, they use a familiar rubric, it was open to them to conclude, because they were not entitled to interfere unless one of the recognised exceptions applied, misuse of the advantage, some incontrovertible document or something of that nature, which does not emerge here and it is not submitted that it does.  So, in our submission, leave ought to be refused.

GLEESON CJ:   Mr Walker.

MR WALKER:   Your Honours, this had nothing to do with Abalos or Earthline or anything of that kind.  This had to do with a Tribunal judgement which, in the passages I took you to in‑chief, to which my learned friend took you back, nothing whatever is revealed of any reasoning to distinguish between lie, on the one hand, and simple difference of testimony on the other.  Nothing is added by way of finding of fact, let alone reasoning, by reference to any particular piece of evidence to distinguish between the case which is the usual case of simply a preferred side in the testimonial conflict and a finding that the non‑preferred side was actually lying, that is, was conscious at the time of the utterance of the falsity.

That is the error which was then not approached in their own appeal by way of rehearing, Sperway form, Warren v Coombes informed duty to find facts by the Court of Appeal where the Court of Appeal does nothing in order to advance the necessary distinction which had been strongly urged in

the written submissions below on behalf of my client.  That is not an Abalos point.  That is not an Earthline point.  Rather, that is a failure to attend to the duty – not merely the power – to find facts in the Court of Appeal, bearing in mind that the primary facts in the Tribunal did not enable any distinction to be drawn between simply preferring one witness and then finding that the other witness was a liar.  May it please your Honours.

GLEESON CJ:   We are not persuaded that there are any prospects of success of an appeal in this matter and for that reason the application is refused with costs.

We will adjourn for a short time to reconstitute.

AT 2.20 PM THE MATTER WAS CONCLUDED