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Legal Services Commissioner v Sewell[2017] QCAT 387

Legal Services Commissioner v Sewell[2017] QCAT 387

CITATION:

Legal Services Commissioner v Sewell [2017] QCAT 387

PARTIES:

LEGAL SERVICES COMMISSIONER (Applicant/Appellant)

v

DONNA MAREE SEWELL

(Respondent)

APPLICATION NUMBER:

OCR181-15

MATTER TYPE:

Occupational Regulation Matters

HEARING DATE:

5 September 2017

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

Assisted by:

Dr John de Groot, Legal Panel Member

Dr Margaret Steinberg AM, Lay Panel Member

DELIVERED ON:

31 October 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

  1. The disciplinary proceeding application is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – GENREALLY – where the practitioner is charged with breaching her duty to the profession by sending “false and defamatory” letters about a former employee – where the practitioner is also charged with failing to act with competence and diligence by permitting a client to file a materially false affidavit – where the falsity of the content of the letters was not proved to reasonable satisfaction – where the obligation sought to be imposed by the Commissioner would have imposed an obligation to guarantee the truth of client affidavits – where the application for disciplinary proceedings is dismissed

 

Legal Profession Act 2007 (Qld) ss 418, 419, 420, 456

Briginshaw v Briginshaw (1938) 60 CLR 336

Doolan v Legal Practitioners Admissions Board [2016] QCAT 98

Lander v Council of the Law Society of the ACT [2009] ACTSC 117

Legal Services Commissioner v Winning

[2008] QLPT 13

Legal Profession Complaints Committee v in de Braekt [2012] WASAT 58

Myers v Elman [1940] AC 282

Singer v Berghouse (1994) 181 CLR 201

Viscount Maugham [1940] AC 282

APPEARANCES and REPRESENTATION (if any):

 

APPLICANT/APPELLANT Mr Glen Rice QC instructed by the Legal Services Commissioner

RESPONDENT Mr Rowan Jackson QC and Ms Anastasia Nicholas instructed by Bartley Cohen

 

REASONS FOR DECISION

  1. [1]
    This is a discipline application made under s 452 of the Legal Profession Act 2007 (Qld) (the Act).
  2. [2]
    The Commissioner alleges that the practitioner is guilty of professional misconduct or unsatisfactory professional conduct and seeks disciplinary orders pursuant to s 456 of the Act.
  3. [3]
    The practitioner is charged with:
  • breaching her duty to the profession in 2014 by sending “false and defamatory” letters about a former employee she dismissed in 2012 to his current employer; and
  • failing to act with a professional level of competence and diligence contrary to her duty to the client by permitting him to file an affidavit in a family provision application that she did not but should have known was materially false.
  1. [4]
    The allegations in support of the charges, if true, are clearly capable of constituting unprofessional conduct or professional misconduct.
  2. [5]
    Both charges are denied.
  3. [6]
    The tribunal’s jurisdiction is to hear and determine the allegations in the discipline application.  If having heard a discipline application the tribunal is satisfied that the respondent legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct, it may make such order as it thinks fit, including any one or more of those listed in ss 456(2), (3) and (4).

The statute

  1. [7]
    Section 418 of the Act provides:

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening 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.

  1. [8]
    Section 419 of the Act provides, in part, that:
  1. (1)
    Professional misconduct includes—
  1. (a)
    unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
  1. (b)
    conduct of an Australian legal practitioner … that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
  1. [9]
    Section 420(1)(a) of the Act confirms that:

… conduct consisting of a contravention of a relevant law is capable of constituting unsatisfactory professional conduct or professional misconduct.

  1. [10]
    Plainly, a finding of misconduct is a matter of grave consequence not only for the practitioner but for the profession and public as well.
  2. [11]
    As the alleging party the Commissioner carries the onus of proof to the degree of reasonable satisfaction.  This is not a state of mind produced by inexact proof, indefinite testimony or indirect inferences.   The tribunal must feel an actual persuasion of the occurrence or existence of an adverse fact before it can be found.  There must be a genuine belief in its reality.  The seriousness of the allegation made, the inherent unlikelihood of an occurrence, and the gravity of the consequences are all considerations affecting the answer to the question whether the issue has been adequately proved.[1]

The supporting evidence

  1. [12]
    The Commissioner relies solely on the affidavit evidence of a senior legal investigator, who was not cross-examined, and exhibited documents including electronic records, retrieved from a database used for investigative purposes.
  2. [13]
    The practitioner submitted that she had no case to answer and no conduct to justify or excuse.
  3. [14]
    She tendered two affidavits from her legal representative exhibiting litigation related correspondence.
  4. [15]
    The case is decided as it was presented; that is, on the basis that the evidence is not to be used for the hearsay purpose of proving the probable truth of any asserted but contested fact.

Charge 1 – the XY allegations

  1. [16]
    From December 2010 to 31 January 2012 the practitioner employed XY in her law practice first as a “legal secretary” and after August 2011 as a “graduate solicitor” (although in fact this was a misleading description as XY did not complete his degree until December 2011). His employment was terminated in January 2012 in acrimonious circumstances.
  2. [17]
    On 1 February 2012 the practitioner sent him a workplace misconduct allegation notice.[2]  Relevantly, claiming that XY[3] removed client files from his employers’ premises; breached his obligations of confidence; made false entries on his time sheets; exchanged over 300 text messages with another staff member on a company iPhone in which he defamed clients and called the respondent a “cunt”; used the company iPhone to download and store pornographic material and deleted the contents of the iPhone without authorisation; in addition to improperly retaining company property following his termination, including a USB onto which confidential client information had been downloaded.
  3. [18]
    XY responded to the termination letter on 6 February 2012. He admitted some inappropriate behaviour and he offered an apology to the respondent in respect of the insulting text messages. He also admitted wiping the contents of the iPhone and using the firm’s printer for personal documents relating to his study and removing client files from his employer’s office, but explained it was for the purpose of working from home.  He accepted that he sometimes discussed his work with friends in general terms, but disputed that amounted to a breach of confidentiality.  He denied using the iPhone to store pornographic material but did not address the allegation that he had downloaded it.
  4. [19]
    On 5 October 2012 XY sent an email[4] to Ferguson Cannon (solicitors) correcting remarks A Lyons J had made at [14] in reasons for judgment in Campbell v Campbell[5] on 20 August 2012 based on the practitioner’s testimony.[6]
  5. [20]
    The email relevantly said:

I refer to the recent decision of the Supreme Court in this matter. Please find a copy of same attached.

At paragraph 14 I have been referred to as working as a graduate solicitor at See Well Law on or about 25 October 2011.

Please be advised that this is not true.  I only graduated from my undergraduate law studies on 13 December 2011.  This was known to Ms Sewell.

I left the employ of See Well Law in early February 2012.

I was not involved with that matter and have no recollection of being instructed by Ms Sewell to make the phone calls alleged (concerning the whereabouts of a disputed will).

  1. [21]
    XY apparently wanted to set the record straight and distance himself from any judicial criticism.
  2. [22]
    He clearly ought not to have been represented as a ‘graduate solicitor’ in 2012 when plainly he was not admitted until February 2014 and did not even complete his degree until December 2011.
  3. [23]
    On 22 April 2013 – over a year later – the practitioner opposed XY’ admission as a legal practitioner because of the circumstances of the termination of his employment.
  4. [24]
    The objection was treated as a complaint and referred by the admissions board to the Law Society and Legal Services Commissioner (LSC) to investigate.  The LSC considered the matter but no action was taken.
  5. [25]
    XY was eventually admitted as a legal practitioner on 3 February 2014 and employed by a community and social housing provider, by the name of 4Walls.
  6. [26]
    The practitioner wrote to the manager of 4Walls on 5 March 2014 informing her that XY was dismissed for sabotaging her firm and breaching client confidentiality.  The letter continued:

Please find enclosed an email[7] from XY to an opposing solicitor for a matter we had conduct of which makes false representations about our firm, attempts to sabotage our client and our firm’s veracity and breaches our client’s as well as his employee confidentiality prescribed by contract and by law.

Please also find enclosed an affidavit of XY which has been recently filed with the Supreme Court of Queensland showing that he has a mental illness and also has been an inpatient of the Nambour psychiatric ward.

  1. [27]
    The affidavit mentioned in the letter was filed by XY on 20 January 2014 in support of his application for admission to the legal profession.  At [11] he deposed to having treatment for an “adjustment disorder with depressed mood” from February 2012 to the end of 2012.  He exhibited a certificate from his psychologist (RKN-07) certifying that his condition had “resolved quickly and easily” with “no residual symptomatology”. He added:

I also received support from my GP and as an in-patient at the Nambour Public Hospital.  I was prescribed anti-depressant medication to assist in my recovery.  By the end of 2012 I was no longer taking anti-depressant medication and I had ceased appointments with my psychologist and GP.  Since that time I have not required treatment for any mental health issues and I closely monitor my mental health to ensure that I remain resilient to external stress.

  1. [28]
    The Commissioner contends that in sending the 5 March letter the practitioner acted contrary to rule 5.1.2 of the Australian Solicitor’s Conduct Rules 2012 (Conduct Rules) because the statements she made were not only vindictive but “false and defamatory”.[8]
  2. [29]
    Rule 5.1.2. of the Conduct Rules relevantly prohibits a solicitor from engaging in conduct, in the course of practice or otherwise, which is likely to a material degree to bring the profession into disrepute.
  3. [30]
    The Commissioner submits that the practitioner used her status as a solicitor, and the letter head of her firm, to lend weight to unfounded and scurrilous allegations concerning a young former employee more than two years after his employment and his mental health issue had ended.  She pursued him vindictively by writing to his employer on more than one occasion, which would be regarded as a disgrace by practitioners of good repute.  It undermines the reputation of the legal profession and for the purpose of Rule 5.1.2. the Commissioner argues that it is likely to a material degree to bring the profession into disrepute.
  4. [31]
    The alleged professional misconduct does not merely consist of vindictively and relentlessly pursing XY long after his employment had ceased but also publishing false, offensive and defamatory material to 4Walls intended to have the effect of embarrassing and/or prejudicing XY in his current employment and future legal career.
  5. [32]
    A breach of the professional rules can constitute or evidence professional misconduct or unprofessional conduct but will not always do either.  Not every error, professional lapse or negligent act is significant or substantial enough as to warrant a finding of unprofessional conduct or a disciplinary breach.
  6. [33]
    On 10 March 2014 XY replied by email to the respondent’s letter of 5 March. He objected in particular to the respondent’s allegations of sabotage of the client and breach of confidentiality.
  7. [34]
    Instead of replying directly to XY[9] the practitioner sent further correspondence to 4Walls on 11 March,[10] enclosing a copy of the email he sent on 10 March 2014.  She reasserted the truth of her letter of 5 March and drew attention to the:

… Solicitors Conduct Rules 9, 22 and 32 (copy enclosed) which appear to be breached by XY.

  1. [35]
    The Commissioner correctly points out XY was not ‘a solicitor’[11] because he did not hold a practising certificate and therefore could not have breached the Conduct Rules.
  2. [36]
    Rule 9 embodies client confidentiality and the solicitor’s duty not to disclose information acquired during the course of the solicitor’s engagement, with a few specific exceptions. Rule 22 states that solicitors must not knowingly make false statements to an opponent in relation to a case and imposes a duty to correct false statements as soon as possible after the solicitor becomes aware of the falsity. Rule 32 prevents solicitors making allegations of unsatisfactory professional conduct or professional misconduct against another practitioner unless the allegation is made bona fide and on reasonable grounds and evidence providing a proper basis.
  3. [37]
    The Commissioner contends that the practitioner was in breach of Rule 32 herself because she either knew or should have known that on a proper analysis the information she sent to 4Walls on 11 March 2014 was incapable of constituting a rule breach or substantiating the assertions in the earlier letter and by reasserting the truth of her letter of 5 March 2014, built upon the defamatory allegations by implying unethical behaviour.
  4. [38]
    However, it is important to keep in mind that the practitioner did not assert that XY actually breached the Conduct Rules, merely that he “appeared” to have done so.  As Counsel for the practitioner notes, the opinion was expressed as a legal practitioner, having employed XY within her firm and having observed his conduct in that role. This is contrasted with being a statement of fact, and therefore, needs to be read in context of the broader dispute on foot as between XY and the respondent rather than be taken too literally.
  5. [39]
    On that score the LSC relies on the following past decisions:
  • Legal Profession Complaints Committee v in de Braekt,[12] a solicitor was found to have committed professional misconduct by (inter alia) sending offensive and discourteous emails to two police officers, and by making discourteous and abusive remarks to a court security officer.  The tribunal found that the conduct “compromised … the good standing of the legal profession”, and “seriously undermined the reputation of the legal profession”.[13]
  • Legal Services Commissioner v Winning,[14] the respondent was found to have committed both unsatisfactory professional conduct and professional misconduct in his use of offensive and insulting language to police and others in the legal profession in a variety of contexts.  The tribunal commented in relation to Charge 4 that the language used to police in conducting a search “tended to bring the profession into disrepute.”[15]
  • Lander v Council of the Law Society of the ACT,[16] the practitioner had alleged (inter alia) “years of malpractice and maladministration by your organisation” in a letter to a government department.  The tribunal found that the practitioner engaged in unsatisfactory professional conduct for reasons that included that it was capable of bringing the legal profession into disrepute.[17]  An appeal was allowed.

Findings

  1. [40]
    The core allegation is that the key assertions in the 5 and 11 March 2014 letters to 4Walls were defamatory in the sense that they were untrue and tended to discredit XY as a suitable employee.
  2. [41]
    The Commissioner submits that the respondent brought the profession into disrepute by “using her status as a solicitor and the letterhead of her firm” for the purpose of giving false accusations undeserved authority.
  3. [42]
    It is alleged, in particular, that the respondent knew or ought to have known that there were no reasonable grounds for making the assertions in the correspondence to 4Walls on 5 and 11 March.
  4. [43]
    Mr Jackson QC for the practitioner contends that even if the attacks on XY’ character were defamatory in a broad sense the Commissioner’s case impermissibly assumes the truth of XY’ unsworn denials to establish falsity instead of leading direct evidence.
  5. [44]
    As he observes at [43]:

The assertions of breach of client confidentiality have to be read in the context of the (practitioner’s) termination letter of 1 February 2012 and XY’ response to it, which engage considerations of contextual truth.  Plainly enough, an allegation of breach of confidence was a matter in dispute as between (the practitioner) and XY.  It is far too narrow a focus to consider only XY’s email in this context as opposed to the more detailed concerns the respondent had previously raised with him as to such matters.

  1. [45]
    There is no evidence before the tribunal which would enable it to determine the falsity or otherwise of those allegations.  That is especially so where no direct evidence from XY has been led.
  2. [46]
    To be sanctionable in disciplinary proceedings, offending conduct by a solicitor in a professional context in the nature of accusations or imputations capable of damaging a person’s reputation or standing in the eyes of an employer must be knowingly false or made with such a reckless disregard to their truth that honest belief is negatived.
  3. [47]
    Wrongly asserting that a demonstrable falsity is true is insufficient.
  4. [48]
    Before the practitioner’s state of mind or fault becomes relevant in the forensic process, however, the alleging party must prove falsity as a probability to the Briginshaw standard.  The Commissioner has failed to prove that the relevant “assertions” of breach of confidentiality, sabotage and mental illness were false or “defamatory”.
  5. [49]
    All the evidence establishes to our reasonable satisfaction is that the statements were made and that they were capable of causing reputational damage to XY.
  6. [50]
    There is no cluster of primary facts having the reinforcing effect of supporting the inference that the practitioner’s statements were false in fact or not reasonably believed, even mistakenly, to be true.
  7. [51]
    Merely because the supporting email and affidavits fall short of corroborating the practitioner’s claims or implications does not make them untrue, just unproven and unresolved.
  8. [52]
    Hearsay denials by a recent employee whose integrity and trustworthiness have been impugned by a former employer has a clear motive to lie and, in any event, even an honest denial cannot positively prove the falsity of an asserted truth.
  9. [53]
    The pleaded allegation is that the communications were disreputable because they were false and unjustifiably defamatory.  The authorities relied upon by the Commissioner speak of the use of offensive and insulting language or discourteous and abusive remarks.  That is not what is alleged against the respondent.

Charge 2 – the Dr Harber affidavit

  1. [54]
    Dr Aubrey Harber’s second wife died in 2010.  He claimed that she did not make adequate provisions for him in her will and retained the practitioner’s firm in 2011 to represent him in a family maintenance application.  The practitioner ceased to act for Dr Harber in that matter on about 21 February 2012.  Dr Harber’s assets and living arrangements were a material fact in those proceedings.
  2. [55]
    Dr Harber had earlier purchased a unit at the Hibiscus Retirement Resort in Tewantin (Unit 156) for the sum of $365,000 in the joint names of himself and his de facto partner Diane Joan Shepley.
  3. [56]
    The practitioner had acted for Dr Harber and Ms Shepley in that transaction between 15 December 2010 and about 12 January 2011.
  4. [57]
    A draft affidavit dated 24 February 2011 prepared for the purpose of the application by Dr Harber personally, was located by LSC investigators in a file search and contained the following:

… Thus, it was necessary to use funds from my “self managed superannuation fund” (Harber Superannuation Fund P/L) to purchase a unit in a Retirement Village … I am in the process of moving to the Retirement Village following the refurbishment of the unit.

…

Property Purchased

Unit 156, Hibiscus Retirement Village, 71 St Andrews Drive, Tewantin 4565 QLD

Purchased on 4th January 2011: $365,000 …

  1. [58]
    The affidavit also claimed that “Daphne’s will effectively left me homeless” and was the reason he purchased Unit 156.
  2. [59]
    An undated draft of an affidavit, prepared by the practitioner’s practice but not by her, contained the following assertions:
  • the initial investment in my Suncorp Superannuation was $300,000.  However, losses by Suncorp in the recent worldwide financial crisis and a part withdrawal to purchase the retirement Unit listed above has reduced the balance to $200,000;[18]
  • a reference to outgoings of $3,280 for the “Retirement Unit”;[19]
  • the first draft of the affidavit prepared by the practitioner’s firm (which the practitioner acknowledged in her letter of 7 April 2015 was prepared by cutting and pasting from information provided to her by Dr Harber[20]) under the heading “My Assets – current” made reference to the purchase of “the Retirement Unit listed above”, although Unit 156 is not separately listed as an asset. 
  1. [60]
    On or about 15 March 2011 Dr Harber gave instructions to the respondent to prepare a new will.[21] The principal beneficiary was Diane Shepley, whose current address was given as Unit 156.
  2. [61]
    Thus, says the Commissioner, there was full (even if constructive) disclosure by Dr Harber to the respondent of his circumstances and proposed living arrangements for inclusion in evidence in the family provision application.
  3. [62]
    In his affidavit filed in the family provision proceedings,[22] sworn and witnessed by the practitioner on 18 May 2011, Dr Harber claimed:
  • to set out his financial positon;
  • to reside at a property in Maroochydore that was the matrimonial home of him and his wife, the deceased; and
  • that he would be rendered homeless once the matrimonial home at Maroochydore passed to the beneficiaries of the estate.

There is no evidence at all as to who prepared that document.

  1. [63]
    The affidavit was allegedly false and misleading in that it was contrary to the initial drafts:
  • Dr Harber’s interest in the unit at Hibiscus Retirement Resort was omitted from his “List of Assets”;
  • incorrectly stated at [22] that upon relinquishing the former matrimonial home Dr Harber would be “homeless”;
  • he would not be rendered homeless once the matrimonial home at Maroochydore passed to the beneficiaries of the estate because of his undisclosed interest in Unit 156.
  1. [64]
    The practitioner, the Commissioner says, ought to have been aware that the affidavit was materially false and misleading in the alleged respects because:
  • she was the solicitor responsible for the matter.[23]  As such her obligation was to review the basis of the application, and the evidence to be filed;
  • full and correct details were amongst the client’s early instructions on the matter;[24]
  • she had personally acted for the client in the purchase of Unit 156;[25]
  • the falsely declared circumstances were prominent and material to the criteria for determining the application.[26]
  1. [65]
    Dr Harber’s interest, if any, and his stated intention to reside in Unit 156 from June 2011 were relevant to the basis on which the application was advanced, namely that he would become “homeless” after two years from the date of Daphne’s death.
  2. [66]
    The Commissioner alleges that at all material times the practitioner was aware that Dr Harber had an undisclosed interest in the unit property at Tewantin.
  3. [67]
    Allowing false or misleading affidavits to be filed, and conducting the litigation on the basis of them, are alleged by the Commissioner to be significant departures from acceptable standards of carrying out the solicitors’ duty of competence and diligence.
  4. [68]
    Further affidavits witnessed by the practitioner were filed on Dr Harber’s behalf in the proceedings on 9 September, 29 November, and 15 December 2011,[27] but contained no corrections to the original affidavit. Paragraph [48] of the 9 September affidavit asserted that Dr Harber would have insufficient funds to purchase a suitable dwelling.[28]
  5. [69]
    In an email to Cartwright Lawyers on 31 May 2012,[29] Dr Harber explained that Unit 156 was not included in his previous affidavit as it was “only relevant to final mediation/court case”.  He said further that Unit 156 was a non-participating leasehold and “NOT as asset as such. Thus I have not listed it as an asset”.
  6. [70]
    An affidavit prepared in June 2012, when Dr Harber had new representation in the matter from Cartwright Lawyers, made the relevant disclosure concerning Unit 156 and his cohabitation since June 2011 with Ms Shepley.  The matter was apparently successfully mediated on 19 June 2012.
  7. [71]
    At no time while the practitioner represented  Dr Harber in the proceedings did she file any affidavit that disclosed, or otherwise informed the court, of:
  • the interest that Mr Harber held in Unit 156; or
  • that despite his claim in his May 2011 affidavit, he was at no risk at all of being rendered homeless.
  1. [72]
    On the basis of these facts the Commissioner alleges that:
  • in causing the May 2011 affidavit to be filed in the family provision proceedings; and
  • continuing to litigate on the misstated factual basis of the affidavit of 18 May 2011 for the balance of her retainer in the matter;

the practitioner acted contrary to her duty in the service of her client pursuant to Rule 1 of the Legal Profession (Solicitors) Rule 2007 (Solicitors Rules).

  1. [73]
    Rule 1 of the Solicitors Rules relevantly requires a solicitor to act with competence and diligence in the service of a client.
  2. [74]
    The Commissioner does not contend that Dr Harber instructed the practitioner to include the details of his ownership of Unit 156 in evidence in the family provision material or that she refused to do so[30] or that the respondent was a knowing party to misleading the court because that “does not sit well with his explanation to Cartwrights about the reason why the information was not included in his earlier affidavits”.
  3. [75]
    The Commissioner does say, however, that there was a failure of competence and diligence on the respondent’s part in causing the affidavit of 18 May, and subsequent affidavits, to be filed with their deficiencies, and in conducting the litigation throughout on a materially false footing.[31]

Findings

  1. [76]
    The charge arises in circumstances where it is contended that the respondent ought to have been aware that evidence sworn to by Dr Harber was false and misleading.
  2. [77]
    At the centre of the charge is an affidavit sworn by Dr Harber. No allegation is made that the respondent prepared that affidavit or that she knew it was false and misleading either before it was sworn or after.  There is no allegation that any duties owed to the court were breached.
  3. [78]
    The applicant frankly and properly concedes that it can make no submission as to how the affidavit came to be in the form it was when filed.[32]  There is no allegation of actual knowledge.
  4. [79]
    The Commissioner’s case must therefore be assessed on the basis that a solicitor who does not know that the client has sworn, or intends to swear, a false affidavit either has a duty to prevent it being filed or to correct it as soon as possible.  However, the cases referred to in the Commissioner’s submissions[33] do not support a duty to investigate the truth of the contents of an affidavit sworn by a client in the absence of any suspicion as to its falsity.
  5. [80]
    The first case concerned an employee of a firm with actual knowledge of falsity.  The obiter statements of Viscount Maugham[34] make it clear that a solicitor with a client who has sworn a false affidavit of discovery in a fraud case is not obliged to do anything such as advise its correction or withdraw in the absence of actual knowledge.  Dr Harber quite obviously knew whether or not he would be rendered homeless. The second case relied on by the Commissioner has nothing to say about duties to a client.
  6. [81]
    A significant departure from a standard expected of the profession is not to be found in circumstances where a solicitor made an innocent mistake as to the contents of an affidavit.  The contention that Ms Sewell ought to have been aware that the affidavit sworn 18 May 2011 was materially false and misleading in the respects outlined in [2.10] of the particulars and that she was obliged (in an unqualified sense) to cause the steps particularised in [2.15] to occur is fatally flawed because Dr Harber told his new solicitor just before a scheduled mediation:

The Unit at Hibiscus was purchased in Jan 2011.  It was purchased entirely with my money from HSF and my Allocated pension.

…

There was no mention of this property in previous affidavits as this information was only relevant to the final mediation/court case.

Unit 156 is a non-participating Leasehold property, it is NOT an asset as such, I have tenure until death BUT I do not own it.  Thus I have not listed it as an asset.

As previously stated, I was to become homeless at the age of 71 with no means other than to expend by Super to provide myself with a home for the rest of my life.

I was not afforded the “luxury” of selling my own home to fund a more appropriate retirement residence.[35] [emphasis in original]

  1. [82]
    The obvious inference from that passage is that Dr Harber was well aware that the affidavits he had sworn did not refer to the unit and he had omitted any reference to it because he decided it was not relevant to disclose until the mediation.  It is also highly likely given the language Dr Harber uses – in his resentment of having to move out of the matrimonial home (or at least not being able to sell it) – that including the phrase “become homeless” was his choice.
  2. [83]
    Dr Harber’s general approach to the preparation of affidavits is abundantly clear from his emphatic instruction appearing in an email dated 13 December 2011 to the respondent where he clearly stated “DO NOT” alter the draft affidavit he was preparing.  He expressly stated “I have MY own reason for whatever is remaining in this version that originated from me” (emphasis in original).[36]
  3. [84]
    Even more importantly, it also undermines any confidence in the assumption that Dr Harber had any identifiable legal interest in the unit as a matter of fact.
  4. [85]
    While it is highly unsatisfactory that Dr Harber is not called as a witness, a cursory consideration of the matters referred to in paragraphs [80] to [83] provides some indication as to why he may not have been called despite him being the author of various documents relied upon to make out this charge.
  5. [86]
    The charge proceeds on the basis that there was an absolute obligation to correct, despite it not being alleged that the respondent knew the material was misleading, and without seeking instruction to do so.  In our view, this wrongly seeks to place an obligation on the practitioner beyond that of a solicitor with actual knowledge that false evidence has been given; that is to say, to advise the client that the court must be informed of the falsity and to seek instructions to do so or withdraw if those instructions are not forthcoming.[37]  A solicitor who does not know of a falsity can neither correct it nor withdraw. If correct the applicant’s case would compel an ignorant solicitor to breach the obligation of confidence to a client or be liable for unsatisfactory professional conduct but not impose the same standard on a solicitor with actual knowledge.
  6. [87]
    As Mr Jackson QC says the Commissioner’s proposed standard would mean that a practitioner would be forced to guarantee, not merely witness or even verify the truth of, every client affidavit to protect themselves against adverse costs orders, credibility findings, or their opponents and the court from being duped.
  7. [88]
    The Commissioner has not proved that the applicant permitted the false affidavit to be filed due to lack of competence or diligence in not knowing or finding out that it contained misleading non-disclosures of material facts known to the client.
  8. [89]
    That said, a solicitor responsible for litigation is duty-bound to diligently check the accuracy of the factual basis on which a client’s case application is advanced, as well as properly review the evidence to be filed in support of it.[38]
  9. [90]
    Rule 37 of the Australian Solicitors Conduct Rules relevantly provides:

37. Supervision of legal services

37.1 A solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of the legal services for that matter.

  1. [91]
    As I said in Doolan v Legal Practitioners Admissions Board:[39]

Supervision and appropriate support of staff is part and parcel of the employers’ role. After all, the allocation and supervision of all professional legal work carried out on a firm’s behalf is an elemental and non-delegable duty the practice owner owes to clients.

  1. [92]
    A competent solicitor who scrutinised the evidence with a reasonable degree of diligence may have been aware of the deficiency of the first affidavit, arguably would not have allowed it to be sworn or filed in that form, and would not have conducted the litigation on the basis of the false facts asserted in it.  If the client insisted on filing a false affidavit, the respondent would have been obliged to advise him otherwise, and if necessary, to withdraw.
  2. [93]
    In her letter of response to QLS of 7 April 2015,[40] the respondent admits she relied on the client and an unqualified member of staff, Amy Ryan, to ensure the accuracy and sufficiency of the affidavits. She admitted witnessing the documents Dr Harber swore using a bible and confirming that they were true and correct but did not proof read them.  She added:

I do not have instructions why the information was omitted.  I did not intentionally omit the information and I do not believe that Amy Ryan would intentionally not include information.[41]

(Dr Harber) was allowed to draft and settle his own affidavits to save costs.  If information was omitted by the firm when we prepared the draft (which it was not) then it should have been brought to our attention and included – which it was not.[42]

  1. [94]
    It is apparent from the respondent’s explanation that she did not review the evidence that was prepared, as she was required to do, but merely witnessed the affidavits.
  2. [95]
    The practitioner’s admissions confirm what would otherwise be inferred, namely that there was a failure of the  primary responsibility, as a solicitor with conduct of the matter, to review what was proposed to be filed, and to bring her skill and insight as a professional to bear upon the basis of the application and the content of that evidence.
  3. [96]
    The practitioner was in no positon to correct a misstatement (or advise the client to correct it) in subsequent affidavits because she had fallen short of the professional standards expected of a solicitor.
  4. [97]
    There may have been a significant departure from accepted standards of competence, amounting to unsatisfactory professional conduct[43] in failing in not becoming aware that the affidavit was false and misleading but the practitioner is not charged with it and no investigation of the reasonableness of the supervision was made in the proceeding.
  5. [98]
    The disciplinary application has to be dismissed for want of proof.

Footnotes

[1]Briginshaw v Briginshaw (1938) 60 CLR 336.

[2]Particulars to the Amended Application at 1.4; Amended Response at 1(b).

[3]Exhibit DGC-1 to Ms Campbell’s first affidavit at pp 1-4.

[4]Exhibit DGC-4 to Ms Campbell’s first affidavit at p 15.

[5][2012] QSC 302 (concerning costs).

[6]Affidavit of D M Sewell sworn 16 August 2012.

[7]Exhibit DGC-4 to Ms Campbell’s first affidavit at p 14.

[8]See applicant’s written submissions at [2], [3] and [11].

[9]Exhibit DGC-5 to Ms Campbell’s first affidavit at p 46.

[10]Exhibit DGC-5 to Ms Campbell’s first affidavit at p 47.

[11]See applicant’s written submissions at [20].

[12][2012] WASAT 58.

[13][2012] WASAT 58(S) [29], [30].

[14][2008] QLPT 13.

[15]Ibid [40].

[16][2009] ACTSC 117.

[17]Ibid [23].

[18]Exhibit DGC-14 to Ms Campbell’s first affidavit at p 161.

[19]Exhibit DGC-14 to Ms Campbell’s first affidavit at p 162.

[20]Information provided in Exhibit DGC-13 to Ms Campbell’s first affidavit at p 163.

[21]Exhibit DGC-12 to Ms Campbell’s first affidavit at p 117.

[22]Exhibit DGC-15 to Ms Campbell’s first affidavit at p 169.

[23]Particulars 2.5-2.6.

[24]Exhibit DGC-12 to Ms Campbell’s first affidavit at p 117.

[25]Particulars 2.2-2.3.

[26] See Singer v Berghouse (1994) 181 CLR 201 at 209-210.

[27]Exhibits DGC-16, DGC-17 and DGC-18 to Ms Campbell’s first affidavit.

[28]Exhibit DGC-15 to Ms Campbell’s first affidavit at p 198.

[29]Part of Exhibit DGC-12 to Ms Campbell’s first affidavit at p 123-124.

[30]Exhibit DGC-21 to Ms Campbell’s first affidavit at p 260 [45].

[31]  Particular 2.16.

[32]See applicant’s written submissions at [52].

[33] See applicant’s written submissions at [54].

[34][1940] AC 282 at 293.

[35] Part of Exhibit DGC-12 to Ms Campbell’s first affidavit at p 123-124.

[36] Part of Exhibit DGC-20 to Ms Campbell’s first affidavit at p 240.

[37]Australian Solicitors Conduct Rules 2012 r 19.2, 20.

[38]Myers v Elman [1940] AC 282, at 322, 325-325.

[39] [2016] QCAT 98 [135].

[40]Exhibit DGC-23 to Ms Campbell’s first affidavit at p 291.

[41] Ibid 300.

[42] Ibid 295.

[43] Legal Profession Act 2007 (Qld) s 418.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Sewell

  • Shortened Case Name:

    Legal Services Commissioner v Sewell

  • MNC:

    [2017] QCAT 387

  • Court:

    QCAT

  • Judge(s):

    Carmody J

  • Date:

    31 Oct 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Campbell v Campbell [2012] QSC 302
1 citation
Jump To
Cite 1 - [2012] QSC 302
Doolan v Legal Practitioners Admissions Board [2016] QCAT 98
2 citations
Jump To
Cite 1 - [2016] QCAT 98
Cite 2 - [2016] QCAT 98
Lander v Council of the Law Society of the ACT [2009] ACTSC 117
2 citations
Jump To
Cite 1 - [2009] ACTSC 117
Cite 2 - [2009] ACTSC 117
Legal Profession Complaints Committee v in de Braekt [2012] WASAT 58
3 citations
Jump To
Cite 1 - [2012] WASAT 58
Cite 2 - [2012] WASAT 58
Cite 3 - [2012] WASAT 58
Legal Services Commissioner v Winning [2008] QLPT 13
2 citations
Jump To
Cite 1 - [2008] QLPT 13
Cite 2 - [2008] QLPT 13
Myers v Elman (1940) AC 282
4 citations
Jump To
Cite 1 - (1940) AC 282
Cite 2 - (1940) AC 282
Cite 3 - (1940) AC 282
Cite 4 - (1940) AC 282
Singer v Berhouse (1994) 181 C.L.R 201
2 citations
Jump To
Cite 1 - (1994) 181 C.L.R 201
Cite 2 - (1994) 181 C.L.R 201

Cases Citing

Case NameFull CitationFrequency
Legal Services Commissioner v Sewell [2019] QCAT 1812 citations
1

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