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Melchizedek 1 Pty Ltd ATF Saint Germain Family Trust v Aitken Legal Pty Ltd[2022] QCAT 122

Melchizedek 1 Pty Ltd ATF Saint Germain Family Trust v Aitken Legal Pty Ltd[2022] QCAT 122

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Melchizedek 1 Pty Ltd ATF Saint Germain Family Trust v  Aitken Legal Pty Ltd [2022] QCAT 122

PARTIES:

Melchizedek 1 Pty Ltd ATF Saint Germain Family Trust

(applicant)

v

Aitken Legal PTY LTD

(respondent)

APPLICATION NO/S:

OCL020-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 May 2022

HEARING DATE:

27 April 2022

HEARD AT:

Brisbane

DECISION OF:

Hon. Duncan McMeekin QC, Judicial Member

ORDERS:

The application for forensic examination of documents is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – OTHER MATTERS – application for forensic examination of hand-written notes – whether a forensic examination would assist the tribunal in determining issues of credit between parties

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an application for the disclosure, for the purpose of a forensic examination, of the original of certain handwritten notes made by a solicitor in order to determine whether the entirety of the notes were made on the one occasion. The application is opposed on the ground that it is not necessary, that the proposed examination will unnecessarily delay the determination of the matter, and that it is not in the interests of justice to allow it.
  2. [2]
    The applicant in the principal proceedings and in this miscellaneous application is Melchizedek 1 Pty Ltd ATF Saint Germain Family Trust. The respondent is Aitken Legal Pty Ltd, a firm of solicitors. The principal application involves a claim to set aside a costs agreement entered into between them. The costs dispute centres on what work was done and what work was necessary to be done to further the applicant’s interests.
  3. [3]
    The applicant retained the respondent to act on its behalf in an unfair dismissal claim brought against it. In the course of that claim a conciliation conference was held at which Ms Engel, the solicitor from Aitken Legal representing the applicant at the conference, took the notes now under scrutiny. The applicant, through its agent Ms Stevens, believes that the notes were not all made contemporaneously with the conference.
  4. [4]
    Ms Stevens is correct in her belief. That is not now in issue. Ms Engel confirms that the notes were not all made at the one time.
  5. [5]
    Ms Engel has sworn an affidavit in which she asserts:
    1. (a)
      that the first five pages of the notes were prepared prior to the conference and concerned the oral submissions she was to make at the conference;
    2. (b)
      the next six pages contain notes that she made during and after the Conciliation Conference;
    3. (c)
      that she followed her usual practise in considering and amending her notes after the conference to try and more accurately record events that had occurred, it being difficult to keep up with the to and for of the conference as it transpired;
    4. (d)
      that in completing her file note after the conciliation conference she added additional information to pages 9 to 12 of her file note, in particular in relation to:
      1. completing her notes regarding the Conciliator's comments;
      2. the terms of the settlement offers made; and
      3. the advice she provided after the conciliation conference which included adding at the bottom of page 10 the words 'Discussed pros & cons & she rang her father for advice'.
    5. (e)
      that while words were inserted in spaces marked “Action required” the words inserted had nothing to do with whether action was in fact required. Rather the convenient space was used – happening to have that heading – to record information suited to that place in the notes; and
    6. (f)
      in particular, the words 'Discussed pros & cons & she rang her father for advice', were inserted in the File Note under the 'Action required' heading, not because it was an actual action required, but because this took place in time sequentially after the Applicant in the Unfair Dismissal matter had made the settlement offer noted on the lines immediately above the 'Action required' heading, and before the Respondent in the Unfair Dismissal matter (which is the Applicant in this matter) instructed Ms Engel to make the offer noted at the top of page 11.
  6. [6]
    Ms Engel’s affidavit provides an explanation for the matters that aroused Ms Stevens’ concerns on behalf of the applicant.
  7. [7]
    Ms Stevens explained her concerns:
    1. (a)
      The information written in the space marked 'Action required' on page 10 of 'AME17' seems to support the Respondent's position;
    2. (b)
      The respondent did not 'discuss the pros and cons' of accepting an offer of $2,500 with the Applicant, therefore the text written in the space marked 'Action required' on page 10 of 'AME17' is erroneous;
    3. (c)
      The space marked 'Action required' has not been utilised on any of the other 12 pages of the document;
    4. (d)
      I [ie Ms Stevens] refer to the file note filed by the Respondent, written by Ms Engel and marked 'AME 12' - which was written prior to the file note marked 'AME17' - specifically to the bottom of page '1'. Whilst observing the Respondent's typical pattern of writing on this particular stationery, when Ms Engel ran out of room, her writing pattern was to continue writing text from the left- hand side of the page to the right-hand side of the page, under the last line, and to avoid the space marked 'Actions required';
    5. (e)
      I refer to the file note filed by the Respondent, marked 'AME 12', specifically to the bottom of page '7'. On the last line, Ms Engel writes 'Strategy options for dealing with it from here' followed by an arrow indicating to the reader to go to the following page, on which Ms Engel wrote '(a) file Emper Regs & attend Concil Conf', taken to mean 'file employer response and attend Conciliation Conference' which is an action required, yet Ms Engel - again - declined to utilise the space marked 'Actions required';
    6. (f)
      When comparing Ms Engel's writing style on pages '1' and '7' of 'AME12' with the writing style on page '10' of 'AME17', Ms Engel seems to have deviated from her usual writing style and utilised the space marked 'Action required' even though there is room on the line above to have written the information now contained in the space marked 'Action required';
    7. (g)
      The context of what was written by Ms Engel on page '10' of 'AME17' in the space marked 'Action required' is not an 'action required';
    8. (h)
      I refer to the writing on page '10' of 'AME17' in the space marked 'Actions required'. The ink of the writing is darker in colour than that contained in the majority of the document, indicating that the writing in question may have been added more recently;
    9. (i)
      I refer to the writing on page '10' of 'AME17' in the space marked 'Actions required'. The font is inconsistent with the font contained in the majority of the document. This is demonstrated by the fact that the 'tails' of the letters 'p', 'g' and 'f' do not breach the underline, suggesting a change in the fluidity of Ms Engel's handwriting and indicating that the writing in question may have been added more recently; and
    10. (j)
      I refer to the file note marked ‘AME17’. The Respondent has already provided to the Tribunal a copy of the entire document, consequently there ought to be no contention regarding privacy and therefore releasing the document for forensic examination.
  8. [8]
    There is no point taken on the issue of any right to privacy.
  9. [9]
    In summary, Ms Stevens was concerned at the use or not of the “Actions Required” space, the change in fluidity of style, and the darkening of ink from one place to another.
  10. [10]
    Ms Stevens has explained the technology that her proposed forensic examiner will apply to the documents. One such machine is described as a Video Spectral Comparator. It is a spectral imaging device. It exploits the chemical properties of ink, to show whether more than one ink has been utilised on a file note and hence whether a document has been altered or manipulated. Another proposed device is a machine called an Electrostatic Detection Apparatus. It is apparently able to detect any latent indentations which Ms Stevens argues ought to be present on page ‘11’ of the file note marked ‘AME17’ in the space marked ‘Actions required’.
  11. [11]
    Ms Engel has explained her position. Some notes were written in the course of the conference and were relatively rushed, some were written earlier and some later than the conciliation conference and presumably in a more leisurely way or at least when the urgency was no longer so immediate. Whether the same pen was used or not, or whether indentations are in a particular place or not, alters nothing.
  12. [12]
    There remain issues of credit between the parties – Ms Stevens may wish to contest Ms Engel’s explanations. But no forensic examination will assist the tribunal in determining those issues.
  13. [13]
    I am not satisfied that the interests of justice require that an order be made for the forensic examination of the notes.

Conclusion

  1. [14]
    In the premises I dismiss the application.
  2. [15]
    The matter should proceed to be listed for a compulsory conference at the earliest opportunity in accordance with the Directions Orders made on 30 November 2021.
Close

Editorial Notes

  • Published Case Name:

    Melchizedek 1 Pty Ltd ATF Saint Germain Family Trust v Aitken Legal Pty Ltd

  • Shortened Case Name:

    Melchizedek 1 Pty Ltd ATF Saint Germain Family Trust v Aitken Legal Pty Ltd

  • MNC:

    [2022] QCAT 122

  • Court:

    QCAT

  • Judge(s):

    Duncan McMeekin

  • Date:

    10 May 2022

Appeal Status

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

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