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Legal Services Commissioner v Sewell (No 2) QCAT 374
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Legal Services Commissioner v Sewell (No 2)  QCAT 374
LEGAL SERVICES COMMISSIONER
DONNA MAREE SEWELL
Occupational regulation matters
17 November 2023
1 March 2023; 27 June 2023
Hon Peter Lyons KC, Judicial Member
Mr Geoffrey Sinclair, Practitioner Panel Member
Mr Keith Revell, Lay Panel Member
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the applicant, in Charges 1 and 8, charged the respondent with engaging in disreputable conduct and ethical breaches – where the respondent alleged falsely that a judge in a costs dispute encouraged other legal practitioners “to act like a pack of dogs” and take adverse action against her for seeking an adjournment on health grounds – where the respondent wrote to the Fair Work Ombudsman and claimed falsely that the judge was her “boss” and that he required her to make submissions when she was unwell – where the respondent emailed third parties, including media, and alleged falsely that the judge ignored her medical certificate and made certain findings, including that he had financially punished her for “sticking up for the elderly and aged” – where the respondent emailed falsely that two legal practitioners participated in the backdating of an enduring power of attorney and included, as recipients, the law firms where the practitioners worked – where the respondent emailed third parties, including media, and claimed falsely that one of the practitioners had put his late client “in the house of death”, murdered her, and sold her house against her wishes – whether the respondent’s conduct went beyond the limits of permissible criticism of a judicial officer – whether the respondent’s false statements were not merely untrue but dishonest – where the respondent emailed the director of investigations at the Legal Services Commission (“LSC”) and alleged, without foundation, that he put her life, national security, and the lives of judges, legal practitioners, and the public at risk, and engaged in bullying and harassment – where the respondent emailed third parties and stated, without foundation, that the director killed a judge and the child of another judge – where the respondent used offensive language in conveying the accusations – whether, and the degree to which, robustness in the face of criticism or abusive comments is expected of officers of the LSC – whether the respondent’s conduct was likely to bring the legal profession into disrepute
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the applicant, in Charges 2 to 5, charged the respondent with acting without instructions and purporting to have those instructions – where the respondent acted for a client and his businesses until termination of the retainer – where the former client was admitted to hospital – where the respondent’s legal practice subsequently emailed a security company to change the locks at one of the businesses – where the respondent informed the general manager that she had authority over the business and was receiving instructions from the former client – where she advised the manager that no payments were to occur without her approval, that he was stood down, and action would be taken if any money had been paid – whether Charge 3 was an alternative charge by charging that the former client had given instructions, but was not competent to do so – whether there was any evidence that the respondent acted with authority – where the applicant, in Charge 6, charged the respondent with making unsubstantiated allegations against an employee of the business who had made a complaint to the LSC against her – whether the charge was made out though the applicant had not rebutted the circumstances identified by the respondent in support of the allegations – where the applicant, in Charge 7, charged the respondent with disreputable conduct by the tenor and content of her correspondences with members of the former client’s family and the hospital staff looking after him, and employees of the business – whether such correspondence was at best a circumstance of aggravation for an earlier charge
Australian Solicitors’ Conduct Rules, r 5.1
Ambard v Attorney-General for Trinidad and Tobago  AC 322, cited
Griffin v Council of the Law Society of New South Wales  NSWCA 364, considered
Legal Services Commissioner v Baker  LPT 002, considered
APPEARANCES & REPRESENTATION:
D de Jersey KC, counsel instructed by the Legal Services Commissioner
No appearance before the Tribunal as assisted by the current panel
REASONS FOR DECISION
- The respondent is the sole legal practitioner director for an incorporated legal practice, See Well Law Pty Ltd (“SWL”).
- In this discipline application, the applicant brought eight charges against the respondent. Charge 1 arises out of some litigation to which SWL was a party. Charges 2 to 7 relate to the respondent’s conduct subsequent to the termination of a retainer by a client, who subsequently lost decision-making capacity. Although triggered by events associated with Charges 2 to 7, Charge 8 in fact arises out of the execution of a search warrant by the applicant at the premises of SWL, and the subsequent execution of another search warrant by the Queensland Police Service (“QPS”) at the same premises.
- At times, the respondent has actively participated in the matter. However, more recently she has indicated an intention not to continue to do so.
Background to Charge 1
- In about August 2012, SWL was engaged by Ms Olive Elmes to prepare an Enduring Power of Attorney (“EPOA”). The EPOA appointed her husband Mr Phillip Elmes as her attorney for financial and personal matters. In the event that Mr Elmes was unable to act, Ms Susan Barclay, who was the daughter of Ms Elmes, was appointed to act as the attorney. The document was signed by Ms Elmes. Ms Amy Ryan was present when Ms Elmes signed the document, to witness the signature, but omitted to then sign it in that capacity. However, the signature of Ms Ryan, as witness to the signature of Ms Elmes, now appears on the copy of the document before the Tribunal. Beneath that signature is a line intended to record a strike-through, with the letter “X” in two places and Ms Ryan’s initials. Beneath that appear the handwritten words “Who witnessed the principal, Olive Elmes sign this in her presence on 2 August 2012.” Ms Ryan was employed by SWL in 2012.
- The Power of Attorney document included acceptances by the persons appointed. Each is signed and dated, the acceptance by Mr Elmes being dated 2 August 2012 and by Ms Barclay 10 August 2012. There is material which indicates that Ms Ryan signed and dated the witnesses’ certificate for the EPOA at about this time, but these certificates cannot be identified in the material before the Tribunal.
- Mr Elmes died on 10 October 2014. In 2015, Ms Barclay was living in Melbourne. Her mother was unwell, and there was some issue about her capacity to deal with her affairs. At a time not easily identified, but apparently towards the middle of 2015, Ms Barclay entered into a contract to sell Ms Elmes’ home. SWL was retained by Ms Barclay to act in the sale.
- In late June 2015, Ms Barclay retained Donald Portbury & Co to act for her in the administration of the affairs of Ms Elmes. However, she was happy for SWL to retain conduct of the sale of the property. The difficulty arising from the fact that the signature of the witness did not then appear on the EPOA was recognised. Mr Portbury had been in contact with the Department of Natural Resources and Mines (“DNRM”) and was advised of the steps to be taken which would address this difficulty. They are reflected in the current condition of the EPOA. They required the signature of Ms Ryan, who was prepared to provide it, but required the addition of words apparently intended to make clear that the witness’s signature was not added to the EPOA at the time when Ms Elmes signed it.
- On 24 June 2015, SWL (the respondent being the director responsible) wrote to Mr Portbury about the sale. The letter recorded a recent conversation between Mr Portbury, an unidentified representative of SWL, and Ms Elmes’ doctor, the latter saying that Ms Elmes probably had capacity, that Ms Elmes did not know that the attorney was selling her home, and that she was vehemently opposed to the sale. The letter advised that, if Ms Elmes’ general practitioner considered that she had capacity, then SWL would no longer act on the conveyance, and it proposed to write to Ms Elmes. Mr Portbury responded, objecting on behalf of Ms Barclay, to any direct contact by SWL with Ms Elmes.
- On 1 July 2015, DNRM issued a requisition in relation to the registration of the EPOA. In particular, the requisition noted deficiencies relating to the signing and dating of the document by the witness. As has been indicated, these were addressed.
- On 24 July 2015, Mr Portbury wrote to SWL advising that the registration of the EPOA had now been effected, and that Ms Barclay had instructed his firm to accept the suggestion from SWL that his firm assume the further conduct of the conveyance.
- Subsequently, SWL rendered bills to Ms Barclay. One related to the registration of the EPOA, and the other related to the conveyance. Ms Barclay sought an assessment of the costs claimed by SWL. It would appear that that resulted in an application by Ms Barclay to the Magistrates Court. Acting Magistrate Bice on 7 October 2016 determined that the cost agreement between the parties was not void and appointed an assessor. However, the acting magistrate also found that “the lawyer for the respondent was negligent by not witnessing the Power of Attorney back on [sic] 2012”.
- The assessment resulted in the reduction of the bill for the EPOA from $4,630.20 to $89.51; and of the bill for the conveyance from $4,393.65 to $1,183.71. That resulted in an application by SWL to a magistrate for a review of the decision of the costs assessor. The application was reviewed by Magistrate Madsen on 6 August 2020. He made an order that SWL pay the costs of the application.
- SWL then applied for leave to appeal to the District Court.
- As appears from the reasons of Cash DCJ, the application did not proceed with alacrity. Ms Barclay applied to have the application struck out. The matter came on for hearing on 5 March 2021, when SWL was represented by counsel, instructed by the respondent. His Honour considered that counsel understood the need for leave, and made helpful submissions. Further directions were made (to permit the filing of material), but SWL did not comply with them. On 13 April 2021, the matter again came on before his Honour, when SWL was represented by the present respondent. His Honour’s reasons record that he heard submissions from the parties, and refused leave to appeal; but the date of this hearing is not clear. The reasons indicate there was a further hearing on 7 May 2021, before the application was dismissed. His Honour made directions for the filing of submissions in relation to the costs of the application for leave to appeal, and listed the matter for further hearing on 4 June 2021.
- Again, SWL did not comply with his Honour’s directions. On 2 June 2021, the respondent emailed to the Court a document entitled “Submissions on Costs”. Ms Barclay had provided submissions in accordance with his Honour’s directions, no doubt before 2 June 2021. On 4 June 2021, a representative of SWL sent an email to the Court stating that the respondent was unwell and had COVID-like symptoms; she would be unable to attend at the hearing listed for that day; and she sought an adjournment. At his Honour’s direction, the parties were advised that the Court would hear any application for an adjournment at 2.00 pm, and gave leave for the representative of SWL to appear by telephone. Just after 1.00 pm on that day, a further email was received from SWL. It stated that the respondent was not well and was not able to attend “via physical or telephone appearance”; and that no other solicitor or barrister was available to represent SWL. SWL sought an adjournment. Attached to the email was a document from Tewantin Medical Centre dated 4 June 2021. No other information was provided. At 2 o’clock there was no appearance for SWL. Over the objection of the lawyer for Ms Barclay, his Honour adjourned the matter to the Registry, with costs reserved. His Honour also formed the view, having received submissions from the parties, that it was a matter suitable for a decision on the papers. The parties were advised by email that, absent an indication to the contrary, his Honour would deal with the matter in that way.
- At 6.46 pm on 4 June 2021, the respondent replied to the email. Her email stated that under legislation relating to COVID, “It is illegal to go into public with suspected symptoms”. She stated that the Court had been supplied with a doctor’s certificate, and that she must “abide by the legislation”. She also stated that she sought to make oral submissions, and would be in a better position to do so “when the doctor provides clearance”. She also stated that if the judge sought “to impose further costs upon me for following the law”, that was an issue she would raise with the Human Rights Commissioner.
- His Honour then listed the matter for a directions hearing on 10 June 2021, and the parties were advised accordingly. Just before 2.00 pm on 9 June 2021, an email was sent, apparently on behalf of the respondent, stating that the respondent was “still unwell and had been in a bad car accident”. Again the email stated there was no one qualified to appear on behalf of SWL, and referred to the document from Tewantin Medical Centre of 4 June. SWL was advised the hearing would proceed on 10 June 2021, and that his Honour intended to make directions whether or not SWL appeared at that hearing.
- When the matter was called on 10 June 2021, there was no appearance for SWL. His Honour gave directions to the effect that the question of costs was to be decided without oral hearing and on the (written) submissions of the parties. He gave leave to the parties to file further written submissions concerning Ms Barclay’s request that the costs of the proceedings before the magistrate be fixed by his Honour. His Honour’s reasons record that he gave these directions “because it appeared to me to be in the interests of justice”. Ms Barclay filed further short submissions. There is no suggestion that these dealt with anything beyond the limited question on the fixing of costs of the proceedings in the Magistrates Court. SWL did not file further submissions.
- His Honour then proceeded to determine the question of the costs of the proceedings in the District Court. He ordered that SWL and the respondent personally pay the costs of Ms Barclay for the proceedings in the District Court, fixed in the amount of $35,000. He held that he did not have power to make an order fixing the costs of the proceedings before the magistrate.
- The order that the respondent pay costs personally was sought by Ms Barclay in her submissions, no doubt the first set provided by her. The reasons record his Honour’s view that SWL appeared entirely unaware of the relevant law concerning the granting of leave to appeal against the decision of the magistrate. The proposed appeal was pursued with reliance upon a large amount of irrelevant material, and with serious allegations of fraud and other misconduct, made without reference to admissible evidence. At the hearing, the respondent did not engage with the question of leave to appeal. His Honour also referred to the delay in the proceedings. These considerations warranted an order for costs on an indemnity basis. In determining that the respondent should pay costs, his Honour held that the case presented by SWL “was unarguable and plainly so”. Moreover, the respondent did not comply with directions to file an outline on behalf of SWL in December 2020. His Honour referred to further failure to comply with directions. He also referred to an email from the respondent, purportedly as a submission, which was “discursive, made serious allegations of fraud and misconduct without reference to evidence, and completely failed to address the issue of leave to appeal”.
- His Honour stated that on 7 May 2021, before the refusal of leave to appeal, the respondent had made “lengthy, and almost entirely irrelevant, oral submissions”. She had “no idea how to run the appeal or what was involved in the question of leave. That is despite this issue being specifically identified at the hearing in March”. The decision to pursue the proceedings was entirely that of the respondent personally. Moreover, she was a director of SWL. There was an indication that SWL was not an entity of substance. In a letter of 22 March, the respondent described the law practice as “barely holding on”; and at the hearing on 7 May, the respondent said that, in the event that SWL was ordered to pay costs, she would put the company into liquidation and cause it to be wound up. His Honour concluded that the respondent was the real litigant in the proceedings, that she had controlled the litigation, and that while SWL may not be insolvent, a costs order made against it would go unsatisfied.
- On two occasions his Honour gave directions for the filing of submissions in relation to the question of the costs of the application for leave to appeal to the District Court. It is inconceivable that these directions did not require the serving of the submissions on the other party. Submissions were filed by Ms Barclay pursuant to both orders. It is highly likely, and it is so found, that each of these submissions was served on SWL, and came to the attention of the respondent. There are no other submissions which can be identified as the source of the proposition that the respondent ought to be ordered to pay the costs personally. The reasons of Judge Cash issued on 18 June 2021.
- In view of what subsequently transpired, it is convenient to summarise the history of the proceedings in the District Court:-
- the proceeding in the District Court was an application by SWL for leave to appeal against a refusal by a magistrate to review a decision of a costs assessor;
- the application for leave came on for hearing on two occasions, on each of which SWL had legal representation, with submissions being made on behalf of SWL on each occasion;
- the application was dismissed after a hearing on 13 April 2021, and apparently another hearing on 7 May 2021, leaving the question of the costs of the application for leave for later determination;
- the question of costs was set down for hearing on 4 June 2021, with directions for the filing of submissions;
- SWL did not comply with these directions;
- however, SWL provided submissions on 2 June 2021;
- on 4 June 2021, SWL sent an email advising the respondent was unwell and requesting an adjournment;
- the Court then advised the parties (including SWL) that an application for an adjournment would be heard at 2.00 pm that day, and gave leave for a representative of SWL to attend the hearing by telephone;
- SWL advised by email that the respondent was not able to attend in person or by telephone, and no other legal representative was available, relying on the certificate from Tewantin Medical Centre. It again requested an adjournment;
- over the objection of Ms Barclay’s representative, his Honour adjourned the matter to the Registry;
- on 4 June 2021, the Court advised the respondent that his Honour, having had the benefit of written submissions, proposed to determine the question of costs on the papers and without an oral hearing, unless a party indicated by 8 June that it wished to make oral submissions;
- the respondent then advised she wished to make oral submissions, when her health improved;
- the matter was listed for directions on 10 June 2021, with leave to the parties to appear by telephone;
- on 9 June 2021, SWL sent an email to the Court advising that the respondent was still unwell and had been “in a bad car accident”. The email again relied on the medical certificate from Tewantin Medical Centre;
- the Court advised that the directions hearing would proceed on 10 June 2021, whether or not SWL appeared;
- on 10 June 2021, SWL did not appear at the hearing. His Honour decided that the question of costs would be determined without an oral hearing and on the submissions of the parties, with leave to file further submissions on one question, by 16 June 2021;
- Ms Barclay filed further short submissions; and
- reasons determining the question of costs were published on 18 June 2021.
- Almost immediately, the respondent sent a number of emails containing allegations which are the subject of Charge 1. A number of the allegations made by the respondent are directed at Judge Cash, but some are also directed at others. The allegations are alleged in the discipline application to have been made by the respondent, knowing that they were false. The identity of the persons to whom the emails were sent is of some relevance. It is apparent that the respondent intended to maximise the publicity which might be attracted by her allegations, and thus the harm to the persons against whom the allegations were made. In addition to the allegations of falsity in the discipline application, the application alleges that the tone of the correspondence was rude, discourteous and below the standard of courtesy the courts and other practitioners are entitled to expect; the correspondence made allegations of criminal conduct by Mr Portbury, his client Ms Barclay, and Ms Ryan which were without factual basis; the respondent distributed the correspondence to various third parties, breaching client confidentiality; and the respondent acted in a manner that was contrary to the fundamental ethical duties a solicitor is expected to follow and uphold. It is necessary to consider the emails in detail.
Email of 19 June 2021 at 3.01 am
- This email was addressed to the Legal Services Commission (“LSC”) with copies sent to the Associate to Judge Cash and to Mr Portbury. It included the following:-
“Judge CASH has made an adverse cost Judgement against me without giving me the right to be on ‘medical certificate or medical leave’. I was ordered by the court to work whilst on medical leave and he failed to provide an adjournment to be heard on costs despite me being on medical leave and asking for the requisite time.”
- Of this email it is alleged in the discipline application that the respondent knew the statements in the quoted passage to be false because the judge adjourned the hearing of the application on 4 June 2021 and 10 June 2021, and on the latter date gave the respondent leave to make written submissions; the respondent was not in fact ordered by the Court to work while on medical leave; nor was she in any way ordered to work.
- It is apparent from the history of the application in the District Court, that at no time did Judge Cash order the respondent to work. Nor did he deny her the “right” to be absent from the hearing on account of illness. Whether or not the respondent attended at the hearing was a matter for her. The email implies that the judge denied the respondent the opportunity to be heard on the question of costs. That is untrue. In fact SWL had made submissions on that question; and no doubt the respondent, as the person having the conduct of the matter for SWL (in fact, she emailed the submissions to the Court), had the opportunity to deal with the submission that she pay the costs personally. Nor did his Honour “[fail] to provide an adjournment for [the respondent] to be heard on costs”. He did that on 4 June 2021; and subsequently gave the respondent reasonable opportunity to seek to make oral submissions on costs. Nor was she denied the opportunity to be heard on the question whether the costs application would be determined without an oral hearing: she was given notice of the directions hearing, and of the opportunity to appear herself or through a representative, by telephone.
- The email also includes the following passage:-
“The judge Did FIND THOUGH AMY RYAN NEGLIGENT.”
- The discipline application alleges that the respondent knew this statement to be false, because she knew that Judge Cash had made no such finding.
- It is correct to say that Judge Cash did not make a finding that Amy Ryan was negligent. However, this sentence appears in the latter part of the email, in the course of a relatively extensive accounting of the history discussed earlier in these reasons. The respondent referred to the decision of the magistrate in relation to the costs assessment, describing it in part. She then continued with the sentence reproduced in the discipline application. Although the respondent referred to a finding of “the judge”, it seems likely that she was in truth referring to a finding of Acting Magistrate Bice. It is not possible to conclude that the respondent made this statement, knowing it to be false.
Email of 19 June 2021 at 3.23 am
- This email was sent to Mr Portbury’s firm, and to the Associate to Judge Cash, as well as the LSC. It was copied to Mr Hartwell, a barrister who had been instructed by Mr Portbury’s firm to act on behalf of Ms Barclay in the District Court application.
- The email commenced by stating that the respondent wished to add to her “formal complaint” against Judge Cash. It commenced with a statement that, as officers of the court, when a colleague is unwell, and the court and the other members of the profession have evidence of this, they should not file submissions and seek orders to be made in the absence of the unwell colleague. It alleged that colleagues and friends had not been very polite towards the respondent while she was unwell. It stated that there are workplace laws around sick workers and adverse action by people in authority taken against injured people, which should be applied to Judge Cash. It also stated of Judge Cash:-
“He has used his position to make an adverse order when I asked for an extension, provided medical evidence and still insisted he could do it. Then encouraged my colleagues to act like a pack of DOGS to bite me and wound me more when injured.”
- The quoted passage is identified in the discipline application. It is alleged that the respondent knew the statements to be false when she made them, because she knew that the judge had adjourned the hearing twice and gave her leave to file written submissions. Moreover, it was untrue because the respondent knew that the judge had not “encouraged [the respondent’s] colleagues to act like a pack of DOGS to bite me and wound me more when injured.”
- The passage from the email which is set out above suggests that the judge’s response to a request by the respondent for an adjournment on health grounds, in support of which she provided a medical certificate, was to refuse it, and to make an adverse order against her. In fact, as previously recorded, an adjournment was granted on 4 June 2021 at the respondent’s request. Contrary to what the email implies, that followed the medical certificate of 4 June 2021. This was plainly known to the respondent, as later that day she sent an email expressing to wish to make oral submissions. The statement was false, to the knowledge of the respondent.
- There is not a shred of evidence for this Tribunal to indicate that the judge had done anything which could be described as encouraging those representing Ms Barclay to take adverse action against the respondent; let alone any action which might be described in the terms which she used. She must have known that the order made against her was sought by Ms Barclay through the submissions filed on her behalf. Given the manner in which SWL’s application had been conducted by the respondent, and her statement that SWL would not meet a costs order, it is likely that Ms Barclay sought an order against the respondent without any prompting from the judge. The respondent has not identified anything to suggest that the judge encouraged this course. The manner in which he conducted the proceedings, as described earlier, demonstrated that his Honour had been at least fair, if not indulgent, to the respondent and SWL. The allegation that he encouraged Ms Barclay’s representatives to take adverse action against the respondent is false, and was false to the knowledge of the respondent at the time of the email.
Email of 19 June 2021 at 4.42 am
- This email was directed to the Fair Work Ombudsman, and copied to the Associate to Judge Cash, the LSC, the Commonwealth Attorney-General, and the Attorney-General for the State of Queensland. The subject line reads, “DONNA MAREE SEWELL UNFAIRLY TREATED AT WORK”. The email states that the respondent wished to file “a formal complaint of bullying and harassment at work” and continues:-
“… I want you to investigate Judge Cash asking me to work when sick and then taking adverse action to my financial detriment and my families financial detriment when sick.
I work for the Attorney General of QLD and Attorney General of the Commonwealth as a lawyer and I am an officer of the Court. This means JUDGE CASH IS MY BOSS. I presented a medical certificate to the judge confirming I was unwell.
When I was unwell the Judge made adverse orders against me personally without representation, encourage my colleagues to bully me and make submissions that I could not even reply to as I was unwell at the time …”
- It is alleged in the discipline application that the statements in the quoted extracts from the email were false to the respondent’s knowledge, because she knew that the judge had adjourned the hearing twice, and provided the opportunity for written submissions; she knew that the judge had not asked her to work when she was sick; and she knew that the judge was not her boss. She also knew that he did not encourage her colleagues to bully her, and to make submissions that she could not reply to.
- In essence, the email alleges that the respondent was too unwell to work; she provided a medical certificate to Judge Cash to that effect; he nevertheless required her to work; he made an order against her personally to her financial detriment (no doubt the costs order against her); she had not had the chance to respond to submissions about such an order; and the judge encouraged her opponent to bully her and make submissions to which she could not reply. However the discipline application does not address a number of these allegations.
- There is a sense in which it could be said that the judge asked the respondent to work when she was unwell. To contest the question whether costs could be determined without an oral hearing, the respondent would at least have needed to instruct someone to appear on 10 June. It has not been alleged that the statement that the judge asked the respondent to work had some special meaning. The allegation of falsity is not made out.
- It was false, to the respondent’s knowledge, to allege that the judge was her “boss”. There could be no basis for such an allegation. Given that the email was directed to the Fair Work Ombudsman, the allegation seems to have been made with the intent of involving the judge in some form of investigation of his conduct, allegedly as an employer. This statement itself, however, is of little significance for the present application.
- As with the respondent’s allegation that the judge had encouraged her colleagues to act like dogs, there is not a shred of evidence to suggest that the judge encouraged the representatives of Ms Barclay to bully her, and other circumstances known to the respondent made it likely to be untrue. The respondent’s statement was false to her knowledge.
- The email, in the passage quoted, alleges that the judge encouraged Ms Barclay’s legal representatives to make submissions that she could not reply to. In context, this must refer to submissions in support of an order that the respondent pay costs personally. In fact, the direction which the judge made on 13 April 2021 provided for the parties to make submissions on the question of costs, and to attend to the hearing on that question on 4 June 2021 to make oral submissions. Ms Barclay complied, but SWL did not file its submissions until 2 June 2021. No doubt by then, it had received the submissions for Ms Barclay, and was in a position (as no doubt was the respondent) to include any response to them in the submissions filed on behalf of SWL.
- Under the directions which had by then been made, SWL had the opportunity (as did the respondent) to arrange for a person to appear and make submissions on the question of costs. That opportunity was not taken. The respondent must have known that it was untrue to assert, as the email does, that she had no opportunity to reply to submissions which resulted in an order adverse to her personally. Equally she knew it to be untrue that the judge had encouraged others to make submissions to which she was unable to reply.
Email of 19 June 2021 at 3.12 pm
- This email was sent to the LSC, and an undisclosed list of recipients. An understanding of the email is assisted by reference to the subject line, which reads, “$35,000 Costs Ordered against Donna Sewell when on Sick Leave for listening to the wishes of An Elderly Woman who did not want her house sold”. The email included a link to a page on the GoFundMe website. That page identified the respondent as a legal practitioner with other qualifications. It also stated:-
“After receiving an almost $100,000 judgement in the magistrate court [sic] plus paying almost $60,000 in solicitor and barrister fees yesterday whilst on sick leave see well law lost again the appeal to the district court and whilst I was on sick leave Judge Cash made a $35000 judgement against me personally despite being on doctor’s certificate and unwell due to a separate (car accident). I still owe the barrister $40000 and I need help to appeal this decision of the magistrates court and now the district court.”
- The webpage then asserted that the respondent did not want the money for herself, “but to pay for the costs orders and continue the fight for the right of Australian Elderly people to be supported to stay at home as long as they can”.
- The email itself includes the following:-
“… on appeal the District Court Judge CASH declined to hear the argument for special leave and whilst Donna Sewell was on sick leave Judge CASH decided to ignore a doctors certificate and ordered $35,000 for the lost appeal not against See Well Law as a company but Donna Sewell personally.”
- Of these passages, the discipline application alleges that the respondent knew that Judge Cash had not declined to hear the respondent’s argument for leave; and he had not ignored the medical evidence relied on by her to seek to adjourn the hearing which he conducted. It must have been clear to the respondent from these allegations that the applicant was alleging that the respondent was making criticisms of the judge which were untrue to the respondent’s knowledge.
- The respondent had attended the first hearing of the application for leave, instructing a barrister. She appeared herself at a subsequent hearing and made submissions. She knew it to be untrue that the judge declined to hear argument on the application for leave. It is a serious criticism of a judicial officer to say that the judicial officer declined to hear argument from one party on a matter.
- The respondent also knew that the judge had not ignored the medical certificate. He adjourned the hearing on 4 June; and he gave directions which enabled the respondent (and SWL) to be represented without an attendance in person. It is not necessarily a criticism of a judicial officer to say that the officer has not accepted evidence. However, to say that he ignored it implies that he failed to take it into account, when it was his duty to do so. The respondent has criticised his Honour in the performance of his judicial functions on a basis which she knew to be untrue.
- After the passage from the email which has been set out earlier, the following appeared:-
“In 2015 a client approached See Well Law to sell her mother’s house under a power of attorney and the client was advised that she should follow her mother’s express wishes. In this case the mother was not only opposed to the sale of the house – she was vehemently opposed to the sale.
The advice of See Well Law was that the daughter must follow the direction of the principal (her mother) and that she as the attorney can not place her mother in an aged care facility without her mother’s consent or application to the court, but the judge did not agree that such advice merited payment and instead called Donna Sewell the Sheriff and ordered costs against See Well Law for over $100,000 at Magistrate Court Level.
The Court application was commenced by the decision and her legal team as the daughter did not want to pay See Well Law for advice she did not want to hear. However See Well Law fought this case strongly as ELDERLY LIVES AND OPINIONS EXPRESSED UNDER POWER OF ATTORNEY MATTER.
A power of attorney is a document that appoints a person you trust to act on your behalf and carry out wishes on your behalf when you are unable to do so. The nature and spirit of the document is that the person you appoint is supposed to carry out the wishes when you are unable to do so in the manner you would do, if you were acting for yourself.
But the QLD Courts support this woman’s actions to ignore her mother’s wishes and said that See Well Law and Donna Sewell should be financially punished for not just carrying out instructions blindly.
The Courts decisions seem to endorse that the intentions of the Principal or person that makes the document can be ignored when it suits the Attorney and a person can be placed in an aged care facility despite being vehemently opposed to the sale and this elderly lady was able to stay at home with care (which was supported by her doctor) and had financial means to do so.
The Court also seem to think that a sick solicitor should turn up when on doctor’s certificate.
If you do not agree with the QLD Court approach to not respecting an elderly persons right to direct their trusted attorney to do what they ask when using the Legal Document – support Donna Sewell through the GO FUND ME SITE:
Also support that lawyers are people too and if they are sick, that the courts should respect doctor’s orders and not make judgments when on sick leave.”
- Of these passages, the discipline application makes a number of allegations. The first is that the respondent knew that the judge had not made any findings relating to whether the directions of the mother had been ignored. The second is that she knew that the judge had not made any orders punishing her for not carrying out instructions blindly. The third is that she knew that he had not made any findings which endorse the proposition that the intentions of a principal can be ignored when it suits an attorney. The fourth is that she knew that the judge had not made any findings to the effect that a “sick solicitor should turn up when on a doctor’s certificate”. The fifth is that she knew that the judge had not made any finding which did not respect the right of an elderly person to direct an attorney to do what the person asks. The sixth is that it was false and misleading to state that the judge did not respect doctor’s orders, and proceeded to make judgments when the respondent was on sick leave, because the medical certificates did not state that the respondent was unable to prepare written submissions.
- The allegation in the discipline application that Judge Cash had not made any finding which related to whether the alleged directions of the mother had been ignored is correct. The allegation may refer to the second paragraph of the last quoted passage. In context, the reference in the second paragraph is to what occurred in the Magistrates Court, and not to the decision of Judge Cash. The applicant’s allegation, if based on the second paragraph of the extract, is of no assistance on the present application.
- Other statements from the email refer to Queensland courts or to courts. The final statement clearly refers to the decision of Judge Cash. Since the subject of the email is the judgment of Judge Cash, these references should be understood to include a reference to his Honour’s judgment, the context not indicating otherwise. I am satisfied that that is what the respondent intended.
- What was said in the email (in the fifth paragraph of the extract), which applied to the costs order of Judge Cash, was that “…the QLD Courts support this woman’s actions to ignore her mother’s wishes and said that See Well Law and Donna Sewell should be financially punished for not just carrying out instructions blindly”. The respondent must have known that the judge’s decision had nothing to do with whether Ms Barclay ignored her mother’s wishes. The allegation that his Honour’s decision supported her action in ignoring her mother’s wishes was false to the respondent’s knowledge. The implication in the second part of this passage is that SWL and the respondent were punished for their exercise of judgment, something which it was appropriate for them to do, and they were punished improperly. In truth, as the respondent must have known, the order for costs made by Judge Cash was made because the application for leave to appeal failed, because it was unarguable; and because of the manner in which it was conducted. It was plainly false to suggest that the order had anything to do with how SWL had responded to instructions in relation to the sale of Ms Elmes’ home.
- As an agent, an attorney is required by law to carry out the instructions of the principal. That assumes that the principal is competent when giving instructions, often not true in the case of an attorney acting under an EPOA. Nevertheless the obligation to act in accordance with competent instructions remains. Moreover, under s 66 of the Power of Attorney Act 1998 (Qld), an attorney is required to exercise the power honestly and with reasonable diligence to protect the principal’s interest. The assertion in the email that the courts (including Judge Cash) endorsed the view that the intentions of the principal can be ignored when it suits the attorney not only wrongly attributes error of law to the judge, it implies that he endorsed the actions of an attorney who acted in her own interests, to the detriment of the principal; and that the decision of the judge was thus unfair. The assertion was not honestly made, as the respondent must have known that his Honour’s judgment did not deal with the action of the attorney.
- The assertion that the Court seems to think that a sick solicitor should “turn up when on [a] doctor’s certificate” plainly refers to Judge Cash. The judge did not require the respond to attend a court hearing, as the respondent well knew. The assertion was not honestly made.
- The description of the approach of Queensland courts as not respecting the right of an elderly person to direct the manner in which a power of attorney is exercised is also a reference to the decision of Judge Cash. The description implies that the judge did not give effect to a right of a person. That was untrue, to the respondent’s knowledge. The basis for his Honour’s decision has already been identified. It had nothing to do with any right of Ms Elmes to give directions to Ms Barclay.
- The statement in the email that the courts should “respect doctor’s orders, and should not make judgments [against a person who is] on sick leave” is intended to refer to the costs order made by Judge Cash. It impliedly asserts that the doctor had ordered the respondent not to work; and that the state of the respondent’s health warranted her not participating in a hearing, but the judge nevertheless proceeded to determine costs against her in her absence. The statements in the email are alleged to be false and misleading because the medical certificates did not state that the respondent was unable to prepare written submissions.
- On 4 June 2021 at 10.00 am, SWL had sent an email to the Court advising that the respondent had “COVID-19 like symptoms”; and she was in the process of acquiring a medical certificate. Shortly after 1.00 pm that day, SWL emailed a medical certificate to the Court. It was from Dr Ling. It stated that the respondent “has a medical condition and will be unfit for work from 04/06/2021 to 18/06/2021 inclusive”. No other detail was provided. The respondent’s email at 6.46 pm on 4 June 2021 stated that it was illegal to go into public with suspected symptoms of COVID, and related that statement to the medical certificate. Dr Ling, in a letter dated 21 June 2021, described the symptoms of the respondent when he spoke to her by telephone on 4 June, and said (with reference to the certificate of 4 June), “In her state she would be infectious and thus sought out a medical certificate to preclude her from attending court. I provided her this medical certificate.” Dr Ling’s letter shows that the respondent sought the certificate, and she knew that the certificate issued, not because she could not work, but to excuse her from physical attendance at court, with the associated risk of infection. The medical certificate was not intended to convey that the respondent could not provide written submissions, or participate in a hearing by telephone. Her ability to communicate by email with the Court on 4 June 2021 (and again on 17 June 2021) demonstrates the contrary. The respondent’s reliance on the medical certificate, and her implied assertion in the email that her state of health precluded her participating in any way in the hearing, were dishonest.
Email of 21 June 2021 at 9.08 am
- This email was addressed to Mr Ross Dickson, to the Queensland Bar Association, and to 4BC Breakfast Radio. Mr Dickson was a barrister who had apparently assisted the respondent. Copies of the email were also sent to the Queensland Attorney-General, Mr Craig Smiley of the Queensland Law Society (“QLS”), and to the LSC. Its subject was the costs judgment by Judge Cash. The email included the following:-
“The judge (effectively my employer as I am an officer of the court and as an officer of the court I am governed by the Attorney General of QLD through registration and admission in the QLD and Attorney General of Australia through registration and admission in the CTH) can take adverse action and call me a liar and dismiss my doctors certificate.”
- The email also included:-
“If this is the way that the courts of Australia and the Attorney General of Australia treat people, and Australia choses [sic] not to help me, and my colleagues want to continue to turn their back on me. I will get my almost twenty 20 years of being a lawyer plus all of my qualifications… and relocate to a country that does not call me a liar, that respects people when they are on sick leave, treats their elderly with respect, and embraces my knowledge qualifications and experience and use my knowledge with people that have COURTACY [sic] AND RESPECT.”
- Of these passages, it is alleged in the discipline application that the respondent knew that his Honour had not made any findings as to the respondent’s credit and that his Honour had not dismissed the medical certificate; and that the respondent was not an employee of Judge Cash.
- The last two allegations have previously been accepted. There was no finding of credit against the respondent in his Honour’s reasons. The respondent plainly knew that his Honour had not called the respondent a liar. The passage in which it is said that his Honour did so commences with a statement to the effect that it is a very sad day for all of Australia when this can happen. Reference is made to the respondent’s position as an officer of the court. The email is designed to imply that the judge acted improperly in describing the respondent as a liar. It is plainly intended to reflect badly on his Honour, and it uses a false statement for that purpose.
Email of 22 June 2021 at 10.57 am
- This email was sent to Mr Portbury, with copies to the LSC, Mr Bonutto of Lexon Insurance, Mr Smiley at the QLS, the Associate to Judge Cash, and what appears to be an email address associated with a firm of solicitors, Sykes Pearson Miller Law, where Ms Ryan was apparently employed at that time. The subject line of the email reads “Amy Ryan and the 2012 Power of Attorney not dated 2015 but backdated 2012”.
- The discipline application alleges that the assertions that Mr Portbury and Ms Ryan were parties to backdating the EPOA were known by the respondent to be false.
- The email contains a clear allegation that Ms Ryan backdated the Power of Attorney. It also contains an allegation that she did this under instructions from Mr Portbury and another person.
- It cannot be said that Ms Ryan backdated the EPOA. Rather, in handwriting, she carefully recorded that she had witnessed Ms Elmes sign the EPOA in her presence on 2 August 2012. It might also be noted that the DNRM requisition of 1 July 2015 called upon the witness to “complete their duties” under the Act, in relation to witnessing the signature of Ms Elmes.
- These things were plainly known to the respondent when she sent the email. They, and the history of the events relating to the execution and witnessing of the Power of Attorney, are derived from material provided by the respondent herself in her email to the Associate to Judge Cash and to Mr Portbury’s firm, and copied to Mr Hartwell, of 17 June 2021.
- The respondent had been a participant in the events leading to Ms Ryan adding her signature as witness to the EPOA. She had been informed by Mr Portbury’s letter of 24 June 2015 of the action proposed. She was the “partner responsible” in relation to a letter from SWL to Mr Portbury of 24 June 2015 which stated that when the EPOA was returned from the Titles Office, SWL would forward the original and the requisition to Mr Portbury “to have Amy Ryan correct it”. She must have known that what was done was in accordance with the advice from DNRM, and did not involve backdating of the document. An examination of the document makes that plain. The respondent has made an allegation of serious misconduct against other members of the profession, when she must have known it to be untrue.
Email of 22 June 2012 at 12.35 pm
- This email was sent to Lexon Insurance, Ray Hadley at 2GB Radio Station, and the 4BC Breakfast Program. Copies were sent to Mr Portbury, the LSC, Mr Smiley at the QLS, and Sykes Pearson Miller Law, as well as to the Associate to Judge Cash.
- The email commenced with the statement “I will be taking action against Amy Ryan for Negligence. She can not back date a document and get away with this”.
- The email then went on to explore the question of the alleged negligence of Amy Ryan, expressing the view that it was when she backdated the EPOA. It then went on to discuss Ms Barclay’s conduct relating to the sale of the house. It said all the material relating to these matters was on file “if Judge Cash read it”. The email then continued:-
“...Also I will be waiting for my public apology from Judge CASH for calling me a liar and taking adverse action when on sick leave…. I don’t appreciate being called a liar, and I want a public apology please Judge Cash. I believe Ray from 2GB National is a great way to start with my public apology please and thank you Judge Cash.”
- The discipline application alleges that the allegations relating to Ms Ryan being a party to backdating the EPOA were known by the respondent to be false when she made them. For reasons already discussed, that allegation is established.
- The discipline application also alleges that the respondent knew it to be false that Judge Cash described her as a liar, and she knew it to be false that he took adverse action when on sick leave, because Judge Cash twice adjourned the hearing, and gave the respondent leave to file written submissions; and he did not make credit findings. The respondent must have known that it was untrue that the judge had called her a liar. There is no basis whatever for the respondent’s statement. In particular, as the respondent knew, the judge had adjourned the costs hearing on 4 June 2021, after being advised that the respondent could not attend. To say that a judicial officer has found someone to be a liar is not necessarily a criticism. In the present case, however, the clear implication from the email is that the judge had engaged in some wrongdoing, warranting an apology. The respondent has therefore criticised the judge on a basis she knew to be false.
- The statement that Judge Cash took adverse action when the respondent was on sick leave carries with it the implication that he treated her unfairly by proceeding to determine the question of costs when she was unable to protect her own interests by reason of her health. For reasons already discussed, that was untrue, to the respondent’s knowledge.
Email of 24 June 2021 at 5.42 am
- This email was sent to the Associate to Judge Cash, to Mr Hadley at 2GB Radio Station, to the LSC, to Mr Smiley at the QLS, to the Maroochydore Courthouse and the Registrar of the District Court there, to the 4BC Breakfast Program, to Lexon Insurance, to Mr Gino Dal Pont (a professor of law with expertise in legal ethics), and to Ms Barclay, Mr Dickson, Mr Portbury and Sykes Pearson Miller Law. The document attached the letter from Dr Ling of Tewantin Medical Centre, dated 21 June 2021.
- The respondent’s email included the following passages:-
“My veracity is brought into question about my condition such that I need to supply photos and 3 doctor’s [sic] certificates and still I get publicly vilified and fined personally $35,000 FOR SAYING TO THE COURT THE TRUTH IF YOU MAKE THE JUDGMENT AGAINST MY COMPANY I WILL WIND IT UP …
“See Well Law and Donna Sewell are financially punished for sticking up for the elderly and aged …
Why should I have a cost order against me personally and again my company when the advice I gave was RIGHT …
The only person that can fix this one is RAY FROM 2GB. Ray – what are we going to do about this? Should a power of attorney be used as a weapon to lock up our elderly. What evidence do lawyers need to be accepted as sick when they are sick – does each lawyer need 3 doctors [sic] certificates and photos of the damaged vehicle and then still be called a liar and forced to pay $35K?
Let’s ask Ray to ask Australia. I don’t have money for appeal, so let’s ask Ray.”
- With reference to the statements in the email that the respondent’s veracity had been brought into question, it is alleged that the respondent knew that his Honour had not made findings regarding her veracity, her condition had not been brought into question, she had not been publicly vilified, and his Honour had not fined her.
- The judgment of Judge Cash was critical of the respondent, and in that sense it might be said she had been publicly vilified. The assertion by the respondent that the judge had fined her suggests that the judge had found her guilty of some form of criminal or quasi-criminal conduct. The respondent must have known that to be untrue. Nevertheless, the judge had made a costs order against her personally, based on her conduct in the proceedings, of which he was plainly critical. The falsity of this assertion is of little moment, at least in disciplinary proceedings. For reasons already given, the other allegations in the discipline application are correct. The implication provided by the context is that the judge had done these things improperly, in light of the medical certificate.
- Further, with respect to the statement in the email that the respondent and SWL had been financially punished for sticking up for the elderly and aged, it is alleged that, the respondent knew that Judge Cash had not financially punished her, nor had he made any findings relating to the respondent “sticking up for the elderly and aged”. There is a sense in which it might be said that the costs order was punitive, because the reasons for it included matters relating to the incompetent way in which the respondent conducted the application for leave. For reasons given earlier the allegations in the discipline application are otherwise correct. The respondent knew that the making of the costs order had nothing to do with her conduct relating to the sale of Ms Elmes’ house. It follows that the statement to the effect that the respondent and SWL had been punished for acting to protect the elderly was false to the respondent’s knowledge. Indeed, it is worth noting that a recurring theme in the respondent’s emails is that she conducted the litigation both in the Magistrates Court and before Judge Cash in order to protect the rights of the elderly. In truth the proceedings were about whether the respondent could recover a greater amount of costs for legal services she provided to Ms Barclay. There is no identifiable relationship between those proceedings, and any action taken by the respondent to protect the right of elderly persons.
Email of 15 July 2021 at 10.26 am
- This email was sent to Mr Portbury and the LSC; with copies to the Attorneys-General for this State and the Commonwealth; as well as to Mr Hadley at 2GB Radio Station, and to the 4BC Breakfast Program. A copy was also sent to Sykes Pearson Miller Law.
- The subject line of the email reads as follows:-
“LETTER OF DEMAND – DONNA MAREE SEWELL WILL NOT PAY A MURDERER WHO DEPRIVED AN OLD LADY HER LAST WISHES – TO BE WITH HER DAUGHTER IN LAW AND GRAND-DAUGHTER – OR TO CONTACT ME!!! !”
- After a salutation to the present applicant, Mr Portbury and Ms Ryan, the email continued with the following in very large print (Calibri Body font, 72-point in size, in bold, red letters):-
“I confirm that I will not be paying the $35,000.”
- There then follows a criticism of Judge Cash for making the costs order, which it was said was wrong, and the email accused Mr Portbury of taking advantage of the respondent being sick, and ignoring a doctor’s certificate. It was said that Mr Portbury would be punished for that, the matter having been referred to the LSC.
- It then asserted that Ms Ryan had, under Mr Portbury’s instructions, backdated the EPOA and then used it against the express wishes of Ms Elmes, and that it was only a matter of time until Mr Portbury would be prosecuted for his actions. It also accused him of persuading judges that his lies were right. It stated that the respondent had friends in the community supporting her, and continued:-
“I also have the laws and the media to stand behind me – that’s what I have done is write [sic] and murderers get paid nothing.
You broke the law. Ray, do step in as it is time to make this public that elderly lives matter.”
- The discipline application alleges that the subject heading referred to Ms Barclay; and the respondent knew she was not a murderer. It seems to me, from reading the email as a whole, that the subject line was intended to refer to Mr Portbury. Something similar appears in the next email to be considered. There is however no basis for describing Mr Portbury as a murderer.
- Although the email is pleaded in the discipline application, there are no other specific allegations relating to it. It may perhaps be regarded as providing context for the other emails identified in the discipline application.
Email of 15 July 2021 at 7.33 pm
- This email was sent to Mr Hadley at 2GB Radio Station, the 4BC Breakfast Program, the LSC and the Attorneys-General for this State and the Commonwealth. The subject line identifies the decision of Judge Cash. Notwithstanding the persons to whom the email was sent, it commences, “Listen Donald Portbury”.
- The email then states:-
“If you cant see anything wrong with selling a house from a lady when she is VEHINEMENTLY OPPOSED TO SELLING IT – then lets ask Australia what they think!”
- The email further continues:-
“You had no right mate so stop harassing me!
Leave me alone!
I don’t care that you have friends in high place – the media is going to eat you for breakfast and so is the LSC.
Don’t contact me again – I am sick of your harassment!...
Leave me alone…
DO YOU UNDERSTAND
Stop trying to hide that you killed Mrs Elmes – you put her in the house of death, you left her there, you denied me contacting her, you sold her house, you used your friends to get judgements and you are unethical.
I would hate to be you right now!”
- The email thus alleges that Mr Portbury sold a house from a lady opposed to the sale, when he had no right to do so. It also alleges that Mr Portbury killed Ms Elmes.
- The discipline application alleges that the respondent knew that Mr Portbury had not caused the death of Ms Elmes, nor put her “in the house of death”.
- To the respondent’s knowledge, Ms Elmes was a resident of a nursing home prior to her death on 29 November 2015. It seems likely that this was the Japara Noosa aged care facility. A death which occurred there in 2020 was the subject of a coronial investigation. A newspaper article reported other instances of abuse and neglect after the Royal Commission into Aged Care Quality and Safety had delivered recommendations. That would indicate that these occurred no earlier than 2020.
- In a submission to Judge Cash, the respondent stated that the staff at Japara “did their absolute best to look after Mrs Elmes”. Criticisms of the care provided at the nursing home relate to a period well after Ms Elmes died. The only basis apparent from the material from the respondent for her allegation that Mr Portbury was responsible for the death of Ms Elmes is that he acted for Ms Barclay when she decided to sell Ms Elmes’ home; with the consequence that she lived in an aged care facility where she later died. Ms Elmes was elderly, and not in good health. The respondent has not suggested that she had any basis for the allegation. The assertion by the respondent that Mr Portbury was responsible for the death of Ms Elmes was false to her knowledge. Indeed it is scurrilous and disgraceful.
Email of 19 July 2021 at 7.53 am
- On 16 July 2021 at 2.56 pm the Deputy Registrar (Magistrates Court Civil) at the Magistrates Court at Maroochydore sent an email to the respondent. It gave a notice of listing for Ms Barclay’s application in the Magistrates Court, advising that the directions hearing would be conducted by telephone due to COVID restrictions. It asked for the best contact number for the parties, so they could be contacted when the matter was ready to proceed. That resulted in a response from the respondent to the Deputy Registrar, sent also to Mr Portbury’s firm and copied to the LSC.
- The email referred to the sale of a property, no doubt the house of Ms Elmes. It continued:-
“To insist that I should not be compensated for the work I have done is wrong. To make an order against See Well Law when a crime has taken place is unethical. The crime is Mrs Olive’s Elmes House [sic] was sold against her wishes. Mrs Olive Elmes DID NOT want Susan Barclay as her attorney. Donald Portbury knew this and still sold the house when the owner was vehemently opposed.
This is a clear case of theft, of depravation [sic] of liberty and it is a police matter and you can see that I have now made a police complaint. I will also be following through on all complaints including the complaint that Donald Portbury used his contacts in the Legal Services Commissioner [sic] to get my office raided and destroy socially on media my great reputation.
Attached are documents I asked the judge to read before he makes any judgment. He should also make his own enquiries about what is backdating a document and how the proceeds of criminal activity is [sic] illegal. Donald Portbury and Susan Barclay have participated in crime in selling that house against her wishes and misleading Amy Ryan to sign that Power of Attorney – knowing full well Olive Elmes did not want to use it any more – and then selling that house against her express wishes and keeping the proceeds of sale for herself.
If that is not crime – what is?”
- Of this email, the discipline application alleges that the respondent knew that Mr Portbury had not committed theft, or deprivation of liberty; she knew that Mr Portbury did not have connections within the LSC; and she knew that Mr Portbury did not cause a raid to be conducted on her office. She also knew that Mr Portbury had not committed any crime in relation to the sale of Ms Elmes' house.
- The respondent herself has relied upon the material which is the primary source of the account of events of 2012 and 2015, set out earlier in these reasons. She has not identified any other material relevant to the allegations in this email. They show that Mr Portbury’s firm acted in the sale of Ms Elmes’ house. They also reveal that the respondent had concerns that Ms Elmes then had capacity to decide matters for herself, and was opposed to the sale. They do not establish anything more, and in particular, that a theft occurred, or that Ms Elmes was deprived of her liberty. The respondent must have known that there was no basis for her allegations of criminal activity against Mr Portbury.
- Nor is there any evidence to suggest that Mr Portbury had connections within the LSC, or had any role to play in the execution of a search warrant at the premises of SWL. The nature of the allegations is such that they are highly unlikely to be true. Mr Roessler gave evidence of the execution of the search warrant, but the respondent did not cross-examine him to suggest that her allegations were true, or at least had some basis.
- The Tribunal is prepared to conclude that the respondent has made quite serious allegations against Mr Portbury, without any proper basis, as she must have known when she made them.
Overview of Charge 1
- The respondent has made a number of serious allegations against Judge Cash, which can be summarised as follows:-
- the judge had not given her a fair hearing;
- he did not recognise that she was ill;
- he disbelieved her, even though she had the support of a medical certificate;
- he had acted in a partisan way, encouraging her opponents take advantage of her weak state;
- he had punished her with a costs order when she had been acting properly; and
- he had not recognised the rights of an elderly person.
- The respondent has also made very serious allegations against Mr Portbury (some of which also relate to Ms Barclay). They include:-
- being a murderer;
- participating in theft;
- facilitating the unlawful sale of Ms Elmes’ house;
- participation in the deprivation of an elderly person of her liberty; and
- participating in the illegal backdating of the EPOA.
- The respondent has also alleged that Ms Ryan was negligent and participated in the backdating of the EPOA.
- The allegation of negligence is somewhat ambivalent. It appears at times to relate to the failure of Ms Ryan to sign the EPOA as witness, at the time when Ms Elmes executed it. At least on one occasion, however, it appears to relate to the alleged backdating of this document.
- The material shows that Ms Ryan failed to sign the EPOA as witness at the time when Ms Elmes executed it. It is apparent however that she in fact was present when Ms Elmes signed the document, completing the witness certificate required for it. In those circumstances, her failure might be regarded as a minor inadvertence. However to describe it as negligent does not amount to misconduct. The description has support in the decision of Acting Magistrate Bice. The other allegations against Ms Ryan, that she backdated the EPOA, and was (at least) negligent in doing so, are without foundation.
- The discipline application alleged that the respondent’s conduct was likely to a material degree to bring the legal profession into disrepute, because its tone was rude, discourteous and below the standard of courtesy that the courts and the profession are entitled to expect from a legal practitioner; the respondent had alleged criminal conduct by Mr Portbury, Ms Barclay and Ms Ryan without any factual basis; she made statements about Judge Cash which she knew to be untrue when she made them; she made statements about the conduct of Mr Portbury and Ms Ryan which she knew to be untrue when she made them; she distributed her correspondence widely in breach of client confidentiality; and she acted in a manner contrary to the fundamental ethical duties expected of a solicitor.
- To say that the tone of the correspondence was rude and discourteous, while often true, does not fully capture the gravity of the respondent’s conduct. She has made allegations critical of the conduct of the judge, of members of the profession, and of Ms Barclay, without foundation, and which she generally knew to be untrue when she made them.
- Criticism of a judicial officer by a member of the legal profession does not necessarily amount to some form of misconduct. In Ambard v Attorney-General for Trinidad and Tobago, Lord Atkin said:-
“But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
- His Lordship was dealing with a contempt case. It is difficult to see that lawful criticism of a judicial officer, not amounting to contempt, would amount to misconduct. Such criticism may be erroneous, and outspoken. Here, however, the respondent’s criticism went beyond what is acceptable. The findings already made show that the criticism was not made in good faith. Much of the criticism was not honestly made. It appears to be malicious.
- Whether offensive comments by a member of the profession about a judge (and others) may amount to misconduct was also considered in the judgement of Sackville AJA (with whom Ward and Gleeson JJA agreed) in Griffin v The Council of the Law Society of New South Wales:-
“106 The authorities recognise that offensive and derogatory comments by a solicitor may amount to professional misconduct. In Ellis v Law Society, a solicitor conducted ‘inappropriate, offensive and derogatory correspondence directed to and about the Law Society, [a litigant], members of the judiciary and others’. Leveson LJ, with whom Lloyd Jones J agreed, dealt with the allegations as follows:
“32 … I find these [allegations] more difficult because, at least in relation to the Law Society and the judiciary, it is necessary to approach the matter on the basis that a solicitor is entitled to hold strong views, however unpalatable others might find them to be, and furthermore, the officials of the former and members of the latter must be and are equally robust in being able to ignore observations of an intemperate or even abusive nature. Disciplinary action of the type taken in this case should not normally follow for this reason alone …
33 I recognise, however, that there must be a line beyond which such proceedings are justifiable and, perhaps, inevitable. It is trite to say that each case must depend on its own facts but the test might well be whether the level of abuse and obsession permeates the solicitor's approach to the real detriment of his client. After all, the reputation and integrity of the profession is essential to maintain public confidence in its ability to act in the very best interests of each client to the highest professional standard without being affected by extraneous issues.”
107 I agree that Judges can generally be expected to be robust, and that care should be taken before disciplinary action is taken based solely on offensive or derogatory comments made by a legal practitioner to or about a Judge, whether in court or by communications outside the courtroom. However, I also agree that, depending on the content, communications may cross the line and be capable of constituting professional misconduct.
108 If, however, Leveson LJ was suggesting that offensive and derogatory comments made by a practitioner to or about a Judge can constitute professional misconduct only if the communication causes detriment to the client, I do not agree. A case of that kind may be the clearest example of a practitioner ‘crossing the line’. But the interests identified by Spigelman CJ in Cummins indicate that the line may be crossed even where the client's interests are not necessarily adversely affected. The present case illustrates the point, since the Letter was sent after the Judge had delivered judgment, albeit as a seriously misguided effort by the Solicitor to persuade the Judge to make a costs order more favourable to the Solicitor's client. Yet the contents of the Letter, particularly the accusations of bad faith and dishonesty in the preparation of the judgment, are clearly inconsistent with the minimum degree of trust and civility between legal practitioners and the judiciary that is essential to the administration of justice and the integrity of the judicial system.
109 The Tribunal characterised the terms of the Solicitor's Letter as ‘grossly offensive’. The Tribunal then said that it was a ‘matter of judgment’ whether the Letter constituted professional misconduct. It concluded that the Solicitor was guilty of professional misconduct because solicitors are under ‘a duty to exhibit appropriate respect for judicial officers and their decisions … out of regard for the institutions they represent’. The Tribunal invoked the need to maintain public confidence in those institutions, although it did not explain precisely how the Letter undermined confidence in the judicial system. The Tribunal also expressed itself satisfied that the Solicitor had departed so far from the conduct expected of a solicitor of good reputation as to be guilty of professional misconduct.
110 In my view, if a legal practitioner is accused of professional misconduct by reason of a communication to or about a judicial officer, more is required of the Tribunal than simply to characterise the practitioner's conduct as ‘grossly offensive’ and asserting that the conduct departs from the standards expected of a solicitor. These are conclusions that should be supported by an explanation of the reasons why the conduct amounts to a serious departure from the expected standards.
111 It is true that the Tribunal's task was made more difficult because the Council did not present its case with particular clarity and the nature of the Solicitor's conduct was somewhat obscured by the Council's use of the expression ‘grossly discourteous behaviour’ to describe the conduct. However, the gravamen of the Council's case was that the Solicitor alleged in the Letter that the Judge had acted vindictively, may not have written the judgment ‘at all’, and made the decision ‘without good faith and with bias’. These allegations necessarily suggested that the Judge breached the most fundamental duties he owed as a judicial officer, acted dishonestly (by passing off a judgment as his own that he had not written), acted in bad faith, and displayed actual bias towards a litigant and vindictiveness to the Solicitor. In addition, the Letter demanded that the Judge alter orders made in open Court and threatened that if his Honour did not do so, he would suffer embarrassment as a result of the Solicitor's actions.
112 The contents of the Letter must be judged on their face. There is not a shred of evidence advanced in the Letter to support any of the allegations of impropriety made against the Judge. The ‘discourtesy’ and ‘offensiveness’ lay both in the making of scurrilous allegations by the Solicitor about the Judge's conduct, and the manifest absence of any material that could possibly justify making the allegations in any forum, let alone in a private communication to the Judge. The Letter showed that the Solicitor was prepared to make allegations that the judicial process had been undermined by improper behaviour of the Judge, without any material that could justify any such allegation. Moreover, the Letter was ‘discourteous’ and ‘offensive’ because it implied that the Judge would be prepared to alter costs orders because of a threat that he could be embarrassed by the Solicitor's ‘legitimate’ actions.
113 In my view, the Tribunal was entitled to find that the Solicitor was guilty of professional misconduct on the basis of the contents of the Letter. The Tribunal Reasons lack the detail that might have been expected, but the findings are consistent with the Tribunal analysing the case in the way I have explained. The finding of professional misconduct was open because the Solicitor made allegations of serious misconduct against a judicial officer before whom the Solicitor had appeared, without providing any supporting evidence. Moreover, the Solicitor made the allegations in the context of an attempt, coupled with threats, to persuade the Judge to alter orders he had made in the proceedings just concluded. Despite the lack of detail in the particulars provided by the Council, the Tribunal's findings, understood in this way, are consistent with the particulars upon the basis of which the case was conducted.” [citations omitted]
- From the judgment of Sackville AJA, it seems to me that the following propositions can be deduced (and are generally consistent with Ambard):-
- offensive and derogatory comments by a solicitor about a judge, and others, do not necessarily amount to professional misconduct, but they may do so in some cases;
- a solicitor is entitled to hold strong views, even if they are unpalatable to others;
- disciplinary action should not normally follow for this reason alone, or because such views are expressed in intemperate or abusive language;
- a judge is expected to be somewhat robust in the face of criticism from the profession;
- however there is a line which must not be crossed;
- it is not sufficient for a tribunal to find a practitioner's conduct a "grossly offensive", and to assert that it departs from the standards expected of a member of the profession. It is necessary for the tribunal to explain why the conduct amounts to a serious departure from expected standards;
- to accuse a judge of bad faith, actual bias, or dishonesty in the preparation of a judgment, without any supporting evidence, would support a finding of professional misconduct; and
- a similar approach may be taken to criticisms by a legal practitioner of a professional body such as the law society.
- A number of adverse findings have been made about the respondent’s conduct. That conduct went well beyond the limits of permissible criticism of a judicial officer. The allegations she made against the judge were without foundation. In many cases the respondent must have known them to be untrue; and in others she must have known that she had no proper basis for making them. They were not honestly made. The respondent’s conduct can thus be characterised as a very serious departure from the standards expected of a member of the legal profession. Moreover, the seriousness is aggravated by her attempts to obtain extensive publicity for the allegations, no doubt with the intention of maximising the hurt caused by them. Further, the conduct occurred on a number of occasions.
- Similar observations may be made about the respondent’s allegations against Mr Portbury and Ms Barclay; and the allegations that Ms Ryan backdated the EPOA.
- In the Tribunal’s view, these allegations should be found to constitute professional misconduct.
Background to Charges 2 to 7
- For a number of years SWL (primarily, it would appear, through the respondent) acted for Mr Warwick Lindsay and businesses conducted by him through MagicEzy Pty Ltd, Yesnil Pty Ltd and other companies. On 6 December 2020, Mr Lindsay sent an email to the respondent, thanking her for her past assistance, and saying that MagicEzy and his other companies would be taking their business elsewhere from that time forward. The respondent replied, agreeing “We have let you down”. The respondent took full responsibility for the breakdown in communication. The reply concluded with the statement “I am very sorry that I have let you down.”
- It is clear that at this time, retainers for SWL (and the respondent) by Mr Lindsay and his associated entities were brought to an end. This was emphasised by an email from Mr Lindsay to the respondent of 18 December 2020. In it, he described her failure to listen as “totally offensive to me”, and continued, “we are no longer dealing with Sewell law [sic] because of you”.
- On 21 January 2021, Mr Lindsay was admitted to the Sunshine Coast University Hospital, where he remained for some time. On 25 January 2021, a registrar from that hospital wrote a document confirming that Mr Lindsay was currently admitted to the hospital, and stating that “there are concerns for his capacity to undertake decisions and Warwick is considered to be unable to fulfil his usual roles and responsibilities, including decisions of a financial manner”.
- Shortly after 25 January 2021, Mr Warwick Lindsay’s brother Philip Lindsay took over Warwick’s financial affairs. On 5 February 2021, this Tribunal appointed Philip Lindsay as administrator for Warwick Lindsay for all financial matters, for a period of three months. This appointment was extended for a further three months on 4 May 2021.
- On 29 January 2021, Ms Joanne La Rocca, apparently an employee of SWL, sent an email to CTS Locksmiths instructing that the locks on the premises of MagicEzy be changed, and new locks installed restricting all access. These were the premises on which the business of this company was conducted. The instructions were purportedly given on behalf of Yesnil.
- On 30 January 2021 (a Saturday), Mr Rodney Holt, the General Manager of MagicEzy, wrote to the respondent. The locks had been changed, and a staff member attempting to attend work had been unable to enter the premises. The email questioned the legal basis for the instruction from the respondent to change the locks, and warned about the adverse impact on the operation of the business.
- On 31 January 2021, the respondent sent an email to Mr Holt. It confirmed that Mr Warwick Lindsay was “currently being detained under the mental health act”. The email then quoted s 25 of the Mental Health Act 2016 (Qld), which referred to the power of a person to appoint a “1 or 2 nominated support persons to support the person under this Act if the person becomes an involuntary patient”. The email then asserted that Mr Lindsay had appointed the respondent. It was said that that had the consequence that “you will be answering to ‘ME’ as Warwick has appointed me”. The email later stated that the respondent had viewed the deterioration of the companies and the staff attitude and “thus Warwick’s mental health especially in the last 6 months”.
- The email also included the following:-
“Let’s make it clear, no money is to be paid to anyone or leave the account, or any actions taken without my approval…
On Friday I telephoned the office and the receptionist was RUDE, she hung up on me 3 times and then blatantly refused to pass on my verbatim message which was please can staff go up and visit their employer Warwick at the hospital. That was a direction from their boss. But it was resisted and refused – why?
...You were asked to send me the letter from the hospital regarding capacity and you were asked to send me the detail of Warwick’s brother and also the IT company details. This request came to you as the company lawyer and you have not done what has been requested and responded by ignoring me…
If you seek to retain your position with the company, then TODAY I suggest you tell me:
- The correspondence you have from the hospital which you allege you have
- The details of the IT company
- The names of all the employees – their roles
- The hours of work for each of the employees
- What accounts are outstanding
- What accounts need to be collected
- What orders are currently open and need to be filled
- Warwick’s brother’s phone number
- What work needs to occur at the factory and what can be done at home
Until then I have shut the doors and no one needs to go to work…
I again repeat NO MONEY IS TO LEAVE ANY OF WARWICK’S ACCOUNTS UNLESS APPROVED BY ME….
...we will have to look at closure and sale and all staff will have to be dismissed…or whatever it is I decide after reviewing what they have been doing or not doing in their roles and length of time with the company.”
- On 1 February 2021, the respondent sent another email to Mr Holt. She stated, “I was following instructions from Warwick who provided me instructions whilst he had capacity.” She also said that the keys could be provided “if Ross and Adam are happy with the [unidentified] response below, and the company is able to be run at a profit while Warwick is incapacitated.”
- The respondent subsequently sought to have the invoice for changing the locks paid by the business.
- On 2 February 2021, Ms Karen Martin, apparently a member of the staff of SWL, sent an email to Sunshine Coast Independent Patient Rights Advisor (“SC-IPRA”) enclosing a nomination of the respondent as Mr Warwick Lindsay’s Nominated Support Person (“NSP”). The nomination had, according to Ms Martin, been signed by Ms Sewell. There is nothing to suggested that Mr Lindsay had signed it.
- On 3 February 2021, the respondent sent an email to SC-IPRA asking why Mr Warwick Lindsay was still taking up a public system place within the health care system when he had private health care, and why he was still in hospital. The email stated, “I have no idea or understanding of his medical condition”.
- On 4 February 2021, SC-IPRA sent an email to the respondent, stating that the team were not in a position to answer the respondent’s queries, and asking for consent to forward the respondent’s email to the treating team.
- On 6 February 2021, the respondent sent an email to Adam Lindsay, the son of Warwick Lindsay. The email included the following:-
“Your father is in a ‘PSYCH WARD’ why are you not doing anything to have him released.
… Your father gives the directions. I received directions to change the locks of the company door, because inside the factory were paints and the paints if the formula is made wrong can cause damage to people. Your father needs to be there to oversee that.
I have performed a capacity test which Solicitors use to test capacity and in my professional opinion it meets the test to be released …
You can’t leave your dad in that mental ward, and whilst he’s happy for me to be appointed, it is not appropriate that he be released into my personal care …”
- On 7 February 2021, the respondent sent an email to SC-IPRA, with copies to Mr Ross Taggart and Adam Lindsay, which included her consent to forward her email address to Mr Warwick Lindsay’s treating team. It also included the following:-
“As a solicitor on Friday, I performed the standard capacity check on Warwick and in my opinion as a solicitor he has capacity. I do not know why you are keeping him in hospital…
He has been isolated from his work as his employees are rude and belligerent…
He has been let down by all his staff, his family and even his friends…
I even proved that the Manager Rod had not been to work. I had the locks changed on Friday and he did not even attempt to get back into the factor [sic]…and when I spoke to the secretaries employed and Rod all of them were rude – seriously I don’t want my ass kissed but I am the company lawyer and I should be treated with courtesy and respect…
I am an officer of the court and I am in good standing and I want to see all the medical records to justify this, as I want to understand why this is occurring and how this can happen and especially understand why he is not using his private health cover and is taking up a valuable public place.”
- On 8 February 2021, Mr Adam Lindsay sent an email to the respondent, with a copy to Mr Taggart. It stated that the respondent’s email of the previous day came without an authority from the Lindsay family. It included the following:-
“Again, you purport to serve the interest of Warwick without fully understanding his condition. The ‘Lindsay Family’ has offered you the opportunity to sign a non-disclosure agreement so you can fully understand the status of his affairs and health, but alas no response from you. …
Your emails are causing great pain to those closest to Warwick, the Lindsay Family want nothing better than Warwick to return to his duties but your desire to remove him from professional care is concerning…”
- On the morning of 8 February 2021, the respondent sent an email to Mr Holt which included the following:-
“I confirm you have been stood down pending the release of Warwick from hospital.
I have to date seen no material benefit by your management of the company. I confirm you have not visited Warwick in hospital and you have not performed the role I asked you to do as the company lawyer 2 weeks ago.
I will be in touch once Adam and I have organised for Warwick to come home and then we will be with Warwick reviewing all employees [sic] engagements with the companies.
If you feel you are of some benefit to the company and don’t need to be stood down explain yourself and your key performance indicators and how you are meeting them and I will consider this appointment.
In the meantime, I confirm if any money has left the account since I advised Julie and all others that no money is to leave, then I will be considering Warwick’s options, which probably will involve action and criminal proceedings.”
- On 10 February 2021, the respondent sent an email to Mr Taggart, Adam Lindsay and SC-IPRA. It included the following:-
“You are aware that I am the companies [sic] and personal lawyer to Warwick Lindsay and also his nominated friend…
Let’s break this down to get back on track. I CAN AND WILL HELP YOU BUT I NEED PEOPLE TO COOPERATE WITH ME AND GET THE INFORMATION AND COLLABORATE AND WORK AS A TEAM AND BE NICE!...
…As nominate [sic] FRIEND THE HOSPITAL SHOULD BE COMMUNICATING WITH ME REGARDING HIS HEALTH. I HAVE NOT RECEIVED ANYTHING
…He has been sick for longer than 6 weeks, he can claim on his TPD insurance and we need to identify the policies. Then these companies need to be contacted the forms filled in and the applications made.
…There is no point having staff turn up if they are going to be rude and not meeting key performance indicators to achieve the goals.
You need to go through what items have been purchased like computers and systems and STOCK TAKE ALL THAT IS THERE
You need to look at the bank accounts, and see what payments are owed, and what payments need to be paid.
…YOU need to look at what cash flow boots [sic] there are, and what wage subsidies and also job keeper payments that have been claimed or should be claimed and have not
You also need to look at what grant applications have been applied for and are currently existing and put in payment claims
...Then I can hep [sic] you put into place the management of the staff…”
- On 13 February 2021, Mr Adam Lindsay sent an email to the respondent in the following terms:-
“…Again though, I reiterate, you have no Authority to direct staff of Warwicks [sic] business. Staff have been made aware of chain of command since nomination of an Administrator by QCAT. Should you have an idea great please offer it, but you have no direction …”
- Ms Julie Webling is an employee of MagicEzy. On 18 November 2020, she made a complaint to the LSC about the conduct of the respondent, apparently related to an email said to be bullying, and another said to include inappropriate sexual references. On 15 February 2021, the Legal Services Commissioner wrote to the respondent informing her of the complaint, and the Commissioner’s decision to investigate it.
- On 23 February 2021 at 5.13 am, the respondent sent an email to Mr Anthony Eaton. Mr Eaton was the lawyer retained by Mr Philip Lindsay, as financial administrator for to the affairs of Mr Warwick Lindsay. The email contained the following:-
“I believe that Warwick Lindsay is correct that Julie Webling has been stealing from him…
My suggestion is to IMMEDIATELY LOCK JULIE OUT OF ALL COMPANY RECORDS AND GO AND GET ALL THE PAPERWORK FROM THE COMPANY.
…This could have been going on for years and could have started in or around 2016 which is when Keith said that he was not being paid and ended up leaving the company but Julie asserts that he was paid.
We need Ross to do an audit and we need to start tracing money and transactions, urgently…”
- On 23 February 2021 at 6.25 pm, the respondent sent a further email to Mr Eaton. The email, at least by implication, suggested financial and other misconduct on the part of Ms Webling. The suggestions appear, from the email, to have some connection with the complaint made to the LSC.
- On 25 February 2021, Mr Holt wrote to the respondent asking for a written authority from an approved person for the changing of the locks. The email also sought a copy of a purchase order. It called on the respondent to pay the cost of new locks if she could not provide those documents. The respondent replied stating that she “took instructions from Warwick who advised me to have the locks changed. This was before the appointment of Phillip.”
- Mr Holt replied, stating that Mr Warwick Lindsay was not capable of giving such instructions at this time; and that a letter from the hospital confirming that would be provided if she entered into a non-disclosure agreement.
- The respondent sent an email to Mr Eaton later that day. The email referred to the email from Mr Holt, and said:-
“Please explain to Mr Holt, that I have been nominated as friend to Warwick Lindsay and under law as Warwick’s friend, I could make this judgment to follow Warwick’s direction.”
- The email again called for payment of the invoices as well as an invoice from the respondent.
- It appears that an invoice which the respondent, or SWL, issued to Mr Philip Lindsay remained unpaid at this time. On 7 March 2021, the respondent sent an email to Mr Eaton, the subject line for which was, “NOTICE OF FAILURE TO PROVIDE COMPETENT LEGAL ADVICE”. The email included the following:-
“However, should you and your client NOT PAY MY OUTSTANDING INVOICE AND THE INVOICE OF THE LOCKSMITH as friend to Warwick, I will not only make a complaint about you to the Legal Services Commissioner, I will personally file your correspondence to me saying that you are not instructing your client the financial administrator of Warwick Lindsay and his companies correctly….
…Your statements to me above indicating that your client is not going to pay my accounts and accounts properly rendered to protect assets of the company under financial administration by paying for the locks to be changed is clear that you aren’t advising your client properly, threatening a complaint about me to the LSC when I have tried to assist you with the running of a company you know nothing about, and I know everything about, and then refusing to pay mine and the locksmiths account when you have obligations to provide correct advice is unethical. So, I strongly suggest you provide me through your client the evidence of payment, or I will provide my own complaints and the law is on my side about what you and your client should be doing…
…and like I said, I will advise the court also that your client is not fulfilling his objectives and should be removed.
Also, you have not updated me about the trademarks. What is the instructions there? They are strict deadlines? Have you missed one? Do you know what those notices mean? If not and your client wants to pay for some advice? Confirm that in writing and have money upfront in my trust account and I will advise on it.”
Consideration of Charges 2 to 5
- For each of these charges there is a heading in the discipline application which characterises the charge as “Acting without instructions”. Charge 2 specifically alleges that the respondent purported to act for Mr Warwick Lindsay, despite not holding instructions to do so. The conduct which is identified in the charge is the direction to CTS Locksmiths to change the locks on the premises of MagicEzy.
- Charge 4 alleges that in the period between 21 January 2021 and 8 February 2021, the respondent purported to act as an NSP under the Mental Health Act 2016 (Qld) for Mr Warwick Lindsay, and her actions in doing so were contrary to the role and responsibility of an NSP, and were undertaken without authority or instructions. The conduct, as is apparent from the paragraphs of the discipline application dealing with this charge, appears to be an assertion that the respondent had been appointed, apparently with full authority to control the businesses associated with Mr Lindsay; a direction not to pay any money or take any action without the respondent’s approval; instructions to provide documents and information; and an at least implied threat to Mr Rodney Holt to terminate his employment.
- Charge 5 alleges that the respondent attempted to interfere with the administration of Mr Warwick Lindsay’s financial affairs, after the appointment of Mr Philip Lindsay as administrator, when she had no authority or instructions to do so. It relies on the email of 8 February 2021 to Mr Holt, and the email of 10 February 2021 to Mr Adam Lindsay. The conduct includes a direction to Mr Rodney Holt confirming that he had been stood down pending the release of Mr Warwick Lindsay from hospital and a threat to pursue options if any money had been paid out of the account. It also includes the identification by the respondent of the things she said needed to be done if she were to provide assistance. Both emails rely on the respondent’s engagement as a lawyer, which can only refer to an engagement by Mr Warwick Lindsay.
- Somewhat contradictorily, Charge 3 alleges that the respondent purported to act for Mr Warwick Lindsay, despite his inability to give competent instructions. The charge alleges that this was contrary to rule 8 of the Australian Solicitors’ Conduct Rules (“ASCR”). The conduct identified appears to be the direction to change the locks on the premises.
- There is a tension between the allegations in the discipline application that the respondent purported to act for Mr Warwick Lindsay despite not holding instructions to do so; and the allegation that she acted for Mr Warwick Lindsay despite his inability to give competent instructions (which implies that he had given instructions). It seems appropriate to regard Charge 3 as an alternative to Charge 2. It is apparent from the submissions on behalf of the applicant that the applicant contends that Mr Warwick Lindsay did not give instructions to the respondent, after the retainer of SWL was terminated in December 2020.
- In the material before the Tribunal, there appear claims made by the respondent in emails that she had instructions from Mr Warwick Lindsay to change the locks. In her email of 31 January, the respondent claimed she was “the company lawyer”. Her response when first challenged on 1 February 2021 was to say that she had such instructions from Mr Lindsay, provided whilst he still had capacity. On 6 February 2021, in an email to Mr Adam Lindsay, the respondent stated, “I received directions to change the locks”. On 25 February 2021 she stated that Mr Warwick Lindsay had “advised me to have the locks changed”, prior to the appointment of Mr Philip Lindsay as administrator. It is necessary to consider what weight, if any, should be given to these claims.
- The applicant’s written submissions recite communications to and from the respondent, demonstrating her actions purportedly on behalf of or with the authority of Mr Warwick Lindsay. They then rely upon the termination of the retainer in December 2020. They also identify the respondent’s reliance on the nomination which she had herself signed as an NSP for Mr Warwick Lindsay. However they do not come to grips with the material presented by the applicant, which included the respondent’s assertions that she had instructions from Mr Lindsay.
- Orally, the applicant submitted there was nothing in the material that makes good the proposition that the retainer was re-enlivened after its termination in December 2020. Rather, the respondent relied on her appointment as NSP. If the respondent was relying on fresh instructions, it would be expected that she gave evidence of this in these proceedings, but she has not done so. The terms in which the retainer was terminated in December suggest a loss of confidence in the respondent’s services, a position which she accepted. If Mr Lindsay had re-enlivened the retainer, it would be unusual for Mr Holt to challenge her directions to change the locks; it would be expected that he would have known of the re-engagement.
- It is clear that the retainer of SWL, and the respondent, was terminated in December 2020. The terms in which Mr Lindsay expressed himself at that time suggest that it is unlikely that he would re-engage the respondent.
- There is a degree of improbability about the assertions in the respondent’s emails, to the effect that Mr Warwick Lindsay authorised her to engage in the conduct the subject of these charges. It is highly improbable that a person who was, in substance, the proprietor of a business would instruct a solicitor (particularly one in whom he had expressed a lack of confidence) to change the locks of the business, and thereby exclude all staff. It is even more unlikely that he would do so, without communicating that to persons responsible for the conduct of the business.
- The other conduct which is the subject of the charges includes a direction that the businesses cease making any payments; and an assertion of authority to terminate the employment of staff. The emails appear to assert an appointment as the solicitor for the companies, and Mr Warwick Lindsay as authorising this conduct. It is highly unlikely, after the events of December 2020, that Mr Warwick Lindsay would have re-engaged the respondent to act as his lawyer or the lawyer for the companies; still less that he would have appointed her to act as she did in January and February 2021.
- There are aspects of the chronology which are of some relevance. The respondent appears to have had concerns about Mr Lindsay’s mental health for some time prior to January 2021. On 31 January she said that she had noted a deterioration in it in the last 6 months. She also knew at that time that he was being involuntarily detained under the Mental Health Act. In her email of 10 February, she said that he had been sick for longer than six weeks and could claim on his TPD insurance. The respondent foreshadowed her intention to change the locks on Friday 29 January. So far as there is information about this, it appears that there was no reference to instructions from Mr Lindsay. In her email of 31 January, she appears to describe the decision as her own (“I have shut the doors”), a view reinforced by the balance of this email generally, including other instructions given in it. Moreover, in this email, she did not suggest she had instructions from Mr Lindsay. Rather, she relied on her asserted appointment as NSP as the source of her authority – a rather unlikely source, if she had express authority from Mr Lindsay. It was not until 1 February that the respondent suggested she had instructions, a proposition of some difficulty, given that Mr Lindsay was being detained involuntarily.
- The emails are vague. They do not identify any occasion on which it is alleged that the respondent was given authority for her actions, nor is there any description of the conduct which is said to amount to a grant of authority. It will be apparent from the discussion in these reasons in relation to Charge 1 that the respondent is capable of making assertions which she knows to be untrue.
- It is also relevant in considering whether any weight is to given to the respondent’s claim in the emails that she had instructions from Mr Lindsay that the respondent chose not to contest the allegations made against her. She has not presented evidence to establish the truth of the assertions in the emails, nor has she relied on them as showing she had authority from Mr Lindsay for her actions.
- In view of these circumstances, it is not appropriate to attribute any weight to the assertions made by the respondent in emails that she had authority for the conduct the subject of Charges 2 and 5. In those circumstances, the Tribunal is satisfied that the respondent did not have instructions from Mr Lindsay to change the locks. There is no suggestion of instructions which would authorise the conduct evidenced by the emails of 8 and 10 February. The respondent did not have authority for the conduct which is the subject of these charges.
- As to Charge 4, the email of 31 January 2021 relied on the respondent’s appointment as the NSP for Mr Warwick Lindsay for her claim of authority in relation to the companies and the business. In the email of 6 February 2021, the respondent claimed that she was the lawyer for Warwick Lindsay and his companies, but this does not appear to have been relied upon as authorising any conduct by the respondent. The balance of the email does not identify any conduct of the respondent purporting to act as the NSP for Mr Warwick Lindsay.
- Section 223 of the Mental Health Act 2016 (Qld) identifies an NSP for another person as a person appointed, by written notice, as an NSP by the other person, at a time when the appointing person had capacity to make the appointment. The Act also requires that there be a record for the appointment kept in the record system. There is nothing to suggest that the respondent was validly appointed, in view of the requirements of s 223. There is no evidence that Mr Lindsay signed any notice; or did anything else which might constitute the appointment, at a time when he had the capacity to do so.
- The functions of an NSP are identified in s 224 of the Mental Health Act. None of them extends to the conduct the subject of the charge.
- The Tribunal is therefore satisfied that the respondent was not validly appointed as an NSP for Mr Warwick Lindsay. In any event, a valid appointment would not have given the respondent authority to send the email of 31 January. For reasons already stated, the respondent was not “the company solicitor” at this time. She acted without authority in sending this email.
- The Tribunal concludes that the respondent acted without authority, in respect of the matters the subject of Charges 2, 4 and 5.
- In case it was thought that Charge 3 should have been the subject of fuller consideration, it may be appropriate to consider the state of Mr Lindsay’s mental health in early 2021. As has been mentioned, the respondent was aware that Mr Lindsay had been experiencing mental health issues for some time, apparently to the extent that he had been unfit for work for longer than six weeks. His condition was sufficient to warrant admission to hospital on 21 January; and the respondent’s email of 31 January shows that, at least by then, he was being detained under the Mental Health Act. The respondent’s email to Mr Holt of 1 February seems to recognise that, by then, Mr Lindsay had lost capacity to give instructions.
- It is unsatisfactory that the applicant has not provided better evidence of the state of Mr Lindsay’s mental health than the letter from the registrar of 25 January 2021. It is highly likely that there would be reliable records of the state of his health on his admission, including a diagnosis, and an explanation of the loosely worded statements by the registrar. There may have also been useful evidence available from members of Mr Lindsay’s family.
- Nevertheless, the registrar’s letter may be considered in the light of other circumstances. In addition to those discussed, there is the fact that Mr Philip Lindsay took over the conduct of the financial affairs of Mr Warwick Lindsay shortly after 25 January, and was formally appointed as administrator on 5 February.
- In her email of 6 February, the respondent said she had performed a capacity test which solicitors use to test capacity. In her email of 7 February (a Sunday), she said that as a solicitor, she had performed the standard capacity test “on Friday”. The natural reading of this email would be that the respondent was asserting the test was performed on 5 February, well after she gave the instructions to change the locks. An alternative view is that the reference is to Friday 29 January, the date when instructions were given to change the locks.
- The difficulty with the assertions in these emails is similar to that relating to the assertion that the respondent had instructions from Mr Lindsay. The assertions are vague, both as to the nature of the tests and their results; and as to when they occurred. The assertions appear after the respondent’s initial reliance on an appointment as the NSP. They are not supported by sworn evidence. The Tribunal is not prepared to give them any weight.
- If it were necessary to deal with Charge 3, the Tribunal would be prepared to find that Mr Lindsay was not competent to give instructions relating to the conduct of the business of his companies at least from 25 January 2021, and probably from his admission on 21 January 2021.
- The conduct which was the subject of Charges 2, 4 and 5 involved serious interference with the running of the business of a client, purportedly on the basis that the respondent had authority to do so when she did not. To claim authority which she did not have, and to use it in the way she did, seems to me to be a very serious departure from the standards expected of a member of the profession, and highly likely to bring it into disrepute. It is considered to amount to professional misconduct.
- This charge alleges that the respondent made unsubstantiated allegations regarding an employee of Magic Ezy Pty Ltd, namely that she had been stealing money from the company and that this had been going on for years. The application alleges that at the time of the allegation, the respondent had received notification that the employee had lodged a complaint with the LSC about the respondent’s conduct. This allegation appears to suggest that the respondent had a motive for making an unsubstantiated allegation against the employee.
- By an email from the Tribunal of 1 August 2023, the Tribunal sought further submissions from the applicant in relation to this charge, and Charge 8. The applicant provided further submissions by an email of 8 August 2023, though the submissions bear the date 15 November 2023. It will be convenient to refer to these submissions as the applicant’s August 2023 submissions. These submissions contend that at the time when she made the allegation, the respondent had no basis for it; and she knew that the allegation was disputed. The applicant submits that the Tribunal should find that the allegations are unsubstantiated because:
- first, the email sent by the respondent on 23 February 2021 does not identify an evidentiary basis for the allegation that Ms Webling “has been stealing” from Mr Warwick Lindsay;
- secondly, instead of identifying an evidentiary basis for the allegation, the last paragraph of the respondent’s email to Mr Eaton sent on 23 February 2021 at 5.13 am, which commences with the words “The reason I have come to this conclusion …”, asserts, as a purported basis for the allegation of stealing, matters which do not support the allegation;
- those matters instead include allegations that invoices of Mr Warwick Lindsay’s business were not paid when Ms Webling stated they had been paid and allegations that Ms Webling refused to allow the respondent access to bank records. Even if those allegations were true, they do not bear a rational connection with, or support, the allegation made by the respondent that Ms Webling “has been stealing” from Mr Warwick Lindsay;
- further, the respondent’s further email sent on 23 February 2021 to Mr Eaton at 6.25 pm repeated much of the substance of the email sent on 23 February 2021 at 5.13 am, but it, too, simply makes allegations which, if true, do not support the allegation made by the respondent that Ms Webling “has been stealing” from Mr Warwick Lindsay. There is no rational connection between allegations made in this email and the allegation that Ms Webling “has been stealing” from Mr Warwick Lindsay; and
- thirdly, and further, having been on notice of the charge and having failed to file any evidence disclosing that the respondent had a basis for making the allegation, it follows that the allegations were made without basis.
- The emails from the respondent claim that Mr Lindsay had the view that Ms Webling had been stealing from him. There is no evidence to the contrary. It is correct to say that the emails do not identify an evidentiary basis for concluding that Ms Webling had been stealing from Mr Lindsay (perhaps including his companies). They do, however, identify circumstances which might be regarded as consistent with this, and which are suspicious. They are that there were unpaid creditors; that Ms Webling claimed the creditors had been paid; Ms Webling had control of the accounts; and Ms Webling refused to show the respondent bank records confirming the payments. While the applicant has asserted that these matters do not support the allegation, and have no rational connection with it, the applicant has not sought to explain why this is so. The Tribunal does not consider the applicant’s assertion to be self-evidently correct. The Tribunal is therefore not prepared to conclude that making the allegations referred to in the discipline application amounted to misconduct.
- Mr Antony Eaton of Queensland Construction Legal was engaged by Mr Philip Lindsay when he was appointed as the administrator for Mr Warwick Lindsay for financial matters. It appears from an email from the respondent to Mr Eaton of 7 March 2021 that, by that time, she had submitted an invoice for work she claimed to have done on behalf of Mr Warwick Lindsay or, perhaps, one or more of his companies. Parts of the email which are quoted in the discipline application have been set out earlier in these reasons. Passages which were not quoted include a statement by Mr Eaton that communications about monies claimed from the company should be sent to Mr Philip Lindsay and Mr Adam Lindsay; and a refusal to take action with a view to having the respondent’s invoice paid.
- The charge also incorporates by reference earlier paragraphs of the discipline application. They include an extract of the respondent’s email of 6 February 2021 at 7.10 am; an extract from the respondent’s email to Mr Eaton at 2.13 pm on 25 February 2021; extracts from the email from the respondent to Mr Holt on 31 January 2021; extracts from the email from the respondent to Mr Adam Lindsay of 6 February 2021; extracts from the email from the respondent to SC-IPRA of 7 February 2021; extracts from the email from the respondent to Mr Holt of 8 February 2021; extracts from the email to Mr Adam Lindsay of 10 February 2021; and extracts from the emails from the respondent to Mr Eaton of 23 February 2021 and 5.13 am and 6.25 pm.
- The allegations in support of Charge 7 conclude with an allegation that the tenor and content of the respondent’s correspondence to members of the Lindsay family, Mr Eaton, employees of Magic Ezy and hospital staff caring for Mr Lindsay was unprofessional and was likely to a material degree to bring the legal profession into disrepute contrary to r 5.1 of the ASCR.
- The submissions from the applicant, without further explanation, assert that the tenor and content of the correspondence was unprofessional, and likely to a material degree to bring the legal profession into disrepute, contrary to r 5.1.2 of the ASCR.
- The extracts from the emails of 6 February 2021 at 7.10 am and 25 February 2021 at 2.13 pm contain assertions, some of which this Tribunal has not accepted. That however does not appear to have been relied upon by the applicant in support of Charge 7. Otherwise, there is no reason to think that the tenor and content of these extracts was unprofessional, or likely to a material degree to bring the legal profession into disrepute.
- The extracts from the email of 31 January 2021 relied upon in the discipline application contain assertion of authority, and instructions. The Tribunal has not accepted that the respondent had the authority which she asserted. That is the subject of Charge 4. If the respondent had the authority she asserted, there is no reason to think that the email would be regarded as unprofessional, or likely to bring the profession into disrepute. It is at best a circumstance of aggravation for the earlier charge. A finding against the respondent in respect of a separate charge based on this email is not appropriate.
- The extracts from the email of 6 February 2021 at 6.40 am to Mr Adam Lindsay amount to an entreaty to him to take steps to have his father released from hospital, together with a statement of the consequences which might follow if that does not occur. They do not amount to conduct which might be regarded as unprofessional, and likely to bring the legal profession into disrepute.
- In the extracts from the email of 7 February 2021 at 10.21 pm to SC-IPRA, the respondent asserted that she had performed a capacity check of Mr Warwick Lindsay, and queried his detention in hospital. They also contained some criticisms of employees of the businesses associated with Mr Warwick Lindsay, and some further queries relating to Mr Lindsay’s health. These matters do not amount to conduct which might be regarded as unprofessional and likely to bring the legal profession into disrepute. However, the extracts included a crude expression which might perhaps be regarded as in some sense unprofessional. While not to be encouraged, the use of such an expression on one occasion is unlikely to a material degree to bring the legal profession into disrepute. It does not warrant a finding of unsatisfactory professional conduct.
- The extracts from the email of 8 February 2021 at 9.57 am to Mr Holt may have been appropriate, if the respondent had the authority which she asserted. Her lack of authority has been dealt with, when discussing Charge 5. Otherwise, they are not such as to bring the profession into disrepute, or be regarded as unprofessional.
- A similar conclusion should be reached about the email of 10 February 2021 at 7.30 am.
- The extracts from the email to Mr Eaton of 23 February 2021 at 6.30 am, and the email that day at 6.25 pm, contain allegations about an employee of the business alleged in Charge 6 to be unsubstantiated. That has not been demonstrated by the applicant. If they were substantiated, then there is no reason to think that these extracts were unprofessional communications, and likely to bring the legal profession into disrepute.
- In essence, the email of 7 March 2021 contains a threat to complain against Mr Eaton to the LSC if Mr Eaton did not advise Mr Philip Lindsay to pay the account for changing the locks, and an account from SWL. There is also a suggestion of a threat to apply to have Mr Lindsay removed from his position of administrator for financial matters for Mr Warwick Lindsay.
- The applicant has not provided any submissions explaining why the email amounts to some form of misconduct. It may be accepted that the email contains mistaken criticism of the conduct of Mr Eaton; but that is not sufficient to constitute misconduct. The applicant has not attempted to demonstrate that a threat to report a solicitor to the LSC on a mistaken basis amounts to misconduct. The Tribunal is accordingly not prepared to find this charge made out.
- This charge is based on the following communications from the respondent:
(from an email from the respondent to Mr Michael Roessler, Director of Investigations at the LSC, of 29 May 2021 at 6.23 am):-
“You have no idea what the reality at See Well Law has been like since that raid and for my staff, my family and my children. Then the second raid – wow that left me with no computers all over Xmas….
If I am ever killed over the information taken from the raid (text messages and the like) – please Michael look after my family …”
(from an email from the respondent to Mr Roessler of 31 May 2021 at 12.54 pm):-
“I deny being involved in any illicit drug use.
Clients and the QLD Police and the Attorney General’s secretary’s husband as has other persons of notation at times have disclosed to me in the course of sought legal advice regarding their children’s drug use or their family members drug use...
You need to be held accountable for your actions. You have put national security at risk and you have put the lives and confidence of Judges, of mediators, of other solicitors and the general public at risk. Is it any wonder now that I am being bashed, beaten, stolen from, lied to and harassed when you have attacked the privacy of a law firm…
You need to stand up in front of the community and say sorry for exercising the law in an inappropriate way. You need to be ashamed of yourself and I hope you lose your job over your illegal activities…
… you need to be held accountable to the full extent of the law for your misuse of powers and breaches of the law…
The truth will come out, and that is going to set me free, and you all will be on the centrelink line looking for jobs and unemployable for bullying and harassment.”
(from an email from the respondent to Mr Roessler and others including the Queensland Attorney General, the Crime and Corruption Commission, the QLS, and the office of the Information Commissioner of 1 June 2021 at 9.00 am):-
Since you have harassed me in QCAT and then with the Raid, I have taken drugs I won’t lie.
I have taken so many pharmaceutical drugs that were prescribed to me because of the trauma you have placed on me that my family and friends are worried about my health. Pharmaceutical drugs can kill and do especially when mixed with Alcohol. They then become really toxic when you drink the night before and you don’t drink the next day – because the effects are not known but it is toxic. You gave me the drug problem and I have the medical evidence to prove it – when I have calculated and assessed the actual damage you have cause me and the community – then we can look at the compensation for the loss – as the true extent is not understood yet and won’t be until there is a LSC INQUEST…
DO YOU KNOW WHAT IS THE WORST THING ABOUT WHAT YOU HAVE DONE.
I have secretly helped a very very famous person in QLD with their child and their child’s drug problem…I helped this very very famous person’s son...
YOU ARE AN IDIOT AND YOU CAUSED ME TO TURN MY BACK ON A JUDGE.
I was at a conference and a judge came up to me and said Donna I need to talk to you about drugs. I thought this judge was trying to set me up. They said Donna, please here is my number call me I need to speak to you. I replied to them, I don’t do drugs (which other than the pharmacy drugs keep on being handed to me by my psychiatrists, supported by my psychologists and GPs and let’s not forget the Cartel Pharmacy groups) I said no.
The judge did call me and text me in confidence and asked me to contact their child. I again thought it was you setting me up. I never ever followed up the contact. That child is now dead. One of our colleague’s children are now dead because you made me too paranoid to call. You need to be ashamed of yourself. The child was around my age, I could have at least attempted to help, and get support and speak common sense, but I could not make that call because you made me paranoid.
You have so much blood on your hands after raiding my office. You have blood of the community. You have blood of our brother and sister lawyers. You have blood on my children, on me, and my mother and my sister (who people now hate us because of you and are scared for absolutely no reason other than you) and worse you seem to gloat about it like you were doing your job.
You need to get out of that Job Michael and on to the streets and start looking at what it is like to be a lawyer Michael. Those that can do and those that can’t teach. I do both I do and I teach. You have more than one piece of legislation to abide by and you have breached the solicitors code of conduct – you know the very piece of legislation that you are saying we need to have enforced – by breaching confidentiality…
When you raided my office – I was not scared of what you would find. You were there for a file you idiot. I had no drugs at my office and nothing to find on my phone or phones to incriminate ME or MY FAMILY. You are an IDIOT…
What did that raid cost the community. How much money was wasted that day. Have you told the tax payers of QLD how much money you have spent in bullying and harassing me? I think they deserve to know. I estimate having my own personal LSC officer and the raid and the multiple complaints about me that you tried to conspired with over at least 2 million dollars wasted. And after harassing me for 20 years – what have you found? That I have a big mouth and I will tell you exactly how it is. FUCK OFF I have nothing to hide and I am doing my job.
You made it look like a drug raid. You defamed me. You defamed my staff. You defamed my mother and you caused the community to feel unsafe and unwelcome. YOU SHOULD BE ASHAMED. GO AND LOOK AT YOURSELF IN THE MIRROR AND THINK ABOUT HOW I COULD HAVE HELPED THE JUDGES CHILD AND I THOUGHT YOU WERE SETTING ME UP AND NOW THAT JUDGES KID IS DEAD. Not too many Judges have a dead kid who died within the past 2 years – so it will be easy for you to work it out who I am speaking about. Call them and say sorry. But you won’t do that because last year you did kill a judge with your abuse – REMEMBER THAT JUDGE – you moved him and his family suddenly from North QLD to Brisbane, isolated him and then he killed himself – he drove his ute to the gap, left his phone, took off his shoes walked into the forrest [sic] probably on drugs – pharmies remember and died. No one speaks about how he died but I have not forgot.
Could you imagine the last days of his life. The last days of his life would have been hell on earth….
RESPECT. RESPECT. RESPECT.
You have no respect Legal Services Commissioner. You don’t abide by your own rules. You are not even lawyers – well most of you aren’t – and you have no idea what it is like to be a lawyer and you had no right to create fear in the community when the community already feared the police after shooting someone at the end of our street in our community not long before, and during these hard times Michael don’t laugh that you went through my phone as it is not funny and I hope you lose your job over it and if you don’t I want to know why. You were looking for a file. You left the file at my office. I never said I sent a text message but you read my text messages and you had no right to look at pictures of my boobs sent to my doctor after concerns of a cist. You are disgusting for even looking at my boobs and text messages.
Shame shame shame.
If there was not COVID right now and people were of sound mind, I would blab this story with all my evidence so loud and so clear to the community – but the reason I don’t is because people already hate the QLD Police after the recent exposure of woman being harassed or promoted without qualification and I don’t need to bring dispute into my community and I don’t need to make the community feel any more unsafe and scared then they already are.
So I suggest that we all have a very quick meeting in person meeting about how those text messages are deleted and anyone that has been charged is compensated quietly and you apologise to the Judge for killing her child and to the Judges children for killing their dad and my children for trying to kill me and we all get on with it like good colleagues and professional people and you stop harassing me and other lawyers and the attorney general shuts you down and shuts down the issues as the Legal Services Commission in QLD is a big fat waste of money and with our county in debt you need to go – we need to save money – and the QLS can go back and look after us like they used too.”
(from an email from respondent to Mr Roessler and others including the Attorney-General for the State of Queensland, Mr Ray Hadley, the 4BC Breakfast Program, the QLS, with the subject line of “IS THE LEGAL SERVICES COMMISSIONER HAPPY NOW” of 26 July 2021 at 12.01 pm):-
I want to know is the legal services commissioner and all staff at the LSC office happy that they publicly vilified me and my children and effectively are about to have my children and I homeless.
I am one of the most qualified people in this entire country. Almost been admitted 20 years. I have no criminal history and certainly I am not a criminal (I am a hard working single mother) but you come to my business and attack me and destroy my business and my family and my ability to earn an income.
I want to know ARE YOU HAPPY.
I am about to make an application for centrelink, cause I earned $16,000 for my two children and I to live on, the bank is about to foreclose on my house and they have already issued demands. You can support me on centrelink. ARE YOU HAPPY. Is this what you wanted? To take one of Australia’s most qualified people and make me unemployable. ARE YOU HAPPY?
Why don’t you tell channel 9 how much you spent on this raid and what you intend to do with it.
You let a paedophile practice in law and I have no criminal history and you did this to me. WHY? ARE YOU HAPPY.”
- The charge alleges that by these communications, the respondent corresponded with the LSC in a manner that would demonstrate that she is not a fit and proper person to practise law. It also alleges that the correspondence, which was specifically directed to officers of the LSC:-
“8.12.1 included statements that were offensive, provocative and/or unfounded;
8.12.2 in tone and content, was discourteous, erratic, offensive and/or unprofessional;
8.12.3 was not in accordance with (the respondent’s) professional obligations, including when dealing with a regulatory authority;
8.12.4 was likely, to a material degree, to bring the profession into disrepute in breach of rule 5.1.2 of the ASCR; and
8.12.5 was in breach of her duty to be courteous in all dealings in the course of legal practice, in breach of rule 4.1.2 of the ASCR.”
- In her August 2023 submissions, the applicant identified statements alleged to be offensive and provocative. They were, from the email of 31 May 2021, the 3rd (“you need to be held accountable…"), 4th, 5th, and 6th paragraphs from the extract previously set out; and, from the email of 1 June 2021 at 9.00 am, the 6th (commencing “YOU ARE AN IDIOT…"), 9th, 12th, part of the 13th (“…last year you did kill a judge with your abuse…"), 18th and 19th paragraphs from the quotation set out earlier.
- It was submitted that the statements quoted from the email of 31 May 2021 were offensive and provocative because:-
- they assert without foundation that the applicant needs “be held accountable for your actions”;
- they assert without foundation that the applicant “put national security at risk and … put the lives and confidence of Judges, of mediators, of other solicitors and the general public at risk”;
- they call on the applicant to “stand up in front of the community and say sorry for exercising the law in an inappropriate way” where there was no foundation for such statements;
- they assert without foundation that the applicant needs “to be held accountable to the full extent of the law for your misuse of powers and breaches of the law”; and
- they threaten the applicant that “[t]he truth will come out, and that is going to set me free, and you all will be on the Centrelink line looking for jobs and unemployable for bullying and harassment”.
- It was submitted the statements from the respondent's email of 1 June 2021 were offensive and provocative because:-
- they assert without foundation that Mr Roessler “was an idiot”;
- they assert without foundation that Mr Roessler caused the respondent “to turn [her] back on a Judge”;
- they assert without foundation that Mr Roessler has “blood on [his] hands after raiding my office”;
- they assert without foundation that Mr Roessler wasted public money and should “fuck off”;
- they assert without foundation that Mr Roessler “kill[ed] a judge with [his] abuse”;
- the respondent threatened the applicant to “blab this story with all my evidence”; and
- they called on the applicant to “apologise to the Judge for killing her child and to the Judges children for killing their dad and my children for trying to kill me”.
- It will be apparent from the applicant's August 2023 submissions that the statements are generally alleged to be unfounded, taken with the characterisations just set out.
- The following passage from the email of the respondent to Mr Roessler on 29 May 2021 at 6.23 am is also alleged to be unfounded:-
“If I am ever killed over the information taken from the raid (text messages and the like) – please Michael look after my family…"
- It is alleged that the statement should be regarded as unfounded because:-
- the respondent’s email sent to Mr Roessler on 29 May 2021 at 6.23 am does not identify any evidentiary basis for the allegation that the respondent may be “killed over the information taken from the raid”; and
- there is no rational connection with, or support for, the allegation contained in the assertions and allegations made elsewhere in the email sent to Mr Roessler on 29 May 2021 at 6.23 am and the allegation that the respondent may be “killed over the information taken from the raid”.
- It is also contended that the tone of the correspondence in the statements specifically identified was discourteous, erratic, offensive or unprofessional, because the language in the statements of the respondent:-
- accused Mr Roessler and the applicant of criminal conduct without basis;
- abused Mr Roessler and the applicant;
- threatened Mr Roessler and the applicant; and
- used insulting, offensive and profane language in conveying the accusations, abuse and threats.
- It was submitted that the language was similar to the insulting, offensive and profane language found in Legal Services Commissioner v Baker to demonstrate a high degree of unprofessional conduct. The respondent's conduct was submitted to be worse, because it included baseless allegations that Mr Roessler and the present applicant committed criminal offences.
- It was also submitted that the conduct was in breach of rule 5.1.1 of the ASCR, which states that a solicitor must not engage in conduct which demonstrates that the solicitor is not a proper fit and proper person to practise law, or which is likely to a material degree be prejudicial to, or diminish the public confidence in, the administration of justice.
- There is some brief background which is relevant. On 22 February 2019, the LSC executed a search warrant at the premises of SWL at Tewantin. Material was downloaded from the servers and telephones, which was held by McGrathNicol, a company which provides IT services, engaged by the LSC for that purpose. As a result, some of the information, being related to a person named David Adams, and copies of all text messages that were on the respondent’s mobile phone as at 22 February 2019, were provided to the LSC.
- On 21 May 2021, the LSC published a complaint by Mr Eaton, dealing with matters related to Charges 2 to 7. On 26 May 2021, the respondent left a telephone message with the Commission, stating she did not understand the complaint, and requesting a meeting with the Commissioner. That request was refused, but an offer was made by Mr Roessler to meet (along with another member of the staff of the LSC) the respondent to clarify any issues, in his email of 27 May 2021 at 5.12 pm. Mr Roessler also recommended that the respondent take advice from one of the panel of lawyers provided by the QLS.
- The respondent replied within five minutes, asking Mr Roessler to state if he had access to the SWL servers and phones that were “downloaded and backed up during the raid." In reply, Mr Roessler advised that the material had been downloaded and dealt with in the way stated earlier in these reasons. In her reply of 29 May 2021, at 6.23 am, the respondent said to Mr Roessler that he had no right “to take or read my text messages or my mum's text messages. That is a breach of privacy. So is that of my employees who were present at the time”.
- Mr Roessler responded by an email dated 31 May 2021 at 11.42 am. He stated that s 705 of the Legal Profession Act 2007 (Qld) (“the LP Act”) made it an offence for any person to disclose information obtained in the administration of that Act, unless permitted to do so for the reasons set out in that section. The LSC had not released any of the information obtained in the warrant, other than to the QPS. Text messages provided to that service contained references to what appeared to be illicit drug usage, the provision being in accordance with s 706 of the LP Act. Mr Roessler also stated that the LSC was not involved in what the respondent had described as “the second raid". That resulted in the email of 31 May 2021 at 12.54 pm, a part of which has been extracted earlier in these reasons.
- The respondent sent a further response to Mr Roessler's email of 31 May 2021, by an email of 1 June 2021 at 9.00 am. A part of that too has been extracted earlier in these reasons. The email of 26 July 2021, previously quoted, is the final email relied upon by the applicant in connection with this charge.
- It seems to me that the present applicant, the LSC as an institution, and members of its staff, are in a position analogous to that of officials of the Law Society referred to in Ellis, and that a degree of robustness is expected in the face of criticism, and even intemperate or abusive comments. However, there will be cases where such comments will amount to misconduct.
- Beyond statements that the behaviour of the solicitor in that case could never be regarded as acceptable, and was bound to bring the profession into disrepute, Baker provides little assistance in determining whether offensive conduct amounts to some form of misconduct. As was identified in Griffin, fuller explanation is required.
- In the applicant’s August 2023 submissions, the applicant contended that the passage in the email of 29 May 2021 in which the applicant says she might be killed contains an unfounded allegation, namely, that the execution of the search warrant might result in the respondent being killed. It was submitted that this was an unfounded allegation, because the respondent did not identify any evidentiary basis for it, and there was no rational connection between it and other allegations in the email.
- In his emails of 28 and 31 May, Mr Roessler stated that the only information obtained as a result of the search warrant which was released was information referring to illegal drug use. He was not cross-examined to suggest this was untrue. His statements are likely to be correct, and have been accepted by the Tribunal.
- The unarticulated propositions in the applicant’s argument appear to be that the email implies that information obtained from the execution of the search warrant, which the respondent has associated with Mr Roessler, might result in the respondent’s death, presumably because of the release of that information. The passage relied upon by the applicant appears after lengthy complaints by the respondent about matters associated with the execution of search warrants, including the illegal taking of information. Although not particularly clear, the Tribunal considers that those propositions are established by the material. What occurred does not provide a basis for the respondent’s assertions. The Tribunal finds that the respondent made the assertion without foundation.
- The applicant did not make submissions explaining why the other passages from the email of 29 May 2021 extracted in the discipline application should be characterised in the ways therein alleged. They will be ignored.
- In the applicant’s August 2023 submissions, the applicant contended that identified passages from the email of 31 May 2021 made assertions about the applicant. That is a curious position to take. The assertions relate to the person addressed in the email, Mr Roessler. It is proposed to deal with the submissions on that basis. This is not unfair to the respondent. It must be obvious to her that the passages refer to Mr Roessler; and that the applicant’s submissions apply with equal force whether the passages relate to Mr Roessler or the applicant.
- Prior to the statement in the email of 31 May that, “You need to be held accountable for your actions” the respondent made a number of allegations about Mr Roessler. They included an allegation that he read text messages which he had no legal right to read (there appears to be an implied assertion that text messages were downloaded beyond those which were the subject of the search warrant, arguably based on the language of Mr Roessler’s email of 28 May at 2.14 pm). They also included an allegation that Mr Roessler stole phones and computers, which appears to amount to an allegation that property was taken beyond the scope of the search warrant. The applicant has not attempted to demonstrate that the statement was referring to other conduct. Nor has the applicant attempted to show that the respondent had no foundation for them. On the basis of the material put before it by the applicant, the Tribunal is not prepared to find that the respondent made the statement that Mr Roessler should be held accountable for his actions without foundation.
- The respondent has not clearly identified any basis for the statements that Mr Roessler’s conduct put national security at risk and lives and the public at risk. There may be a suggestion that these risks were the result of material obtained as a result of the execution of the search warrant being released, resulting in the risks alleged. The Tribunal has already accepted that the only information released was the information suggesting illegal drug-related activity, information released to the QPS. What occurred does not provide a basis for the respondent’s assertions. The assertions in the email are also highly improbable. In those circumstances, the Tribunal finds these assertions were made without foundation.
- The assertion that Mr Roessler engaged in bullying and harassment appears to relate to all of the conduct which it is alleged in the email that Mr Roessler engaged in. To the extent that it has been found that these allegations are without foundation, the allegation of bullying and harassment is without foundation.
- The assertions that Mr Roessler needs to say sorry and that he needs to be held accountable are consequential on the other assertions. They are without foundation to the extent that they are based on assertions which are without foundation.
- The email of 1 June states that a judge approached the respondent to ask for help with a child who was a drug addict; the respondent refused; and the child subsequently died. The email also asserts that the respondent believed that the judge was engaging in entrapment (apparently trying to get evidence that the respondent was involved in illegal drug-related activity); this was at the behest of Mr Roessler; it was the reason why the respondent did not help the judge; and accordingly Mr Roessler caused the death of the judge’s child. It is, at least in part, the basis for the assertion that Mr Roessler has blood on his hands; and the assertion that Mr Roessler is an idiot is associated with it.
- The assertions that a judge would engage in entrapment, and that this was at Mr Roessler’s behest, are so improbable that they should be presumed to be without foundation, unless some genuine basis is identified. The respondent has not attempted to do this. The Tribunal finds the assertions were made without foundation. So were the related assertions that Mr Roessler caused the respondent to turn her back on a judge; that Mr Roessler caused the death of a child of a judge; and that he has blood on his hands. It also follows that the statement that Mr Roessler is an idiot was made without foundation.
- Even more improbable are the assertions that Mr Roessler caused the death of another judge, and that he was trying to kill the respondent. They are similarly found to be without foundation.
- The applicant has not identified why she contends that there is no foundation for the allegation that Mr Roessler wasted public money, apparently in relation to the execution of the search warrant. There is very little evidence to show what occurred, and not enough to demonstrate that the allegation is without foundation. The Tribunal is not prepared to so find.
- In context, the statement that the respondent would “blab this story” was a statement that, if circumstances were different, the respondent would have sought greater publicity for her allegations. The applicant has characterised this as a threat, but that does not seem correct. The applicant has not identified any other vice with this statement. It will not be taken into account.
- The Tribunal has found that a number of assertions made by the respondent were without foundation. They all accuse Mr Roessler of conduct which was wrongful, often seriously so. They are for that reason offensive.
- It is obvious that the statements relied upon by the applicant were discourteous. They may also, at least in most cases, be regarded as provocative. These characterisations, however, add nothing to the finding that the statements were offensive. It may also be said that the statements were erratic, particularly since they were made without foundation; and were also unprofessional.
- The respondent made a number of serious allegations against Mr Roessler, without foundation. They were plainly offensive. They were made against an officer of the LSC in connection with the performance of his office. They were extensively published. The Tribunal finds that the respondent’s conduct amounted to professional misconduct.
- No explanation has been proffered by the respondent for her conduct. She has made serious allegations against a member of the judiciary which she must have known to be untrue. She has made similar allegations against other members of the legal profession, and against a former client. She has made an unfounded attack on an officer of the LSC. She has interfered in the operation of the business of a former client, relying on authority which she did not have.
- It is possible that the respondent is affected by a mental condition. There is no evidence of that before the Tribunal, or at least of a mental condition which might be thought to provide some explanation for her conduct. If such evidence had been proffered, it would have been necessary to determine the extent, if any, to which it might have explained her conduct.
- In the circumstances, an order should be made recommending that the name of the respondent be removed from the local roll.
- The respondent should also be ordered to pay the applicant's costs of and incidental to this application, to be assessed on a standard basis in the manner that costs would be assessed if the matter were a matter in the Supreme Court of Queensland.
 See, for example, her email of 15 June 2023 at 10.11 am: exhibit 19. She has sent subsequent correspondence to the Tribunal, but has not made any application to have further material relied upon for the hearing of the application.
 See the exhibits to the affidavit of Thea Marilyn Johnson (“TMJ”) pp 113–122.
 See TMJ exhibits p 224.
 See TMJ exhibits p 128.
 See TMJ exhibits p 132; see also pp 113–129.
 See TMJ exhibits p 131.
 See TMJ exhibits p 132.
 TMJ exhibits pp 139–140.
 See TMJ exhibits p 148.
 See TMJ exhibits p 134.
 The subsequent history of the dealings between Ms Barclay and SWL appears primarily in the reasons for judgment of Cash DCJ in See Well Law Practice Pty Ltd v Barclay  QDC 114, found at TMJ exhibits p 80, commencing at para . Other evidentiary sources will be specifically identified.
 See TMJ exhibits pp 145–146.
 TMJ exhibits pp 199–207.
 A copy of the Notice of Appeal is at TMJ exhibits p 208.
 TMJ exhibits pp 80ff.
 See TMJ exhibits p 39.
 TMJ exhibits pp 85–86; but compare p 81 para .
 TMJ exhibits p 81 para .
 TMJ exhibits p 53.
 TMJ exhibits p 84 para  and p 85 para .
 There is at least a suggestion in the submissions from the respondent on the costs of the application for leave, that she was aware than an order for costs was sought against her: TMJ exhibits pp 223f.
 TMJ exhibits p 83 para .
 TMJ exhibits pp 81–82 para .
 TMJ exhibits p 84 paras  and .
 See TMJ para .
 See Halsbury’s Laws of Australia para [15-565], Lexis Advance Research online, consulted 29 August 2023.
 TMJ exhibits p 50.
 TMJ exhibits p 82.
 TMJ exhibits p 79.
 See TMJ exhibits p 82.
 TMJ exhibits p 177.
 TMJ exhibits p 107.
 See TMJ exhibits pp 148–149.
 See TMJ exhibits p 106.
 See TMJ exhibits pp 131–132.
 See TMJ exhibits p 139.
 TMJ exhibits p 249.
 TMJ exhibits pp 226, 228.
 TMJ exhibits p 259.
 TMJ exhibits pp 258–259.
 TMJ exhibits pp 267–268.
 TMJ exhibits p 266.
  AC 322, 335.
  NSWCA 364, at –.
 See the exhibits to the affidavit of Anthony Mark Eaton sworn 28 January 2022 (“AME”) p 15.
 AME exhibits p 13.
 AME exhibits p 16.
 AME exhibits p 17.
 AME exhibits p 20.
 AME exhibits p 21.
 AME exhibits p 40.
 AME exhibits p 23.
 AME exhibits pp 25–28.
 AME exhibits pp 44–45; see also AME para .
 AME exhibits pp 44–45.
 AME exhibits p 29.
 AME exhibits p 56.
 AME exhibits p 68.
 AME para .
 AME exhibits p 64.
 AME exhibits p 31.
 AME exhibits p 33.
 AME exhibits p 33.
 AME exhibits pp 36–37.
 See the Applicant’s Submissions filed on 28 October 2022 at para ; see also Transcript of Hearing of 27 June 2023 p 1-58, line 15.
 See AME exhibits p 29.
 See the Applicant’s Written Submissions filed on 28 October 2022, paras ,  and .
 Transcript 23 June 2023 pp 58–62.
 See the respondent’s email of 31 January 2021; her email of 7 February 2021 at 10.21 pm to SC-IPRA; her email of 8 February 2021 at 9.57 am to Mr Holt; her email of 10 February 2021 at 7.30 am to Mr Adam Lindsay.
 AME exhibits p 41.
 AME exhibits p 40.
 AME exhibits p 57.
 AME exhibits p 20.
 AME exhibits pp 58–59.
 AME exhibits pp 64–67.
 AME exhibits p 89.
 See the exhibits to the affidavit of Michael Leo Roessler filed 9 May 2022 (“MLR”) p 8.
 MLR exhibits p 20.
 MLR exhibits p 28.
 MLR exhibits p 38.
  LPT 002 at –.
 See MLR exhibits p 5.
 The date is alleged in the discipline application. It does not appear to be established by the evidence but is consistent with the chronology. The complaint was described as “recently published" in Mr Roessler’s email of 27 May 2021: MLR exhibits p 3.
 MLR exhibits p 1.
 MLR exhibits p 2.
 MLR exhibits p 5.
 MLR exhibits p 8.
 MLR exhibits p 21.
 MLR exhibits p 28.
- Published Case Name:
Legal Services Commissioner v Sewell (No 2)
- Shortened Case Name:
Legal Services Commissioner v Sewell (No 2)
 QCAT 374
Hon Peter Lyons KC
17 Nov 2023