Furlong v Wise & Young Pty Ltd

Background

1. The first and only active plaintiff, Ms Furlong, is the registered proprietor of a property at The Hill.
2. Ms Furlong seeks the removal of caveats lodged by each of the Companies on the title of the property.
3. The Companies claim to have an interest in the property by reason of a mortgage dated 30 October 2014, a Deed of Loan and Guarantee dated 25 November 2015 and a series of documents called "Appointment Letters and Costs Agreement" dated 1 January 2014.
4. Ms Furlong alleges that signatures on those documents purporting to be hers, and that of Mr Leishman are forgeries.
5. I am managing the proceedings as Expedition Judge. The proceedings are now fixed for hearing in the week commencing 1 August 2016.
6. As early as 4 December 2015, Mr Foley foreshadowed that the Companies proposed to bring a cross-claim. Following filing and service of Ms Furlong's statement of claim on 18 March 2016, I directed that the Companies serve a defence and any cross-claim by 31 March 2016. No cross-claim was filed pursuant to that order. On 1 April 2016 I directed the Companies to circulate any proposed cross-claim by 7 April 2016. That did not happen. On 8 April 2016 I extended the time for the Companies to circulate a form of cross-claim to 13 April 2016. None was circulated. On 22 April 2016 I extended the time again to 26 April 2016 and ordered the Companies to pay Ms Furlong's costs of 1, 8 and 22 April 2016 which I determined pursuant to s 98(4) of the Act to be $1,500.00
7. On 26 April 2016, Mr Foley circulated a proposed form of cross-claim, which I marked MFI 1.
8. On 29 April 2016, by reason of the particular allegations set forth in the cross-claim said to provide a basis for the allegation of conspiracy, I refused the Companies leave to file the cross-claim, ordered that Mr Foley show cause why he should not personally pay the costs incurred by the prospective cross-defendants in relation to the cross-claim, and directed Mr Foley to circulate any further proposed cross-claim by 3 May 2016.
9. On 3 May 2016, Mr Foley circulated a further form of cross-claim (which I marked MFI 2) which differed in some respects from the 26 April 2016 draft but, in substance, repeated the allegations of conspiracy, and the related underlying allegations.
10. Mr Foley also provided brief submissions which did not grapple with the substance of the concerns I expressed on 29 April 2016 concerning cross-claim MFI 1.
11. I dealt with the Companies' application to file cross-claim MFI 2 on 6 May 2016.
12. On that occasion Mr Auld of counsel appeared for the prospective cross-defendants. Mr Auld made written and oral submissions.
13. I was so concerned about the nature of the allegations made in the proposed cross-claim that I questioned Mr Foley closely as to the basis upon which the allegations were made.
14. I shall return below to Mr Foley's response to some of my enquiries.
15. I refused the Companies leave to file the proposed cross-claim, directed Mr Foley to show cause for the purpose of s 99 of the Act why he should not pay the costs occasioned by the proposed cross-defendants in relation to both the forms of cross-claim (MFI 1 and MFI 2) and why those costs should not be assessed under s 98(4) of the Act at the figures referred to in an affidavit sworn by Mr Ekes on 5 May 2016.
16. On 11 May 2016 Mr Foley provided written submissions in relation to those matters.
17. When the matter was before me again on 13 May 2016, I invited Mr Foley to make such further submissions about these matters as he thought appropriate. He did so. Having heard those submissions, I reserved my decision.

The allegations in the cross-claim and Mr Foley's purported justification of them

1. The proposed cross-claim contains 109 paragraphs and is over 40 pages in length.
2. The document contains many pleading infelicities, the most egregious of which are contained in the allegations of civil conspiracy.
3. The critical allegation is that each of the cross-defendants, apart from Mrs Leishman, "wrongfully and maliciously conspired and combined together to cheat, defraud, injure and damage the [Companies] and each of them using lawful and unlawful means".

The allegation of theft

1. The starting point of the conspiracy pleading is an allegation that Ms Furlong and Mr Mark Leishman knew that the certificate of title to The Hill property was in the possession of one of the Companies, Wise & Young Pty Limited (par 83A).
2. It is then pleaded that Mr Leishman "had access" to the Companies' office and documents (par 83B and 83C).
3. That pleading is in the passive voice and fails to state what facts are relied upon to support the conclusion that Mr Leishman "had access" to the Companies' office.
4. There is then incorporated into the conspiracy pleading (at par 83F) earlier paragraphs (pars 53 and 60) which allege that certain loan security documentation and a mortgage securing a particular loan "were stolen" by Mr Leishman from the Companies' office.
5. Again, the passive voice is used. At the very least, the Companies must plead the facts on which they rely to make this very serious allegation. The bald assertion that the documents "were stolen" by Mr Leishman is not sufficient.
6. On 6 May 2016, I asked Mr Foley upon what basis that allegation was made.
7. We had the following exchange: "HIS HONOUR: Look at 53. On what basis do you say that? FOLEY: Well they are not there. They have walked out of the office. They have not grown legs and walked out. They have been stolen. HIS HONOUR: But, Mr Foley, you're accusing the second plaintiff-- FOLEY: It is not me, your Honour, it is my client who is quite happy to make these allegations and support them. He believes that that is what has happened. Indeed in a similar matter-- HIS HONOUR: But you're the solicitor. How can you put a pleading on that someone has stolen a document when all your instructions are, is this right, that the document is no longer there? FOLEY: Not only is it no longer there, it is believed to have been stolen. HIS HONOUR: On what basis? FOLEY: He has walked out with the documents. HIS HONOUR: But how do you know that? How does your client know that? FOLEY: Because they are not there now. HIS HONOUR: It does not follow. FOLEY: It does follow when you look at all these matters. HIS HONOUR: This is a problem with the way you're conducting this case. Your client says to you, well I reckon Mr Leishman stole the documents because they are not there but does he say that he saw Mr Leishman take the documents? FOLEY: No. HIS HONOUR: So at the hearing if I was to allow this how would you prove it? FOLEY: He tells me the video surveillance of the office was turned off on that day when he believes the documents were taken. HIS HONOUR: That is not - how can you, as a solicitor, put on a pleading alleging that someone has engaged in dishonesty when all your instructions are are that the document is not there and I reckon, the client says, he stole it? How can you do that? FOLEY: Your Honour, if you look at-- HIS HONOUR: Can't you see that? FOLEY: But you have got to look at it in the context of everything that has happened."
8. In his submissions of 11 May 2016 Mr Foley said about this matter: "I am confused about the pleading of civil conspiracy in the Supreme Court. When I look at the overt facts and other matters pleaded in the draft Cross-Claim I can only see that they are all pertinent to this matter. There is an allegation that Mr Mark Leishman stole the Defendants' loan security documentation from Mr Dimitriou's office. That is made quite openly and I am again urged to do so by Mr Dimitriou. Indeed, I am urged by Mr Dimitriou to make all the allegations contained in the pleading.
9. The fact that Mr Dimitriou "urged" Mr Foley to plead that Mr Leishman stole the documents does not itself provide a sound basis for Mr Foley to propound a pleading to that effect.
10. The other material available to Mr Foley to justify an allegation that Mr Mark Leishman stole the documents in question appears to be that (a) Mr Leishman somehow "had access" to the relevant premises, (b) the documents are no longer present at the premises, and (c) that someone turned off the video surveillance at the premises on the day in question.
11. Mr Foley should give serious consideration to whether those facts, if pleaded, provide a sound basis on which to make the allegation.

The allegation of false swearing of statutory declarations

1. The next matter is even more problematic.
2. In pars 83H and 83I it is alleged that Ms Furlong and Mr Leishman falsely swore, in two statutory declarations, that they were unable to find the certificate of title to the property and that the certificate of title was not held by any corporation as security for a loan. Evidently, the basis for the allegation of falsity is the earlier allegation that Ms Furlong and Mr Leishman knew the certificate of title was in the possession of Wise & Young.
3. The cross-claim then alleges (in par 83G) that Mr Ekes "knowingly prepared the two false Statutory Declarations".
4. On 6 May 2016, I asked Mr Foley about this pleading: "HIS HONOUR: … Now [in par 83G] at p 22, you're pleading here that the solicitor knowingly prepared two false statutory declarations. See if [I can] understand this. The statutory declarations are said to be false, are they, because the persons who swore them or made them said that they had [mislaid]…the certificate of title and that the certificate of title was not held by any person as security? FOLEY: That is correct and they are set out in the next two paragraphs, the particular parts we say are wrong. HIS HONOUR: But you say the solicitor knowingly prepared false statutory declarations. Are you accusing him of knowing that the statements that his clients made were false? FOLEY: Yes, your Honour. HIS HONOUR: On what basis? FOLEY: Again on my instructions, your Honour. HIS HONOUR: No, that is not enough. You're accusing…this solicitor of…preparing a statutory declaration containing what he knew to be a false statement and then arranging for his clients to swear what they and he knew to be a false statement? FOLEY: Exactly. HIS HONOUR: On what basis do you say that apart from being that is what your client reckons? FOLEY: Well, your Honour, you have to look at it again in the actual whole context of this. HIS HONOUR: I don't know what that means. FOLEY: There is an application put on to issue new certificates of title when certainly these people are aware that my client has the actual certificate of title in his possession. HIS HONOUR: That is a very serious allegation but why does it follow that the solicitor knew of their alleged misconduct? FOLEY: Can we just keep going? We can come back to this because-- HIS HONOUR: If there is nothing more you can say I cannot see on what basis you can make the allegation…".
5. In his submissions of 11 May 2016, Mr Foley said about this matter: "[P]aragraph 83G (found on page 22 of the proposed cross-claim) makes an allegation that a solicitor 'knowingly prepared…false statutory declarations'. Well now who has drafted those statutory declarations, Ms Furlong, Mark Leishman? No, then it must be the Solicitor. Are they false? Certainly they are. Did he do it knowingly? When coupled with all the other complaints and matters that together make up this pleading then he must be held to have drafted them knowingly - it is the only logical conclusion."
6. Thus, what is being alleged is that Mr Ekes prepared statutory declarations that he knew to contain false statements and arranged for Ms Furlong and Mr Leishman to swear to their truth. That is as serious an allegation of professional misconduct against a solicitor as can be imagined. Based on what Mr Foley told me, I see no basis for it. It is most certainly not the "only logical conclusion" to be drawn from the alleged fact (if it is a fact; I make no finding about the matter) that the statutory declaration does contain false statements.
7. Mr Foley had no proper basis to make this allegation. The fact that he had instructions to do so is not sufficient. In these circumstances the allegation should not have been made.
8. The cross-claim then contains the following allegation: "[Mr Ekes], on behalf of [Ms Furlong] and [Mr Leishman] knowingly prepared a fraudulent Application for a replacement Certificate of Title for The Hill Property containing the two false Statutory Declarations referred to in sub-paragraphs H and I above." [At par 83J]
9. The implication of what is being alleged here is that, knowing that the statutory declarations were false, Mr Ekes used them to prepare an application to Land and Property Information ("LPI") for a replacement certificate of title.
10. Mr Foley made clear in his submissions of 11 May 2016 that this is what is being alleged. He said: "[W]ho then was the mastermind behind the million dollar plus fraud that is involved in this matter? Let's face that question squarely. Is it Mrs Leishman (Furlong). No I doubt it. Is it Mark Leishman. It possibly could be, but not likely. Or is it somebody who knows their way around the various practices of the [LPI] and dealing with various title documents so to enable them to avoid the obvious hurdles required to obtain an unencumbered certificate of title on the basis of a lost previous title."
11. Mr Foley's reference to there being a "mastermind" appears to relate to the allegation that the statutory declarations contain false statements (a matter about which, I emphasise, I have formed no view and make no findings) and that someone had the idea of using them to obtain a duplicate certificate of title to the property. Evidently, Mr Foley's own opinion is that he doubts this was Ms Furlong's or Mr Leishman's idea. Mr Foley has not revealed what basis he has for that opinion. Mr Foley seems to have a hunch that Mr Ekes was the "mastermind". Evidently, the "somebody who knows their way around the various practices of the [LPI]" to whom Mr Foley is referring here is Mr Ekes. This is not a proper basis to make such a grievous allegation. It should not have been made. That Mr Foley was prepared to make it reveals a serious error of judgment on his part.

The allegation of forgery

1. Later in the cross-claim, this allegation is made: "The Affidavits of [Ms Furlong] and [Mr Leishman] for use in these proceedings were prepared by [Mr Ekes]. The Affidavits of [Ms Furlong] and [Mr Leishman] were sworn on 4 November 2015 before [Mr Ekes]. The Cross-Claimants say that signature of [Ms Furlong] on her Affidavit is not that of [Ms Furlong]." [At par 83Z]
2. The implication of this allegation is striking. In effect, it is that Mr Ekes purported to witness what appears to be Ms Furlong's signature to an affidavit, knowing the signature was not hers. Again, that is a grave allegation to make.
3. In relation to that paragraph, I had this exchange with Mr Foley on 6 May 2016: "HIS HONOUR: … What you're saying there is that the solicitor prepared the affidavits for Ms Furlong and her husband and that the signature, is this right, purporting to be that of Ms Furlong is not her actual signature? FOLEY: That is correct. HIS HONOUR: On what basis do you say that? FOLEY: It does not appear to be her signature. My client has in his possession other documents which he believes the second plaintiff, Mr Leishman, has signed on her behalf. HIS HONOUR: Do you have a handwriting expert? FOLEY: Not yet, your Honour. HIS HONOUR: How can you make that allegation? Is your client a handwriting expert, is he? FOLEY: No, your Honour, but if you do look at the signatures-- HIS HONOUR: Worse still you plead here, is this right, that the witness to Ms Furlong's signature is the [solicitor]? FOLEY: Are we talking about the affidavit? HIS HONOUR: Yes, [83]Z. FOLEY: Yes. HIS HONOUR: Alexander Pope spoke of someone who was willing to wound, yet afraid to strike and that is what is happening here. The implication of this paragraph is that the solicitor must have known that the person who signed as Ms Furlong was not Ms Furlong. FOLEY: Yes, your Honour, and we believe, though it is not stated, we believe it was her husband who signed. HIS HONOUR: But the implication which you don't plead here is that the solicitor witnessed the signature of a person purporting to be Ms Furlong when the person who signed it was not Ms Furlong. FOLEY: That is what I attempted to say in that paragraph. HIS HONOUR: That is a very serious allegation to make. FOLEY: I understand that, your Honour. HIS HONOUR: If you ever make an allegation of such gravity you can't hide it. FOLEY: I am not trying to hide it. It may be my inability to properly express it."
4. At the very least, if the Companies propose to allege that the signature on the affidavit purporting to be that of Ms Furlong is not hers, coupled with the allegation that the affidavit was prepared by and attested to by Mr Ekes, they should face up to the implications of that allegation. In its current form, it is scandalous.

The allegation of "ploy to defraud"

1. Finally the cross-claim makes this allegation: "[83]AC. On 10th November 2015 [Ms Furlong] and [Mr Leishman]'s Counsel claimed before this Honourable Court, constituted by Mr Justice Darke, that [Mr Gilbert Leishman] would be prepared to accept a ridiculous amount of $284,456.82 to remove his Caveat. AD. In support of that ridiculous claim by [Mr Gilbert Leishman] [Mr Ekes] propounded an unsigned Affidavit of [Mr Gilbert Leishman] bearing the date 10th November 2015. No sworn copy of that Affidavit has ever been provided to the Cross-Claimants. AE. The claim made by [Mr Gilbert Leishman] that he intended to take possession of The Hill Property if he is not repaid various sums of money was part of the ploy to defraud [Wise & Young]; especially as it can be shown that virtually no money is owed to [Mr Gilbert Leishman] pursuant to that Deed of Subrogation and the alleged loan, which is fictitious."
2. These paragraphs seem to claim that Mr Gilbert Leishman somehow "propounded an unsigned affidavit" as a part of some "ploy" to defraud Wise & Young. Whether that "ploy" was part of the alleged conspiracy is not explained.

Consideration

1. The proposed cross-claim does not set out facts which could justify the allegations of theft made against Mr Mark Leishman (see [35 ff] above) nor the allegations of a "ploy" made against Mr Gilbert Leishman (see [58] above).
2. Based on what is stated in the proposed cross-claim, and what Mr Foley said in court and in his written submissions, I see no basis at all for the grievous allegations made against Mr Ekes. Those allegations should not have been made.
3. There was no proper basis for Mr Foley to advance those allegations on behalf of the Companies. The fact that Mr Dimitriou "urged" him to do so does not provide any such basis.
4. It is part of the duty of legal practitioners to exercise restraint in relation to allegations of fraud and serious misconduct.
5. Thus, the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) provide: "21.4 A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that: 21.4.1 available material by which the allegation could be supported provides a proper basis for it, and 21.4.2 the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out."
6. There is a corresponding rule in the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW): r 65.
7. Section 99 of the Act provides, relevantly: "(1) This section applies if it appears to the court that costs have been incurred: (a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or (b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible. (2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following: … (b) it may, by order, direct the legal practitioner: ... (ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs. (c) it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party."
8. As is well known, the "overriding purpose" of the Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 56(1)). Parties to proceedings are under a duty to assist the court to further that overriding purpose (s 56(3)) and solicitors (amongst others) must not cause parties to be put in breach of that duty (s 56(4)). The court may take into account any failure to comply with those obligations when exercising a discretion concerning costs (s 56(5)).
9. In his written submissions, Mr Foley said: "When I pleaded these matters in front of this Court I went to a great deal of effort to detail precisely the objects of the conspiracy and all of the overt acts that together go to establish what the [Companies] say forms the conspiracy. In putting forward each of those allegations I do so at the urging of Mr Dimitriou. They are not pleaded flippantly or with some personal axe to grind against Mr Ekes or anyone else. They are not being made wilfully in the sense of any abuse of process - even though this Court appears to categorise it as such."
10. Mr Foley concluded his submissions as follows: "38. I was admitted on 22nd July 1977 - almost 39 years ago. I have practised as a sole practitioner on my own account since 28th September 1978. In all that time I acted as a hard-working and diligent Solicitor. I have never suffered an order of this nature to be made against me. In the last few weeks since early March 2016 I have barely had a day free and on several occasions I have worked all night for several days during that time in an endeavour to do all that I have been requested of me by my clients or to attempt to do what I have been ordered to do. 39. I feel that I am being wrongly punished for bringing these very serious wrongdoings to the attention of this Court and that this Court feels that the matters I have raised offends its notion [of] 'good manners' and its own fixed ideas concerning the behaviour of one of its officers. I find myself in the position of a 'whistleblower' and being victimised according. All it needs for evil to flourish is for people of good will to do nothing. - Edmund Burke".
11. As I have set out above, Mr Foley in his written submissions said he was "confused about the pleading of conspiracy".
12. That may be true, but what Mr Foley did not, when before me, seem to appreciate was that my concerns did not arise from some shortcoming that I perceived as to the manner in which Mr Foley observed technical pleading rules about conspiracy.
13. My concern was as to his preparedness, on the urging of Mr Dimitriou, to make allegations of dishonesty and other serious misconduct without having a proper basis for doing so.
14. It is not a matter of my notion of "good manners" being offended or having "fixed ideas concerning the behaviour of one of [the Court's] officers" (I assume the reference is to Mr Ekes). And it is not a matter of Mr Foley being a "whistleblower" or playing some role akin to Edmund Burke. It is a matter of having a proper basis, beyond the exhortation of the client, to make allegations of dishonesty and serious misconduct.
15. I find that the making of the allegations has caused each of the proposed cross-defendants to incur costs without reasonable cause in circumstances for which, in my opinion, Mr Foley is responsible.
16. I propose to order that the Companies pay the costs of the proposed cross-defendants of their consideration of each of the proposed cross-claims and of the hearings before me on 29 April, and 6 and 13 May 2016. Mr Foley was not on a frolic of his own. He was acting on the urging of Mr Dimitriou and in the interests of the Companies.
17. But I also propose to order that, if the Companies do not pay those costs, Mr Foley must do so.
18. In Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19, Basten JA (with whom Ward and Emmett JJA agreed) expressed the view that s 99 of the Act does not "permit, in terms, an order that the practitioner pay to the party entitled to costs, the costs ordered against the client" and that the "available order is limited to one that the practitioner pay to the client the costs the client has been ordered to pay to the other parties: s 99(2)(b)(ii)" (at [16]).
19. However, his Honour held that such an order could be made under the Court's supervisory jurisdiction with respect to legal practitioners admitted by the Court (at [18]).
20. I would respectfully venture the suggestion that s 99(2)(c) (which his Honour referred to at [16] and also earlier at [8], albeit in a different context) does provide a basis for an order that, here, Mr Foley pay directly the costs of the proposed cross-defendants. That sub-section enables the court to order that a legal practitioner (here, Mr Foley) indemnify "any party" (here, the proposed cross-defendants) against costs "payable" by that party. I see no reason to read "payable" as meaning payable only by reason of an order. The wording is apt also to include costs payable by reason of a contract of retainer (see Windeyer J in Karwala v Skrzypczak Re Estate of Ratajcak [2007] NSWSC 931). Mr Auld told me on 6 May 2016 that he appeared on behalf of all the proposed cross-defendants and I infer from that statement the proposed cross-defendants have a concomitant liability for the legal costs thereby incurred.
21. In any event, I have power under the supervisory jurisdiction to make the order.
22. It will be a matter for Mr Foley and Mr Dimitriou to determine who ultimately foots the bill.
23. I propose to make an order under s 98(4) specifying a gross sum for those costs.
24. The fact that the proposed cross-defendants (apart from Ms Furlong) are not parties to the proceedings provide no impediment to my power to award costs in their favour: the word "party" is not confined to a person on the record in the proceedings and includes a person who participates in the proceedings. Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178 at 190 per Mason CJ and Deane J; and see Austin J in Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 879 at 292 to 293. Mr Foley made no submission to the contrary.
25. I have considered the evidence in Mr Ekes' affidavit concerning the costs incurred and Mr Foley's submissions concerning the quantification of those costs. The total amount claimed is in the order of $13,000. The amount accepted by Mr Foley as being reasonable was some $2,000. Included in the amounts claimed is some 11 hours' work performed by a lawyer working in Mr Ekes' office (for reviewing the cross-claim and preparing objections to it) and a full days fees of Mr Auld. There is likely to be some duplication of work involved. A reasonable figure for the costs incurred is likely to be something in the order of $6,500. I propose to specify the costs at that figure.
26. I make the following orders and directions: 1. That the defendants pay to the parties named as proposed cross-defendants in the forms of cross-claim marked MFI 1 and MFI 2 in the proceedings their costs of considering those forms of cross-claim and of the appearances before me on 29 April 2016, 6 May 2016 and 13 May 2016. 2. That those costs be specified pursuant to s 98(4) of the Civil Procedure Act at $6,500 and be paid by 5pm on 8 June 2016. 3. That if the costs referred to in order (2) are not paid within that time, Mr Foley pay those costs by 5pm on 15 June 2016. 4. That by 5pm on 27 May 2016, Mr Foley provide by email to my Associate any submissions he wishes to make as to why I should not refer the contents of this judgment to the Law Society of New South Wales and the Legal Services Commissioner.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2016