Heedes v Legal Practice Board [2005] WASCA 166

Heedes v Legal Practice Board [2005] WASCA 166 - WASCA 2005 case summary — Zoe

[38]

"THE MASTER: Mr Cornes?

CORNES, MR: Yes, master. I appear again for the applicant.

THE MASTER: Yes.

CORNES, MR: I have given Mr Heedes some time in case he was running late but he still doesn't appear - - -

THE MASTER: He hasn't filed anything further, has he?

CORNES, MR: I have a further affidavit dated 21 October which states on its face that it was filed on 22 October.

THE MASTER: Perhaps I should have a look at - if he is not here, is there any point in me reading it?

CORNES, MR: No. It says an awful lot but it won't - - -

THE MASTER: It says an awful lot and it says nothing at the same time presumably. 'I'm a self-employed advocate, intercessor, negotiator, investigator.' Intercessor?

CORNES, MR: Yes.

THE MASTER: What do you actually want to do with this gentleman? Assuming he got the orders that you want, do you want him committed to prison or do you want him fined or what do you want done?

CORNES, MR: I'm instructed today to seek a hearing date unless Mr Heedes decided to plead guilty to the charges against him.

THE MASTER: Look, that's what I will do. I have discussed this with McKechnie J. He will hear it.

CORNES, MR: I see, yes.

THE MASTER: I'm not sure whether I have got power to commit this chap to prison or not but whether I have or I haven't, I would prefer McKechnie J - he is used to doing that sort of thing. So if you can provide unavailable dates for the month of November by close of business today?

CORNES, MR: Yes.

THE MASTER: Make it November and December. I'm sure McKechnie J will squeeze you in because it's not going to take very long I wouldn't think.

CORNES, MR: Yes.

THE MASTER: Then appropriate orders can be made. All right.

CORNES, MR: Our fax should be addressed to your associate?

THE MASTER: Yes, if you would, thanks. Then it will come to me. I will discuss it again with McKechnie J and we can fix a hearing date. What do you think? How long would you need to allow for? A couple of hours would be enough?

CORNES, MR: Judging by the affidavit material the respondent has filed to date, I imagine he will spend some time on his feet.

THE MASTER: Yes.

CORNES, MR: His style isn't laconic.

THE MASTER: No. I will mention that to McKechnie J but I would guess that two hours would be enough. That would be my guess but perhaps we will make it a bit longer.

CORNES, MR: Yes. Sir, in terms of orders that should be made today, should I simply ask for it to be adjourned to a date to be fixed and costs reserved?

THE MASTER: Yes, I will simply make an order that it be adjourned to a special appointment on a date to be fixed; costs reserved.

CORNES, MR: Thank you, sir.

THE MASTER: All right. Thanks, Mr Cornes.

CORNES, MR: Thank you, sir."

[65]

30 The Board had previously provided the Court with an affidavit of Ms Daly sworn 29 September 2004 in which she deposed that she is a process server and recounted her efforts to serve the papers in this matter upon the appellant. She deposed that on the afternoon of Thursday 19 August 2004 she went to a residential address at Spearwood. She knocked on the front door and was greeted by a middle-aged man. She told him she wished to see Arthur Heedes. The man told her there was no-one of that name at the property. She said she thought that was strange because she was given that address to see him. She then went on to explain that she had important legal papers that the appellant needed to receive as soon as possible as there was an urgent court hearing. She deposed that the man at the property then told her the appellant was his stepson and that if she would give him her name, he would pass it on to the appellant. The man then made a telephone call and after speaking with someone on the other end of the telephone line, brought it to her to speak to a male who she understood to be the appellant. He told her that he did not live at the property and not to bother his parents. She asked him where he did live, to which he responded that if there were any papers to be served they could be served on his postal address. She told him that if he was a lawyer he should know she could not serve documents on a post office box number. He replied that he was not a lawyer. He asked her what the documentation was about and she told him it was between himself and the Board. He asked her why the Board was involved as he was not a lawyer. He went on to say that he had met with the Chairman of the Board, gave that person's name and suggested she leave the documents with him. Again, she told him that was not possible and suggested he give her an address where she could serve the documents upon him personally. There were some further exchanges about the nature of the documents. He gave her his mobile telephone number in case anyone wished to contact him but was not prepared to arrange a time or place for her to serve the documents on him. She accordingly terminated the conversation.

[68]

"Undoubtedly you have already been forewarned by Mr Cornes from Minter Ellison Lawyers, of my intent to communicate with you over your sworn affidavit of the 29th October 2004?

I must advise that this correspondence and any possible response or lack thereof, will be submitted as evidence in the matter of 2062 of 2004 in the Supreme Court and other possible legal proceedings.

Your sworn affidavit is not as factually accurate as it could and or should be, for which I am unsure as to the exact reasoning behind such, whether it be inadvertent error, unclear exact recollection, failure to take notes or record events or a deliberate intent to mislead and deceive, hence the need for clarification as you would undoubtedly agree?

Given the importance and magnitude of such, I find it necessary to draw your attention to sections 124, 125 and 129 of The Criminal Code in relation to Perjury and Fabricating evidence.

In order to clear up and ameliorate hopefully what is just inadvertent error, I would invite you by way of amended affidavit or return correspondence to me via facsimile on 94577642 by no later than the 12th October 2004, to deal with ALL of the following issues in seriatim;

1. On what specific date were you first asked to prepare and or swear the said affidavit?

2. On what specific date and what form ie: (telephone, fax, letter, personally) did you first communicate your inability to personally serve the said documents and to whom specifically?

3. Is the affidavit in exactly your own words or that of the preparer from Minter Ellison?

4. I would ask you to address the time discrepancy as noted in paragraph 1.

5. In paragraph 2, I would ask you to clarify your initial greeting and discussion with the occupant as to 'I advised him that I would like to see Arthur Heedes' and the purported response of 'There is no one of that name at the property'. Given that these purported comments are not contained within italics, is it that these comments are just a generalisation of what took place in your mind, as the 'Middle aged man' you refer to quotes different words verbatim?

6. Further in paragraph 2, you state verbatim 'that's strange, because I was given this address to see him.' Whom specifically gave you the address of 20 Kent Street Spearwood to see me and what gave you the impression that I would be sitting around waiting at a residential property at that time of the day to accept service of the said documents?

7. Upon your unsuccessful service of the said documents, please provide full particulars of when, where and how the said documents were returned to Minter Ellison lawyers? ..."

[83]

"79 ... It was suggested, in a letter written by the appellant's solicitors to the Board, that those two women sat together and 'exchanged remarks and looks which manifested antagonism towards the [appellant]'. As contained in the letter, a broad allegation of 'looks' and 'remarks' is one which cannot be sensibly dealt with. However, it was submitted, and the submission was supported by an affidavit which was tendered to us for the purpose of the appeal, that during the course of closing submissions of counsel for the appellant, counsel submitted that the appellant had done sufficient 'penance' for his stalking conviction, and that one of those women remarked to the other, who nodded in agreement, 'not long enough'.

80 A number of observations should be made about this remark. The first is plainly that the concern, which it caused the appellant and those close to him, illustrates why it is widely acknowledged that judicial officers and those exercising like functions should refrain from offhand or flippant remarks during the course of a hearing. The second observation is that it appears to us that the remark was offhand and flippant. As the Board points out in its reasons at par 4.7, in particular, the role which the Board performs is not a punitive one, but is protective of the community. It is not for the Board to be concerned with whether punishment imposed under the criminal system has been either inappropriate or inadequate. The Board clearly appreciated, it seems to us, that questions of 'penance' were wholly irrelevant to the questions which it had to determine. Finally, we would note that the remark was, in any event, one apparently made during the course of closing submissions. A remark which might give rise to a reasonable apprehension of bias, in the sense of a prejudgment of the issue, at an earlier time, may well not be inappropriate if made at a time when all of the evidence has been heard, and the party affected has had the opportunity to make submissions. While it would clearly have been better had the remark never been made, it is our view that all of the circumstances to which we have referred are such that it was not necessary for either of those members to disqualify herself on the basis of either apprehended or actual bias."

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Court

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Before

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Source

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Judgment (103 paragraphs)

Heedes v Legal Practice Board [2005] WASCA 166 (31 August 2005)

HEEDES -v- LEGAL PRACTICE BOARD [2005] WASCA 166 (31 August 2005)

Parties

Legislation Cited (1)

Cases Cited (20)