Legal Service Commissioner v Pennisi [2024] QCAT 97

Legal Profession Act 2007 (Qld), s 452, s 456

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(2), s 62(1)

Amcor Ltd v Barnes [2011] VSC 341

Attorney-General for the Northern Territory v Kearney [1985] HCA 60; (1985) 158 CLR 500

Australian Securities and Investments Commission v Mercorella (No 3) [2006] FCA 772

AWB Ltd v Cole and Another (No 5) [2006] FCA 1234; (2006) 155 FCR 30

Barclays Bank Plc v Eustice [1995] EWCA Civ 29; [1995] 4 All ER 511

Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151

Commissioner of Australian Federal Police and Another v Propend Finance Pty Limited and Other (1996-7) 188 CLR 501

Gartner v Carter; In the Matter of Gartner Wines Pty Ltd [2004] FCA 258

James George Hodgson v Amcor [2011] VSC 204

John Selak v National Tiles Co Pty Ltd [2023] VSC 446

P & V Industries Pty Ltd v Porto (No 3) [2007] VSC 133

Watson v McLernon [2000] NSWSC 306

M Black, instructed by Gilshenan & Luton Legal Practice

P C O'Connor, instructed by Legal Services Commission

• [1] The Legal Services Commissioner (LSC) has commenced a discipline application under s 452 of the Legal Profession Act 2007 (Qld) (LP Act) for disciplinary orders pursuant to s 456 of the LP Act. The discipline application raises a single charge against the respondent, Vincent Pennisi (Respondent) of engaging in "conduct in the course of practice which was likely, to a material degree, to bring the profession into disrepute."[1]
• [2] This is an interlocutory application by the Respondent for orders "striking out" material claimed[2] to be subject to legal professional privilege (LPP Application).
• [3] The Respondent contends that in the factual circumstances, legal professional privilege (LPP) arises and there has been no waiver by the Respondent's client (the Client).
• [4] The LSC contends that any communications between the Respondent and the Client were made in the furtherance of an improper purpose and there can be no legitimate claim for LPP.
• [5] The LPP Application raises the following issues to be determined by the Tribunal:

(a) What are the principles relevant to a claim for LPP?

(b) What is the exception to LPP?

(c) Does the exception to LPP apply here?

(d) What are the appropriate orders?

• [6] In order to understand how the claim for LPP arises, it is necessary to consider some further background.

• [7] On 25 June 2021, a complaint was made by the ex-wife of the Client (the Complainant) to the LSC in relation to a 13-page letter dated 31 May 2021 from the Respondent to the Complainant (Letter to the Complainant).
• [8] The Respondent was engaged by the Client, the ex-husband of the Complainant.
• [9] On 8 August 2023, the LSC commenced the discipline application against the Respondent in relation to the Respondent sending the Letter to the Complainant.
• [10] The relevant particulars of the charge include:

(a) On a date in January 2020, there was a protection order made under the Domestic and Family Violence Protection Act 2012 (DFVP Act) naming the Client as the respondent and the Complainant as the aggrieved (Protection Order).[3]

(b) The Protection Order included a condition that the Client is "prohibited from, directly or indirectly, contacting or attempting to contact or asking someone else to contact [the Complainant] by any means of communication."[4]

(c) Further, the Protection Order contained an express exception for messages through the agreed platform "Talking Parents" and provided:

"all such communications must be succinct and not include any form of emotionally manipulative, coercive or abusive language, talk of past/relationship matters or any other matter not directly related to the child spending time with [the Client] or the child's welfare or development."[5]

(d) The Letter to the Complainant was signed by the Respondent on the Respondent's firm's letterhead.

(e) The Letter to the Complainant is "unprofessional as it was oppressively lengthy, contained grammatical and spelling errors, poor punctuation, incorrect tenses and repetitive statements."[6]

(f) The Letter to the Complainant:[7]

(i) Did not merely relate to the child spending time with the Client.

(ii) Contained statements or assertions that "were likely to amount to a breach" of the Protection Order, and the Respondent knew about the conditions in the Protection Order.

(iii) These statements included:

1. The use of "emotionally manipulative or coercive language."[8]
2. Speaking of the relationship between the Client and the Complainant.[9]

(iv) These statements were unprofessional in tone and content, irrespective of the existence of the Protection Order.[10]

(v) "By drafting and/or arranging for the [Letter to the Complainant] to be sent to the Complainant, the [Respondent's] integrity and professional independence was compromised. By that conduct, he was likely to bring the profession into disrepute to a material degree."[11]

• [11] For the purposes of the discipline application, the LSC and the Respondent have agreed a "Statement of Agreed and Disputed Facts" (SOAF) signed by the Respondent on 22 December 2023 by which the Respondent:

(a) Disputes certain statements in the Letter to the Complainant were likely to breach the terms of the Protection Order;[12]

(b) Otherwise, in effect agrees with the particulars of the charge (summarised above).

• [12] The SOAF includes "non-exhaustive examples" of:

(a) Unprofessional statements contained in the Letter to the Complainant;[13]

(b) Statements which "indicate a lack of professional independence on the part of the Respondent";[14] and

(c) Repetitious statements.[15]

• [13] The Respondent agrees at [15] of the SOAF:

"By drafting and arranging for [the Letter to the Complainant] to be sent to [the Complainant], the Respondent's integrity and professional independence was compromised. By this conduct, the Respondent was likely to bring the profession into disrepute to a material degree."

(a) Affidavit of the Complainant sworn 31 October 2023.

(b) Affidavit of the Complainant's father sworn 31 October 2023.

(c) Affidavit of Bradley Mark Fitzgerald sworn 2 November 2023, which exhibits various documents, including documents produced by the Respondent from his file in respect of the Client to the LSC.[16]

• [15] The Respondent filed an affidavit sworn 24 November 2023.
• [16] The LSC filed her substantive submissions on 22 January 2023.

• [17] The LPP Application was filed on 16 February 2024 seeking orders pursuant to section 47(2) or section 62(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to the effect that:[17]

"1. All documents exhibited at pages 10 to 60 and 60 and 61 to 106 of Exhibit BMF-1 to the affidavit of Bradley Mark Fitzgerald sworn on 2 November 2023 and to which [the Client's] legal professional privilege applies be ruled inadmissible and be struck out; in particular:

(a) Pages 39-51, being a draft copy of a letter.

(b) Page 62, being notes of client instructions.

(c) Page 64, being a letter communicating advice.

(d) Pages 80-92, being a draft copy of a letter with annotations.

(e) Pages 93-94, being a copy of a protection order.

(f) Pages 95-100, being a copy of a family law order.

(g) Pages 101-104, being initial client instructions.

1. The affidavit of Bradley Mark Fitzgerald sworn on 2 November 2023 and the Submissions on behalf of the [LSC] (undated) be struck out and uplifted from the file, with leave to re-file after exclusion of the inadmissible material.
2. All information appearing in the affidavit of [the Respondent] sworn on 24 November 2023 and to which [the Client's] legal professional privilege applies be ruled inadmissible and be struck out; in particular:

(a) Paragraph 82, second sentence.

(b) Paragraphs 83-85, to the extent those paragraphs impliedly reveal privileged communications.

1. The affidavit of [the Respondent] sworn on 24 November 2023 be struck out and uplifted from the file, with leave to re-file after exclusion of the inadmissible material.
2. The Tribunal's directions made on 3 October 2023 be vacated and further directions be made for the filing of any further affidavits, written submissions, and hearing book."

• [18] The Respondent also provided "reasons for seeking the orders." The reasons, in summary, include the following:

(a) The Respondent provided legal services to the Client.

(b) The Respondent no longer acts for the Client and has not received instructions or consent from the Client for any waiver of LPP to which the Client is entitled.

(c) The Respondent has a duty to maintain the Client's LPP in the absence of waiver or any applicable exception.[18]

(d) The Respondent's disclosure of the Client's file to the LSC did not have the effect of waiving the Client's LPP as only the Client can waive the LPP.[19]

(e) In the absence of the Client, the Tribunal itself is bound to scrutinise the question of LPP.[20] It is for the Tribunal, not the Respondent in the absence of the Client, to determine whether privilege applies.

• [19] Following the hearing on 4 March 2024, the Respondent provided a revised form of order which is set out at Annexure A to these reasons. The proposed orders provide for the various documents subject to the claim of LPP, including copies, not to be "uplifted" but to be placed in a sealed envelope and a revised affidavit of the Respondent to be filed.[21]

What documents are claimed to be subject to LPP?

• [20] The Respondent's submissions in respect of the LPP Application contend that the following material is subject to LPP:[22]

(a) seven documents exhibited to the affidavit of Bradley Mark Fitzgerald sworn 2 November 2023,[23] namely:

(i) Pages 39-51: a draft copy of a letter.

(ii) Page 62: notes of the Client's instructions.

(iii) Page 64: a letter from the Respondent to the Client.

(iv) Pages 80-92: a draft copy of a letter with handwritten annotations.

(v) Pages 93-94: a copy of a protection order.

(vi) Pages 95-100: a copy of a family law order.

(vii) Pages 101-104: initial client instructions.

(b) identified paragraphs of the affidavit of the Respondent sworn 24 November 2023, namely:[24]

(i) second sentence of [82].

(ii) [83] to [85].

(a) In respect of (a)(i), (ii), (iii), (iv) and (vii) there is a clear inference that the document was created for the dominant purpose of the Client obtaining legal services.

(b) In respect of (a)(v) and (vi) the documents are not inherently privileged but there is a clear inference that the documents were created for the dominant purpose of the Client obtaining legal services.[25]

(c) In respect of (b)(i) and (ii), the statements tend to disclose a communication from the Client to the Respondent that was conveyed as part of and for the purpose of the Client obtaining legal services.

• [22] In respect of the paragraphs in the Respondent's affidavit, the Respondent submits that he was mistaken to include these in the affidavit,[26] and this error can be corrected by the Tribunal.[27]
• [23] The Respondent accepts that some documents provided by the Respondent to the LSC as part of the Client's file are not subject to LPP. For example, the tax invoices and related documents are not privileged.[28]
• [24] The LSC's primary position is that a genuine claim for LPP does not arise in respect of these documents and statements as the communications were made in furtherance of an improper purpose.
• [25] However, if the Tribunal finds against the LSC in relation to improper purpose, the LSC contends that in any event, the document "Page 64: a letter from the Respondent to the Client" was not provided for the dominant purpose of providing legal advice.[29] Accordingly, the LSC submits there is a separate basis to find that that document is not subject to LPP.

What are the principles relevant to a claim for LPP?

• [26] The principles in relation to a claim for LPP are not controversial between the parties. However, what is controversial is whether an exception to LPP arises in the current circumstances. The principles in respect of the exception to LPP are considered under the next heading.
• [27] Following is a summary of the general principles in respect of a claim for LPP:

(a) LPP is "a rule of substantive law" and is an "important common law immunity."[30]

(b) LPP is an immunity that belongs to the client, and it can only be waived by the client.

(c) The client's privilege is not waived by a solicitor's accidental disclosure of the information.[31]

(d) Further, the privilege is not waived by a solicitor's disclosure of information in the erroneous belief that privilege has been waived.[32]

(e) Documents the subject of LPP remain privileged, in the absence of waiver by the client, despite their release to the LSC.[33]

(f) The LSC is only permitted to rely on documents that are not protected by LPP (unless consent is obtained).[34]

(g) A solicitor has an obligation to proactively assert and protect the client's LPP, including former clients.[35]

(h) A former client's LPP does not lapse merely because the former client does not appear in the proceedings where the issue arises.[36]

(i) The Court may itself intervene to prevent a breach of the client's LPP.[37]

(j) LPP protects communications between a client and his/her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services.[38]

(k) There is often a "continuum of communication" between a solicitor and client, and if information is communicated as "part of the continuum aimed at keeping both informed so that the advice may be sought and given as required, privilege will attach."[39]

(l) Where there is a retainer requiring legal advice and the directing of a client by a legal advisor, it would be rare to say that a communication between client and lawyer was not connected with the provision or requesting of legal advice. "Too literal a requirement of identifying legal advice as express advice about the law would place undue emphasis on formalism and undermine the privilege."[40]

(m) Where a client is consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone would provide a sufficient basis for a conclusion that legitimate legal advice is being sought and is being given.[41]

(n) Inferences may be drawn from the nature and content of the documents. The Court may inspect the documents.[42]

(o) Where a copy of an otherwise un-privileged document is created for the dominant purpose of obtaining or providing legal services, that copy of the document would generally be protected by LPP.[43]

• [28] The LSC was provided with the Respondent's complete file regarding the Client following a request from the LSC.[44]
• [29] It is not contentious that the Client has not waived privilege in any way or to any extent. The Respondent has not contacted the Client seeking a waiver, nor has the LSC obtained a waiver from the Client.
• [30] The LP Act does not affect any waiver or abrogation of the Client's LPP.[45]
• [31] The onus of establishing waiver or an exception falls upon the party making the assertion.[46]
• [32] Accordingly, the Respondent contends that LPP is established in respect of the identified documents and the paragraphs in the affidavit as:

(a) In the absence of waiver or an applicable 'exception', any documents on the file which involve communications between the Client and the Respondent for the dominant purpose of giving and/or receiving legal advice or legal services are subject to LPP.

(b) The purpose may be inferred from the fact the Client consulted the Respondent in his capacity as a solicitor and from the nature or content of the documents themselves.

• [33] Contrary to this conclusion, the LSC contends that an applicable 'exception' is made out which prevents LPP arising.

• [34] The LSC contends that in the current circumstances, LPP does not arise in the first place as any communication was made for the purpose of furthering or assisting in the commission of an improper purpose.[47]
• [35] As the LSC asserts that an 'exception' to LPP applies, the onus in respect of the 'exception' is on the LSC.[48]
• [36] The relevant principles are considered in a number of authorities, which have been referred to by the LSC.
• [37] Whilst the term 'exception' is commonly used, the reasoning in the line of authorities is more consistent with the LPP not arising in the first place.
• [38] The High Court considered the 'exception' in Attorney-General for the Northern Territory v Kearney.[49] The majority of the Court held that the communications were not privileged and recognised that the 'exception' applied where there was a deliberate abuse of statutory power, which prevented others from exercising their rights under the law.
• [39] Comments relevant to the 'exception' were made in separate judgments, including:

"One exception to which the general rule is subject is that communications by a client for the purpose of being guided or helped in the commission of a crime or fraud are not privileged from discovery. This exception is frequently stated as though it were confined to crime and fraud."

"However, not all the authorities state the principle of the exception in a way that would confine it to crime or fraud. In Russell v Jackson [1851] EngR 955; (1851) 9 Hare 387, at pp. 392-393 [1851] EngR 955; (68 ER 558, at p. 560) Turner V.-C. said:

'Can it then be said that the communication should be protected because it may lead to the disclosure of an illegal purpose? I think that it cannot; and that evidence which would otherwise be admissible cannot be rejected upon such a ground. On the contrary, I am very much disposed to think that the existence of the illegal purpose would prevent any privilege attaching to the communication. Where a solicitor is party to a fraud no privilege attaches to the communications with him upon the subject because the contriving of a fraud is no part of his duty as solicitor; and I think it can as little be said that it is part of the duty of a solicitor to advise his client as to the means of evading the law.'"

"The explanation given by Turner V.-C. for the principle on which the exception rests, namely that a communication in furtherance of an illegal purpose is not within the ordinary scope of professional employment, was in substance accepted as correct in Reg v Cox and Railton[50] and is now generally accepted. Cardozo J. put it shortly in Clark v United States:[51] 'The privilege takes flight if the relation is abused.'

These statements of the principle, and the reason on which it is based, suggest that the exception is not confined to cases of crime and fraud, even in the wide sense in which "fraud" has been used in this context, unless the meaning of that word is extended to include anything that might be described as a fraud on justice."

"In my opinion the present case comes within the principle which forms the basis of the rule that denies privilege to communications made to further an illegal purpose. It would be contrary to the public interest which the privilege is designed to secure - the better administration of justice - to allow it to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law. It would shake public confidence in the law if there was reasonable ground for believing that a regulation had been enacted for an unauthorized purpose and with the intent of frustrating legitimate claims, and yet the law protected from disclosure the communications made to seek and give advice in carrying out that purpose."

"The principle may be expressed by saying that, generally speaking, the public interest in the protection of alleged confidential professional communications will not be outweighed by the public interest in ensuring that all relevant evidence is admissible save when the professional relation is abused in a manner involving dishonesty that goes to the heart of the relationship. The presence of such dishonesty is enough to cause the privilege to 'take flight', to use the words of Cardozo J. in Clark v United States,[52] because it precludes a true professional relationship from arising: see the remarks of Stephen J. in Cox and Railton."[53]

"It is true that different expressions are to be found in the cases to explain what is meant by crime or fraud in the present context: 'any unlawful or wicked act' (Annesley v. Anglesea)[54]; 'a criminal or unlawful proceeding', 'fraudulent contrivance, or ... any illegal proceeding', 'an improper or an illegal act', 'illegality or fraud or trickery' (Bullivant v. Attorney- General (Vict.))[55]; 'crime or civil fraud', 'wrong-doing', 'illegal object' (Varawa v. Howard Smith & Co. Ltd);[56] 'any illegal or improper purpose', 'to frustrate the processes of law', 'taint of illegality', (Reg. v. Bell; Ex parte Lees);[57] 'crime or fraud or civil offence' (Baker v. Campbell).[58] Despite their apparent breadth, these expressions have, I think, been used more to explain the nature of the exception rather than to restrict the scope of the privilege."

• [40] The High Court in Commissioner of Australian Federal Police and Another v Propend Finance Pty Limited and Other (1996-7) 188 CLR 501 considered the issue of whether an improper purpose must be based on evidence that is admissible in the proceeding. In that case, the only evidence was the sworn information that supported the issue of a search warrant. The Court held that the sworn information was admissible to establish the basis upon which the warrant was issued but was not admissible to show that the documents[59] were not privileged.[60]
• [41] It is of assistance to consider some of the specific comments of the Court in this regard:

"In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest.[61] I state the criterion as 'reasonable grounds for believing' because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something 'to give colour to the charge',[62] a 'prima facie case' that the communication is made for an ulterior purpose.[63] The purposes that deny the protection of privilege for a communication[64] (whether documentary or oral) between a client and the client's solicitor or counsel include[65] the furthering of the commission of an offence.[66]

When a party in curial proceedings is seeking to rebut a claim of privilege by asserting that the communication with the legal adviser was made for an ulterior purpose, the evidence of ulterior purpose must be admissible in those proceedings. It is not sufficient to rely on the information laid before the justice who issued the warrant. The informant is not necessarily a witness and, if he or she is a witness, the admissible evidence is what is then deposed to, not a statement made to or before the issuing justice. In the present case no admissible evidence was tendered, although Davies J at first instance recorded that counsel for the parties were content that he 'should have regard to' the sworn information laid before the issuing justice."

"... the privilege does not attach to documents which are brought into existence or which are provided to a lawyer for the purpose of furthering some illegal object. Thus, as McHugh J pointed out in Carter v Northmore Hale Davy & Leake, the so-called 'exceptions' to legal professional privilege, namely, communications to further illegal purposes, communications made for the purpose of frustrating the processes of the law and communications made to further an abuse of public power 'are in truth not exceptions at all'[67]. Rather, legal professional privilege never attaches to them. This has some significance in relation to the nature of the evidence necessary to raise a question of illegality.

If illegality were a true exception to legal professional privilege, it would be arguable that the person challenging the existence of the privilege should establish that the communication in question was made in furtherance of some illegal purpose[68]. However, it is not a true exception and, thus, it is not necessary that illegality be established positively. On the other hand, a mere allegation of illegal purpose is not, itself, sufficient. There must be 'not merely an allegation ... of a fraud, but ... something to give colour to the charge'[69], 'some prima facie evidence that it has some foundation in fact'[70]. The reason for this is obvious. Persons are presumed innocent, not guilty. And, thus, there must be evidence to raise a sufficient doubt as to a claim of privilege to cast a further evidentiary onus on the person making the claim to show that, in truth, the privilege attaches.

"Bearing in mind the purpose served by legal professional privilege and the importance of the presumption of innocence, a further evidentiary burden is, in my view, cast upon a person claiming legal professional privilege only if there is evidence which, if accepted, raises a prima facie case of illegal or other purpose falling outside the privilege. Evidence of that nature need not be led by the person resisting the claim of privilege. It might emerge, for example, from documents for which the claim is made.

If a person wishes to resist a claim of privilege and to lead evidence of an illegal or other purpose inconsistent with its existence, that evidence must be in admissible form. Ordinarily, that will exclude hearsay. But if, as here, hearsay evidence is properly admitted on some other issue, ordinary considerations of fairness require that the person claiming privilege be given an opportunity to test that evidence by cross-examination." (emphasis added)

• [42] The case of Australian Securities and Investments Commission v Mercorella (No 3)[71] is a further example of the 'exception' arising. In that case, Mansfield J observed:

"[27] ... communications if contrary to public policy are not so protected. A clear example is a communication to further the commission of a crime or fraud ...

[28] The exception is not confined to cases where the communication is in furtherance of the commission of a crime or fraud. Kearney provides an example: privilege did not apply to communications between the Northern Territory Government and its legal advisers which were directed to making a regulation which would defeat an Aboriginal Land claim. Gibbs CJ at 514 said the exception extended 'to include anything that might be described as a fraud on justice'. See also R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 where the communication as to the client's address was not regarded as confidential because it would be against public interest to so regard it: the communication of the address to the legal adviser was said expressly to be confidential so as to frustrate the efficacy of a custody order. ...

[30] In some cases, it is clear that documents over which privilege is claimed were brought into existence in circumstances where public policy removes the shield of privilege. In other cases, indeed most cases, public policy clearly provides the shield of privilege. Where the line is to be drawn so that that shield is lifted must be decided in the particular circumstances of the case."

• [43] Further, Mansfield J considered the proper approach to the 'exception' and concluded:

"[34] The Court, when addressing such issues, does not need to be satisfied on the balance of probabilities of the conduct alleged. In Propend at 514, the test was expressed as being whether there are 'reasonable grounds for believing' that the relevant communication or record was for the illegal or improper purpose. In O'Rourke v Darbishire [1920] AC 581 at 604 it was said that there must be 'something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact.' In Baker v Evans (1987) 77 ALR 565 at 574 the expression 'prima facie case' of illegal or improper conduct was used.

[35] ... I have applied that general test ...My findings therefore are not ultimate findings on the balance of probabilities, but that there are reasonable grounds for believing that those facts exist....".

• [44] In considering "which side of the line drawn by public policy" the particular conduct fell, Mansfield J considered the case of Gartner v Carter; In the Matter of Gartner Wines Pty Ltd,[72] and concluded that it was only a "short step" from that case to the facts he was considering (as prima facie found).[73]
• [45] In Gartner v Carter; In the Matter of Gartner Wines Pty Ltd,[74] Lander J held that communications between a client and a legal adviser for the purpose of putting assets beyond reach of the legitimate claims of secured creditors is a 'fraud on justice'. Further, such a purpose is "a fraud on the creditor and there is no public interest in protecting that communication."[75] Lander J also considered and followed the earlier authority of Barclays Bank Plc v Eustice.[76]
• [46] In Barclays Bank Plc v Eustice[77] the Court of Appeal[78] found that transactions involving dispositions at an undervalue were intended to prejudice the interests of the secured creditor, the purpose was:

"sufficiently iniquitous for the public policy to require that communications between [the client] and his solicitor in relation to the setting up of these transactions be discoverable.

If that view be correct, then it matters not whether either the client or the solicitor shared that view. They may well have thought that the transactions would not fall to be set aside ... either because they thought that the transactions were not at an undervalue or because they thought that the court would not find that the purpose of the transactions was to prejudice the bank. But if this is what they thought then there is a strong prima facie case that they were wrong. Public policy does not require the communications of those who misapprehended the law to be privileged in circumstances where no privilege attached to those who correctly understand the situation."[79] (emphasis added)

• [47] Applying these authorities, Mansfield J found that there was a prima facie case that the 'restructure' of advances to appear as advances to the partnership was a sham.[80] Further, that the structure was "simply not true" and there was "an attempt to conceal the true nature of the transaction."[81] In these circumstances, his Honour concluded:

"[100] I can see no public interest in a client engaging a legal practitioner for the purpose of preparing documents which have the effect of concealing the true nature of a transaction and which enable [the] client to present through documents a picture which is not true. In the particular circumstances of this case, therefore, I consider that the engagement of TP for the purposes of establishing the Deed, and the granting of securities, does not give rise to communications which are protected from disclosure by legal professional privilege." (emphasis added)

• [48] Similarly Young J in AWB Ltd v Cole and Another (No 5)[82] found that the 'exception' was made out where:

(a) "the evidence establishes a more than adequate prima facie case that AWB knowingly and deliberately disguised the true nature of the prices in contracts";[83] and

(b) "the authorities ... stress the wide range of fraudulent or iniquitous activities that fall within the principle";[84] and

(c) "10 documents are not privileged. The documents were, prima facie, brought into existence in furtherance of an improper and dishonest purpose ...the transaction was deliberately and dishonestly structured ... so as to misrepresent the true nature and purpose of the ... fees and to work a trickery ... It would be contrary to public policy for the privilege to enure in communications of this kind."[85]

• [49] The decision of Vickery J in James George Hodgson v Amcor[86] is further authority for the Court inspecting the documents in issue to assist in the determination of whether they were "communications made or document prepared in furtherance of the commission of any fraud or for any other illegal or improper purpose such as to enliven the operation of the exception."[87] In that case, the documents did not evidence any such purpose and the 'exception' had no application.
• [50] Brereton J in Carbotech-Australia Pty Ltd v Yates[88] considered an application by the plaintiff to access documents that had been produced to the Court in answer to subpoenas for production by two law firms. The defendants opposed access on the basis of LPP. The plaintiffs contended that the documents were not privileged as a result of the 'exception'.
• [51] Brereton J in considering the concept of a communication being "in furtherance of" a crime or fraud, Brereton J referred to the discussion of this issue by Hodgson CJ in Equity in Watson v McLernon[89] as follows:

"[A] purpose of merely concealing previous dishonest conduct, and avoiding adverse consequences, such as penalties or claims for damages, which could flow therefrom, would not amount to furtherance of the improper purpose. The policy of the law is to encourage people to get legal advice so that they can be aware of their rights in relation to such matters. However, if the person seeking advice proposes to continue the dishonest conduct, in this case to go on using the opportunities and information dishonestly acquired, in a business competing with the employer in such a way as would be likely to damage the employer, and proposes to use legal advice to assist in this purpose, then in my opinion that would be sufficient to amount to a furtherance of the improper purpose."[90] (emphasis added)

"In other words, if the client is obtaining legal advice in the context of an ongoing dishonest or fraudulent undertaking, so that the advice will or may impact upon or inform the client in the course of that undertaking, it will be regarded as being in furtherance of the improper purpose."[91] (emphasis added)

• [53] Further, Kyrou J (as his Honour then was) in Amcor Ltd v Barnes,[92] observed:

"The Shorter Oxford English Dictionary defines 'furtherance' as 'the fact of being helped forward; the action of helping forward; advancement, aid, assistance'. In my opinion, this definition provides a useful indication of conduct that may be held to be 'in furtherance of the commissioner' of a fraud, offence or act.

...

[T]he rationale of legal advice privilege is to enable clients to obtain advice from their lawyers to facilitate the organisation of their affairs within the law. Legal advice that is sought for the purpose of committing fraud falls outside this rationale. In my opinion, so does legal advice that is sought about what positive steps can be taken to give continuing efficacy to the fraud, such as advice on positive steps to conceal the fraud or positive steps to place the relevant property beyond the reach of any courts order that the victim may obtain. Advice about the taking of such steps can be described as advice prepared in furtherance of the commission of a fraud.

[A]dvice on the legal consequences of a past fraud, the legal remedies that may be invoked by the victim of the fraud and any legal defences that may be available in respect of any claim by the victim would not be in furtherance of the commission of the fraud." (emphasis added)

• [54] In P & V Industries Pty Ltd v Porto (No 3) [2007] VSC 133, Hollingworth J noted (at [27]) there is an important distinction between seeking advice for the purpose of being guided or helped to commit a proposed or current fraud (which would be acting in furtherance), and seeking advice for the purpose of being defended against a past fraud (which would not be acting in furtherance).

• [55] The next question involves applying these principles to the current factual circumstances.
• [56] Based on these authorities, the relevant approach can be summarised as follows:

(a) What is the admissible evidence of an improper purpose (including a consideration of the documents/communications claimed to be subject to LPP)?

(b) Does the evidence establish a prima facie case of an improper purpose by the Client?

(c) If yes, were the subject communications or documents made and/or prepared in furtherance of the improper purpose?

• [57] The LSC contends that the Client clearly intended to use the Respondent to circumvent the Protection Order and any communication made in connection with that intention was done in furtherance of an improper purposes such that no LPP can arise. The Respondent's intent or knowledge of the Client's intent is not relevant.
• [58] The LSC does seek to rely on the Respondent's knowledge as an aggravating feature in respect of the discipline application. However, in respect of the LPP Application, no findings in that regard are necessary. That is a matter for the final hearing, depending on the outcome of the LPP Application.
• [59] At the hearing, the LSC identified the following particular evidence as establishing the improper purpose:

(a) There were no ongoing legal proceedings between the Client and the Complainant at the time that the Letter to the Complainant was prepared and sent.

(i) The terms of the Letter to the Complainant expressly disavow the commencement of any proceedings.

(ii) The tone of the Letter to the Complainant is non-legal and does not raise any changes to the legal relationship between the Complainant and the Client.[93]

(b) The Letter to the Complainant itself.[94]

(i) The Letter to the Complainant bears no hallmarks of legal correspondence.

(ii) The Letter to the Complainant is not legal in its nature.

(c) The Protection Order itself.[95]

(i) The conditions in the Protection Order extend the prohibition to indirect contact.

(ii) The conditions include a non-standard condition, being the requirement that contact through "Talking Parents" "must be succinct and not include any form of emotionally manipulative, coercive or abusive language, talk of past/relationship matters or any other matter not directly related to the child spending time with the respondent or the child's welfare of development."[96]

(iii) The inclusion of this requirement gives rise to the inference that the past relationship between the Client and the Complainant had been "manipulative and coercive."[97]

(d) Section 60 of the Domestic and Family Violence Protection Act 2012 (Qld).

(i) The section provides an exception allowing contact by lawyers. However, the provision expressly refers to lawyers "in relation to a proceeding."[98] Here, an order was granted and there was no ongoing proceeding.

(ii) The section does not entitle a lawyer to make contact in a way which is expressly contrary to the express conditions in the Protection Order itself.

(e) The Complainant's affidavit, including that other lawyers were engaged by the Client to send letters on behalf of the Client to the Complainant as follows:[99]

(i) On 2 March 2021, the Complainant received an 8-page letter from another solicitor in Brisbane on behalf of the Client.

(ii) On 29 July 2021, the Complainant received a 23-page letter from another solicitor in Brisbane on behalf of the Client.

(f) The affidavit of the Respondent at [94], where the Respondent states that when he learned that the Complainant had "received other letters, in the same vein, via other legal representatives" that this had "confirmed" to him that he "had been used."

• [60] The LSC submits that these factors, considered in all the circumstances contained in the admissible evidence, establish that there is no legitimate basis for the Client to engage a lawyer to send a letter that circumvents and breaches the Protection Order.
• [61] On the evidence, the LSC submits that:

(a) The Tribunal can infer the improper purpose on behalf of the Client.

(b) The Letter to the Complainant was sent in terms that:

(i) were an indirect breach of the Protection Order; and

(ii) arguably constituted further acts of domestic violence against the Complainant.

• [62] The ultimate submission by the LSC is that the 'exception' is made out and there is no professional relationship such that a genuine claim for LPP arises. Consequently, the identified material is admissible in the proceeding.
• [63] In response, the Respondent submits:

(a) The scope of the improper purpose for the 'exception' is not limitless. "Sharp practice" or conduct falling "below the normal standard of commercial probity" or which is "deliberately structured to take advantage of the law on a topic" is not enough.[100]

(b) The LSC must establish a prima facie case, not merely assert an improper purpose.[101]

(c) Even if an improper purpose is established, the question is then whether the specific communication was made in furtherance of the improper purpose.[102]

• [64] The Respondent submits these three factors have not been met and the improper purpose is not made out.
• [65] On the facts, the Respondent contends:

(a) That due to the "statutory exception" the Protection Order did not prohibit the Client from "asking ...a lawyer to contact the aggrieved."

(b) The Client's request to the Respondent to contact the Complainant was, therefore, prima facie lawful.

(c) There was no "fraud on justice." While if the Client had sent the Letter to the Complainant directly to the Complainant it would have breached the Protection Order, it did not breach the Protection Order for the Client to ask a lawyer to write to the Complainant.

• [66] The Respondent's position is that it is not enough to conclude that asking the Respondent to send the Letter to the Complainant was a "deliberate structure to take advantage of the law."
• [67] It is necessary to consider the evidence in more detail.
• [68] Firstly, it is appropriate to look at the admissible evidence, excluding the documents and statements the subject of the LPP claim, relevant to the improper purpose. Then, in accordance with the authorities, the documents and evidence the subject of the LPP claim may be inspected.[103]
• [69] The affidavit of the Complainant includes the following evidence:

(a) The Complainant and the Client separated on a date in April 2017.[104]

(b) The Complainant and the Client were formally divorced on a date in July 2019.[105]

(c) The Complainant and the Client have a primary school age daughter.[106]

(d) Since her separation from the Client, the Complainant had received numerous lengthy, repetitive, and obsessive communications from the Client through emails and text messages.[107]

(e) The communications from the Client often included a desire or wish for them to reconcile.[108]

(f) The Complainant had repeatedly told the Client that she had no intention of reconciling with him.[109]

(g) In December 2019, as a result of the communications received from the Client, which the Complainant found to be emotionally manipulative and coercively controlling, the Complainant applied for an emergency domestic violence protection order against the Client.[110]

(h) On a date in January 2020, the Magistrates Court made the Protection Order, naming the Complainant as the 'aggrieved' and the Client as the 'respondent', which is in place until a date in January 2025.[111] A copy of the Protection Order is exhibited.[112]

(i) The Protection Order is the third domestic violence order that the Complainant has obtained against the Client.[113]

• [70] In respect of the Letter to the Complainant, the Complainant's evidence is as follows:

(a) She received the Letter to the Complainant by email at 9.38am on 31 May 2021 with the subject line "My letter to [Complainant's first name]", which attached the Letter to the Complainant.[114]

(b) The covering email stated:

This letter does not seek any variation to any Orders.

It is just a gentle letter which I hope you will be pleased after reading."

(c) When she read the attached letter, she suspected it came from the Client as it contained:[115]

(i) "Coercive and emotive language" that she remembered the Client used in the past.

(ii) Basis spelling and grammatical errors, including the use of incorrect tenses.

(iii) Non-sensical statements.

• [71] By email to the Respondent at 10.14am on 31 May 2021, the Complainant confirmed that she did not wish to reconcile with the Client. This email is also exhibited.
• [72] The Complainant's evidence also addresses her visit with her father to the office of the Respondent. A female staff member at the front desk of the Respondent's office said to the Complainant words to the effect of the Client had drafted the Letter to the Complainant and the Respondent[116] was instructed to send the letter on behalf of the Client. The statement to this effect is corroborated by the affidavit of the Complainant's father.[117]
• [73] The evidence of the Complainant also addresses two other letters she received from lawyers, namely:[118]

(a) An eight-page letter received on 2 March 2021 from another solicitors in Brisbane on behalf of the Client.

(b) A 23-page letter received on 29 July 2021 from another firm of solicitors in Brisbane on behalf of the Client.

• [74] The Complainant's evidence is that these letters were similar in style and content to the Letter to the Complainant which she received from the Respondent. The three letters caused the Complainant a great deal of stress and concern.[119]
• [75] Further, the Complainant considered that the Client was going to different solicitors and instructing them to send letters to her as a way of trying to get around the Protection Order.[120]
• [76] The affidavit of Bradley Mark Fitzgerald exhibits a number of documents not included in the claim for LPP. Relevantly, these include:

(a) Page 3: email dated 13 August 2021 from the Respondent to the LSC in response to the letter from the LSC dated 27 July 2021 in relation to the complaint. The response includes the following statements:

"I was, indeed, instructed by [the Client] to write the letter of 31 May 201 to her.

It was not of my own personal volition. [The Client] authorised the letter.

Under the provisions of the Domestic and Family Violence Protection Act, as [the Client's] lawyer, it is lawful for me to have written to the above named."

(b) Page 6: email dated 1 November 2021 from the Respondent to the LSC in response to the letter from the LSC dated 14 October 2021 requesting further information. The response includes the following statement:

"1. I was the author of the letter. It was sent as a legal representative.

2. It was sent in reliance upon section 60 of the DFVP Act."

(c) Page 61: email dated 3 March 2022 from the Respondent to the LSC providing the "balance of his file" and stated:

"... over the Saturday and Sunday [the Client] and I, with the use of his draft letter (in electronic form on his computer, the original of which I do not have) before finalising the letter actually forwarded." (emphasis added)

(d) Pages 77 to 79: Tax Invoice dated 4 June 2021 in respect of work done by the Respondent for the period 29 to 31 May 2021, being 3 hours on Saturday 29 May 2021, 7 hours on Sunday 30 May 2021 and 3 hours on 31 May 2021 and 20 calls.

(e) Page 110: Email dated 6 June 2022 from the Respondent to the LSC in response to the letter dated 13 May 2022 from the LSC to the Respondent. The response includes the following statement:

"To the extent that the letter may have amounted to improper conduct (which I don't accept) I say it is an isolated incident that firstly has not caused of itself any serious or significant harm to the complainant herself & from a "public interest" viewpoint so low a scale as to not to warrant any further consideration.

I add that this was an extremely unusual incident from which there was unprecedented pressure from the husband & never to be repeated." (emphasis added)

• [77] The affidavit of the Respondent contains evidence which is not the subject of the claim for LPP. This includes:

(a) His antecedents and personal particulars;

(b) Education

(c) Professional and employment history;

(d) Personal life;

(e) Health; and

(f) Discipline history.

• [78] Whilst these matters may be relevant to the final hearing, they are not relevant to whether the Client had an improper purpose.
• [79] The paragraphs under the headings "Conduct the subject of these proceedings" and "Reflections on my conduct" are potentially relevant. Paragraphs 82 to 85 under the first heading are subject to the claim for LPP, but paragraphs 69 to 81 and 86 to 91 under the first heading, and paragraphs 92 to 101, are not.
• [80] The evidence in the paragraphs not the subject of the claim for LPP includes:

(a) The Respondent apologises and accepts that his "conduct was an error."

(b) The Respondent was retained by the Client on 29 May 2021, being two days before the Letter to the Complainant was sent.

(c) The Respondent was engaged on an urgent basis because the Client "wanted a letter to be sent to [the Complainant]. [The client] had a draft, and wanted me to settle and send it." (emphasis added)

(d) The Respondent felt there was "substantial work" to be done and conferred with the Client over the weekend.

(e) The Respondent found the Client "to appear genuine," he was "very convincing" and the Respondent "trusted him at the time."

(f) In accordance with his usual practice, the Respondent did not get funds in trust in advance of the work[121] and as a result he felt this "impacted [his] professional output in relation to the contents of the letter."

(g) The Respondent and the Client met on the Saturday and Sunday and discussed the draft letter.

(h) "We disagreed as to the proposed contents of the letter. Within those two days, there were times where I threatened to cease acting for [the Client]. However, [the Client] always managed to convince me not to do so." (emphasis added)

(i) "The letter was changed to some extent from the original draft. However, there were some aspects that remained in the letter which I now acknowledge are inappropriate and would have been offensive to "the Complainant."

(j) The Respondent describes the Client as "very intense, but charming and charismatic."

(k) On Monday 31 May 2021 the Client attended at the office of the Respondent to see the final draft of the letter. The Client authorised the final draft of the letter to be sent.

(l) The Letter to the Complainant was emailed on 31 May 2021.

(m) "When the LSC became involved ... I learned that [the Complainant] had received other letters, in the same vein, via other legal representatives. This confirmed to [the Respondent] that [he] had been used." (emphasis added)

(n) The Respondent is "extremely disappointed" that he "allowed [himself] to be pressured as [he] was." (emphasis added)

• [81] Other matters raised in the paragraphs not the subject of the claim for LPP include matters which may be relevant to the final hearing but do not appear to be relevant to whether the Client had an improper purpose.
• [82] There are two other sources of evidence from the Respondent:

(a) Annexure A to Response to Disciplinary Application Filed on 8 August 2023 in which the Respondent accepts the charge and admits particulars 1.1 - 1.5 and 1.7 - 1.8, with a reservation of position in respect of 1.6 (being whether parts of the Letter to the Complainant were likely to breach the Protection Order".

(b) The SOAF.

• [83] On the authorities, regard may be had to the communications and documents over which the claim for LPP is made for the purposes of considering whether there is an improper purpose.[122]
• [84] Following are observations in respect of the seven documents over which LPP is claimed and the identified paragraphs of the Respondent's affidavit:

(a) Pages 39 to 51 "draft letter". This draft letter is in substantially the same form as the Letter to the Complainant. Apart from formatting, there appears to be only one phrase that has been deleted on the sixth page of the letter. There is no evidence as to whether this draft letter was the draft prepared by the Client or whether the draft letter is a product of the work that the Client and the Respondent did over the weekend.[123]

(b) Page 62 "notes of ... instructions". This document is difficult to decipher and adds little to the other evidence. It confirms the admission by the Respondent that he was aware of the Protection Order.

(c) Page 64 "Letter from respondent to the Client 31 May 2021" (Indemnity Letter). This will be considered further below.

(d) Pages 80 - 92 "draft copy of a letter with annotations". This is largely the same as the final Letter to the Complainant. It shows the deleted sentence on page 6. Changes shown in other annotations were not incorporated into the final letter. The annotations highlight that consideration was given to the phrase "It is my own decision as a lawyer to write and send this letter to you."[124]

(e) Pages 93 - 94 "Copy of protection order made on 23 January 2020". This is in evidence through the Complainant.

(f) Pages 95 - 100 "Copy of a family law order made 1 March 2018". This is a consent order governing the arrangements between the Complainant and the Client in respect of their daughter. The Complainant's affidavit provides high-level evidence as to the arrangement in relation to the child.

(g) Pages 101 - 104 "Initial client instructions dated 29 May 2021". This is a form with handwritten details completed together with copies of the Client's identification documents.

• [85] Leaving aside the Indemnity Letter, these documents add little to the current considerations.
• [86] The Indemnity Letter is relevant. It is stated to be "By Hand" so it can be inferred it was handed to the Client when he attended the office of the Respondent on 31 May 2021 to review the final draft letter.
• [87] The terms of the Indemnity Letter are brief but include three components:

(a) Firstly, it confirms advice that the letter may amount to a breach of the Protection Order.

(b) Second, confirms that nonetheless the Client "requests" that the letter be "forwarded" to the Complainant.

(c) Third, the Client "indemnifies" the Respondent and the Client "take[s] full responsibility" for the letter.

• [88] Leaving aside whether the Indemnity Letter is enforceable, the letter on its face:

(a) Is not consistent with it having been prepared for the dominant purpose of providing legal advice.

(b) Appears to be an attempt by the Respondent to protect or "shield" himself from any repercussions from sending the Letter to the Complainant.

(c) Supports an inference that the Respondent sending the Letter to the Complainant was in effect substantially "forwarding" the Client's letter to the Complainant.

• [89] Paragraphs 82 to 85 of the Respondent's affidavit are also claimed to be privileged. These paragraphs are relevant to the Client's position and are likely to assist in the consideration of the Client's purpose. In general terms, the Respondent's evidence in these paragraphs includes:

(a) The Client informed the Respondent that the Complainant "would be receptive to the letter and would not find it offensive."

(b) The inclusion of the sentence, "it is my own decision as a lawyer to write and send this letter to you" was contentious between the Client and the Respondent.

(c) The Respondent "caved," and the sentence was included.

• [90] This evidence is consistent with the statement by the Respondent that the Client put the Respondent under "unprecedented pressure." It can be inferred that this pressure was to send the Letter to the Complainant in substantially the same form drafted by the Client and to circumvent the Protection Order.
• [91] The evidence, excluding the communications and documents claimed to be subject to LPP, establishes a prima facie case that the Client had the improper purpose of circumventing the Protection Order by having the Respondent (as a lawyer) send a letter, substantially in the form of a draft prepared by the Client, that would breach the Protection Order if the letter in that form was sent by the Client.
• [92] The evidence as to an improper purpose is made stronger by a consideration of the communications and documents claimed to be subject to LPP, particularly:

(a) Paragraphs 82 to 85 of the Respondent's affidavit; and

(b) The Indemnity Letter.

• [93] This is not a case of "sharp practice" or conduct that falls "below the normal standard of commercial probity." It is the Client putting in place a means to achieve an outcome that was expressly prohibited by the terms of the Protection Order by using a lawyer to give the letter a guise of legitimacy.
• [94] Nor is this a deliberate structure "to take advantage of the law on the topic." It shows an intentional disregard for the law by the Client by seeking to dress up the letter as falling within the statutory exception without any regard to the express scope of the statutory exception. This is supported by the letter sent by another solicitor on behalf of the Client on 2 March 2021 (prior to the Letter to the Complainant on 31 May 2021) and the further letter sent by another solicitor on behalf of the Client on 29 July 2021 (after the Letter to the Complainant on 31 May 2021).
• [95] The Complainant's conclusion that the Client was "simply going to different solicitors in Brisbane and instructing them to send [the Complainant] letters as a way of trying to get around the [Protection Order]" is the only logical and rational inference in all the circumstances.
• [96] Further, the reliance on s 60 of the DFVP Act is also misplaced. Section 60 of the DFVP Act states:

(1) A condition mentioned in section 58(d) or (e) that prohibits a respondent from asking someone else to contact or to locate an aggrieved or named person does not prohibit the respondent from asking -

(a) A lawyer to contact the aggrieved or named person; or

(b) Another person, including a lawyer, to contact or locate the aggrieved or named person for a purpose authorised under the Act.

Lawyer means a lawyer who is representing the respondent in relation to a proceeding."

• [97] For the purposes of the "statutory exception" it is not any lawyer retained for any purpose or at any stage but the lawyer representing the respondent "in relation to a proceeding."
• [98] Section 60 appears in Division 5 dealing with 'Conditions of domestic violence orders', which is in Part 3 in relation to 'Domestic violence orders'. The relevant "proceeding" for the purposes of a definition of lawyer in s 60 would be in the Magistrates Court.[125]
• [99] Here, the Protection Order was made and there was no application to vary the conditions. To the contrary, the covering email from the Respondent to the Complainant expressly made that clear: "This letter does not seek any variation to any Orders." The Letter to the Complainant also opens with a similar statement: "This is a friendly and genuine letter that does not seek any variation to any orders."
• [100] There is no real attempt to link the terms of the Letter to the Complainant with a legitimate purpose in relation to a "proceeding." The reference to a possible "exception to be added" to condition 4 and "the above can be inserted underneath Question 5 in the application form to vary" are not framed in a way that would be expected if a lawyer was proposing a variation to a court order. The statements are more consistent with the Client seeking to open up a direct line of communication with the Complainant, which is otherwise prohibited.
• [101] To the extent that the Client and the Respondent seek to rely on s 60 as a "statutory exception" which permitted the Respondent to send the Letter to the Complainant, there is a strong prima facie case that they were wrong.
• [102] The Explanatory Statement to the Domestic and Family Violence Protection Bill 2011 states in respect of Clause 60:

"Lawyer is defined to mean a lawyer who is representing the respondent in relation to a proceeding. This provision is intended to apply to situations where the actions of the lawyer are legitimately connected with legal proceedings, and not situations where (for example) a respondent asks a friend, who is a lawyer, to act on his or her behalf for the purposes which are not related to legal proceedings."[126]

• [103] It can be inferred from this statement that the risk of clause 60 being used out of context was identified at the time that Parliament was considering the legislative scheme.
• [104] On the current facts, there is no "legitimate connection" between the actions of the Respondent as the lawyer and legal proceedings. The risk identified in the Explanatory Statement has manifested itself on the current facts, at least to a prima facie standard, by the improper purpose of the Client to circumvent the Protection Order.
• [105] The improper purpose of the Client as articulated at [90] above and being established to the standard of a prima facie case, can be characterised as:

(a) A "fraud on justice."

(b) Going to the heart of the solicitor-client relationship, such that it precludes a "true professional relationship arising."

(c) Contrary to the public interest, in particular the better administration of justice.

(d) Having the effect of frustrating the processes of the law.

(e) Misrepresenting the true nature and purpose of the letter and to "work a trickery" by the Client effectively sending a letter to the Complainant in the guise of a lawyer's letter to circumvent the operation of the Protection Order.

• [106] In these circumstances, a prima facie case of an improper purpose on behalf of the Client is established which gives rise to the 'exception' to LPP.
• [107] It is still necessary to consider the final issue of whether the communications contained in the seven documents and the identified paragraphs of the Respondent's affidavit were in furtherance of the improper purpose.
• [108] Here the Respondent was engaged to "settle and send" the Letter to the Complainant. The advice that was given was in respect of an "ongoing undertaking" of having the letter "settled and sent." In these circumstances, the advice about the letter can be described as being in furtherance of the improper purpose.
• [109] Accordingly, the seven documents and the identified paragraphs in the Respondent's affidavit are within the 'exception' and there can be no proper basis for LPP to arise. The documents are admissible and can be relied upon in the discipline application.

• [110] In the circumstances, the appropriate order is that the Respondent's application is dismissed.
• [111] The Tribunal will hear further from the parties as to costs as this was not addressed in written submissions or at the hearing. However, given s 462 of the LP Act, the Tribunal may not have power to deal with costs until the discipline application has been heard and determined.

Annexure A - Respondent's proposed draft orders

1. The documents described in the following table ("the Privileged Documents") are subject to legal professional privilege and are to be struck out under section 62(1) of the Queensland Civil and Administrative Tribunal Act 2009:

Draft copy of a letter to be sent under the Respondent's hand.

• Affidavit of Bradley Mark Fitzgerald sworn on 2 November 2023, exhibit BMF-1, pages 39-51;
• Hearing Bundle filed 1 March 2024, pages 132-144.

Notes of the Respondent's former client's instructions.

• Affidavit of Bradley Mark Fitzgerald sworn on 2 November 2023, exhibit BMF-1, page 62;
• Hearing Bundle filed 1 March 2024, page 155.

Letter from the Respondent to his former client dated 31 May 2021.

• Affidavit of Bradley Mark Fitzgerald sworn on 2 November 2023, exhibit BMF-1, page 64;
• Hearing Bundle filed 1 March 2024, page 157.

Draft copy of a letter, with annotations, to be sent under the Respondent's hand.

• Affidavit of Bradley Mark Fitzgerald sworn on 2 November 2023, exhibit BMF-1, pages 80-92;
• Hearing Bundle filed 1 March 2024, pages 173-185.

• Affidavit of Bradley Mark Fitzgerald sworn on 2 November 2023, exhibit BMF-1, pages 93-94;
• Hearing Bundle filed 1 March 2024, pages 186-187.

• Affidavit of Bradley Mark Fitzgerald sworn on 2 November 2023, exhibit BMF-1, pages 95-100;
• Hearing Bundle filed 1 March 2024, pages 188-193.

• Affidavit of Bradley Mark Fitzgerald sworn on 2 November 2023, exhibit BMF-1, pages 101-104;
• Hearing Bundle filed 1 March 2024, pages 194-197.

Content of communications between the former client and the Respondent.

• Whole affidavit of Vincent Pennisi sworn 24 November 2023 (specifically paragraphs 82-85, but paragraphs not severable so whole affidavit to be included);
• Hearing Book pages 206-216.

1. The Registrar is to cause each copy of the Privileged Documents that is held on the Tribunal's file to be placed in sealed envelopes marked "Privileged document. Not to be opened without written order of the Tribunal."

1. The Respondent (Vincent Pennisi) is to prepare a redacted copy of the affidavit of Vincent Pennisi sworn on 24 November 2023 to remove the second sentence from paragraph 82, and the entirety of paragraphs 83-85. The redacted copy shall be filed within seven days of this Order being made in replacement of the original which shall be placed in a sealed envelope as per Orders 1/2.

1. The matter is to be listed for a directions hearing on a date to be advised.

[1] Discipline Application, p. 2 at [1].

[2] On behalf of the client of the Respondent.

[3] Discipline Application, p. 2 at [1.2]; SOAF, p. 2 at [5].

[4] Discipline Application, p. 2 at [1.2].

[5] Discipline Application, p. 2 at [1.2].

[6] Discipline Application, p. 2 at [1.3].

[7] Discipline Application, p. 2 at [1.6].

[8] Discipline Application, p. 2 at [1.6(a)].

[9] Discipline Application, p. 2 at [1.6(b)].

[10] Discipline Application, p. 3 at [1.7].

[11] Discipline Application, p. 3 at [1.8].

[12] See the non-exhaustive list of statements disputed as to whether they were likely to breach the terms of the Protection Order: SOAF, pp. 4-7 at [16].

[16] HB at p. 102: Letter from LSC to Respondent requesting copy of file dated 16 February 2024.

[17] Attachment to LPP Application at [1]-[5].

[18] Re Stanhill Consolidated Ltd [1967] Vic Rp 92 and Hagan v Council of the Law Society of New South Wales [2022] NSWCATOD 76 at [35].

[19] Legal Services Commissioner v Shulsinger [2010] VCAT 965 at [53]- [54] and R v McNicol [2022] QSC 67 at [34].

[20] Sharpe v Grobbel [2017] NSWSC 1065 at [13].

[21] This form of order provides a practical solution to the issue of whether the Tribunal has power to order documents be "uplifted" from the file.

[22] Respondent's submissions dated 21 February 2024, p. 4 at [15].

[24] Respondent's submissions dated 21 February 2024, p. 5 at [18].

[25] In respect of (v), a copy of the Protection Order is also exhibited to the Complainant's affidavit.

[26] Even though the evidence may assist the Respondent, this is not an exception to the Client's LPP: Hannam v State of New South Wales (No 11) [2023] NSWSC 472 at [25].

[27] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303 at [7].

[28] Creswick v Creswick (No 2) [2011] QSC 118 at [80].

[29] Rather, it was prepared as a record of the Respondent's efforts to shield himself from any future liability.

[30] Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 213 CLR 543 at [9]- [11].

[31] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303.

[32] R v McNicol [2022] QSC 67 at [32]- [34].

[33] Legal Services Commissioner v Shulsinger [2010] VCAT 965 at [54].

[35] Hagan v Council of the Law Society (NSW) [2022] NSWCATOD 76 at [35].

[36] Sharpe v Grobbel [2017] NSWSC 1065 at [13].

[38] Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 213 CLR 543 at [9].

[39] Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96 at [82].

[40] DSE (Holdings) Pty Ltd v Intertan Inc (2003) 135 FCR 151; (2003) 203 ALR 348; [2003] FCA 1191 at [52].

[41] Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 at [27].

[42] Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at [245]; Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [52].

[43] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 507, 544, 553-554, 571-572 and 587.

[44] HB at p. 102: Letter from LSC to Respondent requesting copy of file dated 16 February 2024; HB at pp. 103-199: Emails from the Respondent to the LSC, with attachments, sent 3 March 2022.

[46] New South Wales v Betfair Pty Ltd (2009) 180 FCR 543.

[47] Submissions on behalf of the LSC, p. 2, [7].

[48] New South Wales v Betfair Pty Ltd (2009) 180 FCR 543.

[49] [1985] HCA 60; (1985) 158 CLR 500.

[51] [1933] USSC 52; (1933) 289 U.S. 1, at p. 15 [1933] USSC 52; [77 Law. Ed. 993, at p. 1000].

[52] [1933] USSC 52; (1933) 289 U.S. 1, at p. 15 [1933] USSC 52; [77 Law. Ed. 993, at p. 1000].

[54] (1743) 17 St. Tr. 1139, at p. 1229.

[55] [1901] UKLawRpAC 15; [1901] AC 196, at pp. 201, 203, 205, 206.

[56] (1910) 10 CLR at pp. 386, 387, 390.

[57] (1980) 146 CLR at pp. 145, 156, 162.

[58] (1983) 153 CLR 52, at p. 86.

[59] Or copies of them, as was the case here.

[60] Brennan CJ at p. 514; McHugh J at p. 557; Gummow J at p. 576, Gaudron J at p. 547 and Kirby J at p. 593.

[61] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at pp. 514-515; R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at pp. 147, 156, 159, 161.

[62] O'Rourke v Darbishire [1920] AC 581 at pp. 604, 633; Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at pp. 516, 517, 525, 527.

[63] Butler v Board of Trade [1971] Ch 680 at p. 689.

[64] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at p. 515; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at p. 163.

[65] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at pp. 516, 528-529.

[66] R v Cox and Railton (1884) 14 QBD 153 at p. 175; O'Rourke v Darbishire [1920] AC 581 at pp. 613, 632; Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382 at pp. 385, 386, 389-390; Butler v Board of Trade [1971] Ch 680 at p. 689.

[67] Carter (1995) 183 CLR 121 at p. 163.

[68] As to the onus of proving matters which except a situation from the general rule, see, generally, Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249.

[69] O'Rourke v Darbishire [1920] AC 581 at p. 604, per Viscount Finlay, cited with approval in Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at p. 516, per Gibbs CJ.

[70] O'Rourke v Darbishire [1920] AC 581 at p. 604.

[71] [2006] FCA 772.

[72] [2004] FCA 258.

[74] [2004] FCA 258.

[76] [1995] EWCA Civ 29; [1995] 4 All ER 511.

[78] Schiemann LJ, with whom the other members of the Court agreed.

[82] [2006] FCA 1234; (2006) 155 FCR 30.

[83] AWB Ltd v Cole and Another (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [227].

[86] [2011] VSC 204.

[88] [2008] NSWSC 1151 ('Carbotech').

[89] [2000] NSWSC 306.

[90] Ibid [116]; Carbotech, [25] (emphasis added).

[92] [2011] VSC 341.

[93] Although it does, inconsistently, suggest some potential changes to the Protection Order to facilitate communications if the Complainant consented.

[94] HB at pp. 69 to 81: Affidavit of the Complainant.

[95] HB at pp. 82 to 85: Affidavit of the Complainant.

[97] This inference is consistent with the statements of the Complainant in her affidavit and the statement in Exhibit 1 to the Complainant's affidavit: namely, [the Client] "has been using coercive control and emotional abuse" on the Complainant for years.

[98] Domestic and Family Violence Protection Act 2012 (Qld), s 60(2).

[99] HB at p. 54: Affidavit of the Complainant, [30]-[31].

[100] Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (1997) 70 SASR 166.

[101] Attorney-General for the Northern Territory v Kearney [1985] HCA 60; (1985) 158 CLR 500 at p. 516.

[102] Hodgson v Amcor Ltd (No 2) [2011] VSC 204 at [73] and [92]; ASIC v Mercorella (No 3) [2006] FCA 772 at [36].

[103] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 547; James George Hodgson v Amcor [2011] VSC 204 at [91]- [92].

[104] HB at p. 51: Affidavit of the Complainant, [7].

[106] HB at p. 52: Affidavit of the Complainant, [8].

[113] Two previous domestic violence orders have expired; HB at p. 52: Affidavit of the Complainant, [15].

[116] The use of "they" encompasses the legal practice of V Pennisi Associates Solicitors.

[117] That is, the Client had drafted the letter and requested that it be issued on his behalf.

[118] HB at p. 54: Affidavit of the Complainant, [30]-[31].

[121] Having agreed with the Client that he would pay for the work once the letter was complete.

[122] And whether the documents meet the principles to be privileged.

[123] Noting the statement by the Respondent that the original draft letter was on the Client's computer and that he does not have a copy of the original draft.

[124] This sentence appears in the final Letter to the Complainant but in this draft is crossed out in handwriting.

[125] Court is defined in s 6 and includes the Childrens Court is hearing a child protection proceeding.