[4] The proceedings before Daubney J had a rather complex history. They arose out of Mr Puryer's relationship with another person, and their shared obligations as tenants in residential premises under a 12 month lease beginning on 2 February 2006. The lease contained a term that each of them could, by notice in writing, exercise an option to renew the lease for a further 12 months.
[5] As explained in a decision of the Court of Appeal which was the genesis of the disciplinary action against Mr Puryer (Puryer v Webb & Ors [2008] QCA 246), the relationship ended in acrimonious circumstances in mid 2006, and on 12 July the co-tenant offered to pay to the letting agent of the lessor an amount representing 40% of the rental payable for the unexpired balance of the lease - an offer which reflected, the Court of Appeal said, the circumstance that up to that time she had contributed 40% to the outgoings for the house.
[6] On the same day, however, Mr Puryer purported to exercise the option to renew the lease from 3 February 2007 to 2 February 2008. His co-tenant notified Mr Puryer that she would not consent to any renewal of the lease. He remained in occupation of the house.
[7] The co-tenant then commenced proceedings in the Small Claims Tribunal seeking to be released from her obligations under the lease on the basis of excessive hardship: she alleged that she was adversely affected by a medical condition which was being exacerbated, she also alleged, by the stress of living with Mr Puryer. That was Small Claims Tribunal claim No 4011 of 2006.
[8] On 28 July 2006 the Small Claims Tribunal made an order 'removing' the co-tenant from the lease. The order was made without notice to Mr Puryer. On the same day, the co-tenant paid 40% of the rent payable until 2 February 2007 to the lessor's leasing agent.
[9] Subsequently, in February 2007, the lease was terminated on the grounds of rental arrears in different Small Claims Tribunal proceedings (No 0450 of 2007) between the letting agent, and Mr Puryer.
[10] Some time earlier (on 26 August 2006) Mr Puryer had commenced proceedings in the Supreme Court for judicial review of the first decision of the Small Claims Tribunal 'removing' his former co-tenant from the lease. He sought to have that order quashed, or reconsidered. A directions hearing took place before Muir J on 22 December 2006, by which time Mr Puryer had obtained the co-tenant's consent to abide the orders of the Court and, with one qualification, take no further part in the proceedings. Muir J ordered that the co-tenant produce some documents to Mr Puryer but, otherwise, she was granted leave to withdraw - with the reservation that her right to be heard on the question of costs was preserved.
[11] In February 2007 Mr Puryer amended that proceeding in the Supreme Court to include a claim for relief arising out of the second order of the Small Claims Tribunal, made in that month, terminating the lease.
[12] Almost a year passed before Mr Puryer then, on 12 December 2007, filed an amended application in the Supreme Court seeking an order that the co-tenant indemnify him for one half of the rent, outgoings and services under the Residential Tenancy Agreement. He served that application and an associated affidavit on the co-tenant late on 12 December but did not, the Court of Appeal found, draw her attention to the significance of the new claim for relief against her which, as the Court said, '... was distinctly inconsistent with the spirit, if not the letter, of the contract reflected in the consent order (of Muir J) of 22 December 2006'[5].
[13] The co-tenant did not appear on 13 December 2007 when Mr Puryer's application came on for hearing before Daubney J. The transcript shows that Mr Puryer handed the Court a list of material which he was to read, but did not draw his Honour's attention to a letter of 31 July 2006 exhibited to two of his own affidavits in the list. The letter was from the letting agent to Mr Puryer and referred to the co-tenant's payment, in advance, of 40% of the rent for the balance of the term until February 2007.
[14] In its decision the Court of Appeal sets out a lengthy passage containing an exchange between Daubney J and Mr Puryer which, the Court of Appeal concluded, showed that Mr Puryer did not inform the judge of the payment.
[15] On 13 December 2007 Daubney J made a number of orders setting aside the two decisions of the Small Claims Tribunal and directing that the co-tenant indemnify Mr Puryer against, and pay him one half of, each of the rent, outgoings and services paid or payable under the tenancy agreement of 25 January 2006.
[16] As the Court of Appeal observed '... it is inconceivable that his Honour would have made (that order) if he had been informed that, in fact, (the co-tenant) had paid 40% of the rent payable for the balance of the original term, being the percentage which she considered was agreed between Mr Puryer and herself'[6].
[17] The fact that the order he was being asked to make, and the circumstances in which he was being asked to make it, gave Daubney J some concern is apparent from an immediately following order his Honour made: that his order itself must be served personally on the co-tenant, and that the operation of the order requiring her to pay one half of the rent, etc would be stayed until 14 days after personal service on her, during which time she could apply to have the orders varied on two days written notice to Mr Puryer.
[18] The co-tenant did not take that opportunity but, instead, applied to Dutney J on 27 February 2008 for an order setting aside Daubney J's order, on the basis it was made in her absence.
[19] The transcript of those later proceedings, also referred to extensively in the Court of Appeal decision, included comments by Dutney J that '... what was said and not said by Mr Puryer before Daubney J was apt to have the effect of suggesting that (the co-tenant) had not discharged any of her obligations under the lease after 28 July 2006'[7].
[20] That said, although Dutney J expressed the view that the affidavit upon which Mr Puryer had relied in the hearing before Daubney J seemed to be plainly misleading, he did not make a finding that Mr Puryer had deliberately set out to mislead the Court. The judge did, however, go on to make an order for costs on an indemnity basis against Mr Puryer.
[21] In its decision the Court of Appeal addressed the question whether or not Daubney J had been misled and whether or not any misleading, if it occurred, was deliberate.
[22] First, the Court observed that Dutney J had not concluded that Mr Puryer had deliberately mislead Daubney J but, rather, that the judge had been misled by the position put before him as to the co-tenant's discharge of her obligations under the lease; that, as the transcript showed, Daubney J did not appreciate that the co-tenant had made payments of that kind; and that, whether or not Mr Puryer deliberately set out to mislead Daubney J, the fact that he achieved the result was sufficient ground to set aside the critical order.[8]
[23] The Court of Appeal also observed that Daubney J was misled as to the extent of notice given to the co-tenant as to Mr Puryer's claim for indemnity from her.[9]
[24] The Court of Appeal said (at paragraph [31] of its Reasons) that while it was not necessary in order to dispose of the appeal to come to a view as to whether Mr Puryer deliberately misled Daubney J, the Court should record its concern that '... to say the least, Mr Puryer did not seem to understand that a lawyer's obligations of candour to the Court, whose officer he is, are not discharged by leaving it to the Court to plough through a bundle of papers in order to discover relevant material adverse to this case. There are, we think, grounds for the investigation by the Legal Services Commissioner of Mr Puryer's conduct before Daubney J'.