Legal Services Commissioner v Trost [2019] QCAT 357

Legal Services Commissioner v Trost [2019] QCAT 357 | Case summary | Zoe

[24]

[7] This email was contemporaneously copied to both counsel for the plaintiff and counsel for the defendant and to Ashley Moore, a solicitor employed by Tucker & Cowen.

[8] By the Agreed Statement of Facts, the respondent agreed that proof was not required for the conclusion that this email was sent from the respondent's Cleary Hoare email account. It is clear on the face of the email that this was the case. It is also clear on the face of the email that it was electronically signed by the respondent. The clear inference is that this email was actually written and sent by the respondent. The respondent did not adduce any evidence to displace the drawing of that inference. The conventional principles derived from Jones v Dunkel,[2] which have application in proceedings such as the present[3] allows this Tribunal, in the absence of evidence on this point from the respondent, to more comfortably draw the inference which is readily available on the facts. Accordingly, this Tribunal finds that the email of 30 March 2012 was actually written and sent by the respondent.

[9] By an affidavit sworn on 28 April 2014 and filed in this proceeding, Mr Moore deposed to the following facts:

(a) He was not given any notice of the respondent's email of 30 March 2012 prior to it being sent;

(b) The respondent did not seek Mr Moore's consent before sending the email; and

(c) Mr Moore did not consent to the email being sent.

[10] None of Mr Moore's evidence was challenged or disputed by the respondent. Accordingly, this Tribunal proceeds on findings that the respondent did not give the plaintiff's solicitors notice of his intention to communicate with the Court in terms of his email of 30 March 2012, nor seek their consent to that communication, nor hold their consent at the time the email was sent.

[11] This email sent by the respondent on 30 March 2012 is the subject of Charge 1.

[12] On 2 April 2012 at 10.53 am, Mr Nase of Tucker & Cowen sent an email to the Judge's Associate in which, amongst other things, he took issue with the respondent's communication of 30 March 2012. Mr Nase's email of 2 April 2012, which was also copied to the respondent and counsel for the plaintiff, stated:

[32]

Dear Associate

The defendants note that on Monday 29 March 2012, counsel for the plaintiff forwarded to you for the attention of her Honour, one of the cases referred to in footnote 28 of the ALJ Article of D Williams QC "Winding Up Trading Trusts: Rights of Credits and Beneficiaries" ("the Article"), which Article counsel for the defendants had provided to her Honour and made submissions about.

In order to assist her Honour, the defendants provide by way of assistance the relevant extract from the other case referred to in footnote 28 of the Article as well as relevant extracts from some of the cases referred to in:

1. the extract from Lewin of Trusts (8th edition) ("Lewin") provided to her Honour by the defendants' counsel;

2. paragraph [2104] at page 566-567 of Jacobs' Law Of Trusts In Australia (7th edition) (Jacobs"), which her Honour had on the bench, and in respect of which the defendants' counsel made submissions.

The defendants also provide as part of the attachment relevant extracts of some further cases which have applied these cases.

The cases (and relevant extracts), with appropriate cross references to the footnote of the Article, Jacobs or Lewin are:

1. In re Johnson, at pages 1 to 5 of the Attachment, which case is referred to in footnote 10 at [21-29] on page 687 and footnote 70 at [21-39] on page 695 of Lewin.

2. Vacuum Oil, at pages 6 to 10 of the Attachment, which case is referred to in footnote 28 on page 275 of the Article.

3. RWG Management Ltd, at pages 11 to 14 of the Attachment, which case is referred to in footnote 43 of [2104] on page 566 and in footnote [44] on page 567 of Jacobs.

4. Corozo, at pages 15 to 18 of the Attachment, which applies In re Johnson (see no 1 above) and Vacuum Oil (see no 2 above).

5. Nolan v Collie, at pages 19 to 24 of the Attachment, which explains and considers RWG Management Ltd (see No 3 above).

6. Irvine, at pages 25 to 27 of the Attachment, which applies RWG Management Ltd (see No 3 above).

If required, the defendants will provide the complete cases.

Yours faithfully

Ben Trost

Solicitor

[67]

[24] There was no evidence before the Tribunal as to where the respondent actually was when each of the impugned emails was sent, nor was there any evidence from which his physical location at those times could be inferred.

[25] The Tribunal did, however, have uncontested evidence in the form of an affidavit by Mr Matthew Clarke, a computer systems administrator employed by Tucker & Cowen. Mr Clarke deposed to examining the electronic version of each of the subject emails in his firm's document management system. In each case, Mr Clarke conducted searches by reference to the emails' metadata. In respect of each email, the searches identified that the email had been sent from a source host named "mail.clearyhoare.com.au" at an IP address located in Brisbane. In other words, each email had been transmitted from the respondent's firm's server which was physically located in Brisbane.

[26] The respondent submitted that the location of the email server through which the emails were sent did not establish the location of the respondent's conduct and on that basis, this Tribunal did not have jurisdiction under s 423(1).

[27] Separately, insofar as the LSC alternatively contended that the Tribunal had jurisdiction under s 423(2) on the basis that the conduct had occurred partly in Queensland and partly in New South Wales, the respondent argued that the Tribunal lacked jurisdiction because the consent of the New South Wales Legal Services Commissioner had not been obtained when the applicant started dealing with the complaint in this case. Written consent of the New South Wales Legal Services Commissioner was ultimately obtained in October 2017, i.e. some five and a half years after the complaint was originally made and some four years after this discipline application was filed. Relying on the decision of the New South Wales Administrative Decisions Tribunal in Council of the New South Wales Bar Association v Asuzu,[5] the respondent argued that such consent could not operate retrospectively to cure the lack of jurisdiction.

[28] The relevant conduct under each charge is the act of the respondent communicating with the Court. The mode of communication used by the respondent was his firm's email system. Using that system meant, on the evidence, that each email was sent from the firm's server, which was located in Queensland. That is, regardless of the respondent's physical location when he formulated the emails, each communication occurred when the email was dispatched electronically from the server located in Queensland.

[29] In a previous hearing in this matter,[6] Thomas J discussed the meaning of "communication" in the context of a practitioner's conduct for the purposes of the LPA and said:

[86]

[44] Viewed from this purposive perspective, it also explains why r 18.6 only prohibits communication on a "matter of substance". Not every communication with a judge, or a judge's chambers, will be one which necessarily touches the substance of the particular case or will be made "with a view to influencing the conduct or outcome of the case". Much will depend on the content of the communication and the whole of the circumstances in which the communication was made, including any explanation for not seeking an opponent's consent before sending the communication. As Brereton J noted in Carbotech Australia Pty Ltd v Yates,[18] which was concerned with whether ex parte communication between a court appointed referee and the solicitors for one side gave rise to an apprehension of bias, the mere fact that an ex parte communication has taken place is important but not decisive, and "closer examination may show that the informed reasonable lay observer might not form an apprehension of bias despite such communications".

[45] Again, this underscores the notion that the purpose to which the prescription in r 18.6 is directed is the preservation of the judicial officer's independence.

[46] In the present case, the applicant's argument was that each of the impugned emails was a communication on a matter of substance which was sent in breach of r 18.6. The LSC contended that the breach under Charge 1 amounted to unsatisfactory professional conduct because the sending of the email was not a momentary or inadvertent failure, while the breaches under Charges 2 and 3 were professional misconduct because they involved substantial and consistent failures to maintain a reasonable standard of competence and diligence.

[47] In denying breaches of the rule, the respondent put the LSC to proof and addressed his submissions to the following issues:

a denial that the emails were in the opponent's absence (issue 1);

a denial that the emails contained a matter of substance (issue 2);

a denial that there was no consent by the opponent (issue 3).

[48] The respondent then argued that, even if there was a breach of the rule, it was not unsatisfactory professional conduct because:

there was no cause and effect in that the alleged breach did not affect the proceeding, and in the eyes of a member of the public this would not constitute unsatisfactory professional conduct (issue 4);

the respondent only responded to a line of communication with the Court initiated by his opponent, and, in the eyes of a member of the public this would not constitute unsatisfactory professional conduct (issue 5).

[49] Further, the respondent argued that, even if there was a breach of the rule, there was no professional misconduct because:

any breach, if established, did not constitute a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence (issue 6);

any breach, if established, could not justify a finding that the respondent is not a fit and proper person to engage in legal practice (issue 7).

[50] It is convenient to deal with each of these issues as follows.

[92]

[59] The respondent first sought to place the emails he sent in the context of an email having just been sent by counsel for the plaintiff later in the afternoon after the hearing had concluded. That email is described above at [5].

[60] The respondent then referred to his email of 30 March 2012 (subject of Charge 1), and contended that this did not contain a matter of substance but was a matter of procedure. It was argued that it did not attach any cases but sought directions on how to proceed, was administrative in nature, and made no argument nor enclosed any case.

[61] The other side's response was the email of 2 April 2012 (quoted above at [12]).

[62] Ultimately, the Judge's Associate responded, advising to the effect that the judge would not receive any further submissions from the parties.

[63] The respondent's email of 30 March 2012:

effectively sought the judge's leave for the respondent's side to provide the judge with further "concise closing submissions", and identified the issues to which those submissions would be addressed;

advised the respondent's intention to provide the judge with "some extracts from some of the more relevant cases that counsel referred to"; and

asked whether the judge agreed to this course.

[64] The Tribunal does not consider that this email of 30 March 2012 contained matters of substance in connection with the relevant proceeding. The email did not, in itself, advance any further submissions or evidence, but rather, relevantly, went no further than seeking the judge's leave to put on further submissions. That request was ultimately declined. The email also seems to have assumed an entitlement on the part of the respondent to provide extracts of authorities to the judge. That, of course, became the subject of the respondent's email of 4 April 2012.

[65] The Tribunal finds that the respondent's email of 30 March 2012 was not a communication on a matter of substance in that its contents, of themselves, could not influence the outcome of the case. Accordingly, the dispatch of that email was not in breach of r 18.6.

[66] The respondent's email of 4 April 2012 is, however, in a different category. Counsel for the respondent before this Tribunal could not elevate his case any higher than that it was "arguable" that this email did not go to matters of substance.[21]

[67] The email of 4 April 2012, which was sent despite the email from the Judge's Associate on 2 April 2012, clearly did descend into matters of substance. The respondent sought to rationalise and justify this email by reference to the fact that the opponent's counsel had sent the email of 29 March 2012. In fact, however, that previous email did nothing more than provide the judge with a copy of a case to which the plaintiff's counsel had actually referred in argument. So much is clear from the face of that email.

[68] The respondent's email of 4 April 2012 went much further. Under the guise of "assisting the judge", the respondent sent the judge a welter of authorities and extracts. There is no suggestion that any of these had been referred to in argument before the judge. Indeed, it is apparent from the respondent's email that not only had they not been referred to in argument, some were extracts "of some further cases which have applied these cases". In other words, contrary to the assertion in his earlier email that he would only be providing "some extracts from some of the more relevant cases that counsel referred to", the respondent used his email of 4 April 2012 to put before the judge research material to which the judge had not been referred in argument. This was self-evidently done with a view to influencing the outcome of the case. The email concerned substantial matters of law which were in issue in the case.

[69] The Tribunal finds that the respondent's email of 4 April 2012 concerned a "matter of substance" in connection with the relevant proceeding.

[70] So far as the email of 20 April 2012 (the subject of Charge 3) is concerned, the highest that the respondent's submission goes is that the information that the plaintiff company had been placed into liquidation "was a matter of public record and was not in the nature of submission or argument".[22]

[71] That contention cannot be accepted for several reasons. First, it ignores the fundamental proposition that the Court acts on evidence, not on assertions made in unsolicited emails. Secondly, the matter before the Court was an application for security for costs against the plaintiff. The fact of the plaintiff's liquidation would obviously have been a relevant consideration on such an application, and manifestly a "matter of substance" in connection with the application for security for costs.

[72] Accordingly, the Tribunal finds that the respondent's email of 20 April 2012 concerned a "matter of substance" in connection with the relevant proceeding.

[100]

[86] For the reasons stated above under issue 2, the applicant's case of breach of r 18.6 in respect of the email of 30 March 2012 cannot be sustained, and Charge 1 must be dismissed.

[87] Equally, for the reasons set out above, it is clear that the communication of each of the other emails by the respondent was in breach of r 18.6.

[88] The Tribunal must now consider whether those breaches ought be characterised as professional misconduct or unsatisfactory professional conduct.

[89] As noted above, s 418 and s 419 provide non-exhaustive definitions of the terms "unsatisfactory professional conduct" and "professional misconduct" respectively. In other words, conduct which does not necessarily fall squarely within the ambit of one or other of those definitions may nevertheless, in appropriate circumstances, be regarded by the Tribunal as constituting either professional misconduct or unsatisfactory professional conduct. Contrary to the submission of the respondent, the terms of s 418 do not impose an overarching test of expectations of the general public rather than members of the profession as a prerequisite for a finding of unsatisfactory professional conduct. Each case must be considered on its own facts and merits. As was said by Wilson J in Legal Services Commissioner v Bussa,[29] the question whether or not a practitioner's misconduct in a particular case amounts to unsatisfactory professional conduct or professional misconduct is generally a matter of degree and each case will be determined on its own facts.[30]

[90] Proven breach of a legal profession rule is capable of founding a conclusion that the practitioner engaged in unsatisfactory professional conduct or professional misconduct - so much is clear from the express terms of s 420(1)(a) and s 227(2). But proof of a breach of a professional rule does not automatically or necessarily compel a finding that the practitioner engaged in unsatisfactory professional conduct or professional misconduct. Again, the characterisation of the conduct constituted by the breach will be a matter of degree, determined on the facts of each case.

[91] Not every professional failing constitutes unsatisfactory professional conduct:

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