The Legal Practitioner v Council of The Law Society of The Act [2014] ACTSC 50

The Legal Practitioner v Council of The Law Society of The Act [2014] ACTSC 50 - ACTSC 2014 case summary — Zoe

[60]

Dear Manager

Re- the Advert. For the Pide Heaven Shop and the Reverse Action of Accreditation Status.

Re our previous discussion regarding the amount of $165.00 for the cost of advertising for the Pide Heaven Shop-Mawson, which has already been settled more than two months ago.

I wish to state clearly that, I did not receive your Invoice at my current address or at my above business address. My Bookkeeper who does regularly collects all my Invoices to my Businesses on regular bases; and your Invoice was not one of them as far as I'm aware!

I do believe that we have spoken on couple occasions to resolve this issue of the above amount for the reason that I didn't intentionally or otherwise hold the payment of a petty amount of $165.00. Obviously there was a break down of communication! And you know will that I've been doing business with your company in the past without any problem.

Assuming your mail was sent to my previous residential address, and it would have been returned to (Sender), and it's a matter of a phone call to my shop, and the issue would have been resolved there and than; alternatively the Invoice should have been delivered to the actual shop above.

Neither to say, that this issue has created an unpleasant problem with my bank Manager and other Financial Institutions regarding my Accreditation; and it does not help to maintain a good Business name, or doing my name any justice, and I'm rather very discontented person.

You must appreciate and understand that the Businessman has a lot of responsibilities on his mind and for the day to day operation of the businesses, and obviously to keep the books up to date, and that's why I have a bookkeeper.

It's an unfortunate that this matter has taken the wrong course, without of my prior knowledge by placing this incident with VEDA.

I did request Mr David Brown (Merge Media Consultant) to contact you and deal with this problem as a matter of urgency. I was informed by David that you wish to communicate with me first or providing some kind of a Power of Attorney to continue with the case.

I'm deeply concerned, and I would have appreciated if you have contacted my shop prior to this action, or at least your office could have contacted me on my mobile, considering that my Business does not stop only with one Add! And especially for the small amount that was outstanding than, and it's a rather very hazardous road with a deliberate attempt to discredit or to be put in a blackmail position.

Therefore, I would appreciate that this outstanding issue be rectified quickly, and the restoration of the good Accreditation status; and the continuation with the future advertising with business as usual. I do urge that this matter be attended to immediately as it has caused rather an unhappy situation with all the people involved including the Bank Manager regarding my Business operation/s.

Waiting your urgent reply.

Yours sincerely

[signature]

Tarak Jabal (emphasis in original)

[70]

RE: PLACEMENT OF INCIDENT WITH VEDA FOR PRIDE HEAVEN SHOP

I refer to the telephone conversations between myself and Kate and you of today's date. I understand the situation that this matter places you and your firm in. That being that you would be required to admit to a listing error with Veda that would result in an adverse situation for your firm.

I am instructed that my client has previously written to your firm on 4 February 2009 and that you have failed to reply to that correspondence?

I am instructed to offer you the reimbursement of any costs incurred by your firm up to the sum of $2,000.00 without evidence of such disbursements and any amount above that supported by receipts. In order that you reverse the action of Accreditation Status on Veda, I note your comment that the listing has been marked as paid and my client appreciates this course of action.

I understand that the placement with Veda was in error and if the placement is reversed within 7 days I am instructed to pay your firm the $2,000.00 and that no further action will be taken.

Failing the above action by your firm I am instructed to immediately without further notice instigate action against your firm in the ACT Supreme Court for unspecified to date damages.

Obviously this would result in unnecessary costs to both yourself and to my client with the Jurisdiction issue being a live issue and I note your previous involvement in a similar matter 5 years ago.

If you wish to proceed by way of litigation please advise me within 7 days who will be acting for you as agent in the ACT? Please also provide a copy of the invoice for $165.00 and documentary evidence showing that the advertisement was actually run. I would also appreciate a copy of my client's written advice to run the advertisement or failing that a signed confirmation of the arrangements?

I am instructed to write to Veda after the 7 days have expired advising them of the issues and formally requesting that your firm be restrained from any further placements.

I await your response.

[100]

MEMBER LUNNEY: Now the tribunal has considered the Law Society's application and we're very aware of the force of [S's] submissions relating to the lateness of the application. However we do see also force in the submission by the Law Society that there is a need to align the evidence that has been available with the actual terminology of the offences, as they are alleged in the application.

The net result of our consideration is that we propose to allow the amendment. However, we are very conscious of the potential that that decision will have to cause some prejudice to [S] in the conduct of his side of the proceedings. What we propose to do and we need to, to some extent, discuss this with you, [S], and I should precede this statement by our belief that there are probably two witnesses here from Queensland, we're not sure about that, but that's a possibility.

And that the matter has been prepared at a particular level, and perhaps at all levels by the Law Society, and we accept what you say, [S], that you have been taken by surprise by this proposed amendment, now amendment. So what we propose is to use the time that has allocated to the best we can, and to hear the evidence, which is to be called by the Law Society and to terminate the proceedings no later than the end of that evidence and adjourn them.

Now, I think we're aware that your approach to the proceedings, [S], will involve a planning approach, a strategic approach, and also a matter of what evidence you actually call. An adjournment will permit you to call whatever evidence you need. One of the things that you'll be invited to do will be to cross-examine witnesses called by the Law Society.

Now should you not wish to cross-examine one or more of those witnesses, you should make an application along those lines to hold that until an adjourned date. But if you feel that you are able to cross-examine them, then we would be grateful if you would do so. If at some stage you feel that you need to prepare, think about, plan, then please make an appropriate application. We'll consider it and I would expect that we would apply a sympathetic approach to any such application.

We hope that this will result in a just result in the ultimate outcome of these proceedings, but also we do wish to not squander the time that has been set aside or inconvenience unnecessarily witnesses who are in attendance or who can be called. So that I think I need to ask you, [S], do you understand what we're proposing to do?

[S]: I understand what you're proposing to do and I accept the tribunal's decision.

[126]

MR BEAUMONT: [S], do you recall telling the Tribunal yesterday something to the effect that you want your peers to know that you don't lie?Yes.

So you're putting yourself forward as a witness of truth, are you?---Yes.

And a man of honour?---Yes.

Do you recall on 28 July 2008 you attempted to appear at a bail hearing? Do you remember that?Yes.

It was a family violence assault, do you remember that?Yes I do.

The accused appeared in person before the magistrate prior to your coming into the courtroom?Yes.

And, whether you were instructed or not, I'm not asking you about that - ?I was instructed.

I'd ask that that be stricken.

MEMBER LUNNEY: I don't know whether we can actually strike it, Mr Beaumont, but we'll pay no attention to it.

MR BEAUMONT: Thank you.

You attempted to appear and the magistrate immediately refused you permission to do so. That's right isn't it?No.

No? Do you say that the magistrate permitted you to appear, [S]?What I want to say is Magistrate Doogan there was interchange, conversation between myself and Magistrate Doogan, where I think she used the words, along the words of I'll pretend that you didn't appear or you're not here. I had an interchange with her. She told me to sit down and she asked me to stand up again and there was a further interchange.

Well, [S], let me refresh your memory. This is what happened isn't it? Prior to your appearance the prosecutor told the magistrate a little bit about the case. That's right, isn't it?I don't know. I came in late.

Well, you've seen the transcript?I've seen the transcript, yes.

So why did you tell the Tribunal you don't know?I've seen the transcript but on the day I didn't know.

That wasn't my question though, was it, [S]?That was my answer, Mr Beaumont.

Just a bit of a misleading answer wasn't it?I don't think so.

So you don't see anything misleading about telling this Tribunal that you don't know what happened prior to your entry in circumstances ?On the day I did not know what happened prior to my entry, having not read the transcript.

Having read the transcript you're well aware that prior to your appearance in that courtroom the prosecutor told the court the basic facts of the case. That's right, isn't it?From the transcript, yes.

Yes, and the magistrate observed that the alleged victim had indicated that he was not concerned for his safety. That's right, isn't it?The victim, yes.

That's right?[JG], yes.

Yes. And at that point you entered the courtroom, correct?I believe so, yes.

You said, "Your Honour, I apologise, I've just been instructed in this matter." Do you remember that? Her Honour said, "What, just this instant, because" - and then she's cut off. And you say, "I've been instructed by, outside the court by [Ms V's] partner who is the victim of the assault"?At this point I take objection to the questioning. This is a matter that's before - that's waiting on a penalty, a decision of the Tribunal. And it's subject to an appeal and it's subject to fresh evidence being produced in regard to a Legal Aid application that's being lodged. And I think basically what we're doing is we're rehashing what the appeal's going to be before the appeal's put in.

MEMBER LUNNEY: You're being asked questions about the procedure that happened personally on that morning, [S], so I overrule your objection.

[S]: Mr Lunney.

MR BEAUMONT: [S], shall I repeat the question?Yes, please.

After her Honour said, you told her Honour that you'd just been instructed in this matter. Her Honour said, "What, just this instant?" And you said, "I've been instructed outside the court by [Ms V's] partner who's the victim of the assault." That's right, isn't it?Yes.

Her Honour said, "[Ms V], the accused, had said that she didn't have anyone appearing for her." That's right isn't it?That's what she said, yes.

And the transcript indeed records that prior to your entry the accused did tell the court that she was unrepresented. Isn't that right?That's what the transcript says, yes.

And her Honour immediately - as soon as you told her that you'd just been instructed outside the court her Honour said, "I'm not accepting instructions from somebody who comes and stands before me and says that they're instructed by the victim of an alleged assault representing the defendant." That's right, isn't it?Yes.

You said, "No, my only instruction was to speak to the defendant." Correct?Yes.

Her Honour said, "Say no more, [S], I'm proposing to grant her bail." That's right, isn't it?Yes.

The accused then says - then asks a question about that, doesn't she?Could you tell me what the question was?

"What, does that say opposing or I'm getting it or not, miss" ?Yes.

Her Honour then says, "I'm granting you bail, yes." Correct?Yes.

The accused then says, "Thanks, thanks, because I'm not a bad person." Correct?Yes.

Her Honour then says, "I'll put conditions on it and it's bizarre, [S], that you would - is that what you're saying to me, that you've been instructed? Just sit for a moment." Correct?Yes.

You say, "Your Honour, I was" - and then you're cut off. The accused says, "Sorry I was" - she's cut off. Yes?Yes.

[S], you say, "Your Honour, I was approached outside the court by victim in the matter." Correct?Yes.

Her Honour says, "By [Mr G]?" Correct?Yes.

You say, "And asked if I would go downstairs and see the defendant. They were my instructions, your Honour, and it is bizarre, your Honour" ?Yes.

Her Honour says, "I think that's" - and then she's cut off, yes?Yes, if that's in the transcript.

Would you take it from me?Yes, sure, I can accept that.

The accused makes a comment, you agree? You'll take it from me?Pointed along the lines of the thing - - -

"Yes, he needs to go to the" - or something like that. And her Honour says, "It's unbelievable, [S], that you purport to act on behalf - that you were instructed by the victim to go and speak to the defendant in a matter." You'd accept that?Yes.

You said, "Your Honour" - her Honour says, "If that's not a serious conflict of interest" - and you say, "Yes, your Honour" ?Yes.

Her Honour says, "What on earth in this court is, this is a family violence matter." Do you accept that?Yes.

You say, "Yes, your Honour." The accused says, "It's a mental case." Do you agree with that?Yes.

Her Honour then says, "I'll just pretend that you didn't even appear, [S]." Do you agree with that?That's the wording I remember, yes.

And you say, "Thank you, your Honour." Correct?Yes.

And then the accused says, "Thanks anyway for coming but he's very manipulative. I know that. I thought you were Legal Aid, thanks anyway"?That's correct.

Do you accept that? Her Honour says, "You're excused, [S], thank you." Correct?Yes.

And you say, "Thank you, your Honour. Correct?Yes.

And you leave the court at that point?That's correct.

All right. And then there's an order for remand and a grant of bail. Do you agree with that?Well, I agree it's on the transcript. I wasn't there for that, yes.

The upshot of all of that, [S], is that while you attempted to appear for the accused the magistrate, her Honour, did not allow you to do so. That's right, isn't it?I thought I appeared.

You thought you appeared?Yes.

The magistrate did not allow you to make one submission of substance, did she?No, because she'd already granted bail, that's correct.

Well, she hadn't already granted bail but she'd already indicated that she was going to grant bail, correct?Yes, non-opposed bail application, yes.

So, [S], you contributed nothing to the outcome of that case in terms of the grant of bail, did you?No.

No as in you agree with me?I agree with you, yes.

All right. What happened then, [S], was that you filled out on behalf of the accused an application for Legal Aid didn't you?No, at that point I - the Legal Aid application form is a photocopied form. When I - my normal practice when I was appearing as a lawyer and solicitor in the ACT was to go down and see the prisoners in the cells, if they were in the cells, and to hand under the door - there's a door going down to the cells and then there's a second door where the prisoners are, just slip a copy of one part of the form under the door and then the prison officer would take that into the cell and the prisoner would sign the Legal Aid application. If they knew they knew their CRN number then they would put their CRN number on it and then that would be handed back to me by way of coming back underneath the door. On this occasion that's exactly what happened.

Well, [S], in any event you signed the solicitor's certificate to the Legal Aid application of the accused, didn't you?I would have, yes.

Well, you did, didn't you?Yes.

On 27 July 2008, 28 July 2008 I apologise?It was sent on the same day and received by Legal Aid, and that's the new evidence, on the same day within an hour of that appearance.

[S], I'm just asking you to agree that you filled out the solicitor's certificate to that Legal Aid application ---?I did.

- - - and signed it on 28 July 2008, correct?Yes I did.

And you wrote in the top right-hand quarter of the same page the words, "I appeared today for an opposed bail app, bail was granted" ?Yes.

Could [S] be shown - and the words that you've just agreed to appear at the last page of the document I've just handed to you, don't they?That's correct, yes.

And that statement, [S], was totally false, wasn't it?I don't believe so.

You see nothing misleading in telling the Legal Aid Commissioner that you'd appeared today for an opposed bail application and bail was granted?There was no intention at all. I said I appeared today, which I did for an opposed bail application - I understand it was opposed - and bail was granted.

Yes and said nothing, even as you sit here today, nothing misleading - - -?No.

- - - in circumstances where you well knew that the magistrate would not let you advance any submissions and where she had told you that you were excused and she was proposing to grant bail. You see nothing misleading in telling the Legal Aid Commission that you had appeared today for an opposed bail application and bail was granted?No.

[S], the fact that you see nothing misleading in that, I suggest to you, demonstrates a fundamental lack of insight into the truth?Mr Beaumont, I've done over 3,000 matters in the Magistrates Court and you've picked one single matter which is contentious, I agree, which is - there's no intent to gain profit or anything from that and there's a note on the back of the Legal Aid form saying I appeared today for an opposed bail application. It was placed on there within 30 or 40 minutes after I'd agreed to fax the Legal Aid application.

While the events were all very fresh in your mind?That's right. That's why there's a note saying I appeared today for an opposed bail application, bail was granted.

And there's nothing incomplete you think in that statement?I don't know what else you'd expect me to put there. It's a note and it says I appeared today. I did, you know. I can understand, you know, that you're putting a different connotation on it but my understanding and the note was made, I appeared today for an opposed bail application, bail was granted. She got bail.

All right, Well, [S], wouldn't you think a reader of that note would conclude that you had appeared for the accused on the application?No.

No?No.

Let me ask you that again, [S]. I asked you wouldn't you think a reader of that note would conclude that you had appeared for the accused on the bail application?I should have put I was present today for an opposed bail application and bail was granted. Yes, I agree with that.

But is the answer to my question yes?Yes.

And why - all right. So you agree a reader would think that you appeared for the accused?Yes.

You'd also agree a reader would think that you had successfully argued for her to get bail - - -?I think you're reading more into it than what that is.

Will you let me finish the question? A reader would also conclude that you had successfully argued for bail in the face of opposition, wouldn't they?No.

No?---The way it works is an unrepresented person or a person that's in the cells you'd have to get duty bail form to appear for them. You have to have a duty bail form issued by Matt O'Brien or Tony Foley or one of the people. That's the only way you can actually appear for Legal Aid to be paid for a bail application. I did not have a duty bail.

[S], I'm not - - - ?I didn't have a duty bail.

I am not asking you about payment for your appearance. Do you understand that?I understand that.

I'm asking you to agree that a reader would conclude that you had successfully argued for bail in the face of opposition wouldn't they? Don't worry about payment?They could, yes, they could.

Well, they must?They could, yes.

And that's misleading, isn't it, [S]?I don't think so, no.

Not all?I don't think it's misleading. I think I could have worded it better at the time but, you know, at the time I was a busy solicitor. I was doing a large number of matters in the Magistrates Court. I made a note on a Legal Aid form that was sent to Legal Aid within the hour.

The note was entirely unnecessary, [S]?It's a note for myself. You know, it's just a note. It's not signed. It's just stuck on the back of the form.

Sorry, did you say it's a note for yourself?I appeared today for an opposed bail application, bail was granted.

But, [S], did you say - - - There was no controversy with this matter when this happened.

[S], did you say a moment ago it was a note for yourself?Yes basically, it's a note I made, yes.

No, but please answer my question? You said a moment ago it was a note for myself?It wasn't intended for a note for the Legal Aid Commission.

Not intended for the Legal Aid Commission?No, no.

So you hand or you have handed an application for Legal Aid with a certificate signed by you, [S], solicitor, and a note, "I appeared today for an opposed bail app, bail was granted" ?And the other point I make Mr - - -

[S], would you just listen to my question?Sorry, yes.

But you now say, for the first time, that that wasn't intended for Legal Aid. Is that right?The other point I make, Mr Beaumont - - -

[S], will you answer my question?No hang on just, I'm going to answer the question. The other point I make is the fact that I don't - these are sent through a fax machine one after the other. I've got not no way of knowing that that note ...(indistinct)... bail application. They're not one single form. You know, I'd like to see the copy from New South - sorry, ACT Legal Aid.

[S], you're not seriously going to try to change your evidence at this point?I'm not trying to change my evidence. ...(indistinct)... on the form.

You remember your evidence was before you even saw this form you agreed with me that you put a note on this certificate, didn't you?Yes.

And that evidence was true, wasn't it?Well, I don't know. You know, I'd like to see - - -

You don't know?I'd like to see the original form, Mr Beaumont, and also to know when Legal Aid received the form.

[134]

101A Credibility evidence

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:

(a) is relevant only because it affects the assessment of the credibility of the witness or person; or

(b) is relevant:

(i) because it affects the assessment of the credibility of the witness or person; and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

Note 1: Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.

Note 2: Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

102 The credibility rule

Credibility evidence about a witness is not admissible.

Note 1 Specific exceptions to the credibility rule are as follows:

• evidence given in cross-examination (s 103 and s 104)

• evidence in rebuttal of denials (s 106)

• evidence to re-establish credibility (s 108)

• evidence of people with specialised knowledge (s 108C)

• character of accused people (s 110).

Other provisions of this Act, or of other laws, may operate as further exceptions.

Note 2 Section 108A and s 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness.

103 Exception - crossexamination as to credibility

(1) The credibility rule does not apply to evidence given by a witness in crossexamination if the evidence could substantially affect the assessment of the witness's credibility.

(2) Without limiting the matters to which the court may have regard for subsection (1), it must have regard to -

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or happened.

...

Dictionary

credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

[188]

The Tribunal is unable to accept the respondent's evidence that he thought that FNT's operation was a scam. This alleged state of mind was not mentioned in early documentation filed with the Tribunal by the respondent, and runs contrary to the existence of the prior dealing of Mr Jabal and his partner with FNT.
On the other hand, the address to which FNT sent the invoice and reminders did have the correct postcode, but the incorrect destination State in it. Mr Jabal's evidence was that he had not received the correspondence warning him of the debt from FNT and its intention to list with Veda. He was strong in his cross examination on this point. The notice of the debt therefore may not have come to the attention of Mr Jabal.
The Tribunal finds that the respondent had seen Mr Jabal's letter of 4 February 2009 before he sent his letter of 17 June 2009. The letter of 4 February 2009 says that Mr Jabal had not received the invoice, but does not assert that the advertisement had not been placed.
There was evidence from Mr Jabal that he had not authorized the advertising of his Mawson restaurant. This consisted of a one paragraph denial in his affidavit and was not supported by any other evidence. The denial takes the form of a pleading without any further explanation. The denial is unhelpful in explaining why Mr Jabal had been billed by FNT for advertising. The Tribunal is unable to accept that evidence that Mr Jabal had not authorized the placing of the advertisement for the Mawson restaurant. The respondent had a reason for asserting that the advertisement had not been placed, because in order for him to suggest that the listing had been made by FNT in error, it was also necessary to allege that the underlying debt had not been incurred.
The Tribunal concludes that the assertion made by the respondent that the listing was erroneous was fabricated by the respondent knowing it not to be true. It was fabricated in order to provide a reason to Veda Advantage by way of FNT for reversing the listing.
The Tribunal therefore finds that the first ground is made out.

[250]

I'll ask you again, Mr Jabal. As at February 2009, you had been doing business with First Net in the past without any problem. That's true, isn't it?---Mate, off the top of my head, no.

Off the top of your head. Well, you wrote a letter to First Net bearing the date 4 February 2009, didn't you?---Yes.

It's a letter that [S] refers to in his letter of 17 June 2009, do you agree with that?---We did write a letter, the date I'm not 100% sure, but yes.

And it's a letter that you showed [S] before he wrote his letter of 17 June 2009, correct?---A letter was written before 2009?

No, the question was - let's go back a step. You wrote a letter to First Net on 4 February 2009?---Okay, yes.

And in that letter you said a number of things, but at the end, you asked them to rectify your accreditation status quickly. Do you remember that?---Yes, yes, okay, yes.

And you said a number of other things in that letter, you agree with that?---Okay, yes.

And to put you in the picture, two months before that, you'd paid the account of $165, right?---That is right, I was paid.

And the letter was dated 4 February 2009, but would you agree with me you didn't send it until 23 February 2009?---Mate, I couldn't agree with you, but maybe I - yes, it was sent.

Well, the record - the post receipt shows that it was sent on 23 February 2009. Would you accept that from me?---Okay, I understand, yes.

All right. Okay. Then as you know, [S] writes a letter on your behalf to First Net on 17 June?---17 June, yes.

Right. Referring, among other things, to an offer to pay them $2,000, correct?---Yes.

And before [S] wrote that letter, you met [S], did you not?---Yes.

You gave him a copy of your letter of 4 February 2009, correct?---Yes.

You went through that letter with him?---Yes.

And that letter says, among other things, doesn't it, let me remind you, "and you know well that I have been doing business with your company in the past without any problem". Do you remember writing that?---No, I didn't write that letter myself.

No, I'm talking about the earlier letter of 4 February 2009, not [S]'s letter, the letter that you wrote yourself?---No, I didn't write that letter myself.

Okay. Who drafted it?---Off the top of my head, I think it was my uncle that done that.

The writer?---Yes.

Okay. But in any event, the letter says, among other things, the letter that you signed says, among other things, "and you know" - - -?---That's right, my business partner did do business with them beforehand, yes.

...

Yes, all right. So - but do you agree with me the letter says, among other things, "and you know well that I've been doing business with your company in the past without any problem", correct?---Okay.

So this was a company that you had heard of, correct?---No, my partner had heard of.

Right?---Okay, my partner did business with them beforehand.

Well, in your letter that you've signed, you say, "and you know well that I've been doing business", do you agree with that?---(No audible reply)

That's what you've said?---Okay.

Well, was that the truth?---Well, at the time, you know, I would have paid any amount of money to clear my name for a petty $165.

Yes, yes?---It gave me a bad name on my credit application.

Yes?---To step [sic] me getting a loan, you know, with a group of people worth over $20 million, and $165 - - -

Yes, sure. And that's what you - - -?--- - - - standing in the way. So the instructions were, yes, just to pay any solicitor fee, any fee just to remove it, with [S].

Because - and that's what you told [S]?---That is right.

Because it was worth it to you, because a million dollar loan was riding on it, wasn't it, Mr Jabal?---A lot more than a million dollars, [that's] right.

A lot more? How much?---All the development, it was a development of 100 blocks.

Right. So your instructions to [S] were to offer whatever amount of money it took to get rid of the problem, is that right?---Not an offer, no.

No?---Not a bribe, if that's where you're coming from. To pay all expenses, their legal expenses, any expenses, which was the quickest way to remove it, instead of going the long procedure, whichever that was, but just to remove it as quickly as possible, pay all expenses and we'll pay any fine, any expenses, just to remove it, just to pay it and keep it on my list, on my credit rating.

And Mr Jabal, you agree with me that in this letter of 4 February 2009, which you say your uncle drafted and you signed, you refer to the amount of $165 as being outstanding, do you agree with that?---Yes, I did ...(indistinct)... that's right. That was also - there was a small loan that I had to - I rang up, I rang them up, actually found their number on the internet and I rang them up and advised them, you know, just to pay it and to get it off my name.

Yes?---...(indistinct)... just pay it and it will be straight away off your name. And when I paid it - - -

And did you - - -?--- - - - it was written that it was paid, but that's all, it was still there.

And before you sent this letter, you also rang Kate Bourne in about February of 2009, is that right?---Look, the date, I'm not sure, but I did rang her, I did ring her, because I told you, I found the number off the internet and I rang her, asking what it was for.

Yes?---Where she surprised me, because it was all a surprise as I was getting to the loan, they go, no, the loan can't come through because there's $165 giving you a bad credit rating, First Net trader. So I looked them up on the net, if found First Net Trader, and from there I - you know, we talked about it and I said, what's it for, and she explained this, that, and I said, look, I'm not going to sit here and argue over $165, if I pay it, can you get it off my name and just forget the whole thing. Which she agreed to and said, yes, that's all we need. But she didn't get it off it, all she wrote was it was paid.

And then you rang her back, didn't you, and said, it's still showing up as a default on my credit, isn't that right?---Yes, I would have rang her back, because it was still showing, that's right.

...

Yes. Well, to cut to the chase, Mr Jabal, you were in a desperate financial position and you instructed [S] to offer First Net a bribe of up to $2,000 to reverse the accreditation, didn't you?---No, not a bribe, no.

All right. A financial inducement?---...(indistinct)...

Isn't this the truth though, Mr Jabal, you came up with - - -?---I've had to pay all expenses, any legal cost to remove the $165 from my name, yes.

You came up with the figure of $2,000, correct?---Up to $2,0000 of legal costs.

Yes. But without any receipts, isn't that right, Mr Jabal?---I didn't say there wasn't receipts.

You didn't say that?---No.

Didn't you approve the letter before it went out? And when I say "the letter", I'm talking about [S's] letter of 17 June?---Yes.

You did. And that letter says, does it not, "We'll pay you $2,000 without evidence of receipts." ?---No, not really.

Well, let me read it to you, Mr - - -?---If you pay for something there was - then you get a receipt.

Well, Mr Jabal, I'm now going to read to you the third paragraph of [S's] letter of 17 June 2009, okay? Do you understand that?---Yes.

It says this:

"I am instructed to offer you the reimbursement of any costs incurred by your firm, up to the sum of $2,000, without evidence of such disbursements, and any amount above that, supported by receipts."

I'll stop there. Did you take that in?---Yes.

Those were your instructions, weren't they, Mr Jabal?---Supported by receipts, did you say? Yes.

Mr Jabal, I'll read it again?---Yes. You don't have to read it again.

Anything up to $2,000 without evidence of disbursements, correct?---Okay, yes.

And that was because that's how much it was worth to you to get this loan through, wasn't it?---$2,000 it was worth to me to get the loan approved?

Yes?---Well, my bank manager's instructions were, just get it off as soon as possible. Yes, I - - -

All right?---had to get it off as soon as possible. And even if you're in the wrong or the right, I need it off as soon as possible.

Right?---But the way - look, if you're reading it from that point, I can't remember the letter exactly, it's been a while now.

Yes?---I remember sitting down with [S] and we did talk about it, and, yes.

All right. That's - - -?---If you're putting it to me as a bribe, I didn't consider it as a bribe.

At a glance

Court

Decision date

Source

Judgment (287 paragraphs)

The Legal Practitioner v Council of The Law Society of The Act [2014] ACTSC 50 (28 March 2014)

Parties

Legislation Cited (6)

Cases Cited (6)