A Kingaroy firm director has been fined and will be publicly reprimanded for preparing and filing an affidavit for his client which contained a false statement and made “irrelevant and scandalous allegations” about an opposing solicitor.
Colin Philip Henry Murray faced two charges raised by the Legal Services Commissioner (LSC) in relation to his conduct in September 2022, which also included sending correspondence to another practitioner that was inappropriate and discourteous.
In her 23-page decision delivered last week in the Queensland Civil and Administrative Tribunal, Justice Williams agreed with the LSC that the conduct related to the affidavit (Charge 1) be characterised as professional misconduct, and that the conduct related to the discourteous email (Charge 2) be characterised as unsatisfactory professional conduct.
She also agreed with the LSC that a public reprimand, a fine and an order that Mr Murray complete the Queensland Law Society’s Remedial Ethics Course at his own expense was an appropriate sanction.
The director of Murray Laws Pty Ltd contended the charges should be dismissed, or if the charges were proved, then at most a public reprimand would be appropriate.
On 22 September 2022, Mr Murray prepared and filed an affidavit for his client in the Federal Circuit and Family Court of Australia.
The affidavit stated that in August 2022 his client had discovered a forwarded email, containing documents related to a family law matter, in his junk mail.
“It was by sheer chance that, several days after the date of the email, I noticed it in my junk mail before it was automatically deleted,” the affidavit said.
“This course of action seemed lazy and very unprofessional. My understanding is that these documents should have been served personally.
“Upon discovering these documents, I contacted my legal representative.”
The LSC submitted that Mr Murray, in preparing and filing the affidavit, put information before the court that was misleading, irrelevant and scandalous.
Mr Murray submitted he had placed nothing before the court that was “misleading, irrelevant, scandalous or otherwise”.
Justice Williams said it was “difficult to accept that a legal practitioner would not be aware of the time of purported service of an initiating court document as that is usually relevant to the calculation of the time by which a response is due”.
“From his own knowledge the respondent knew that the statement in the affidavit that the email of 22 August 2022 was only discovered ‘several days after the date of the email’ was incorrect,” she said.
“A solicitor preparing an affidavit on behalf of a client and witnessing a client executing an affidavit should be mindful of whether there is anything in the affidavit which is misleading or false.
“Here there is no allegation of intentional dishonesty. However, knowingly or recklessly misleading a court is alleged.”
Justice Williams said a solicitor was permitted to test evidence to be given by a witness, and that would extend to Mr Murray drawing his client’s attention to problems with statements made in the affidavit.
“The contents of the affidavit did also contain irrelevant and scandalous material in the statement that the steps taken to purportedly serve the initiating documents seemed ‘lazy and unprofessional’. The comments were irrelevant and totally unnecessary,” she said.
The LSC contended that in preparing, witnessing and filing an affidavit he knew contained false information, Mr Murray “became an active participant in misleading the court”, failing to comply with his paramount duty to the court and knowingly deceiving it.
It also contended Mr Murray made no effort to correct the record despite being put on notice.
“The LSC contends that the statement is scandalous in that it seeks through inadmissible and irrelevant evidence to criticise the opposing solicitor’s conduct in personal terms. The LSC accepts that it is not scandalous to a serious degree, but submits that it is properly characterised as scandalous,” Justice Williams said.
Mr Murray contended he was relying on instruction from his client, who wanted that statement to be included.
A day after filing the affidavit in question, Mr Murray sent an email to the opposing solicitor, saying her complaint about being called “lazy and unprofessional” was “nonsensical”.
Justice Williams said the obligation for practitioners to be courteous in dealings with other practitioners was of particular importance in the context of family law proceedings.
“That is not to detract from the obligation in other contexts. However, the subject matter in family law proceedings means that there is often heightened emotions between the parties,” she said.
“Legal practitioners should remain dispassionate and objective, and the maintenance of courtesy is a critically important part of legal practice in matters involving family law disputes.
“In the family law context where dispute resolution processes are an important part of the court processes, the respondent’s conduct was likely to have a detrimental impact on the prospects of the proceedings being settled as it needlessly antagonised the other party’s solicitor.”
In deciding the penalty, Justice Williams said Mr Murray showed a lack of insight into the offending conduct and that he maintained he was not culpable to any extent.
She also ordered that he pay the LSC’s costs.
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