Benhayon v Rockett (No 10)

In Benhayon v Rockett (No 9) [2019] NSWSC 172 I dealt with the issue of costs pursuant to s 41 of the Defamation Act 2005 (NSW). In the context of that consideration, certain correspondence came to my attention which led to me listing the matter to take submissions as to why Ms Paula Fletcher, the solicitor at Universal Law with conduct of the matter on behalf of the plaintiff, should not be referred to the Law Society/Legal Services Commissioner for investigation.

The areas of concern set out in [29] to [36] of my judgment centred around a time where the defendant had no solicitor acting for her, thus correspondence regarding the proceedings was being received by her directly. For ease of reference those parts of my judgment are extracted here:

I considered an opportunity needed to be given to Ms Fletcher to explain the conduct, including whether the correspondence in issue was drafted by her or others, the circumstances of its creation, and whether there was any matter of court timetabling or orders that required the letter to be sent on that particular day back in 2017, the day of the defendant’s father’s funeral.

On 10 April 2019 a hearing was conducted at which Ms Fletcher was represented by counsel Mr Naylor. Mr Naylor was not counsel for the plaintiff in the proceedings and was retained, it seems, specifically to deal with this issue. He provided helpful submissions and assistance to the Court.

An affidavit affirmed by Ms Fletcher on 9 April 2019 states relevantly:

Significantly, nowhere in the affidavit is there an apology directed to Ms Rockett. The apologies and expressions of remorse are general and directed to the court, although during Ms Fletcher’s evidence in chief an apology was made to “the Court and Ms Rockett” in the context of expressing her regret, in hindsight, at the inappropriate language she had used in the correspondence in question, acknowledging that it was rude and discourteous.

Ms Fletcher identified counsel who drafted the correspondence as Mr Charles Wilson. She said that she could not now be certain which parts were drafted by him stating “it may have been a combination of both of us sort of, you know, the letter was drafted together sort of thing”. She said that it would have been drafted over a four week period from early August to early September. She also said that a Ms Allison Greig, a paralegal at the firm (and the wife of Mr Wilson), was also involved in writing the letter.

Ms Fletcher stated that “although not using it as an excuse” the correspondence needs to be seen in the context of “quite robustly contested legal proceedings” and that the correspondence was “finalised by counsel so she felt some comfort in that.” Ms Fletcher also said that her client instructed that the letter be sent.

In the context of cross-examination Ms Fletcher agreed that both Mr Wilson and Ms Grieg have had significant involvement in Universal Medicine and were friends of the plaintiff, Mr Benhayon.

Ms Fletcher herself is the mother in law of one of Mr Benhayon’s sons, as stated in her affidavit, and as she confirmed has attended a number of Universal Medicine events.

The reason given for sending the 7 September 2017 letter set out in her affidavit was that Ms Fletcher, despite having been informed (in correspondence relating to the Queensland proceedings) that Ms Rockett’s father had died, connected Ms Rockett's correspondence about that to the Queensland proceedings and had failed to consider that Ms Rockett’s personal circumstances applied to both sets of proceedings. Ms Fletcher also stated that she felt that the reply, to a letter dated 26 July 2017, was overdue (Paragraph 8).

I found this evidence hollow and unconvincing.

Ms Fletcher was pressed on these matters in cross-examination. Her demeanour and her answers were unimpressive. She first claimed that the response that she sent was “well over-due” but provided no reason as to why it could not wait a few days or a week. Ms Fletcher said that she “did not know” the exact date of the funeral, although she had been told on the Wednesday that the funeral would take place that week, leaving only Thursday or Friday. She claimed that sending the 31 page letter “wasn’t asking anything of Ms Rockett” although conceded it did require Ms Rockett to read it.

I do not accept these excuses. I consider the fact that they were offered reflects poorly on Ms Fletcher. They suggest that Ms Fletcher is still deflecting responsibility away from herself for conduct which in my view was likely to have been deliberate. Even in cross-examination, Ms Fletcher was resistant to acknowledging that her conduct had caused distress to Ms Rockett:

Mr Naylor submitted that as the Court has admonished Ms Fletcher in the April judgment (Benhayon v Rockett (No 9)) and Ms Fletcher having accepted that admonition, no purpose would be served by a referral to the Legal Services Commissioner. The most that would happen would be a finding of unsatisfactory professional conduct, and thus a caution or reprimand and an apology would be required, with possibly an order that Ms Fletcher undertake some additional training or education or counselling (Legal Profession Uniform Law (NSW), s 299(1)). Mr Naylor submitted that Ms Fletcher had already done those things. The affidavit of Ms Fletcher included details of four online seminars she had undertaken in March and April 2019 about ethics in litigation, conflict of interests and dealing with self-represented litigants.

I was taken to the decision of White J in McGrath v Troy [2011] NSWSC 136 where his Honour took the view that in the context of a matter that would be unlikely to proceed beyond a reprimand, and given the steps undertaken by the solicitor in question to explain matter, his Honour’s admonishment would operate as a clear enough reprimand and warning as to the care needed in preparation of, in that case, what were said to be misleading affidavits.

I do not accept that case is a parallel to the situation here. I do not accept that Ms Fletcher has been candid with the Court. She continued to make excuses for her conduct. The apology to Ms Rockett for the conduct was not made until it was led from her in the witness box, despite being aware of the issues raised in my judgment regarding her conduct, from the very latest, mid-March 2019. I note in this regard Ms Fletcher gave evidence that she had “drafted an apology but we decided to put evidence on instead.” The apology Ms Fletcher drafted was not in evidence.

I accept the submission made by Mr Naylor that there is no need to refer the firm Universal Law given the lawyer responsible for the conduct is known; s 267(2)(b) of the Legal Profession Uniform Law (NSW).

There is a public interest in ensuring that unsatisfactory professional conduct, or at the least conduct in a professional capacity that is in breach of the fundamental duties of solicitors, should be investigated by the appropriate professional body.

I order that the following documents be provided to the Prothonotary for referral to the Legal Services Commissioner of NSW, for his consideration of whether to initiate a complaint about the conduct of Ms Fletcher on the basis that it may be capable of amounting to unsatisfactory professional conduct or professional misconduct: