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Judge approves use of confidential documents for complaint against solicitor

Documents supporting a complaint against a lawyer who allegedly appeared on behalf of a woman without her knowledge have been passed to the Office of the Legal Services Commissioner.

user iconNaomi Neilson 11 March 2024 Big Law
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An affidavit prepared by lawyer Bede Augustine Webster was released from confidentiality obligations, freeing solicitor Laura Gidley and barrister Sharna Clemmett to continue with a complaint relating to his alleged conduct during court proceedings.

In the affidavit, Webster said the inspection of the documents was not permitted and requested a confidentiality order.

Although the extent of the affidavit could not be disclosed, Justice Guy Parker of the NSW Supreme Court said the thrust of the issue was a woman’s capacity to approve a property transaction.


The complaint started with a family dispute over the transaction, which Webster was connected to through his wife, Gabriel Helena Smith, and her conveyancing firm, BB Smith Conveyancing. Webster runs the affiliated solicitors’ firm, BB Smith & Co.

Webster purported to appear for Phyllis Johnston, the matriarch who may have entered into the transaction with her grandson.

One of her sons, Bruce Johnston, learnt of the transaction and, concerned about his mother’s mental capacity at the time of the transaction, retained Gidley and Clemmett to assist.

Justice Parker heard Webster filed an appearance and the affidavit on Phyllis Johnston’s behalf without her instructions.

In an exchange between Webster and Justice Geoff Lindsay in an earlier hearing, Webster admitted he did not have a retainer but was appearing to assist the court until he could receive more “detailed instructions” from Phyllis Johnston.

“You need to face up to this,” Justice Lindsay told him.

“I need to know this because this could be significant in some way.

“You have had no contact about these proceedings with Mrs Johnston, correct?”

In response, Webster answered: “That’s correct.”

Given his affidavit related to Phyllis Johnston’s capacity, Justice Lindsay also cautioned him about appearing in a professional capacity when he could potentially be called as a material witness.

“I’m not sure that it would be wise if you are to be a witness in the case like this for you to be acting for and speaking to Mrs Johnston,” Justice Lindsay told him during another exchange.

The complaint, initiated on Bruce Johnston’s instructions, alleged Webster failed to take adequate steps to ensure Phyllis Johnston had sufficient capacity to understand the effect of the transfer and failed to advise his client the transfer was not in her best interests.

It was also alleged Webster appeared for Phyllis Johnston “without having obtained instructions or having spoken to her”, had given affidavit evidence on her behalf without instructions, and appeared despite expecting he would be a material witness.

When Webster became aware of the complaint, he raised the issue of whether the affidavit was subject to confidentiality obligations.

He then flagged he intended to file an injunction against those responsible for the complaint because they had used “confidential court documents for an improper purpose”.

Although Justice Parker could not comment on the complaint itself while it is the subject of an investigation, he said there was “no reason to think the complaint is a vexatious or malicious one”.

Justice Parker also noted copies had already been passed to the Office of the Legal Services Commissioner and there was no sign they would return the documents if the complaint was withdrawn.

“I think there is some practical use in granting leave, if only to make it clear that [Amber] Johnston is under no obligation to withdraw the complaint or to make any attempt to retrieve the documents.

“For these reasons, I am satisfied that there are ‘special circumstances’ in the relevant sense and the necessary leave should be granted to [Amber] Johnston to allow her to maintain, and, if necessary, advance, the complaint,” Justice Parker said.