THE ROLLERCOASTER ride at KPMG Legal continued last week when correspondence from the firm on behalf of the Uniting Church of Australia featured in a contempt of court finding against its former client.
The New South Wales Industrial Relations Commission found the Church guilty of acting in a manner intended to interfere with or obstruct the due administration of justice during an unfair dismissal case involving two employees, Wendy Jeske and Kevin Rocks.
A series of contempt charges were brought forth by the Registrar after the Church requested the pair, who were at the time suspended on full pay, to discuss allegations made in their application to the IRC in late 2001.
Correspondence from the Church “strongly recommended” that they attend meetings and warned that: “If the answers given do not constitute credible denials or reasonable explanations, disciplinary action may be implemented which could include the termination of your employment.”
After failing to attend meetings scheduled on both 30 October and 2 November 2001, Jeske and Rocks were sacked.
In its judgement the Commission examined correspondence sandwiched within those dates between KPMG and Middletons, which was representing the applicants.
In the course of the solicitors’ exchanges, KPMG partner Chris McArdle wrote to Middletons counterpart Richard Lund on 31 October 2001, reminding him that the failure of either to front up at the meeting would “be regarded as a serious disciplinary issue”.
Later that day, Lund replied to warn the Church from making “any further direct approaches to our clients to attend interviews” and added: “We draw your attention particularly to our concerns that your clients proposed interview of our clients would constitute an abuse of the ordinary court process . . .”
In a 2:1 majority, the full bench of the Commission agreed, Justices Marks and Heylon allowing two of the charges, which claimed the proposed meetings placed unreasonable pressure on Rocks and Jeske to settle, compromise or withdraw their applications.
“The letter of Mr McArdle, solicitor dated 31 October 2001 repeats the requirement to attend to reply to allegations contained within the Reply documents and asserts that a failure to do so would be regarded as ‘serious disciplinary issues’,” Marks wrote.
Dissenting judge, Justice Boland, viewed McArdle’s words, including a further email on 1 November 2001, as making it “clear . . . that the requirement imposed on the applicants arose out of and was associated with the employment situation independently of the court process”.
McArdle told Lawyers Weekly that he believed the judgement to be “a mistake in both fact and law”, arguing that “nothing took place that prevented any applicants from exercising their full rights under section 106 of the Act”. He also claimed that contempt could not be established in this context because the court was not prevented from exercising its full powers.
Clayton Utz partner Joe Catanzariti, who defended the Church against the contempt charges, said the judgement was “very strange” and that he was currently “looking into” appealing the decision. He also added that the Church had only followed legal advice.
The finding continues an eventful November for KPMG Legal, which only weeks ago announced conflict concerns had forced it to secede from the Big Four accountant and revert to a completely independent law firm.