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Perth lawyer found guilty of professional misconduct granted access to documents that may support appeal

The Legal Profession Complaints Committee WA has been ordered to hand over medical documents to a Perth solicitor as part of an appeal following disciplinary proceedings, which found the solicitor to have engaged in professional misconduct.

user iconLauren Croft 17 January 2023 The Bar
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After being found to have engaged in professional misconduct in May last year, Barrie Goldsmith appealed that decision and demanded the disclosure of certain documents from the LPCC.

In the recent Supreme Court of Western Australia Court of Appeal judgment, Justice Graeme Harold Murphy and Justice Robert Mackenzie Mitchell ruled in favour of Mr Goldsmith and granted part of his appeal, ordering the LPCC to hand over medical documents relating to a matter in 2016.

The appeal followed disciplinary proceedings brought by the LPCC against Mr Goldsmith for allegedly not paying counsel’s fees, bringing a complaint against counsel to the Western Australian Bar Association (WABA) without a reasonable basis in response to counsel’s claims for his fees. 

 
 

The LPCC also alleged that Mr Goldsmith filed a defence containing statements that he knew were untrue.

The disciplinary hearing relates to a matter in 2016, after Mr Goldsmith engaged counsel Stephen Davies SC to appear at an interlocutory hearing and subsequently declined to pay over $23,000 in fees.

Mr Davies then made a complaint to the LPCC and sued Mr Goldsmith for recovery of those costs in the Magistrates Court, which resulted in a settlement.

It was found that during a phone call (which was a matter of dispute) between Mr Goldsmith and Mr Davies in October 2016, Mr Davies did not agree that “no payment would fall”, something which Mr Goldsmith attested to.

Disciplinary proceedings were heard in March 2022, whereby the State Administrative Tribunal found that Mr Goldsmith had engaged in professional misconduct and unsatisfactory professional conduct.

However, in his application for appeal, Mr Goldsmith “sought an order that the LPCC provide him with documents which, he alleges, could have been used to cast doubt on counsel’s evidence in the disciplinary proceedings”, according to the judgment, including a five-page health report, counsel’s draft submissions provided to the LPCC and other documents relating to counsel’s health condition, all of which was supported by an affidavit, filed in October 2022.

Mr Goldsmith had also complained to WABA, as well as made several complaints about counsel to LPCC, all of which were eventually dismissed.

These complaints date back to 2020, with 11 overall. The outstanding complaint, according to the judgment, “was that counsel breached the Legal Professional Conduct Rules 2010 (WA) by failing to respond to a letter from Ms Rebecca Rorrison, an employee at the LPCC, dated 4 November 2020 seeking a response by counsel to Mr Goldsmith’s earlier complaints”.

Mr Goldsmith’s affidavit also referred to a letter dated 26 July 2022 from Mr Colella, from the Legal Practice Board, which recorded that between November 2020 and July 2021, Mr Davies was requested to respond to the complaints and was granted a number of extensions by the LPCC, who contacted counsel numerous times, once to advise that they would be issuing a summons to counsel, which was extended by a month.

After the first complaint was dismissed, the LPCC received an email with Mr Davies’ draft submissions and the health report, which explained that he was occasionally experiencing a health condition that materially impacted his ability to comply with a number of the aforementioned requests.

“In both his cross-examination of [Mr Davies] and in his submissions, Mr Goldsmith strongly challenged the credibility of [Mr Davies] and it is true that there were areas in which [Mr Davies] recollection of the conversation on 29 October 2016 was not certain — for example, he could not recall saying that he would send a costs agreement, although it was his normal practice to do so,” the judgment stated.

“But, when all of the circumstances are considered, the tribunal does not doubt that his evidence was truthful.”

In conclusion of the matter between Mr Goldsmith and Mr Davies, the tribunal found that “Mr Goldsmith agreed to pay [Mr Davies’] fees, that there was no agreement to defer his liability, and, critically, that Mr Goldsmith did not believe that there was” and that Mr Goldsmith made “knowingly false” statements to the Magistrates Court.

Mr Goldsmith’s grounds for appeal were that the tribunal “erred in law” by denying him procedural fairness, failed to provide adequate reasons for its judgment and found that he engaged in both unsatisfactory and professional misconduct. He sought the disclosure of the health report, the other documents relating to counsel’s health, as well as the submissions of counsel received by the LPCC.

Neither Mr Goldsmith nor the tribunal were aware of the existence of these documents during the hearing in March. Mr Goldsmith only became aware of the health report and draft submissions on 26 July 2022 after filing his appeal notice and appellant’s case.

“Mr Goldsmith seeks orders so that he may decide whether to pursue an application to amend his grounds of appeal so as to include a new ground of appeal, alleging that the tribunal denied him procedural fairness, or that the proceedings before the tribunal constituted an abuse of process, on the basis that the LPCC did not disclose to Mr Goldsmith relevant material, and that the tribunal did not ensure that all relevant material was disclosed to it,” the judgment stated.

The LPCC accepted that counsel’s credibility was a key issue and that documents that bore on counsel’s credibility should generally be disclosed; however, it also contended that the documents sought by Mr Goldsmith “could not, in fact, be helpful to the appellant in relation to the credibility of [Mr Davies]”.

The LPCC also submitted that the health report “does not say the condition had any effect on the counsel’s ability to concentrate, or his memory, or any effect that could reasonably be regarded as adversely affecting his credibility”, according to the judgment, and that “counsel’s [mental health] condition has responded to medication and that he has fully recovered”.

The LPCC offered to submit the documents to the court for review, without submitting them to Mr Goldsmith; however, Murphy J and Mitchell J ruled that “the health report may have been relevant to the credibility or reliability of counsel’s evidence” and that the document be given to Mr Goldsmith.

“In our view, the health report should not be disclosed, without further order, to any person other than Mr Goldsmith’s solicitors and counsel instructed on the appeal,” Murphy J and Mitchell J said in their judgment.

“We were not persuaded that there was a plausible basis on the evidence for contending that the draft submissions and the other documents may have been relevant to the credibility or reliability of counsel’s evidence.”

The court also ruled that any application to amend the grounds of appeal by reference to the health report, together with any application to adduce additional evidence on the appeal in that regard, be filed and served “on or before 4.00pm, 20 January 2023” and reserved the costs of the application.