The Legal Services Tribunal of New South Wales CITATION : Peter Stanley Knudsen [1998] NSWLST 3 PARTIES : Peter Stanley Knudsen FILE NUMBER(S) : of 1997 CORAM: Mr F Riley (President) - Mr J. Brennan - Mr J. O'Neill CATCHWORDS: :- Professional Misconduct - Solicitor purported to administer oath to deponent of an affidavit when deponent was not in the presence of solicitor LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: DATES OF HEARING: 18 August 1998 DATE OF JUDGMENT: 08/18/1998 LEGAL REPRESENTATIVES: Mr D Barton Mr D Hipsley JUDGMENT: President The Tribunal gave leave to the informant to amend the information which was filed on 3 June 1998 to the effect that the allegations of professional misconduct as now presented in the information are that the solicitor purported to administer an oath to the deponent of an affidavit dated 11 March 1994, signed by his client, Ross Charles Stoodley, when the deponent was not then in the presence of the solicitor, and also that the solicitor purported to administer an oath to the deponent of an affidavit dated 26 March 1992 signed by the same client, Ross Charles Stoodley, when that deponent was not in the presence of the solicitor. The reply filed on behalf of the solicitor has admitted the allegations as I have just expressed them and has admitted the particulars set out in the amended information save for two of those particulars and they are 1(e) and 2(e). They relate to instructions allegedly given by the solicitor to his secretary, Leanne Stoodley, who is the daughter of the deponent of the affidavits, Ross Charles Stoodley, on the occasions when the affidavits had been prepared for his signature. I will deal with the comments in relation to that later. In point of time the first of the affidavits bears the date 26 March 1992 and it was an affidavit purportedly made by Ross Charles Stoodley, as a director of Canatan Holdings Pty Limited, verifying the statements related to a list of documents filed for the purpose of discovery in Federal Court proceedings brought by that company. The solicitor has admitted in his statutory declaration, made on 3 August 1998 and filed in the proceedings, that the affidavit, or the purported affidavit, of Mr Stoodley of 26 March 1992 was, in fact, filed in the proceedings to which it related. It should be noted, however, that in his declaration the solicitor has set out the terms of a letter to his client, Mr Stoodley, with which he forwarded the affidavit to his client to be signed. The letter did include a paragraph in these terms: "Please check carefully the enclosed list and if correct and complete verify by swearing the affidavit and return to this office". He handed the document to his secretary, Leanne Stoodley, and that was taken by her to her father. In his affidavit, sworn on 12 August 1998 and filed in these proceedings, Ross Charles Stoodley acknowledges in paragraph three that he did recall receiving a letter in relation to the Canatan proceedings providing the instructions and advice as set out in Mr Knudsen's declaration. Although there is some disagreement between the account which the solicitor gives in his declaration of conversations which he says he had with Leanne Stoodley in relation to both the affidavits, that is the affidavit bearing the date 26 March 1992 and the other bearing the date 11 March 1994, the solicitor admits unequivocally that, in the case of each of the affidavits, when they were returned to him bearing his client's apparent signature he did not take any other action to ensure that the affidavit was correctly sworn but purported to sign each affidavit as if he, the solicitor, was the person before whom the deponent had, in fact, sworn the affidavit. The 1992 affidavit, as previously noted, was filed in relation to the proceedings in the Federal Court. The affidavit bearing the date 11 March 1994 was signed by the deponent, Mr Stoodley, in his capacity as a director of Passlet Pty Limited, which company was the appellant in proceedings before the Court of Appeal. The solicitor, at paragraph 34 of his declaration, declares to the fact that on 14 March 1994 he caused that affidavit to be handed up in the proceedings in the Court of Appeal. As noted previously there is some dispute as to the conversations between the solicitor and Leanne Stoodley which preceded, or followed, the delivery of the affidavits to Mr Stoodley for his signature. The affidavit of Leanne Stoodley, sworn on 12 August 1998, states that she does not recall the conversations deposed to, or declared to, in Mr Knudsen's declaration. In the opinion of the Tribunal little turns on that dispute in view of the admitted failure by the solicitor to satisfactorily and properly discharge the clear duty which he had to the court to ensure that the affidavits were correctly sworn prior to their being filed or handed up in the respective proceedings to which they related. The solicitor has expressed, in his declaration and in oral evidence before the Tribunal, his contrition for the professional misconduct which he has freely admitted. He has sought to explain his conduct in each instance by reference to the pressure under which he was working in each of the proceedings to which the relevant affidavits related. In each circumstance he said he was faced with a time deadline for the filing of the affidavit and he adopted the expedient course, which he has admitted, without any real reflection on the significance of his conduct. He said that it was only a good deal later, when the matters were brought to his notice by the Law Society, that he realised the full significance of his conduct. He did not, however, deny that he had a full appreciation of the duty that he owed the court and the significance of his failure to discharge that duty and he was at pains to point out that his conduct on both these occasions was totally foreign to his normal practice as he said it was his custom to have on his desk in his office a Bible and to take particular care, normally, to ensure that when he was required to administer an oath that he did so in accordance with the requirements of the law. He did, in fact, refer to another occasion when, in a proceeding involving his client, Mr Stoodley, he met his client at a convenient location for the purpose of ensuring that a document was correctly completed. The solicitor was admitted to practice on 1 May 1964, is presently aged 58, and he has practised continuously as a solicitor since his admission. His declaration, paragraph four, gives an account of the manner in which he has practised over the years and he has, since 1989, practised in partnership with Michael Carroll. Mr Carroll is a declarant of one of a number of statutory declarations which have been filed with the Tribunal and which testify to the solicitor's good reputation in the legal profession and to his competency and integrity as a legal practitioner. They include declarations by clients of the solicitor and they refer specifically to the practice normally followed by the solicitor in relation to the attestation and completion of affidavits. The Tribunal has received submissions from counsel for the Law Society and for the solicitor and both have referred to the unfortunate number of cases of a similar kind to the one presently before the Tribunal which have been the subject of the Tribunal's determinations over about the last decade. It should be noted that whilst cases involving false and sometimes fraudulent certification by solicitors of documents have gained particular notoriety by reason of their publication over this last decade, those cases have, by no means, been declaring any new propositions or principles of law. They have, regrettably, highlighted and brought to more public attention, very grave departures by solicitors from their fundamental professional duties to deal honestly and fairly with the courts, with their clients and with the community which depends so much on the integrity of solicitors in the administration of justice. It is for this reason that the Tribunal must deplore, in absolutely unequivocal terms, the conduct to which Mr Knudsen has admitted in these proceedings. The two events occurred over a period of two years, first 26 March 1992 and the second on 11 March 1994. They occurred, the Tribunal has noted, in circumstances which do not, by any means, justify the action by the solicitor but to some extent explain why he may have yielded to the need for an expedient solution to a pressing need in his practice in the proceedings at that time. The evidence before the Tribunal indicates that the solicitor's association with the Stoodley family went back many years. He declares, in fact, to having grown up with Mr Stoodley and he had, prior to the occurrence of these events, employed Leanne Stoodley, the daughter of his clients, for some years as his secretary. There was a close and continuing relationship with that family and his familiarity with his client's affairs and his familiarity with the client's signature may have persuaded him to yield to the temptation, in the particular circumstances, to take the expedient course which, regrettably, has led him to these proceedings today. The solicitor has expressed, as I mentioned earlier, his regret and contrition for these events and his awareness of their seriousness and he conceded, indeed, that they had the character of a fraud on the courts to which the affidavits were directed and in which they were filed. The enormity of the fraudulent conduct is freely and frankly acknowledged by the solicitor and it must be similarly condemned by this Tribunal in once again having to rule on professional conduct in this area that seems to have been the subject of a number of transgressions brought to public notice over recent years. Mr Hipsley, in his submissions on behalf of the solicitor, pointed to the gravity of the offences but pointed out that they had occurred now some years ago and perhaps before a number of the cases, to which I have referred, had been reported and gained the notoriety which they presently have. That was not, by any means, urged as a ground for excusing the solicitor's conduct but it did point to the fact that he was not, at the time those offences were committed, perhaps as aware as the profession should be currently of the significance of his conduct. That really does not excuse or explain the conduct otherwise than as a means of yielding to the pressure of practice at that time but it probably has some cause in ameliorating the need to visit this solicitor with a penalty which is of such an amount as to send an even more substantial message to the general profession about this kind of professional misconduct. It is, however, necessary, and the Court of Appeal in Foreman has made it very clear, as Mr Barton noted in his address, to clearly inform, not only the practising profession but the community which is dependent upon the integrity and competence of the legal profession, that conduct which is professionally reprehensible cannot be tolerated and must be discouraged and any penalty that is imposed must be weighed as a deterrent, and as a general disapproval on behalf of the practising profession and the general community, indicating that kind of conduct is not to be tolerated. Questions of fitness, of course, must be considered in relation to this kind of misconduct. It has not been asserted by the Law Society that the solicitor's professional misconduct is, in the circumstances, of such an order that it would call into question his continuing fitness to remain a member of the legal profession. This kind of conduct, however, (and the Tribunal, in sending any message to the profession, should sound this note of warning) that is reckless of a legal practitioner's duty to the court and to the general community can seriously call into question that person's fitness to remain on the roll of practitioners and enjoy the privileges and entitlements which that enrolment allows. These matters did occur some years ago. The solicitor has had an otherwise blameless professional career of 34 years and that, obviously, should stand to his credit when any assessment of his present fitness is made. The Tribunal does take account of those factors, of the frankness with which the practitioner has faced up to the revelation of his misconduct, the contrition which he has expressed in relation to it and his firm assurances that he will not engage in any conduct of that kind in the future. On the basis of the Tribunal's assessment of the matters to which I have referred, and having regard to those assurances on behalf of the practitioner, the Tribunal, having found that the solicitor has been guilty of professional misconduct in respect of the two matters disclosed in the amended information, makes the following orders: 1. That the solicitor be publicly reprimanded. 2. That the solicitor is fined the sum of $3,000, which is to be paid within two calendar months from today's date. (Discussion concerning costs ensued) 3. That the solicitor is ordered to pay the costs of the Law Society, assessed at $2,524, within three calendar months of today's date. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.