McGrath v Troy [2011] NSWSC 136

Supreme Court New South Wales

Medium Neutral Citation: McGrath v Troy [2011] NSWSC 136 Decision date: 09 February 2011 Before: White J Decision: Reasons only Catchwords: SOLICITOR - whether refer to Law Society Council or Legal Services Commissioner - preparation of affidavits that did not tell whole truth Category: Procedural and other rulings Parties: Austin Peter McGrath by his next friend Kym McGrath v Carolyn Lesley Troy as administrator of the Estate of the Late Warren Terence Wade Representation: Counsel: B Skinner (defendant) Solicitors: Victor Bizannes, Solicitor File Number(s): 2008/2779648

Judgment 1In my reasons for judgment in this matter ( McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470) I said that I would invite the first defendant's solicitor, Mr Victor Bizannes to make submissions as to whether or not I should refer this matter for investigation by the Law Society Council or the Legal Services Commissioner. 2Two issues concerned me. The first concerned two affidavits made by the first defendant in her application for the grant of letters of administration. I set those out relevantly at [81] and [82] of my reasons. I said why the affidavits did not tell the whole truth as to the first defendant's knowledge of the possibility of the deceased having a child. 3A significant part of that finding was based upon evidence from a file note of an attendance by the first defendant on a solicitor on 31 January 2007 in which the first defendant was advised of the facility for obtaining DNA testing which could establish whether or not the plaintiff was the deceased's child. According to the evidence of the first defendant, she had consulted Mr Bizannes at that time. The file note of the conference was taken from documents produced by Mr Bizannes on subpoena. Had Mr Bizannes given the advice referred to in that file note, it would have gone a long way to showing that he was aware that the affidavits prepared for the first defendant did not tell the whole truth. However, I am satisfied from his evidence provided to me today that he did not have such a conference with the first defendant and that she received the advice in question from a previous solicitor. He says, and I accept, that the file note was amongst a bundle of documents provided to him by the first defendant which he did not read, and that he did not discuss any matters involving the obtaining of DNA material. 4I do not think I should refer Mr Bizannes' conduct in relation to the preparation of the affidavits for the grant of letters of administration to the Council of the Law Society, or the Legal Services Commissioner, for investigation having regard to Mr Bizannes' affidavit of 31 January 2011. 5The second matter of concern was an affidavit made by the first defendant dated 27 January 2009. I dealt with that affidavit at [28] to [32] of my reasons. The first defendant purportedly stated how the estate had been distributed: that is to say, in what amounts and to whom. Those figures were not correct. They describe what Mr Bizannes calls the " notional entitlement of parties to the estate not the actual distribution ". 6Mr Bizannes accepts responsibility for the statements as they appeared in the affidavit and accepts that the inclusion of notional figures was erroneous. He deposes that: " It was my genuine belief that the overall quantum of the estate was only altered internally to reflect a small correction of post funeral expenses ." 7The vice of the affidavit is not in the description of the quantum of the estate. In fact, it omitted both a small amount of assets and an additional liability. The vice is in the description of the amounts distributed to the individuals and the omission of any reference to a payment having been made to the first defendant of $20,000 on account of a claimed debt. 8I do not think there is any satisfactory reason as to why the affidavit took the form it did. However, I do not infer there was any intention by Mr Bizannes to mislead. Having regard to the issues as they would have appeared at the time the affidavit was sworn, the omission of reference to the payment of $20,000 to the first defendant and the misstatements of the actual amounts distributed within the class of individual recipients, would not, I think, have appeared material. They became material subsequently when the plaintiffs made claims against the second and third defendants for reimbursement of moneys which appeared to have been distributed to them. 9Whilst in no way condoning the preparation of the affidavit, I do not think that the public interest would be further served by referring that matter for investigation by the Law Society Council or the Legal Services Commissioner. 10I have had regard to what counsel says about the long experience of Mr Bizannes. If there were an adverse finding made by either of those bodies in relation to Mr Bizannes' conduct, I think it unlikely that the matter would proceed beyond a reprimand, and I think that my reasons, and the steps Mr Bizannes has undertaken to explain matters, will operate as a clear enough reprimand and warning as to the need for care in the preparation of affidavits. 11I do not think that his conduct goes beyond showing a lack of required care. For these reasons I do not propose to take the matter further. 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. Decision last updated: 10 March 2011