Judge Finally puts out the Freeman on the Land, Maximus Incognito BS, etc etc

http://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html Judge Finally puts out the Freeman on the Land, Maximus Incognito BS, etc etc Inbox chas x 17:58 (3 hours ago) to bcc: me Just for You Mr John Gregory TudeHope, "[75] These claims are, of course, pseudolegal nonsense. A judge who encounters and reviews OPCA concepts will find their errors are obvious and manifest, once one strips away the layers of peculiar language, irrelevant references, and deciphers the often bizarre documentation which accompanies an OPCA scheme. When reduced to their conceptual core, most OPCA concepts are contemptibly stupid. Mr. Meads, for example, has presented the Court with documents that appear to be a contract between himself, and himself. One Mr. Meads promises to pay for any liability of the other Mr. Meads. One owns all property, the other all debts. What is the difference between these entities? One spells his name with upper case letters. The other adds spurious and meaningless punctuation to his name. Mr. Meads (with punctuation) is the Mr. Meads who appeared in court. He says the Mr. Meads (all capitals) is the one who should pay child and spousal support. [76] So where is that Mr. Meads (all capitals)? At one point in the June 8 hearing Mr. Meads said that Mr. Meads (all capitals) was a “corporate entity” attached to his birth certificate. Later, he told me that the other Mr. Meads was a “person” - and that I had created him! Again, total nonsense." http://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html Court of Queen’s Bench of Alberta Citation: Meads v. Meads, 2012 ABQB 571 Date: 20120918 Docket: 4803 155609 Registry: Edmonton Between: Crystal Lynne Meads Appellant - and - Dennis Larry Meads Respondent Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ Table of Contents I.......... Introduction to Organized Pseudolegal Commercial Argument [OPCA] Litigants.... 1 II........ The Present Litigation....................................................................................................... 2 A. Prior Activity.......................................................................................................... 3 B. The June 8, 2012 Hearing..................................................................................... 4 C. Subsequent Developments.................................................................................... 8 D. The Purposes of These Reasons......................................................................... 12 1. Ms. Meads................................................................................................. 12 2. Mr. Meads................................................................................................. 12 3. A Broad Set of OPCA Concepts and Materials....................................... 13 4. Mr. Meads Faces No Unexpected Sanction.............................................. 13 III....... Overview of these Reasons.............................................................................................. 14 IV....... The OPCA Phenomenon................................................................................................ 15 A. Characteristics of OPCA Group Members....................................................... 17 B. The OPCA Guru................................................................................................. 18 1. Russell Porisky and the Paradigm Education Group................................ 18 2. Other Canadian Gurus............................................................................... 21 a. David Kevin Lindsay..................................................................... 21 b. John Ruiz Dempsey....................................................................... 25 c. Robert Arthur Menard................................................................... 28 d. Eldon Gerald Warman.................................................................. 29 e. David J. Lavigne............................................................................ 30 f. Edward Jay Robin Belanger.......................................................... 32 g. Other Gurus................................................................................... 33 h. Mr. Meads Guru............................................................................ 34 3. How Gurus Operate.................................................................................. 35 C. OPCA Litigants................................................................................................... 36 D. OPCA Movements............................................................................................... 38 1. Detaxers..................................................................................................... 39 2. Freemen-on-the-Land................................................................................ 39 3. Sovereign Men or Sovereign Citizens....................................................... 40 4. The Church of the Ecumenical Redemption International [CERI]........... 41 5. Moorish Law............................................................................................. 42 6. Conclusion - OPCA Movements............................................................... 44 V........ Indicia of OPCA Litigants, Litigation, and Strategies.................................................. 44 A. Documentary Material........................................................................................ 45 1. Name Motifs.............................................................................................. 45 2. Document Formalities and Markings........................................................ 47 3. Specific Phrases and Language................................................................. 48 4. Legislation and Legal Documents............................................................. 50 5. Atypical Mailing Addresses...................................................................... 51 6. Conclusion and Summary of Documentary Indicia.................................. 52 B. In Court Conduct................................................................................................ 53 1. Demands.................................................................................................... 53 2. Documentation.......................................................................................... 54 3. Names and Identification.......................................................................... 54 4. Court Authority or Jurisdiction................................................................. 55 5. Other In-Court Motifs............................................................................... 56 6. Summary of In-Court Indicia.................................................................... 57 C. Conclusion - OPCA Indicia................................................................................ 58 1. Procedural Responses to Suspected OPCA Documents........................... 58 2. Courtroom Procedure Responses to Suspected OPCA Litigants............. 59 VI....... OPCA Concepts and Arguments................................................................................... 60 A. The Litigant is Not Subject to Court Authority................................................ 60 1. Restricted Court Jurisdiction..................................................................... 61 a. Admiralty or Military Courts......................................................... 61 b. Notaries are the Real Judges......................................................... 62 c. Religion or Religious Belief Trumps the Courts............................. 63 2. Defective Court Authority........................................................................ 65 a. Oaths............................................................................................. 65 b. The Court Proves It Has Jurisdiction and Acts Fairly................... 66 c. Court Formalities.......................................................................... 66 d. The State is Defective..................................................................... 67 e. Conclusion - Defective Court Authority......................................... 67 3. Immune to Court Jurisdiction - Magic Hats.............................................. 68 a. I Belong to an Exempt Group........................................................ 69 b. I Declare Myself Immune............................................................... 71 c. I Have Been Incorrectly Identified................................................. 72 d. I Am Subject to a Different Law..................................................... 73 e. Conscientious Objector.................................................................. 75 f. Tax-Related Magic Hats................................................................ 76 g. Miscellaneous................................................................................ 78 4. The Inherent Authority of Provincial Superior Courts.............................. 79 a. Superior Courts of Inherent Jurisdiction........................................ 79 b. Procedural Jurisdiction................................................................. 80 c. Subject Jurisdiction........................................................................ 82 d. Inherent Jurisdiction vs. OPCA Strategies and Concepts.............. 84 B. Obligation Requires Agreement......................................................................... 85 1. Defeating Legislation................................................................................ 86 2. Everything is a Contract............................................................................ 86 3. Consent is Required.................................................................................. 89 4. Conclusion - Obligation Requires Agreement........................................... 91 5. Court Misconduct by Everything is a Contract and Consent is Required Litigants 91 C. Double/Split Persons............................................................................................ 92 1. Unshackling the Strawman........................................................................ 94 2. Dividing Oneself........................................................................................ 94 3. In-Court Behaviour of the Divided Person................................................ 96 4. Conclusion - Double/Split Person Schemes............................................... 98 D. Unilateral Agreements......................................................................................... 99 1. The Legal Effect of a Foisted Agreement............................................... 101 2. Common Uses of Unilateral Agreements................................................ 105 a. To Create or Assert an Obligation............................................... 105 b. To Discharge an Obligation or Dismiss a Lawsuit...................... 108 c. Foisted Duties, Agency, or Fiduciary Status................................ 110 d. Copyright and Trade-mark.......................................................... 110 3. Fee Schedules.......................................................................................... 112 a. Disproportionate and Unlawful Penalties................................... 114 b. The Targets and Intended Effect of Fee Schedules...................... 115 4. Effect of Unilateral Agreements............................................................. 116 E. Money for Nothing Schemes............................................................................. 117 1. Accept for Value / A4V.......................................................................... 117 2. Bill Consumer Purchases......................................................................... 120 3. Miscellaneous Money for Nothing Schemes........................................... 121 F. Legal Effect and Character of OPCA Arguments......................................... 121 1. OPCA Strategies that Deny Court Authority......................................... 121 a. An OPCA Argument that Denies Court Authority Cannot Succeed Due to the Courts Inherent Authority........................................................................ 121 b. An OPCA Argument that Denies Court Authority is Intrinsically Frivolous and Vexatious..................................................................................................... 122 c. An OPCA Argument that Denies Court Authority May Be Contempt of Court Authority..................................................................................................... 123 i. Denial of Tax Obligation Evades Tax............................. 123 ii. Denial of Firearms Restrictions Proves Intent for Illegal Possession 124 iii. Denial of Court Authority May Prove the Intent to Engage in Contempt of Court......................................................................................... 125 iv. Other Government Authorities........................................ 127 2. Other OPCA Strategies........................................................................... 127 3. Responses to OPCA Strategies............................................................... 128 a. Strike Actions, Motions, and Defences......................................... 128 b. Punitive Damages........................................................................ 128 c. Elevated Costs............................................................................. 129 d. Order Security for Costs.............................................................. 131 e. Fines............................................................................................ 132 f. One Judge Remaining on a File.................................................. 132 4. Responses to OPCA Litigants and Gurus............................................... 133 a. Vexatious Litigant Status.............................................................. 133 b. Deny Status as a Representative.................................................. 133 5. Conclusion - Responses to OPCA Litigation and Litigants.................... 134 VII..... Review............................................................................................................................ 135 A. Judiciary............................................................................................................. 136 B. Lawyers.............................................................................................................. 138 1. A Lawyers Duties.................................................................................... 138 a. Notarization of OPCA Materials................................................. 138 b. Triage: Identification of Legal Issues........................................... 139 2. Education................................................................................................ 139 a. Judges and Courts....................................................................... 139 b. The OPCA Litigant...................................................................... 140 3. Conclusion - Lawyers and OPCA Litigation.......................................... 141 C. Target Litigants................................................................................................. 141 D. OPCA Litigants................................................................................................. 141 E. OPCA Gurus..................................................................................................... 143 VIII.... Application of These Reasons to the Meads v. Meads Litigation............................... 144 A. Ms. Meads.......................................................................................................... 144 1. Case Management................................................................................... 144 2. Disclosure by Mr. Meads......................................................................... 144 B. Mr. Meads.......................................................................................................... 145 1. Pre-Hearing Activities............................................................................. 145 a. The February 15, 2011 Document.............................................. 146 b. The March 3, 2011 Document..................................................... 147 c. The April 27, 2012 Documents.................................................... 148 2. The June 8, 2012 Hearing........................................................................ 151 3. The June 19 and June 21, 2012 Documents............................................ 153 4. Conclusion............................................................................................... 154 Appendix A - Meads Fee Schedule.......................................................................................... 157 Appendix B - Meads Copyright and Trademark Notice....................................................... 176 Where there is no common power, there is no law, where no law, no injustice. Force, and fraud, are in war the two cardinal virtues. ... The laws are of no power to protect them, without a sword in the hands of a man, or men, to cause those laws to be put in execution. ... And law was brought into the world for nothing else but to limit the natural liberty of particular men in such manner as they might not hurt, but assist one another, and join together against a common enemy. Thomas Hobbes, Leviathan (Forgotten Books, 2008), at pp. 87, 147, 184 I. Introduction to Organized Pseudolegal Commercial Argument [“OPCA”] Litigants [1] This Court has developed a new awareness and understanding of a category of vexatious litigant. As we shall see, while there is often a lack of homogeneity, and some individuals or groups have no name or special identity, they (by their own admission or by descriptions given by others) often fall into the following descriptions: Detaxers; Freemen or Freemen-on-the-Land; Sovereign Men or Sovereign Citizens; Church of the Ecumenical Redemption International (CERI); Moorish Law; and other labels - there is no closed list. In the absence of a better moniker, I have collectively labelled them as Organized Pseudolegal Commercial Argument litigants [“OPCA litigants”], to functionally define them collectively for what they literally are. These persons employ a collection of techniques and arguments promoted and sold by ‘gurus’ (as hereafter defined) to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals. [2] Over a decade of reported cases have proven that the individual concepts advanced by OPCA litigants are invalid. What remains is to categorize these schemes and concepts, identify global defects to simplify future response to variations of identified and invalid OPCA themes, and develop court procedures and sanctions for persons who adopt and advance these vexatious litigation strategies. [3] One participant in this matter, the Respondent Dennis Larry Meads, appears to be a sophisticated and educated person, but is also an OPCA litigant. One of the purposes of these Reasons is, through this litigant, to uncover, expose, collate, and publish the tactics employed by the OPCA community, as a part of a process to eradicate the growing abuse that these litigants direct towards the justice and legal system we otherwise enjoy in Alberta and across Canada. I will respond on a point-by-point basis to the broad spectrum of OPCA schemes, concepts, and arguments advanced in this action by Mr. Meads.

EXAMPLE OF LAWYERS IN VICTORIA BEING REMOVED FROM THE ROLL FOR THE RIGHT REASON: CONTRAST THIS WITH THE SITUATION IN WA WHERE INJUSTICE IS PERPETRATED THROUGH PURPORTEDLY DISHONEST DEALINGS?

IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE COMMERCIAL AND EQUITY DIVISION S CI 2013 4214 LEGAL SERVICES COMMISSIONER Plaintiff v PFM (A PSEUDONYM) Defendant --- JUDGE: ELLIOTT J WHERE HELD: MELBOURNE DATE OF HEARING: 21 JULY 2014 DATE OF JUDGMENT: 23 JULY 2014 CASE MAY BE CITED AS: LEGAL SERVICES COMMISSIONER v PFM MEDIUM NEUTRAL CITATION: [2014] VSC 341 --- LEGAL PRACTITIONERS – order for removal of local lawyer from roll of practitioners – recommendation by the Victorian Civil and Administrative Tribunal – application by Legal Services Commissioner – acts of dishonesty over extended period of time – applications for employment – falsifying academic results – false statutory declarations – misleading statements to Law Institute of Victoria and Legal Services Commissioner – defendant not a fit and proper person – mental illness - court’s inherent jurisdiction – Legal Profession Act 2004 (Vic), ss 4.4.3(1), 4.4.3(2), 4.4.4, 4.4.6. --- APPEARANCES: Counsel Solicitors For the Plaintiff Mr S R Senathirajah Solicitor to the Legal Services Commissioner For the Defendant Ms M F Fitzgerald with Ms M Tait Emma Turnbull Lawyers TABLE OF CONTENTS A.. Introduction................................................................................................................................... 1 B.. Background................................................................................................................................... 2 C.. Charges proved............................................................................................................................. 7 D.. Findings made and sanctions imposed.................................................................................... 8 E... Mental illness of PFM................................................................................................................. 9 F... General principles...................................................................................................................... 11 G.. PFM must be removed from the roll of practitioners.......................................................... 12 H.. Conclusion................................................................................................................................... 13 HIS HONOUR: A. Introduction On 27 May 2013, the Victorian Civil and Administrative Tribunal (“VCAT”) delivered judgment (“the Primary Judgment”)[1] and made orders, which included a recommendation to this court that the name of the defendant (“PFM”)[2] be removed from the local roll of practitioners. The plaintiff, the Legal Services Commissioner (“the Commissioner”), now applies to the court to have PFM’s name removed, under the inherent jurisdiction of the court. [1] [2013] VCAT 827 (Senior Member Smithers). [2] PFM is a pseudonym. The proceeding is presently the subject of an order preventing publication of the name of PFM or any other publication to the extent that it might tend to identify PFM. This order was made by consent of the parties at an interlocutory hearing and prior to the introduction of the Open Courts Act 2013 (Vic). Whether the confidentiality regime put in place by this order ought to remain will be the subject of a hearing on 25 July 2014. PFM was found guilty of a number of charges under the Legal Profession Act 2004 (Vic) (“the Act”) concerning “professional misconduct”[3]. [3] Professional misconduct is defined for the purposes of the Act in s 4.4.3(1) as follows: For the purposes of this Act— professional misconduct includes— (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. See also ss 4.4.3(2), 4.4.4, 4.4.6. At the commencement of the hearing before me, counsel who appeared on behalf of PFM indicated that the application for removal was opposed. During the course of the hearing, and after evidence had been given by PFM’s treating psychiatrist, the court was informed that PFM consented to his removal from the roll of practitioners. Notwithstanding the matter then proceeded by consent, it is still necessary for the court to determine whether the recommendation of VCAT ought to be acted upon. B. Background The extensive background in relation to this matter is set out in the Primary Judgment. In a careful and thorough judgment, the Senior Member set out the relevant circumstances in detail. It is unnecessary for me to do so again. It is sufficient, given this matter is now proceeding by way of consent, to provide the following overview of the relevant history.[4] The charges essentially arise from the fact that PFM chose to forge his academic transcript to materially alter his results and to use that transcript in employment applications in the period between 2006 and 2009. This was done to enhance significantly his prospects of employment. Two of the applications made during that time were successful. [4] Evidence before the court also related to PFM’s personal details from his childhood onwards. I have read the matters relied upon. It is unnecessary to set such details out in the judgment. This unfortunate conduct was compounded by further conduct of PFM after investigations commenced. During the course of those investigations, PFM made false and misleading statements to the Commissioner and the Law Institute of Victoria (“the Law Institute”). Such conduct included making false statutory declarations and false statements. The hearing before VCAT was originally conducted on 12 October 2012. The hearing was a plea. The case was reopened subsequently to allow the Commissioner to put on further evidence as to the conduct of PFM.[5] Further hearings were conducted on 7 December 2012, 22 February 2013, and 29 April 2013. [5] PFM was involved in a web-based business at the time, which was not disclosed by PFM to VCAT (or his counsel). This evidence was relevant to his ability to meet any fine or costs award, and also relevant to evidence as to his mental state. The events giving rise to the hearing before VCAT were as follows: (1) Upon completion of his university degrees in 2003 and a period of travel, PFM completed his articles and spent a period as a solicitor at a law firm (“Law Firm 1”). (2) The charges concerned PFM’s conduct in securing or seeking to secure employment as a solicitor with: (a) a law firm at which he worked between 2006 and 2008 (“Law Firm 2”); (b) a law firm to which he applied while still employed by Law Firm 2 (“Law Firm 3”); (c) a company seeking to employ a solicitor (“Legal Employer 4”); (d) another company (“Legal Employer 5”), to which PFM made a successful application and where he commenced work as a solicitor in 2009. (3) In applying to Law Firm 2, PFM forged the transcript of his academic results and increased the majority of the results of both his law and commerce degree to a significant extent.[6] (4) In 2008, PFM applied to Law Firm 3, again falsifying his academic transcript and also containing a curriculum vitae which included like false representations. His application to Law Firm 3 was not pursued after Law Firm 3 became suspicious and requested the original transcript of his academic results. (5) Law Firm 3 informed Law Firm 2 that it had received a false academic transcript from PFM. Subsequently, PFM resigned from Law Firm 2. (6) In 2009, PFM asked a former colleague of Law Firm 2 to act as his referee. In so doing, PFM falsely stated to his former colleague that he remained employed at Law Firm 2. (7) In 2009, in seeking further employment, PFM told a recruitment agency that he was still employed at Law Firm 2. PFM again provided a curriculum vitae with false representations as to his academic results. Upon Legal Employer 4 learning of false representations made by PFM, it withdrew an offer of employment that it had previously made. (8) Also in 2009, PFM instructed another recruitment agency, yet again providing false academic results as part of his curriculum vitae. PFM also, again, represented falsely that he was still employed at Law Firm 2. Notwithstanding that Legal Employer 5 was advised that PFM was no longer an employee of Law Firm 2, it remained under the impression the falsely represented academic results were accurate. It offered PFM employment and he started working with Legal Employer 5 in 2009. [6] Primary Judgment, [9]. Law Firm 2 complained to the Commissioner in April 2009. This was followed by an investigation for an extensive period of time, albeit that it was intermittent. As part of the investigation process, PFM confirmed certain matters and provided statutory declarations to verify these matters. They included the following: (1) In a statutory declaration made 14 July 2009, PFM admitted he was desperate to leave Law Firm 1 and to work for Law Firm 2, and made a conscious decision to misrepresent his academic results in order to achieve that outcome. PFM stated that he had been subjected to harassment at Law Firm 1 and so his judgment was clouded at the time. PFM expressed remorse and apologised to the Law Institute, the Commissioner and Law Firm 2. Amongst other things, PFM gave an assurance that the experience had ensured that he would act with honesty and candour in the future in his practice as a lawyer. (2) In a statutory declaration made 23 September 2009, PFM falsely stated that the curriculum vitae used and provided to Legal Employer 5 had not contained false information concerning his academic results. The falsity of this statutory declaration was not discovered by the Commissioner until May 2011. Subsequently, 21 months after providing the statutory declaration, PFM admitted this statutory declaration was false. (3) A statutory declaration made 8 December 2010 verified as true and correct an attached letter authored by PFM of the same date. In that letter, amongst other things, PFM stated he was unable to provide any response to the Commissioner for various reasons that were held by the Senior Member to be untrue, or at least misleading.[7] Further, the letter dated 8 December 2010 attached a curriculum vitae said to have been provided to Legal Employer 5 for a more senior position with that employer. This curriculum vitae did not contain false representations as to his academic results. It was a different curriculum vitae to that which had been provided to Legal Employer 5, which, as noted above,[8] did contain representations of false academic results. [7] Primary Judgment, [36]. [8] See par 8(8) above. In summary, in relation to the different versions of the curriculum vitae, there was a version provided with a statutory declaration of 23 September 2009; a version provided with a statutory declaration of 8 December 2010 relating to his letter, and a version containing the false representations as to his academic results. It is only the last of the 3 versions that was actually used by PFM in applying for employment as set out above. In addition, PFM falsely denied specific allegations when put to him in 2010.[9] [9] Primary Judgment, [28]. As stated by the Senior Member,[10] the “most significant and clear cut aspects… where PFM misled the regulators during the investigation”, were: (1) The false statements in his statutory declaration of 23 September 2009. (2) His purported inability to respond to the Commissioner’s request for information about his application to Law Firm 3 in his letter of 8 December 2010 (verified by his statutory declaration of the same date) when in fact, he had recently obtained his application material from the relevant recruitment agency. (3) His provision of a second incorrect version of his curriculum vitae provided to Legal Employer 5 in the same letter of 8 December 2010. [10] Primary Judgment, [45]. Ultimately, by letter dated 4 July 2011, PFM made admissions in relation to a number of material matters. Further, in late 2011, he ceased to practice as a lawyer and surrendered his practising certificate. In addition to the matters set out above, for the period from mid 2009 to mid 2011, PFM made statements of regret and contrition. The first such statement was a letter dated 15 June 2009, which included a statement to the effect that he had done a great deal of soul searching in relation to his actions. He also stated that, as a person of “strong will and a proud disposition”, the experience had been very difficult but nonetheless a therapeutic experience and he could “honestly say [he had] grown because of it”. Secondly, in a letter dated 4 June 2010, PFM again referred to a great deal of soul searching and regret. He also again suggested he had grown from the experience. Thirdly, in a letter dated 4 July 2011, PFM confirmed that “the practitioner who is now writing this letter is a vastly different person compared to the one at the start of this complaint”.[11] [11] Primary Judgment, [49]. However, as found by VCAT,[12] each of the statements contained in these letters were followed by further acts seeking to cover up the extent of PFM’s wrongdoing, or any information adverse to him. C. Charges proved [12] Primary Judgment, [50]. PFM, who was represented by senior counsel before VCAT, pleaded guilty to 6 charges made against him. Those charges were as follows:[13] [13] Primary Judgment, [52]-[57]. (1) Charge 1: Professional misconduct within the meaning of section 4.4.3(1)(b) of the Act for engaging in conduct that justifies a finding that [PFM] was not a fit and proper person to engage in legal practice because: (a) he provided [Recruitment Agency 1] for the purpose of making a job [application] to [Law Firm 2] with forged academic transcript knowing that it was false and a curriculum vitae which made the marks representations[14] knowing that it was false; and [14] In the Primary Judgment, [8], “the marks representations” are defined as “statements in his curriculum vitae which contained general references to the exaggerated results in the forged academic transcript”. (b) by making an application for employment with [Law Firm 2] which included providing the false academic transcript and stating the marks representations, he dishonestly obtained employment with [Recruitment Agency 1] and thereby a financial advantage by a deception. (2) Charge 3 [made] the same allegations, but in relation to PFM’s application through Recruitment Agency 2 for a position at Law Firm 3. (3) Charge 6 [made] the equivalent allegations in relation to the applications through Recruitment Agency 1 for a position at Legal Employer 4. The difference [was] that the CV not only contained the marks representations but also the false statement that PFM was a current employee of Law Firm 2. Also, charge 6 [did] not allege that the forged transcript was provided to Legal Employer 4, only the CV containing the marks representations. (4) Charge 8 contain[ed] the equivalent allegations in relation to PFM’s application through Recruitment Agency 3 for a position of Legal Employer 5. Again, it alleg[ed] that a CV containing the marks representations and a statement that PFM was a current employee of Law Firm 2 was provided to Recruitment Agency 3, and in turn, passed onto Legal Employer 5. That is, like charge 6, charge 8 [did] not allege provision of the forged transcript itself. (5) Charge 5: Professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in asking [his former colleague at Law Firm 2] to act as his referee where he falsely stated to [that former colleague] that he remained employed by [Law Firm 2] and, further, he asked [his former colleague] to state, in acting as his referee, that he remained employed by [Law Firm 2] knowing this was false. (6) Charge 10: Professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable by dishonestly making during the investigation a statutory declaration on 23 September 2009 which was false and which he knew was false. D. Findings made and sanctions imposed Having referred to a number of authorities in which it is made plain that the character of a legal practitioner is a fundamental consideration in determining whether or not a practitioner can be considered a fit and proper person to practise in the legal profession, the Senior Member said as follows:[15] … the course of conduct which PFM has engaged in runs adversely to him. His reliance on the forged transcript and misrepresentations as to the marks he achieved continued over a period of years. They comprised systematic dishonesty, rather than a momentary or aberrant lapse. [15] At [127]. The Senior Member continued:[16] The aim of the dishonest conduct was for PFM to obtain a personal benefit. He used a forged academic transcript and made the marks representations in order to obtain employment as a solicitor (and of course, remuneration) by deception. PFM’s conduct after the commencement of the investigation reinforces the conclusion that his character is such that he is currently not a fit and proper person, and that it is likely he is unfit to practise permanently, or at least, for the indefinite future, because he is not a person of honesty. [16] At [128]-[129]. The Senior Member also noted that although there was no issue about PFM’s knowledge and ability to perform as a solicitor when dealing with clients and colleagues, such matters were quite separate to considerations of honesty, which are fundamental to whether or not a person is fit and proper to continue in practice.[17] Having made these findings, the following sanctions were imposed: (1) PFM was prevented from applying for a practising certificate for a period of 7 years from the date of the order, namely 27 May 2013.[18] (2) If PFM was able to apply for a local practising certificate on or after 27 May 2020, he was required to provide with his application to the Legal Services Board, a medical report from his then treating psychologist or psychiatrist, or, if he did not have a treating psychologist or psychiatrist, from a medico-legal psychologist or psychiatrist, advising on his mental health and his capacity to engage in legal practice.[19] (3) Except with the approval of the Legal Services Board, PFM was prohibited from carrying out any of the functions of a “lay associate”, for a “legal practitioner”[20] or “law practice”, as those terms are defined in the Act.[21] PFM was also ordered to pay the costs of the Commissioner, fixed in the sum of $25,000.[22] There was no appeal from the Primary Judgment. E. Mental illness of PFM [17] At [134]. See also par 30 below. [18] At [149]. [19] At [2] and [150]. [20] The definition in the Act is “Australian legal practitioner”: s 1.2.3(a). [21] At [4] and [152]. [22] The evidence before the court was that PFM is paying these costs in accordance with an instalment plan as proposed by the Commissioner. As will be apparent from the second sanction set out above, there were serious issues in relation to the mental wellbeing of PFM. These issues remain. PFM suffers from severe depression. Again, extensive details in relation to this are set out in the Primary Judgment and it is unnecessary to fully recount all matters considered by the Senior Member.[23] However, the mental illness of PFM is relevant for present purposes; in particular, his present state of health and that for the foreseeable future is relevant to the question of whether he is a fit and proper person. [23] At [60]-[64], [71]-[84], [99]-[117]. PFM’s treating psychiatrist gave evidence that removal of PFM from the roll of practitioners and any publication of PFM’s name in relation to this proceeding or the proceeding before VCAT could have severe consequences for his mental health. As to the latter matter, I propose to say nothing further about it as that will be the subject of a hearing before me on 25 July 2014. As to the former matter, ultimately little, if anything, turned on this. It is plain that the psychiatrist, understandably,[24] believed that the removal of PFM from the roll of practitioners would create a further obstacle in relation to PFM being able to practise as a legal practitioner after 27 May 2020. However, it was common ground between the parties that no further obstacle would be created in this regard. In short, the court was informed that, in the event PFM made any applications in the future, precisely the same matters would be considered in determining whether or not PFM should be able to obtain a practising certificate as would be considered in determining whether or not his name should be allowed to be reinstated on the roll of practitioners. [24] His evidence was that the same understanding was also held by PFM. Under cross-examination, the treating psychiatrist accepted that, if this was explained to PFM, then PFM “may be able to cope” with removal from the roll of practitioners. In short, the psychiatrist could not be certain such an event would have the adverse causal effect on PFM’s mental health that he had previously anticipated. Significantly, the treating psychiatrist also gave evidence that PFM’s current mental state was such that he would not be a fit or proper person to conduct himself as a legal practitioner. Further, the psychiatrist accepted that the present state of PFM’s mental health was unlikely to improve “for as far as the eye can see”. In those circumstances, the psychiatrist ultimately accepted that, by reason of the state of the mental health of PFM alone, he was not a fit or proper person to remain on the roll of practitioners and would not be a fit or proper person for the foreseeable future. Finally, on the question of the extent to which the mental health of PFM was relevant to the conduct the subject of the charges, the Senior Member made the following finding:[25] I find that in terms of the Verdins[26] principle, PFM’s mental health status did not have any effect relevant to the determination of penalty in relation to Charges 1, 3, 5, 6 and 8. In relation to Charge 10, any effect is only marginal at best. F. General principles [25] At [113]. [26] R v Verdins (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA), a case concerned with the extent to which impaired mental functioning, whether temporary or permanent, is relevant to sentencing. Based on the relevant authorities, the following may be stated: (1) The term “fit and proper person” is used to give “the widest scope for judgment and indeed for rejection”.[27] (2) “Fit” with respect to an office involves 3 things: honesty, knowledge and ability.[28] (3) To be a fit and proper lawyer, a person must have qualities of character necessary to discharge the grave responsibilities of a legal practitioner.[29] (4) A legal practitioner assumes duties to the courts, fellow practitioners and clients; at the heart of those duties is a commitment to honesty and, when required, open candour and frankness irrespective of self-interest or embarrassment.[30] (5) The entire administration of justice in a community governed by the rule of law depends on honest working legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour.[31] (6) Any attempt by a lawyer to mislead her or his professional body must be considered an extremely serious breach of duty.[32] (7) Lack of insight into wrongdoing committed by a legal practitioner is a serious matter to take into account in determining the appropriateness and nature of any sanction.[33] (8) If a practitioner has been prevented from applying for a practising certificate for a significant period of time because of wrongful conduct, that fact alone might justify the practitioner’s name being removed from the roll of practitioners.[34] (9) If it is brought to the court’s attention that a legal practitioner may not be a fit and proper person to practice, the court has a positive duty to reconsider the suitability of that practitioner’s name appearing on the roll of practitioners.[35] G. PFM must be removed from the roll of practitioners [27] Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, 156.7 (Dixon CJ, McTiernan and Webb JJ). See also Legal Services Board v McGrath (No 2) (2010) 29 VR 325, 329-330 [12]-[13] (Warren CJ). [28] Ibid. [29] Legal Services Commissioner v Nguyen [2013] VSC 443, [25] (Macaulay J); Frugtniet v Board of Examiners [2005] VSC 332, [29] (Gillard J); Frugtniet v Board of Examiners [2002] VSC 140, [10] (Pagone J). [30] Ibid. [31] Ibid. [32] Law Society of the Australian Capital Territory v Burns (2012) 6 ACTLR 282, 294-295 [42], [44] (Refshauge, Penfold and Burns JJ). [33] Legal Services Commissioner v Nguyen [2013] VSC 443, [37] (Macaulay J); Hannebery v Legal Ombudsman [1998] VSCA 142, [22] (Tadgell JA, with whom Phillips and Chernov JJA agreed). [34] Law Institute of Victoria v Gough (Supreme Court of Victoria, unreported, Hansen J, 10 February 1995), 23.5. [35] Legal Services Commissioner v Rushford [2012] VSC 632 [15] (Bell J); Southern Law Society v Westbrook (1910) 10 CLR 609, 612.3 (Griffith CJ), 619.7 (O’Connor J). It is abundantly clear that, by reason of the nature and severity of the charges proved, the length of time over which the offending conduct occurred, the lack of genuine remorse (at least, for an extended period of time) and the current mental state of PFM, it is appropriate that his name be removed from the roll of practitioners. In making this decision, I have taken into account the possible deleterious effect such a course may have on PFM’s wellbeing. Based on the evidence given by his treating psychiatrist,[36] it seems likely that any adverse effect ought to be able to be kept to a minimum. In any event, given the length of time for which PFM is prevented from obtaining a practising certificate and the seriousness of the conduct the subject of the charges, it would be entirely inappropriate not to remove PFM from the roll of practitioners. H. Conclusion [36] See par 27 above. The order of the court will be that the name of the solicitor be removed from the roll of practitioners kept by the court. --- Article source: Supreme Court of Victoria Citation report Full report: View this article in the Jade Citator Citations: [2014] VSC 341 Export and alerts: Print/Export · Alert: when this document is cited · Alert: list of authorities Citation counts: Show: Cases citing this decision No matching results found Cases cited by this decision Name Court Date Citations Legal Services Commissioner v Nguyen [2013] VSC 443 Supreme Court of Victoria 22 Aug 2013 2 citations: Para 25, 37 [2013] VCAT 827 Victorian Civil and Administrative Tribunal 2013 1 citation Legal Services Commissioner v Rushford [2012] VSC 632 Supreme Court of Victoria 19 Dec 2012 1 citation: Para 15 Legal Services Board v Francis McGrath [2010] VSC 266; 29 VR 325 Supreme Court of Victoria 16 Jun 2010 1 citation: Page 329-330, Para 12-13 R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269 Supreme Court of Victoria - Court of Appeal 22 May 2007 2 citations Frugtniet v Board of Examiners [2005] VSC 332 Supreme Court of Victoria 23 Aug 2005 1 citation: Para 29 FRUGTNIET v. BOARD OF EXAMINERS [2002] VSC 140 Supreme Court of Victoria 30 Apr 2002 1 citation: Para 10 Hannebery v Legal Ombudsman [1998] VSCA 142 Supreme Court of Victoria - Court of Appeal 16 Dec 1998 1 citation: Para 22 Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; 93 CLR 127 High Court of Australia 08 Jun 1955 1 citation: Page 156 Southern Law Society v Westbrook [1910] HCA 31; 10 CLR 609 High Court of Australia 17 Jun 1910 1 citation: Page 612 Legislation cited by this decision Name Citations Legal Profession Act 2004 (Vic) 8 citations: Section 1.2.3(a), 4.4.3(1), 4.4.3(1)(b), 4.4.3(2), 4.4.4, 4.4.6 Open Courts Act 2013 (Vic) 1 citation

Director ordered to pay company’s £35M and counting costs liability

The Australian Professional Liability Blog Director ordered to pay company’s £35M and counting costs liability Posted: 24 Jul 2014 06:14 PM PDT Deutsche Bank AG v Sebastian Holdings Incorporated [2014] EWHC 2073 (Comm) is big. Deutsche Bank sued a company in the English High Court and got a quarter of a billion American dollars judgment. Justice Cooke also ordered the company to pay costs and ordered an interim payment towards the company’s costs liability of about £35 million within a fortnight. The company, a special purpose shell company incorporated in the Turks & Caicos (a British territory in the Bahamas and offshore financial centre), didn’t pay. The plaintiff successfully applied ex parte to join the company’s sole shareholder and director and effect substituted service in the US. He is the Norwegian born, Swedish raised, Harvard educated, Monaco domiciled Alexander Vik, said to have been miraculously lucky in his path to billionnairedom. Until now… The plaintiff then succeeded in its non-party costs order against the director for the reasons set out below. It seems all the rage over in England; consider also Xhosa Office Rentals Ltd v Multi High Tech PCB Ltd [2014] EWHC 1286 (QB). (And see also this post about a similar decision in Victoria, Lillas and Loel Lawyers Pty Ltd v Celona [2014] VSCA 70. Even more recently, see JJES Pty Ltd v Sayan (No 2) [2014] NSWSC 475 in which the director of a corporate plaintiff which sued its solicitors for professional negligence was ordered to pay the solicitors’ costs personally on an indemnity basis. It refers to two more authorities directly on point: FPM Constructions v Council of City of Blue Mountains [2005] NSWCA 340, and May v Christodoulou [2011] NSWCA 75; (2011) 80 NSWLR 462)It was apparent from comments made by his lawyers during the case that the director minutely controlled tactical decision making in the case. He was the company’s principal factual witness. The judge had found him a liar and his company’s case dishonest. The Court held that the director was the company’s privy and as such he was estopped by litigation estoppels from denying in the application for costs against him the correctness of the findings of dishonesty or of the findings in the judgment on which the final orders necessarily rested more generally, as well as from adducing in the personal costs order hearing evidence which could have and should have been adduced by the company in relation to matters in issue in the main proceeding. Mind you, this was a fairly extreme case: ‘It would be hard to find a case where a person was more closely connected with a company than Mr Vik and SHI, whether consideration is given to their financial interrelationship, their management interrelationship or the conduct of the English litigation. The complete absence of any corporate formalities in the sense of resolutions, minutes of decisions, corporate books and records illustrate clearly the extent to which Mr Vik identified SHI as his “trading company” and Beatrice as his “savings company” where he could and did decide on the transfer of monies between them without regard to the financial obligations of each considered independently as a corporate entity.’ The application was based on the fact that the director stood to benefit from the litigation (having counterclaimed for about US$7 billion), had funded the company’s litigation, had improperly transferred nearly US$1 billion out of the company while maintaining effective control over those funds to hinder the plaintiff recovering on any judgment it might receive, and had caused the company to engage dishonestly in the litigation. The mere fact that he was the sole officer and shareholder would not, the judge said, have sufficed to attract personal liability. The director called in aid witness immunity to no avail; the immunity does not prevent a witness’s evidence being used against them in a non-party costs action. He argued that he should have been warned of the possibility of such an application before judgment, that the plaintiff should have sought security for costs or sought to join him earlier. ‘Bollocks!’, Justice Cooke effectively said, in a confident judgment. Apart from anything else, his Honour said, his own lawyers must in the course of charging the company £30 million have warned him themselves of the likelihood of a non-party costs application. (For the sake of their insurers, I hope the judge is right, and that there is a file note.) Justice Cooke found, by reference to authority, that the director had funded the litigation in the following way. The director treated the funds of his company and his other companies as his own and moved them about at will to his personal advantage and without observing formalities. He left some lazy millions in the defendant company to allow it to pay its legal fees when he could have taken the lot. In that sense, he funded the company’s litigation. But his Honour made it clear that the funding finding was not necessary to his ruling: I do not need to reach this conclusion in relation to funding because, in my judgment, the other elements which I have found are more than sufficient to justify making an order for costs against Mr Vik personally. Mr Vik deprived SHI of assets with a view to impeding recovery by DBAG of sums due to it thus contributing to SHI’s inability to pay the order for costs made against it. He controlled the conduct of SHI’s case in the litigation and acted improperly in numerous respects in so doing. It was his conduct of the litigation which caused DBAG to incur costs in pursuing the action and substantial areas of those costs resulted from Mr Vik’s pursuit of dishonest defences and claims or unreasonable pursuit of issues. It was Mr Vik who stood to benefit from the case run on SHI’s behalf and indeed he was the only person who ultimately stood to benefit at all, since he was the embodiment of SHI. Both English decisions referred to in this post were brought to my attention by Thomas Legal Costs‘ twitter feed. You are subscribed to email updates from The Australian Professional Liability Blog To stop receiving these emails, you may unsubscribe now. Email delivery powered by Google Google Inc., 20 West Kinzie, Chicago IL USA 60610

Costs in settlements of claims by persons under disability

The Australian Professional Liability Blog Costs in settlements of claims by persons under disability Posted: 14 Jul 2014 05:24 PM PDT Associate Justice Lansdowne has released for publication an edited transcript of reasons her Honour gave in Chan v Falls Creek Alpine Resort Management Board for not approving a proposed compromise of the claim of a person under a disability. The citation for the decision is [2014] VSC 314. ‘Disability’ in this sense is a term of art and extends to the disability of being a minor. The plaintiff, through his litigation guardian, had proposed a compromise in terms which were expressed as an amount for the claim and an amount for his costs. Her Honour pointed to Sztockman v Taylor [1979] VR 572 which suggests that such compromises are to be discouraged lest the plaintiff’s solicitors be attracted to an offer which is comparatively favourable in relation to costs but comparatively unfavourable in relation to the claim. That raises a conflict between interest and duty which is inherent in any compromise structured this way, but which is comparatively impermissible because of the disability of the plaintiff and the important role played by the parties’ lawyers in assisting the Court to evaluate the reasonableness of the compromise, a judicial function which is not a feature of compromises of claims by people not under a disability. Another reason for the discouragement of such compromises is that the judge approving the compromise is ill-equipped to assess the reasonableness of the proposed compromise in relation to costs. Following the non-approval of the compromise, the deal was renegotiated such that the settlement sum was expressed on an all-in basis as the total of the separate sums originally proposed by way of compromise of the claim and of costs. That sum was to be paid to the Senior Master and the plaintiff’s solicitors were to apply to the Senior Master for costs. The renegotiated proposed compromise was approved by the Court.