It is evident that the plaintiff was in a superior financial position to that of the defendant. There was direct evidence of significant wealth amassed by the plaintiff, and, under his control, significant wealth derived from Universal Medicine activities. The solicitor for the plaintiff was made aware early in the proceedings that the defendant did not have financial resources available to her and that she was, soon after the proceedings commenced, bankrupt. Her resources were obviously very limited. During long periods of the litigation she did not have a solicitor acting for her, so correspondence had to be conducted directly between the lawyers at Universal Law and the defendant herself.
It is in this context that a number of matters were raised in the affidavits tendered in support of the application for indemnity costs, and in the submissions seeking indemnity costs made by Mr Molomby SC on behalf of the defendant.
There were three broad areas of conduct identified by Mr Molomby SC as conduct I should consider relevant to s 40(1). The first was a request made by Universal Law that the defendant, without the assistance of a solicitor, produce 238 categories of documents for discovery within a 14 day period. This is a remarkably short period of time given the number of categories of documents sought and the logistics of preparing, collating and making the documents available even if the defendant had the resources of a solicitor to assist. A courteous request for extension of time was refused, followed by a threat to approach the court to seek orders and costs. This was, at best, an unreasonable and discourteous approach.
Second, an 85 page list of documents was provided to the defendant as material responsive to categories for discovery. Obviously such a list contained thousands of documents. Despite repeated requests, Universal Law refused to identify by labelling, which document corresponded to which description in the list. The defendant had to instead undertake the labelling of every document herself manually.
Whilst this conduct is unhelpful and bordering on obstructive, it did not in my view amount to conduct that caused undue delay or distraction away from early resolution of the proceedings. It seems by this stage, the parties were appropriately pursuing elucidation of each other’s cases and associated interlocutory disputes and arguments were not, in that context, out of place.
Third, and far more troubling in terms of approach and content of correspondence, is the conduct of Universal Law in correspondence sent at the time of the illness and death of the defendant’s father in late 2017. The defendant notified Universal Law, in the context of needing to complete a litigation task, that her father was seriously ill. She requested that her father’s condition be kept confidential. The response from Universal Law stated: “It is not open to you unilaterally to impose upon or enforce against our clients and our firm, a gag on the disclosure of information contained in your emails…Our client’s future use of the information (if any) is a matter for our clients…”
This was followed by what was submitted by Mr Molomby SC to be the culmination of oppressive behaviour. On the day of the defendant’s father funeral, a date which had been notified to Universal Law by a polite and low-key request that correspondence in relation to the litigation could avoid that date “out of respect for my family”, a 31 page letter was emailed at 3.59pm directly to the defendant by Universal Law. The defendant had no solicitor on the record for her at this time.
Whilst it is important to place the letter in context, namely an active and ongoing dispute about discovery of documents, the tone of the letter is unnecessarily peremptory and demeaning. There was no order or compulsion requiring the letter be sent that day. The choice of date seems to have been deliberate. Most concerningly, the letter contains a number of personal insults, directed to the defendant, about her character, professionalism, motivation and probity. For obvious reasons I will not repeat them. They appear in multiple places in the letter, including pages 1, 7, 8 and 13.
They are at best, unprofessional and most discourteous. They are at worst, bullying and harassment, deliberately deployed at a time when the defendant is likely to be distracted, sad and vulnerable, with the aim of demoralising her about the litigation she was defending.
There is no place for any such personal remarks and insults in any professional correspondence in legal proceedings. Solicitors have ethical duties and obligations. In that part of the Australian Solicitors’ Conduct Rules dealing with “Fundamental Duties of Solicitors”, a number of ethical duties are stated, including that a solicitor must: 4.1.2 be honest and courteous in all dealings in the course of legal practice; … 4.1.4 avoid any compromise to their integrity and professional independence; and 4.1.5 comply with these Rules and the law.
The timing and circumstances of the correspondence, including these personal insults, as well as the way in which they were phrased, suggests that the solicitor who authored them had a lack of independence from, or objectivity about, the litigation.
I do not know if Universal Law has any affiliation with Universal Medicine. It may well be a coincidence that their names are similar. The motto of Universal Law is “integritate et luce” which translates from the Latin to “integrity and light”. These precise words, or an English incantation of them, do not appear in any obvious logo or in the work of Universal Medicine to the extent that I can discern. Regardless of this, there may well be a public perception that somehow Universal Law has an affiliation or direct association with Universal Medicine. Whilst Universal Medicine was not a named party to these proceedings, it was entirely evident from the beginning that the plaintiff’s paramount role in Universal Medicine and its activities was a matter that would be the subject of considerable evidence in the proceedings.
My concerns regarding, in particular, this piece of correspondence, emailed to the defendant on the day of her father’s funeral, has led me to the view that I should take submissions from the parties as to whether I should make a referral of the author of the letter to the Office of the Legal Services Commissioner for investigation for breach of professional conduct requirements.