Property Law Update - Overzealous advice by a solicitor leads to his conviction for contempt of court

Commercial Law Property Law
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The Prothonotary of the Supreme Court of New South Wales v Coren [2017] NSWSC 754 is a timely reminder that while a solicitor has a primary duty to advance his/her client’s interests, as an officer of the court, he/she owes a paramount duty not to do anything that interferes with the administration of justice.

In this case a solicitor wrongly advised his client (by way of a draft letter) that an order of the Supreme Court of New South Wales giving possession of his farm to a mortgagee was void. He advised that possession of the farm by the financier since the date of the order was unlawful. The client acted on that advice, attended the property the next day and attempted to retake possession.

The solicitor was convicted of contempt of court and sentenced to 150 hours of community service. He was also ordered to pay costs of $40,000.

The sentencing judge adopted the following statement of the effect of the draft letter:

“Thus, in the end result, I am satisfied that Mr Coren armed his client with a letter, reckless as to whether it was true or not in asserting that the Supreme Court orders were deemed never to have been entered, and he did so … suspecting that his client would use that letter in an attempt to evict [the mortgagee’s] representatives from the Property.”

The judge found that:

“ … the conduct that the contemnor engaged [in] had a tendency, as a matter of practical reality, to frustrate the orders of the Supreme Court … and thus to interfere with the administration of justice.”

Relying upon the observations of Forrest J, with respect to the proper administration of justice, in The Queen v Witt [2016] VSC 142 at [112], the judge said:

“officers of the Court … must be held to a higher standard of behaviour than lay persons”.

As a practising solicitor of many years’ experience:

 “He should have been aware that he could be in contempt if he behaved recklessly in a way that had a tendency, practically speaking, of frustrating the orders of the Court.”

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Michael Wise practises in commercial law and intellectual property law

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