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Counsel referred to disciplinary body for ‘woeful’ conduct
A Federal Court referred a barrister to the Legal Services Commissioner for his “woeful preparation” in parenting proceedings, including his ironic failure to review material about his lack of preparedness.
Naomi Neilson
Justices Murray Aldridge, Shane Gill, and Andrew Strum of the Federal Circuit and Family Court of Australia (FCFCOA) referred a counsel in a recent parenting matter – known only by the pseudonym Kleid – to the Victorian Legal Services Commissioner for investigation.
In an earlier judgment, Justice Sharon Johns ordered Kleid to pay costs for three hearing days in the sum of $4,541 because he failed to prepare the case for his client, the mother, by not reading all affidavit material and two of the three expert reports.
Kleid also did not have standing to appear for the mother because he had not signed the High Court’s Register of Practitioners and he had accepted a brief to appear in another court on the first hearing day.
Justice Johns also dealt with some confusion over whether Kleid was there for the cross-examination of the father – as he suggested – or for the whole hearing. Documents from Legal Aid Victoria and a statement from the instructing solicitor confirmed it was the latter.
The appeal over the costs order before Justices Aldridge, Gill, and Strum “also did not get off to a good start”.
The first cause of concern was that Kleid said he looked at the wrong judgment while preparing for the appeal and, after being taken to the subject of the appeal hearing, he further claimed he did not have the “benefit of reading those particular paragraphs”.
It later emerged Kleid was “completely unaware” of the contents of the appeal book and he had not read the transcript of the original hearing.
“This woeful level of preparation would be unacceptable for a lay litigant, let alone a practising barrister challenging an order which was based on him not being prepared and ready to run a hearing,” Justices Aldridge, Gill, and Strum said in their written reasons.
None of Kleid’s grounds of appeal challenged the finding that he was not readily prepared, meaning it was “doomed to fail from the outset”.
In one of those grounds, Kleid said Justice Johns adjourned the hearing because of his conduct, but gave “no detail” about it.
However, Justice Johns had provided those details in “paragraphs apparently not read by the appellant”, the FCFCOA bench said.
Kleid also took issue with an alleged failure by Justice Johns to consider the “undisputed fact” that Victoria Legal Aid had provided the mother with funding for just the first day of hearing.
Justices Aldridge, Gill, and Strum knocked this appeal back, saying Kleid did not produce a letter of instruction, a backsheet, or evidence from his clerk to dispute the statement by his instructing solicitor.
Further, even if Kleid was correct he was only there to cross-examine, he had not read all of the father’s affidavit material.
“It has to be said, how this is relevant to the key finding that the appellant was not sufficiently prepared to cross-examine the father is beyond us,” Justices Aldridge, Gill, and Strum said.
“There can be no doubt the appellant was briefed for eight days, for the whole trial, even though he might not be paid for each day.”
One of Kleid’s last grounds of appeal was about an alleged “perception of bias” from Justice Johns’ decision to refer the matter to the Victorian Legal Services Commissioner “without providing reasons at the time”.
The FCFCOA appeal bench said Kleid failed the first hurdle in proving this allegation because he did not raise any objection with Justice Johns when she came to the decision or seek her disqualification.
In any event, the balance of this ground was “factually incorrect”.
“The referral to the Legal Services Commissioner was made after the appellant had been heard and not before, there was extensive discussion about the appellant’s preparation before the primary judge found he was not ready, as opposed to little or none, and the question of costs was not raised at a premature stage,” Justices Aldridge, Gill, and Strum said.
“The fact that the appellant felt he was unable to make certain submissions or provide medical evidence does not point to any perceived bias.”
In concluding remarks, Justices Aldridge, Gill, and Strum said Kleid’s appearance in the parenting matter was “marked by woeful preparation to a degree unacceptable for any litigant”.
“Further we have significant concerns about the frankness and accuracy of some statements made to us by the appellant. We will direct the Principal Registrar to forward a copy of these reasons and the transcript to the Legal Services Commissioner,” Justices Aldridge, Gill, and Strum said.
The case is Kleid & Schnur [2024] FedCFamC1A 236 (13 December 2024)
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
