If you think bypassing Australia’s court system via mediation is good a way to avoid expense and heart-ache, Ken Flower’s horror story may make you think again. This episode concludes this eye-opening three part series, which sheds some much needed light on the Ethics industry.
[Editor's note: The details in this three part story are all supported by a signed and witnessed statutory declaration, provided to IA.]
In a mediate danger
PART THREE
The game changer
It’s at this point that things took a really nasty twist for the worst and the situation became much more serious. It’s where my story really starts.
In reply to my Formal Complaint to ACDC, Dr Longstaff conspired with my solicitor Ms Rathie to make secret written submissions to the Trevor Morling QC (the retired Federal Court Judge) introduced in Part 2. The secret submissions came into my possession much later and can be shown to
contain information that is false and misleading;
contain information that does not accord with facts on the public record;
call on a retired judge to form a view based on false and misleading information;
call on my solicitor to break solicitor client confidentiality;
present false and misleading information from my solicitor;
collude with my solicitor to discuss my case with a 3rd party without my knowledge or permission; and
call on a retired judge to deny me any right of reply.
(This is the secret correspondence to a retired judge that I’ve referenced earlier in my story. I’ve cited the documents and circumstances that show the falsity of this correspondence in their contemporaneous settings.)
A different IAMA councillor, who was also the chair of the CIArb Professional Standards Committee, pointed out that my right of reply and the basic principles of natural justice had been deliberately denied to me by Dr Longstaff and Ms Rathie. In his view, this was deplorable.
There’s a line in Dr Longstaff submissions for which it is hard to find any ethical or legal justification. It seems to break every rule in the book and I have not found a single solicitor – even the OLSC – who can justify it. The line refers to an email from Ms Rathie to Dr Longstaff that is
‘from Ms Katrina Rathie the partner at Mallesons that acted for Mr Flower and that is attached with Ms Rathies’ consent on the conditions it is considered confidential and not to be provided to Mr and Mrs Flower’.
In reply to this, there’s another secret document that relates a phone call from Trevor Morling QC to Dr Longstaff where
‘Mr Morling refrains from putting anything in writing to you (Dr Longstaff) as he feels Ken (Flower) would request copies of any and all correspondence’.
hus preventing me access to any information about my case at all.
Of course, I knew nothing about this at the time. Instead, both the ACDC and St James Ethics Centre led me on a merry dance. They refused to follow the procedures in their Complaint Mechanism. The same ones they recommend and provide to government and corporations and that are enshrined in the International and Australian Standards ISO 1002:2004
The question is: why would they refuse to follow their own guidelines, if my concerns had no merit, such that an ISO inquiry would quickly show that to be the case?
I then appealed to the board of the St James Ethics Centre and ACDC to follow the provisions of their Rules of Incorporation with respect to mediating complaints from members of the public.
Eventually St James Ethics Centre offered to arbitrate the matter, but would not mediate. At the time, I didn’t really know the difference.
As it turns out St James Ethics Centre had a board meeting about this. The minutes of that meeting show a committee of senior lawyers (all board members) foreshadowed a foregone conclusion by a senior arbitrator ― a colleague of theirs. And it wasn’t going to be a good result for me. Of course, I knew nothing about all that.
One of my IAMA advisors, the chair of CIArb Practice and Complaints committee, told me that I couldn't go into an arbitration without some legal advice and put me in touch with a solicitor colleague who specialised in that sort of thing.
I did this and the advice I received was that arbitration would be expensive and not the way to go for a layman like me. Okay for big business and deep pockets, but it was overkill for this. I’d be better off to try and get a court appointed mediation.
So we filed a statement of claim in the Supreme Court of NSW citing breach of Contract, in the full expectation that Dr Longstaff and St James Ethics Centre would embrace a court appointed mediation.
Ethics in the Court
However, instead of agreeing to mediation Dr Longstaff put the case into the hands of his insurers IAG (IAG sit on a St James Ethics Centre advisory board). The IAG solicitors later told our solicitor they intended to make an example of my case, would never settle and would never mediate.
There followed an excruciating and lengthy (read expensive) series of interlocutory demands. That took up about 6 months and tens of thousands of dollars ― just to get to the discovery phase. That’s the part of the case where each side has to put up all the documents the other side asks for, so everyone has the same info.
I had lots of documents and put them up freely ― not just because the law said I had to, but because I was sure they would enhance my case.
By contrast, Dr Longstaff’s legal team presented to court that Dr Longstaff’s laptop had been stolen some time earlier, and that it contained all the documents from the Mediation period we asked for. Apparently, no copies existed and all the backups were corrupted.
Dr Longstaff did however ‘discover’ quite a few more recent internal emails. Many of these were eye-openers as to the opinions Dr Longstaff and the Board at the St James Ethics Centre had towards me and my requests to them for a fair review.
Those emails were truly shocking and horrific to read. They were personally insulting and quite uncalled for. Not the sort of thing you’d expect from professional people involved in a not for profit ethics organisation.
I am still not free to set the record straight concerning these horrific memos due to the confidential nature of the discovered documents.
There were two standout documents that sent shivers down my spine. These are the documents called 100 & 118 that I have referenced earlier in this story; the secret conspiracy documents between the mediator Dr Longstaff and my solicitor Ms Rathie of KW Mallesons.
Trevor Morling QC
I was fearful these documents contained false and misleading information that was detrimental to my case, and worse still they implied that a well-respected retired judge, the Hon Trevor Morling QC, had already formed a ‘view’ on the case based on false and misleading information.
It seemed likely to me that any ‘legal’ person looking at these docs was going to take the word of the retired judge over me.
Lo and behold, within a few weeks my barrister was no longer available to represent me. Within a few more weeks my solicitor became evasive and my legal bills magnified by a factor of 300 per cent. No notice or estimates were ever given for this sudden explosion of costs.
Eventually, with a court hearing imminent, another barrister was found who would take my case. In our first meeting, the new barrister disclosed he was a close and long-term family friend of Trevor Morling QC.
The barrister carried on to say he did not believe he had any conflict of interest by being a family friend of Hon Morling ― despite him being potentially called as a witness.
However, the referring solicitor had just drafted a subpoena for the Hon Morling QC to ‘discover’ his documents. The only reason it hadn’t been served was that I was horrified at the thought of involving Hon Morling QC in the case and insisted we hold off.
I then had to go and look up myself that ‘perception of conflict of interest’ is a perception that comes down to the client to call. In other words, it was my decision to make ― not the barrister’s.
At the next barrister meeting I brought up with my solicitor that I was not so happy with my barrister being a family friend of a potential witness ― a retired judge at that. I had the perception of a conflict of interest and could we find someone else?
The IAG legal team had earlier filed a motion which was now imminent and set for a hearing in the Supreme Court within a couple days, so time was running out.
When I got back to my home after that meeting, I had a resignation letter on my desk from my solicitor. Worse still, the letter contained a lien on all my files due to apparently unpaid bills ― with a court hearing in two days. (It was later established by a court appointed costs assessor that the solicitor had overcharged my account by a similar amount to the amount claimed as the reason for the resignation.)
At the court hearing I was unrepresented, so I asked for an adjournment as my solicitor had resigned.
I had earlier entered an affidavit with the document 118 memo from Trevor Morling QC attached.
I read it out in open court as the reason for my perception of conflict of interest, which led to my solicitor’s resignation ― which led to my request for the adjournment.
The Court put the memo on the public record and the matter was adjourned ― as the transcript shows.
And it was Christmas. My 82 year-old mother was arriving from the UK by long haul flight on the day of that court hearing to visit our family for the holidays. Dr Longstaff’s barrister had declined my application to adjourn the hearing on compassionate grounds, even though it was going to be adjourned anyway.
But as a result of that hearing, the memo from retired judge Trevor Morling QC went on the public record for all to see ― so it was a small win.
At the next court hearing, shortly after Christmas, I was not only unrepresented but also had no access to any of my files. Dr Longstaff’s legal team, however, had filed a motion to get access to all my files and the judge had acceded to their request.
So the ludicrous situation arose where I had no access to any of my files in court, but the other side (St James Ethics Centre) had access to them all of them. Ethics and democracy at work in the courtroom.
At this particular point in time, Dr Longstaff’s barrister chose to enter document 100 (the submissions with false and misleading info) into evidence. It was passed to the judge to have a good read.
I took this opportunity to read document 100 out loud in open court.
The Court then put the submissions on the public record for all to see ― as the transcript shows.
By now Dr Longstaff’s legal team were in for the kill. They already had a couple of costs orders against me following the adjournment when my solicitor resigned.
The court case had been running almost 12 months, with joint costs amounting to about $250,000 and had not yet progressed beyond discovery.
Dr Longstaff’s legal team rejected a sensible suggestion by the judge to mediate and instead were pursuing immediate payment of costs.
Fortunately for me, I then made contact with another solicitor who had been introduced to me by a family advisor. He was senior and well respected in his field of law. He commented that the case had deteriorated into a lawyer’s picnic.
Within a few weeks, he arranged for the case to be dismissed by consent ― with no order as to costs. He also negotiated that there be no confidentiality clauses imposed, leaving me free to tell my side of the story.
I’ve since learnt that this is quite unusual. It’s much more normal for costs orders to be enforced with great vigour ― or bankruptcy proceedings are initiated. And for insidious confidentiality clauses to tie up the truth forever.
So that’s the story of how the hen got the fox by the tail.
I’ve been worried ever since about what actually happened toward the end of that case.
Could it be that Dr Longstaff and St James Ethics Centre instructed their lawyers, who are officers of the Supreme Court of NSW, with material that was false and misleading and allowed it to be entered into evidence in court.
The Retired Judges Club
That possibility seemed to be so serious that I decided that discretion might be the better part of valour. Rather than face it head on, I approached the professional bodies in the jurisdiction for advice and assistance. I thought by taking this approach it would save everyone involved further trouble and embarrassment.
Most of these bodies are headed up by retired judges who know a thing or two about what’s right or wrong. There then followed a great deal of obfuscation, hand wringing and more secret inquiries.
Not one has been willing to acknowledge the documents exist − despite them being on the public record − let alone the implications of them being entered as (false) evidence in a court of law.
Here’s a brief rundown of the runaround.
Firstly, I approached Trevor Morling QC, the CEO of ACDC, to ask for my right of reply to the submissions. I provided evidence to him that showed the falsity of the statements made by Dr Longstaff.
I thought they would want to sort it out without any more embarrassment to ACDC or Dr Longstaff.
After a long period of waiting, I heard back from them that they apparently had no record of the submissions ― therefore, as they had no records, there was therefore no dispute and therefore there were no grounds for any complaint.
Case closed.
Despite the submissions being on the public record at the Supreme Court of NSW.
So then, I sought the assistance of the President of IAMA ― a well known retired High Court Judge. He considered the evidence, met with me and offered to nominate a suitably qualified IAMA mediator (and later a conciliator) to help resolve the matter.
Unfortunately, Dr Longstaff and ACDC declined to participate in any IAMA mediation or conciliation.
After that, I sought the assistance of the chair of NADRAC (National Alternative Dispute Resolution Committee ― who are advisors to the Federal Government) a retired Federal Court Judge.
He considered my material and directed me to a number of professional organisations including CIArb ― the Chartered Institute of Arbitrators in London, UK.
I then wrote to CIArb in the UK.
Initially, they took the matter seriously and I heard back from the CIArb Chairman of the Board of Trustees in London. He told me a CIArb inquiry had taken place and that he had called for a report and would get back to me with it shortly. He never did.
CIArb in Australia are partners with the ACDC. They share the same offices, staff, and facilities and even have the same CEO.
I asked CIArb for the report under the Commonwealth Privacy Act and FOI legislation. They refused to provide it, saying they are not answerable to the Commonwealth Privacy Act.
Personal information about me and my case was transmitted overseas without my knowledge or consent. I was denied my right to correct the record with information that was both false and misleading.
The Privacy Commission ruled that neither CIArb or CIArb Australia are required to abide by the provisions of The Commonwealth Privacy Act 1988 or the National Privacy Principles.
I suggested CIArb HQ Mediate the matter with me when they were (coincidentally) holding their Annual global conference here in Sydney. They declined.
The OLSC ruled it out of time. The fact the documents had been held confidential in the Supreme Court under threat of contempt of court was deemed an insufficient reason for the OLSC. Case closed.
However, the OLSC did not provide me with a statement of reasons addressing all the evidence – as they are required to do.
And that’s still where it is today. And I am still free to ask the questions.
Conclusion
Over time, I’ve written to all the people mentioned in this story. My letters have always been respectful and reasonable and contained all the evidence available at the time. All I've ever requested is a fair review ― in accordance with the most basic principles of Natural Justice.
None of the people I’ve written to have ever questioned or offered an alternate view as to the content of the evidence I’ve sent to them.
The Boards of these organisations (including St James Ethics Centre and KWM Mallesons) consist of some of the most senior lawyers in the land. They know a thing or two about law and ethics and any implications relating to the evidence and statements I have sent them.
I’m sure they would have let me know if they had an alternate view of it.
All my requests for a fair review have been met with secret inquiries, secret reports and silence. My right of reply, access to information about my case and any opportunity to correct the record have been deliberately and consistently denied.
There’s no doubt this has done a great deal of damage to me and even more to my family. It is difficult to find a moral or legal justification for the events I have detailed ― especially when the people concerned hold such lofty positions in high ethical and legal circles.
One thing’s for sure, if my concerns have no merit, then an open inquiry would quickly show that to be the case.
The question remains, why not have an open inquiry and put this matter to rest?
