Law Firm Accepts Nonsensical Instructions and Shares Privileged Communications

In Nelson v Greenman & Anor [2024] VSC 704, the registered proprietor of a rural property in Koo Wee Rup in Victoria (“the plaintiff”) applied to remove a caveat registered on behalf of Mr Paul Greenman (“the first defendant”) on the basis that it was a religious ministry headquarters.

Einsiedels, representing the first defendant, filed documents which described the property as the “earliest Christian church in Koo Wee Rup” and suggested that it could not be touched by the plaintiff due to its religious status. Justice Gobbo considered this material was “no more than a jumble of legal gibberish”.

Justice Gobbo directed further criticism at Einsiedels for its handling of privileged communications. The firm blind-copied the plaintiff’s lawyers into an obviously privileged communication containing the first defendant’s instructions. The firm then forwarded an email from the first defendant which recorded his instructions, to the plaintiff’s lawyers. Justice Gobbo noted that the firm was absent from the hearing and did not offer an explanation for this conduct.

Ultimately, the first defendant’s evidence was described by the Court as filled with “quasi-legal concepts,” Bible references and nonsensical ideas, including a claim to be a “Living Man” to divorce himself from his legal identity. Justice Gobbo criticised the absurdity of these claims, specifically rejecting references to the “People’s Court of Terra Australis,” a self-styled group with no legal standing in Victoria or Australia.

The Court found that there was no legal basis for the caveat and that the first defendant’s submissions were frivolous and without legal merit.

In the decision, the Court described the conduct of Einsiedels as “nothing short of staggering”:

31 Even the most cursory review of the documents enclosed with Einsiedels’ Letter, leaves no doubt that the documents are no more than a jumble of legal gibberish. That those documents were conveyed by a solicitor on the basis that they recorded either proper and competent instructions or a trust said to support a caveatable interest in the Land, which Caveat the solicitor then lodged, is nothing short of staggering.32 The many and obvious shortcomings with the documents enclosed with Einsiedels’ Letter were addressed in a letter sent by the plaintiff’s solicitor on 6 March 2024. The plaintiff’s letter sought the removal of the Caveat within seven days failing which the plaintiff indicated that an application would be made to Court for its removal together with a claim for indemnity costs. There was no response to that letter.33 A further demand of Einsiedels for the removal of the Caveat was made by the plaintiff’s solicitor on 9 August 2024. In that letter, the plaintiff’s solicitor referred to the decision of Quigley J in the 2023 Proceeding in which many of the same trust documents sought to be relied on by the first defendant were the subject of findings by her Honour, and again demanded that the Caveat be removed. Einsiedels responded on 13 August 2024 advising that they no longer acted for the first defendant.34 Inexplicably however, Einsiedels subsequently blind copied the plaintiff’s solicitor into an obviously privileged communication between Einsiedels and the first defendant on 13 August 2024 wherein the first defendant’s instructions were sought to remove the Caveat. Even more concerningly, later on 13 August 2024, Einsiedels on-forwarded an email it had received from the first defendant to the plaintiff’s solicitor which recorded the first defendant’s instructions. The plaintiff’s solicitor properly responded to both communications from Einsiedels noting that they did not, in light of the circumstances in which they were sent, appear to constitute an inadvertent disclosure for the purpose of r 31 of the Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 (NSW). Einsiedels were not present before the Court at the hearing of the application in order to provide an explanation for their conduct which I have identified.

(emphasis added)

The Court concluded:

79 On no view could it be properly said that the first defendant in this proceeding held a legitimate belief that he was either the rightful owner of the Land, had a legitimate trust claim or that he had a caveatable interest. Rather, and having regard to the circumstances surrounding the registration of his Caveat, and the documents and arguments advanced on his behalf (including by his former lawyers, Einsiedels), the only logical conclusion which is available is that the first defendant sought to interfere with the plaintiff’s lawful entitlement to recover the Land. Justice demands that the entirely unnecessary trouble and expense that the plaintiff was put to, as a result of the first defendant’s conduct, should be reflected in an indemnity costs order. For the avoidance of doubt, I accept the submissions of the plaintiff set out at paragraphs 41 to 44 of his written outline in so far as the application for indemnity costs is made.

The link to the decision is here.