The Power of Attorney, the document that Julia Gillard says she witnessed properly
Monday, 29 April 2013
I know that many in the media are now being asked by editors to research and to understand The AWU Scandal as the nation slowly comes to terms with its Prime Minister being a suspect in a Major Fraud Squad investigation by Victoria Police.
The Prime Minister is a primary suspect in potential offences associated with this document, which purports to record the good and valid donation of Ralph Blewitt's power of attorney to Bruce Wilson for the purchase of real estate in Victoria.
This Power of Attorney document was used in the purchase, conveyance and arrangement of a mortgage loan to finance what was ostensibly Ralph Blewitt's purchase of 1/85 Kerr Street Fitzroy in early 1993. Blewitt, the donor of the Power of Attorney, says that the document was signed by him after the 13 February purchase, well after the 4th February, 1993 date on which it purports to be created - and that Gillard was not present when he Blewitt signed the document during the week of 15-19 February 1993, in Perth.
On 10 October, 2012, The Age and SMH published this report by Mark Baker, Editor at Large which tells us:
Here is the front and back of the document as found in the Slater and Gordon conveyance file.
Gillard, then a salaried partner at Slater & Gordon, had been first challenged about her role in .....assisting with the purchase of the Fitzroy unit at a meeting on 14 August, 1995, with Geoff Shaw (the firm's general manager) and Nick Styant-Browne, an equity partner in charge of the firm's commercial department.
(one paragraph omitted for brevity)
She (also) confirmed that she had drafted the power of attorney for Wilson without advising senior colleagues.
Below are some new comments from Spin Baby, Spin. Spin Baby is a para-legal professional with an excellent working knowledge of conveyance, mortgage, trust account and other like transactions encountered in a legal practice.
Long term readers of the blog will be familiar with our posts on the topic of the Power of Attorney - which I've posted here to help others get some background on the issues.
Now here's some more commentary from Spin Baby, Spin.
Lawyers have very specific obligations to the Donor (the person granting the power) when preparing a Power of Attorney.
It is important to understand that when a lawyer receives instructions to prepare a Power of Attorney, the Donor (in this case Blewitt) is always the client, and the lawyer’s obligations are to the donor, NOT the Attorney (in this case Gillard’s boyfriend Wilson).
The lawyer has an obligation to explain the nature and effect of the power of attorney to the donor personally (or in writing) – without the Attorney in attendance (or interfering with the mail if it’s done in writing). The lawyer has to be satisfied that the donor understands the nature and effect of the document. They normally make enquiries of the Donor about what the Power of Attorney is intended to accomplish and at that point they (at least the ones I worked for) discussed what other options there are other than a Power of Attorney (eg in this case discussing completing the transaction via inter-state correspondence).
It is important to note that Lawyers generally attend on the Donor in person or if that’s not possible write a letter enclosing the document and explaining the effect of the instrument before it is signed. At this point they also confirm the instructions received – in effect parroting them back to the client. I cannot make the point strongly enough that they deal directly with the Donor in all aspects of the creation of the document. Lawyers do not like to have the Attorney involved at this stage, because they have an obligation to ensure the Power is created without any duress from the Attorney and to have the attorney involved blurs the lines and allows allegations of improper conduct to occur if something goes wrong. It’s just easier to cut the Attorney out of these dealings altogether at this point.
When personally attending on the Donor, (usually in the lawyer’s office) the lawyer would record the visit via a Diary Note where they note the nature of their advice – it’s at this point the document is signed in their presence and the diary note would confirm that. If they don’t prepare a Diary Note they open themselves up to the allegation that they failed to properly explain the effect of the document to the Donor and they can be sued for damages if it is improperly used by the Attorney.
Gillard has confirmed in one of her marathon interviews that in her legal office every phone call and personal meeting with a client was diarised. In my personal observations of lawyers, this is particularly so when advice is given verbally. It is quite often confirmed in writing (parroted back) but in the case of a Power of Attorney it would be normal for this NOT to occur – so for Gillard not to confirm in writing is perfectly normal conduct. I have typed up many diary notes of these conversations between clients and their lawyers. Gillard’s right on this point – so there should be a diary note of when she attended on Blewitt to provide advice on the Power of Attorney and that diary note would confirm she witnessed the document being signed. The question for Gillard is why she didn’t create a diary note when the Power of Attorney was witnessed – that would be the time she provided verbal legal advice to Blewitt in relation to its effects? What is her explanation for why she failed to document her advice via a diary note at that point in time? If there was a diary note, it would disprove Blewitt’s allegation she wasn’t present at the time of signing.
What I find particularly difficult to come to terms with is:
- Gillard’s belief that it was OK to receive instructions from her boyfriend as the proposed Attorney instead of asking another lawyer in her firm to handle the matter for her.
- She failed to open a file “Ralph Blewitt Power of Attorney to Bruce Wilson”.
- She took instructions from Bruce Wilson (someone she was in a personal relationship with) instead of dealing directly with the Donor.
- She failed to tell the other partners at her firm she was personally preparing a power of attorney with her boyfriend as Attorney on her boyfriend’s instructions rather than getting instructions directly from the Donor.
- She failed to confirm in writing or via diary note confirmation from Blewitt that the instructions she got from Bruce were correct.
- She failed to discuss directly with Blewitt the purpose of the Power of Attorney – was it just for the conveyance or a mortgage as well, and if a mortgage how Blewitt was to approve the terms of the mortgage and what parameters Wilson was to work within. She failed to document these discussions if they did in fact take place. Her failure in this respect also opened Wilson up to the possibility of being sued by Blewitt for taking out a mortgage in his name on terms unsatisfactory to Blewitt.
- She failed to liaise directly with Blewitt on the effects of the Power of Attorney and that they were in accordance with his needs and wishes.
- She failed to make a file note of her interview with Blewitt when she purportedly witnessed the Power of Attorney.
- She didn’t ensure she had on file written instructions or confirmation of instructions from Blewitt to prepare the Power of Attorney.
The point I make here is that if Gillard had made proper notes in relation to the creation of the Power of Attorney – even if it was just filed on her JEG General File, it would be incredibly easy for her to prove to the Police that Blewitt’s allegation and Michael Smith’s complaint has no basis. There should be diarised evidence of her receiving instructions, providing advice and the personal attendance she made on Blewitt when she witnessed the document (which is normally when the verbal advice would be given and diarised in a diary note). Does Gillard have any recollection of documenting any of the instructions she received and meetings she had in relation to the creation of the Power of Attorney? If there is no recollection, does she expect that in the normal course of her practicing as a lawyer she would have documented these things? Why are these documents not in existence? I haven’t seen an explanation from Gillard on these points and that’s a shame because she could have shut this whole thing down if she had properly diarised the creation of the Power of Attorney according to her version of events. Why aren’t journalists doing their jobs properly and questioning her on these points? I don’t expect her to remember the witnessing, but she should be able to confirm she would in the normal course of things have prepared a diary note evidencing her attendance on Blewitt when she witnessed this document.
The fact that a lawyer failed to create the normal sort of documents one would expect to see when a Power of Attorney like this is created opens up the possibility of fraud on the lawyer’s part. That of course is the whole basis of Michael Smith’s complaint that the Police are currently investigating. I’d just like an explanation of why the documents weren’t created when in the normal course of things they would be (and mainly to protect said lawyer’s back as she was doing it on the instructions of the Attorney instead of the Donor).
Police need only subpoena Slater and Gordon for the documents relating to the creation of the Power of Attorney. Julia Gillard herself should be demanding Slater and Gordon release these documents as Blewitt has already waived privilege. She should be moving to clear her name publically. It wouldn’t be difficult for her to say she’s asked Slater and Gordon to release to her the file notes she made at the time so she can clear her name of fraud.
Every touch leaves its trace. Where are the documents Slater and Gordon? You have it within your power to prove via documentary evidence that the fraud allegation against Australia’s Prime Minister is without basis.