Bain (deceased) and Bain (No 3)

[2016] FamCA 662

FAMILY COURT OF AUSTRALIA

BAIN (DECEASED) & BAIN (NO. 3) [2016] FamCA 662

FAMILY LAW – CONTEMPT – Contravention of undertaking – Where the husband proffered an undertaking to pay funds into his solicitor’s trust account and hold them there pending further order of the Court – where he failed to do so – Where the husband’s actions amounted to a flagrant challenge to the authority of the Court – Where the husband is an officer of the Court – Punishment of imprisonment for six months ordered.

FAMILY LAW – COSTS – Whether circumstances are such that costs should be awarded on an indemnity basis – Where costs awarded on a party and party basis.

Family Law Act 1975 (Cth)

Kohan and Kohan (1993) FLC 92-340

APPLICANT: Ms Little and Ms Searle, the Personal Representatives for Ms Bain (Deceased)

RESPONDENT: Mr Bain

FILE NUMBER: BRC 2481 of 2010

DATE DELIVERED: 9 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 26 July 2016 (amended pursuant to Rule 17.02A of the Family Law Rules 2004 to reflect the correct page number for a citation)

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Morgan

SOLICITOR FOR THE APPLICANT: Blair Anderson Solicitor

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Hopgood Ganim Lawyers

Orders

1. By way of punishment, pursuant to s 112AP(4) of the Family Law Act 1975 (Cth), the Respondent is sentenced to serve a term of imprisonment for a period of six (6) months with such term to commence from 4.00pm on 30 August 2016.

2. To give effect to Clause 1 of this Order, a Warrant of Commitment issue in the usual form but lie in the Registry until 4.00pm on 30 August 2016.

3. The Respondent pay the Applicant’s costs of and incidental to the Application – Contempt filed 30 July 2015 on a party/party basis as agreed, but failing agreement, as assessed.

4. The Respondent be at liberty to file an Application in a Case seeking that those costs payable by him pursuant to Clause 3 of these Orders be paid by instalments, provided that such application is filed and served by no later than:

   (a)in the event the parties reach written agreement as to the quantum of the costs payable: within 14 days of the date the agreement is reached; or

   (b)in the event the parties do not reach written agreement about the quantum of the costs payable: within 14 days of a costs assessment order being made by a Registrar.

IT IS DIRECTED

1. A Registrar of the Family Court of Australia forward a copy of the Reasons for Judgment delivered orally on 25 May 2016, as settled and provided to the parties on 26 July 2016, and the settled Reasons for Judgment delivered orally today to the Legal Services Commission, Queensland and the Queensland Law Society.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bain (Deceased) & Bain has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2481 of 2010

Ms Little and Ms Searle,
the Personal Representatives for Ms Bain (Deceased)

Applicant

And

Mr Bain

Respondent

REASONS FOR JUDGMENT

1. Before I pronounce Reasons and make Orders, I wish to advise the parties that, at the conclusion of the delivery of the Reasons and, perhaps, prior to formally pronouncing the Orders, I intend to ask each of the legal representatives whether they wish to be heard in respect of the making of a request or direction to a Registrar of this Court to cause a copy of the Reasons for Judgment delivered orally on 25 May 2016 (as settled and amended and provided to the parties on 26 July 2016) and the settled Reasons for Judgment which I will deliver orally today, to be referred to the Legal Services Commissioner of Queensland and the Queensland Law Society.

2. The Reasons that I am about to deliver orally need to be considered in conjunction with those reasons I delivered orally on 25 May 2016 (as settled and amended and provided to the parties on 26 July 2016).

3. On 25 May 2016, for the reasons delivered orally that day, I expressed my satisfaction beyond reasonable doubt that Mr Bain had contravened the undertaking given to and accepted by the Court in proceedings under the Family Law Act 1975 as recorded in the order made 13 December 2013 and that the manner in which he did so involved a flagrant challenge to the authority of the Court, such that he had committed a contempt of court by failing to pay funds received by him from MLC pursuant to the life insurance component of the relevant policy into the trust account of his solicitors, X Lawyers, and hold them there pending further Order of the Court.

4. That is, Mr Bain was, that day, found to have committed contempt as outlined or prescribed by section 112AP(1)(b) of the Family Law Act.

5. Section 112AP(4) of the Act provides that a court may punish the contempt by committal to prison or fine or both.

6. Section 112AP(6) of the Act provides that the Court may make an order for punishment on terms; suspension of punishment; or the giving of security for good behaviour.

7. There is nothing in the Act by which a maximum term of imprisonment is mandated. 

8. It is clear that a Judge, at first instance, imposing punishment for contempt, pursuant to section 112AP of the Family Law Act, has a wide discretion. It is also clear that even when, as here, proceedings are taken by an individual applicant to secure the benefit of an order or an undertaking not complied with, there is also a public interest involved in that such proceedings also vindicate the Court’s authority. That this is the case is because it is well established that the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not such compliance also serves individual or private interests.

9. It has been noted that all orders or injunctions made by a court are made in the public interest.  The same can, I think, be said of undertakings accepted by court during the conduct of proceedings before it.  Given this, non-compliance with an order, injunction or undertaking (proffered and accepted) necessarily constitutes, in my view, an interference with the administration of justice, even if the position can be remedied as between the parties. 

10. I accept that authority establishes that a purpose of contempt proceedings may be that of punishment.  Another purpose is to reflect the need for individual and/or general deterrence and by way of retribution for failing to comply with an order or an undertaking. 

11. This is called for because it is essential to the proper working of the Court system that orders made or undertakings given and accepted are obeyed or complied with.  If this is not the case, the system of litigation as conducted in not only this Court, but other courts exercising different jurisdiction, is undermined. 

12. Further, where, as here, enforcement of the undertaking, the subject of the proceedings is no longer relevant – in the sense that the circumstances are such that there is no possibility of compliance with its terms – the punishment imposed should be such as to vindicate the claims of an aggrieved and signify the disapproval of the Court.  It should also be of such a nature and/or magnitude as to demonstrate that the Court will not lightly tolerate contemptuous acts; it should also be of such a nature and/or magnitude as to deter non-compliance with orders or undertakings given to and accepted by the Court during the conduct of proceedings before it. 

13. I also accept that even where, unlike here, rectification of the position is possible – for example, by repayment of funds removed from the jurisdiction or disbursed contrary to an order or undertaking to hold them in trust pending further order of the Court – primary weight ought, in appropriate circumstances, be given to maintaining confidence in the judicial system. 

14. In this case, Mr Bain offers no apology to the Court.  He cannot make reparation.  He accepts that he should be ordered to pay the Applicant’s costs of and incidental to the application but not on an indemnity basis.  Even if he had offered an apology and made reparation and consented to an order that he pay costs on an indemnity basis, such actions (whilst arguably purging his contempt) would not necessarily mean that further punishment must not be imposed upon him.  Rather, the existence or absence of these factors are but matters to be considered during the exercise of the wide discretion afforded to the Court in its determination of the punishment for contempt in any given case. 

15. As perhaps already noted, a further purpose of contempt proceedings is to protect the effective administration of justice by demonstrating that non-compliance with undertakings will be the subject of meaningful sanction and/or punishment by the Court.  Additionally, it is necessary that the punishment ordered in the circumstances of each particular case involve a meaningful sanction in all the circumstances of that case, so as to fulfil the expectation of litigants that court orders will be obeyed and that non-compliance with orders and/or undertakings will be the subject of sanction. 

16. In cases such as this where a contemnor has been found to have acted in a manner demonstrative of flagrant challenge to the authority of the Court, a further aim of the proceedings is punitive – whatever punishment is imposed should reflect the gravity of the contempt, the Court’s disapproval of the conduct and the need for deterrents.  The contempt power is necessary to uphold and protect the effective administration of justice because if an order made by a court or an injunction proffered by a party in the course of proceedings and accepted by a court, can be disobeyed with impunity (because the Court has no means to enforce compliance or mark its disapproval of such non-compliance) then the whole administration of justice is brought into disrepute. 

17. It is clearly important, then, that the punishment imposed in any particular case assists in maintaining confidence in the administration of justice and in our legal system. 

18. I accept that there is a risk that, if the punishment determined does not send a strong and clear message that the Courts have and will exercise their capacity to manage their own processes, public confidence in the Court’s ability and willingness to do so will likely be undermined. 

19. It is also well established that the discretion in relation to punishment for contempt must be exercised with great care – not least because any appeal against the punishment determined at first instance is likely to involve the determination of the residual categories of error (namely, whether the punishment was manifestly excessive or unreasonable or plainly unjust) and that there is a necessity to make out the existence of such error before the Full Court has authority to disturb the punishment imposed at first instance –  because that Court cannot substitute its own opinion for that of any trial judge merely because that Court would have exercised the discretion in a manner different from that in which the trial judge has determined to exercise it after close consideration of all of the relevant considerations.  That is, the necessity for the Full Court to identify error which justifies and authorises appellate intervention is, of itself, suggestive of the requirement to exercise the discretion in relation to punishment in cases such as this with great care. 

20. I record that I have approached my consideration of the punishment here with such comments clearly in the forefront of my mind. 

21. I consider that the fact that the challenge to the authority of the Court may not have significant and/or enduring adverse consequences for the other party to proceedings is not determinative of the punishment to be imposed because, if it were otherwise, the consequence of a flagrant challenge to the authority of the Court could be avoided by rectifying the breach at any time before sentence; and, there would be, as has been said in other cases, the potential to elevate the wealthy to a level of impunity not enjoyed by those of lesser means.  I consider that if one replaced the word “wealthy” with the phrase “those who assert that, in any event, the Court would, if petitioned, have acted in the manner in which they acted in contempt of the Court”, then this was, in effect, the submission made on behalf of Mr Bain.  It is not one which I accept. 

22. It is also well accepted that the decision about whether to punish by imposing a sentence or term of imprisonment for contempt and the decision about the length of any such imprisonment are decisions about which minds are likely to vary greatly. 

23. Given this, it seems to me that all judges at first instance can do is to consider all matters relevant to the assessment and determination of punishment, accord to those considerations the weight thought appropriate by that judicial officer and, thereby, by the exercise of the wide discretion which reposes in the Court at first instance in circumstances of proceedings such as these, make such decision as to punishment considered appropriate for the reasons expressed. 

24. It is to this task then that I turn. 

25. I do so in light of the findings I have already made as recorded in the Reasons for Judgment delivered orally on 26 May of this year. 

26. In summary, Mr Bain has been found, in failing to cause the proceeds he received from the MLC policy to be placed into his solicitor’s trust account and be held there pending order of the Court, to have breached the undertaking in a manner that involves deliberate defiance and flagrant challenge to the authority of the Court in that his actions in failing to hold funds in trust pending further order of the Court were striking and exceptional in nature. 

27. I accept that, on arriving at the punishment appropriate for Mr Bain in this case, it is relevant to take into account the evidence led on his behalf. 

28. I find this establishes the following. 

29. Mr Bain, who was born in 1957, is 59 years of age.  He has no previous convictions for any offence.  As already noted, he is a solicitor practising as the principal of his own firm.  In that respect, he is responsible for the supervision of about six other solicitors.  His firm also engages the services of a consultant and employs a number of support staff.  In total, it seems that about nine other people are employed by the practice in respect of which he is the principal. 

30. I accept the evidence advanced on his behalf that he has some ongoing health issues including those which resulted in an earlier hospitalisation for the insertion of a stent.  I accept those medical and ongoing health issues are as deposed to by him in his affidavit relied upon during the punishment phase of this proceeding.  I accept that those medical, or health conditions that require it, are managed by the prescription of medication in the manner set out in the affidavit.  In accepting the evidence about Mr Bain’s current and ongoing medical conditions I also note, however, that none of these has prevented him from exercising his capacity to work for remuneration for any significant period of time. 

31. I accept, as outlined in the affidavits of each of his adult children relied upon in the sentencing aspect of this proceeding, that Mr Bain has been and remains responsible for their financial support in the manner to which each of them deposes.  These children, aged 27 and 23 years of age respectively, have thus far benefitted from the financial and emotional support Mr Bain has been able to provide to them.  They are not, however, completely dependant upon him either financially or emotionally, as each, it seems, lives with their respective girlfriend and/or boyfriend.  Mr Bain Junior is, it seems, engaged in part-time employment. 

32. I accept that Mr Bain Senior is responsible for the employment of employees who may well suffer financial hardship if the punishment renders him unable to continue to operate his practice.  I also accept that it is highly likely his name will either be struck from the roll of practitioners or he will not receive a new practising certificate and, consequently, will lose the ability to earn income from the profession in which he has engaged for basically the entirety of his adult working life.  I also accept that it is more likely than not that a consequence of the inability to earn the income he has previously earned as a legal practitioner (either completely or for a period of time) will result in his personal bankruptcy. 

33. These are some of the matters I have taken into account in arriving at my decision about the punishment to be ordered. 

34. I have also taken into account the following: 

    a)that neither of Mr Bain’s two adult children wish him to be punished for the contempt I have found him to have committed, nor have they supported the fact that the contempt proceedings have been brought and prosecuted by the Applicant; 

    b)that punishment by way of a sentence of imprisonment imposed upon Mr Bain would cause both of his adult children significant distress, anxiety, devastation, humiliation and the loss of his financial and emotional support during any period of incarceration; 

    c)that there is the likelihood of professional discipline of Mr Bain as outlined in the affidavit of Mr Cohen – namely, that there is a substantial prospect that his ability to practise will be removed by suspension of his practising certificate or refusal to renew it, at least, until the Legal Services Commission proceedings that are anticipated are concluded,  that Mr Bain’s conduct constituted professional misconduct and that a serious question arises, as a result of the findings I have made, as to whether or not Mr Bain is a fit and proper person to remain on the roll of legal practitioners and, in essence, therefore, that Mr Bain will have to deal with any professional misconduct issues such that there is a strong likelihood he will be struck off and this is probably inevitable if he were to be sentenced to a period of imprisonment by way of punishment.

35. I also take into account that, if Mr Bain is bankrupted or incarcerated and/or loses his practising certificate, there is a prospect he will be required to close his practice with a consequent loss of employment for those persons engaged in that occupation.  I take into account, also, Mr Bain’s evidence that the proceeds from the MLC policy were used, on his evidence, to meet matrimonial debts.  However, the use to which the funds were put is not, in my view, material because the contempt as found by me was his unilateral decision to fail to pay funds into trust and hold them there pending further order of the Court. 

36. I also take into account that Mr Bain has incurred significant legal costs in defending the application for contempt, although, on the findings I have made, those costs are as a consequence of his own deliberate decisions and intentional behaviours. 

37. However, my conclusion is that the administration of justice is likely to be significantly undermined if a person who is a legal practitioner, engaged in their own litigation acts as I have found Mr Bain to have done.  It, in my view, is critical in the proper operation of the legal system in this country that those who proffer undertakings to the Court follow them. 

38. It is also relevant to record that Mr Bain has no capacity to reimburse the $457,786 he received from MLC pursuant to the policy or to repay that sum by way of instalment payment.  It is also relevant to record that Mr Bain has no property to offer as security to enable him to borrow funds for the purpose of repayment and, as I have said, that he may, in any event, become a bankrupt, a matter that is said to be probably inevitable if he is punished by way of a sentence of imprisonment or loses his practising certificate or receives a substantial fine. 

1. I take into account, therefore, that Mr Bain cannot reimburse the funds he received from MLC and disbursed, nor can he pay a substantial fine, nor can he do anything by way of financial redress to address the situation. 

2. I have already outlined my satisfaction, arrived at beyond reasonable doubt, that Mr Bain’s conduct involved a clear decision in that it was not inadvertent, but rather wilful and intentional.  It involved, in that sense, a positive and deliberate course of conduct to fail to hold moneys in trust pending further order and instead cause them to be paid out in the manner he determined was appropriate. 

3. In my view, that Mr Bain’s children, the beneficiaries of the late Mrs Bain’s estate – being those persons who might in one sense be thought to have suffered as a consequence of his actions – do not wish for him to be punished for his conduct carries less weight in this case than the importance of maintaining public confidence in the operation of the legal and justice system. 

4. Mr Bain has demonstrated no contrition.  There has been no early plea and the matter has been contested very vigorously.  These matters, of course, do not act to increase or amplify the punishment to be meted out to him, but they are relevant in the consideration of whether the punishment thought appropriate should be mitigated:  that is, contrition may be taken into account in favour of a person found guilty after pleading not guilty, but the Court cannot take into account an absence of contrition to a contemnor’s detriment.  Therefore, I accept that the absence of remorse is no justification for imposing a more significant punishment upon Mr Bain than would otherwise have been the case and that the absence of contrition means only that no benefit can be accorded to him for any demonstration of contrition during the determination of the appropriate punishment. 

5. I consider Mr Bain’s actions, as I have found them to be, blatant and deliberate.  He consciously determined to thwart the undertaking which he proffered to the Court.  In my view, he acted with complete disregard for proper process and the authority of the Court.  Given this, I consider that there is substantial community interest here to ensure that his punishment is such as to convey to members of the public that they should have confidence that the Court will act authoritatively and robustly:  that is, the punishment for those who make the decisions and act in the manner I have found Mr Bain to have acted should, given the importance of general deterrence, send a clear message to members of the public that they cannot expect to act in such a manner without attracting significant punishment. 

6. I consider the contempt as proved very serious. 

7. Mr Bain’s breach of the undertaking to hold money received as a result of the death of Mrs Bain in trust pending further order amounted, in my view, to a manifestation of a conscious decision to pay those funds out as he determined was appropriate.  This occurred despite it having been advanced on his behalf at the hearing in November 2013 that the best way to proceed was for the monies to be held on trust pending any further order that might need to be made and that it would be open to either party to make an application at a subsequent time:  see paragraph 26 of the Reasons for Judgment delivered orally 25 May 2016. 

8. I consider that the seriousness of Mr Bain’s conduct is magnified because he is a practising solicitor and therefore an officer of the Court.  That he has committed his contempt in his personal capacity during the course of engagement in his own personal litigation does not, in my view, in any way ameliorate this conclusion. 

9. I consider that Mr Bain sought and obtained benefit from his contempt in that he applied the entirety of the funds to reduction of debt in respect of which only he remains liable after Mrs Bain’s death. 

10. I consider that the following are also relevant to the evaluation of punishment:

    a)that the terms of the undertaking were clear and unambiguous; 

    b)that they were in the same terms as deposed to by Mr Bain in an affidavit expressly prepared for use at the proceedings during which I have found the undertaking to have been given on his behalf; 

    c)that the undertaking was proffered for the purpose of obtaining benefit: that is, to ensure that the proceeds from the policy remained available to be applied in meeting liabilities contended by Mr Bain to amount to matrimonial liabilities;  and

    d)that the sum of money was very substantial.

11. I am satisfied that the circumstances of this case give rise to a need for general deterrence:  that is, the manner in which Mr Bain is punished should, in my view, send a strong message to all litigants that, irrespective of their views as the appropriateness or otherwise of orders which bind them to hold funds in trust pending further order, it is not open to them simply to make decisions contrary to those binding terms. 

12. It is essential, I consider, to the proper workings of the Court and the judicial system in this country that orders and undertakings, if proffered and accepted, are put into effect.  If defied, the whole system of litigation as operates within this country is undermined. 

13. It is also essential and fundamental to the appropriate operation of a judicial system that legal practitioners, as officers of the Court, uphold the terms of Court orders.  It cannot be appropriate to permit the public to think that the actions of Mr Bain, as I have found them to have been, are in any way excusable or justified.  To do so would, in my view, fundamentally undermine the public’s confidence in the ongoing operation of our legal system. 

14. I consider it is further fundamental, insofar as the operation of our legal system is concerned, that the Court express – via punishment imposed for contempt which is found to have been committed with flagrant disregard for the Court –  a punishment of such significance as to demonstrate clearly its denunciation of the actions of a contemnor. 

15. All the circumstances of this case persuade me that the punishment to be accorded to Mr Bain needs to be of such significance as to ensure the protection of the effective administration of justice by clearly demonstrating that orders and undertakings will be enforced, to act as a general deterrence and to demonstrate the Court’s denunciation of his actions. 

16. In exercising the wide discretion available to me in determining appropriate punishment for Mr Bain, I have also taken into account the importance of fulfilling the expectation of litigants, such as the now deceased Mrs Bain, that orders and/or undertakings will be obeyed and that sanctions will be imposed upon a non-complying party if this is not the case. 

17. Further, as part of the exercise of the wide discretion available to me, I have concluded that where, as here, the contemnor is an officer of the Court, the matter is more equivalent to circumstances involving a repeat offender who has been warned of the consequences of defying or acting contrary to, or in breach of, an order or undertaking.  Mr Bain’s actions in the circumstances of this case do not simply involve a case of mere disobedience of Court orders by an uneducated or ill-informed litigant in person but rather, in my view, are indicative of, and demonstrate, a clear case of a deliberate decision by an officer of the Court to fail to comply with an undertaking recorded on the face of the December 2013 order. 

18. I consider that here, where the goal of ensuring compliance with the undertaking is no longer, in one sense, important because Mr Bain has disbursed the proceeds he received from the life insurance component of the policy and is not in a position to rectify that situation, the imposition of a punitive sanction not only vitiates the Applicant’s claims, but also signifies the Court’s strongest disapproval: and, in this way, it is intended to act as both a specific and general deterrent. 

19. I take into account the likely effect of the findings I have made on Mr Bain’s capacity to continue to practise as a solicitor.  I take into account the likely consequential impact upon his ability to continue to earn a livelihood.  I also take into account, as I have said, the matters relied upon by Mr Bain in mitigation of punishment. 

20. However, where, as here, one of the significant purposes of the punishment for the contempt is to reflect the Court’s approbation of the conduct found to be contemptuous, as I have already said, the impact of an appropriate punishment on Mr Bain and the personal hardship to him consequent upon the same are, in my view, secondary considerations. 

21. I consider it vital that undertakings proffered to and accepted by the Court be enforced in whatever circumstances they are offered.  Whether there is a change to the same or circumstances or hardship or that they are lacking in utility in the sense that it is thought a return to Court would result in the same outcome that is achieved by acting contemptuously is not, in my view, to the point.  Rather, it is vital to the maintenance of public confidence in the integrity of the legal system that undertakings be enforced, especially where they are given by an officer of the Court. 

22. As I have said, whilst the undertaking was not offered by Mr Bain in his capacity as a lawyer and officer of the Court but, rather, in his personal capacity as a litigant involved in proceedings before the Court, it is, I consider, relevant that he is, in fact, an officer of the Court. 

23. I find it hard to think of actions more likely to decrease public confidence in legal practitioners or the Court system than those undertaken, in my view, as found by me, by Mr Bain in this case. 

24. Given the findings I have made about Mr Bain’s conduct, I am not persuaded that the mere likely loss of his ability to continue to earn a living as a practising solicitor is sufficient to properly record the extent of the Court’s disapproval of his actions.  Additionally, I am not persuaded that this, of itself, constitutes sufficient general and personal deterrence, nor that it pays sufficient regard to the gravity of his actions. 

25. I do not accept the submissions made on behalf of Mr Bain that he should not be subjected to punishment. 

26. In circumstances where there is no evidence to the effect that the proceedings have been a salutary lesson for him, I do not accept the submission to the effect that this has, in fact, been the consequence of these proceedings, nor, therefore, do I accept the submission that the Court’s authority is somehow preserved consequent upon this.  I do not accept the submission that the absence of punishment would provide sufficient illustration to future litigants contemplating flagrantly breaching undertakings accepted by the Court to deter them from such behaviour. 

27. I do not accept the submission that the element of public interest involved in punishing for contempt will have been made out simply because Mr Bain has incurred substantial costs in defending the application for contempt, being required to endure the stress of the contempt proceedings, the potential consequences of professional issues and the humiliation to him personally as a legal practitioner consequent upon the findings I have made. 

28. For the reasons I have expressed and, upon taking into account the considerations to which I have adverted, in all of the circumstances to which I have referred and given all of the matters I have outlined as having been taken into account by me in exercising the wide discretion available to a judge at first instance, in the exercise of this wide discretion, I consider that the only appropriate penalty is a custodial sentence – so as properly to signify the gravity with which I have assessed Mr Bain’s contempt, the Court’s overwhelming disapproval of his actions and so as to deter others who may find themselves in a similar situation. 

29. Whilst it is well-established that, as a committal order represents the ultimate sanction against an individual and because it is invoked in civil proceedings in the aid of the execution of a civil process, it should never be lightly resorted to, the circumstances here as I have found them to be persuade me that it is appropriate to make a committal order; and that the circumstances warrant the making of the same. 

30. Having regard to all of the matters I have outlined, the punishment to be imposed on Mr Bain is that he be imprisoned for a period of six months. 

31. It is clearly open to the Court to punish Mr Bain by way of an order that he be imprisoned for a period of time and then to order that either the entirety or a portion of that time be served by way of suspended sentence. 

32. I have reflected a great deal about whether in this case an order suspending the period of imprisonment either entirely or for some period is appropriate. 

33. Others may conclude that such an order, suspending the serving of the period of imprisonment either entirely or for some specified period, would constitute appropriate punishment of Mr Bain when consideration is given to his age, his health, his absence of prior offending, the views of his adult children, his accepted payment of the Applicant’s costs on a party and party basis, the potential consequences for him and his ability to continue to practise as a solicitor and the other impacts upon him and those he supports – whether by virtue of familial links or as employees in his practice – are taken into account. 

34. However, I do not join in that conclusion. 

35. I have already taken these factors into account in arriving at the duration of the term of imprisonment.  Absent them, I would have concluded that the appropriate punishment for Mr Bain would have been that he serve a period of nine months imprisonment. 

36. The facts of the matters relied upon by Mr Bain in mitigation do not persuade me that punishment by any means other than actually serving a period of imprisonment is appropriate in this case.  Rather, I have concluded that the significant importance to the overall administration of justice and to ensuring that the Court demonstrates its complete disapproval of his conduct outweighs the combined effect of those factors relied upon by him in mitigation. 

37. I consider that the Court must send a clear and unequivocal message to others who may contemplate acting as I have found Mr Bain to have acted in circumstances such as these.  This message can, in my view, in the exercise of the wide discretion entrusted to me, only be sent via the imposition of a sentence of imprisonment which is actually served for its entirety. 

38. In conclusion, I consider that Mr Bain’s actions do, in fact, warrant the ultimate sanction of an order that requires that, by way of punishment for the contempt, he serve a period of imprisonment of six months. 

39. As I indicated at the conclusion of hearing the submissions as to punishment made earlier by the parties, I consider it appropriate that the Warrant of Commitment which will issue lie in the Registry for a period of time. 

40. After consideration, I have concluded that the appropriate order is that such warrant lie in the Registry until 4 pm on Tuesday, 30 August 2016.  This is, in my view, sufficient time for any further steps in relation to the orders that will be made to be taken by Mr Bain. 

41. I turn now to the issue of costs.  The Applicants submitted that the Court would be persuaded that it was proper in the circumstances to make an order that Mr Bain pay the costs of and incidental to the contempt proceedings on an indemnity basis. 

42. Mr Bain did not resist the making of an order for costs on a party and party basis, but opposed the making of an order on an indemnity basis.  He also sought that, once the quantum of such costs is either agreed or assessed, he have the opportunity to apply for an order permitting him to pay these costs by way of instalments over time. 

43. Mr Bain’s acceptance that the circumstances justify the making of an order departing from the statutory starting point in section 117(1) of the Act that each party to proceedings bear their own costs obviates the need to discuss those circumstances prescribed in section 117(2A) of the Act. 

44. However, the acceptance of an order made on a party and party basis does not lead inexorably to the making of an order that costs be paid on an indemnity basis.  This is because authority clearly establishes that an order for costs on an indemnity basis is a very great departure from the normal standard in this and other jurisdictions. 

45. In Kohan (1993) FLC 92-340, the Full Court acknowledged that there is a discretion in an appropriate case to make an order for indemnity costs but said at page 79,605 79,611 as follows:

    It is fundamental to the exercise of that discretion in the Family Court that the judge should not only understand that such an order is a very great departure from the normal standard, but also that the judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties.  This impact is a relevant matter to which the trial judge should have had regard when considering the financial circumstances of each of the parties to the proceedings under section 117(2A)(a) or perhaps even more as a relevant matter under paragraph (g).  The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.

46. In the present case, I do not know the terms of the costs agreement.  I am unable in the circumstances to determine the degree to which there is a departure from the established norm and to determine the actual financial significance of any such departure. 

47. I decline to accede to the application that an order for costs is made on an indemnity basis. 

48. The order will be, instead, that Mr Bain pay the Applicant’s costs of and incidental to the Application for Contempt filed 30 July 2015 on a party and party basis, in such amount as may be agreed between the parties or, failing agreement, as assessed. 

49. I am persuaded that it is just that Mr Bain have liberty to apply for an order permitting the payment of such costs as are agreed in writing or assessed (in the absence of agreement in writing) by instalments provided that any such application by him is filed and served not later than 14 days after either the parties reach written agreement as to the quantum of such costs or, in the event that the parties do not reach written agreement as to the quantum of such costs, a costs assessment order is made by a Registrar.

50. I intend to make an order or direction directing a Registrar of the Court to cause a copy of the Reasons for Judgment delivered orally on 25 May 2016 as settled and amended and delivered or provided to the parties on 26 July 2016 and a copy of the settled Reasons for Judgment delivered orally today to be referred to the Legal Services Commission of Queensland and the Queensland Law Society, and I do so given the circumstances of this case, the issues involved in it and the evidence relied upon by Mr Bain in mitigation of the punishment I have today imposed upon him.  For those short reasons, a direction will be included in the order when it issues.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 9 August 2016.

Associate: 

Date:  15 August 2016