Council of New South Wales Bar Association v Rollinson (No 2)

[2023] NSWSC 1390

Supreme Court

New South Wales

Medium Neutral Citation:

Council of the New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390

Hearing dates:

15 November 2023

Date of orders:

15 November 2023

Decision date:

15 November 2023

Jurisdiction:

Common Law

Before:

Payne JA

Decision:

(1)   Remand the proceedings for sentence to 13 November 2024 at 10am on the condition that Mr Rollinson enter an agreement to comply with the following conditions:

(a)   To be of good behaviour (which includes, for the avoidance of doubt, compliance with the orders of the Court made by Wilson J on 16 August 2021 and Campbell J on 16 September 2021).

(b)   To accept no contact from and initiate no contact with Vincent Stanizzo.

(c)   To attend the medical practice East Sydney Doctors at 102 Burton Street, East Sydney, at least once every three months and to accept all reasonable advice, treatment and referral.

(d)   Upon the receipt of his Medicare Card, to make an appointment within 7 days to attend the Memory and Cognition Clinic at the Prince Alfred Hospital and thereafter accept the treatment, assistance and supervision made available to him by the staff of the Centre.

(e)   To appear before the Supreme Court as directed.

(f)   A written report about compliance with orders (a) to (e) is to be provided by email to the plaintiff’s representatives and to the Associate to Payne JA by 9 February 2024 at 4pm.

(g)   A further report about compliance with orders (a) to (e) is to be provided by email to the plaintiff’s representatives and to the Associate to Payne JA by 6 November 2024 at 4pm.

(h)   Liberty to apply to the Court for a variation of the conditions on 3 days notice.

(2)   Adjourn the plaintiff’s application for costs on the amended notice of motion filed on 23 September 2022 and the notice of motion filed 11 August 2022 until 13 November 2024.

Catchwords:

CONTEMPT – Criminal contempt – barrister serving suspended sentence for earlier contempts for breach of undertaking and injunction – further breaches – plea of guilty – significant new psychiatric evidence – cognitive decline – whether suspension of sentence should be lifted – Griffiths remand – approach to imposition of punishment for further breaches

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Evidence Act1995 (NSW)

Supreme Court Rules 1970 (NSW)

Cases Cited:

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483

Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279

Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527; [2014] VSCA 261

Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407

Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; 205 A Crim R 1; [2010] NSWCCA 194

Dowling v Prothonotary of the Supreme Court (2018) 99 NSWLR 229; [2018] NSWCA 340

Doyle v Commonwealth of Australia (1985) 156 CLR 510

Fregnan v Stanizzo [2020] NSWSC 402

Griffiths v The Queen (1977) 137 CLR 293

Hearnev Street (2008) 235 CLR 125; [2008] HCA 36

Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111

Lawrie v The Queen (1992) 59 SASR 400

Lewis v Ogden (1984) 153 CLR 682

Matthews v Australian Securities and Investments Commission [2009] NSWCA 155

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

Stanizzo v Fregnan [2021] NSWCA 195

Veen [No 2] v The Queen (1988) 164 CLR 465

Witham v Holloway (1995) 183 CLR 525

Category:

Consequential orders

Parties:

Council of the New South Wales Bar Association (plaintiff)
Michael Kelvyn Rollinson (defendant)

Representation:

Counsel:

K Richardson SC; D Habashy (plaintiff)
T Game SC; D Barrow SC (defendant)

Solicitors:

Hicksons (applicant)
Gells Lawyers (respondent)

File Number(s):

2021/224727; 2021/265078

Publication restriction:

Nil

Choose an item.

JUDGMENT – EX TEMPORE

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. PAYNE JA: In April 2022, Mr Rollinson pleaded guilty to breaches of an undertaking and two injunctions. Beech-Jones CJ at CL imposed a nine-month period of imprisonment, to be suspended for three years: Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407. That judgment must be read in order to understand what follows. I do not propose to recite the litigation history that led to the charges considered by Beech-Jones CJ at CL. Mr Rollinson has now pleaded guilty to a further 13 counts of contempt. The matter has been allocated to me following the elevation of Beech-Jones CJ at CL to the High Court.

Evidence

2. The parties prepared statements of agreed facts both for the charges that have come before me and for those that came before Beech-Jones CJ at CL in Rollinson [2022] NSWSC 407. Those statements are:

For the proceedings before Beech-Jones CJ at CL:

1. An agreed statement filed on 1 March 2022 in proceeding 2021/224727;

2. Another agreed statement filed on 1 March 2022 in proceeding 2021/265078;

For the present penalty hearing:

3. An agreed statement filed on 10 November 2022 in proceeding 2021/224727;

4. Another agreed statement filed on 10 November 2022 in proceeding 2021/265078;

3. In addition, the following evidence was led, without objection, before me:

1. Exhibit 13: Affidavit of Michael Rollinson affirmed 15 February 2022;

2. Exhibit 14: Expert report of Dr Andrew Ellis dated 18 February 2022;

3. Exhibit 15: Affidavit of Michael Rollinson affirmed 1 December 2022;

4. Exhibit 16: Medico-legal report of Adjunct Professor Dr Tuly Rosenfeld, dated 7 March 2023;

5. Exhibit 17: Medico-legal report of Dr Andrew Ellis, dated 6 April 2023;

6. Exhibit 18: Medico-legal report of Dr Andrew Ellis, dated 14 April 2023;

7. Exhibit 19: Affidavit of Janice Robson, former clerk at Latham Chambers, affirmed 30 May 2023;

8. Exhibit 20: Medico-legal report of Dr Andrew Ellis, dated 4 June 2023;

9. Exhibit 21: Affidavit of Brian Ralston, former barrister, affirmed 6 June 2023;

10. Exhibit 22: Medico-legal report of Adjunct Professor Tuly Rosenfeld, dated 8 June 2023;

11. Exhibit 23: Affidavit of Michelle Dennis sworn on 3 October 2023;

12. Exhibit 24: Letter from Michael Rollinson to respondents on Stanizzo special leave application, dated 24 February 2022;

13. Exhibit 25: Email from Michael Rollinson to solicitors involved in the application to reopen Vincent Stanizzo’s special leave application, attaching a letter, dated 17 June 2022;

14. Exhibit 26: Letter from Michael Rollinson to Lawyers Weekly, The Editor, Momentum Media Group Pty Ltd, dated 5 July 2022;

15. Exhibit 27: Email from Michael Rollinson to Local Court of NSW in Wollongong, dated 9 July 2022;

16. Exhibit 28: Email from Michael Rollinson to Frank Lo Pilato, dated 13 July 2022 at 3:36 pm;

17. Exhibit 29: Email from Michael Rollinson to Frank Lo Pilato, dated 13 July 2022 at 5:08 pm;

18. Exhibit 30: Email from Michael Rollinson to Frank Lo Pilato, dated 14 July 2022, attaching a letter dated 9 December 2018;

19. Exhibit 31: Email from Michael Rollinson to Frank Lo Pilato, dated 20 July 2022, attaching a letter;

20. Exhibit 32: Email from Michael Rollinson to Bruce McClintock SC, dated 8 August 2022;

21. Exhibit 33: Email from Bruce McClintock SC to Michael Rollinson, dated 10 August 2022;

22. Exhibit 34: Email from Bruce McClintock SC to Michael Rollinson, dated 11 August 2022;

23. Exhibit 35: Email from Jerome Doraisamy, Editor of Lawyers Weekly, to Michael Rollinson, dated 5 July 2022;

24. Exhibit 36: Email from Michael Rollinson to Vincent Stanizzo, dated 5 July 2022;

25. Exhibit 37: Email from Michael Rollinson to Jerome Doraisamy, dated 6 July 2022;

26. Exhibit 38: Email from Michael Rollinson to Jerome Doraisamy, attaching a letter, dated 18 July 2022;

27. Exhibit 39: Email from Leonie Young, Registrar of the High Court, to Michael Rollinson, dated 7 July 2022;

28. Exhibit 40: Email from Michael Rollinson to Vincent Stanizzo, dated 7 July 2022;

29. Exhibit 41: Email from Vincent Stanizzo to Michael Rollinson, dated 7 July 2022;

30. Exhibit 42: Email from Michael Rollinson to Canberra Registry of the High Court, dated 7 July 2022 at 2:31 pm;

31. Exhibit 43: Email from Charles Waterstreet to Vincent Stanizzo, dated 7 July 2022;

32. Exhibit 44: Email from Michael Rollinson to Canberra Registry of the High Court, dated 7 July 2022 at 2:35 pm;

33. Exhibit 45: Email from Vincent Stanizzo to the Sydney Registry of the High Court, dated 20 July 2022;

34. Exhibit 46: Email from Vincent Stanizzo to Michael Rollinson and Charles Waterstreet, dated 20 July;

35. Exhibit 47: Email from Michael Rollinson to Canberra Registry of the High Court, dated 20 July 2022.

4. The evidence was all admitted without objection and both parties submitted that I should take all of that evidence into account and that it was unnecessary to opine about whether the Evidence Act1995 (NSW) or the common law applied or whether I need make an order dispensing with the rules of evidence. I express at the outset my gratitude to Ms Richardson SC and D Habashy and their instructor and Mr Game SC and D Barrow SC and their instructor for their very capable and considerable assistance.

Mr Rollinson’s legal career

5. Mr Rollinson was admitted as a solicitor of the New South Wales Supreme Court in 1994 and as a barrister in 1995. He held a practising certificate from his admission until 30 June 2021. Mr Rollinson’s application to renew his practising certificate for 2021-2022 was unsuccessful because he failed to pay the required fee.

6. In September 2021, the Bar Council commenced the first contempt proceedings against Mr Rollinson. In proceeding number 2021/224727, the Council charged him with two counts of contempt, respectively a breach of an undertaking and of an injunction made by Wilson J in August 2021 (“the August Injunction”). In proceeding number 2021/265078, the Council further charged that Mr Rollinson breached an injunction made by Campbell J in September 2021 (“the September Injunction”). Beech-Jones CJ at CL delivered a penalty judgment on 8 April 2022: [2022] NSWSC 407.

Proceedings involving Mr Stanizzo

7. All of the present charges involve legal work Mr Rollinson performed on behalf of a Mr Vincent Stanizzo or his company. Two proceedings are relevant.

8. The first was the Stanizzo v Fregnan litigation. In 2021, the New South Wales Court of Appeal delivered judgment in that matter: Stanizzo v Fregnan [2021] NSWCA 195. Mr Stanizzo sought special leave to appeal from that decision to the High Court, but that application was refused on 17 February 2022. Mr Stanizzo then sought leave to reopen the application for special leave. The High Court refused that application on 16 June 2022.

9. The second proceeding involved Mr Stanizzo’s company, Vinja Holdings Pty Ltd, which brought an action against Style Investments Pty Ltd in the Wollongong Local Court.

The current contempt proceeding

10. All of the offending conduct I must consider occurred between 17 June and 8 August 2022, a period of about seven weeks. Twelve of the 13 charges are framed as a breach of the August Injunction, granted by Wilson J on 16 August 2021. The terms of that injunction are as follows:

1. Pursuant to s 447(3) of the Legal Profession Uniform Law 2014 (NSW), an injunction is to operate during the period in which the defendant does not hold a current practising certificate, including:

a)      restraining the defendant from engaging in legal practice in New South Wales;

b)     restraining the defendant from advertising or representing, or doing anything that states or implies, that he is entitled to engage in legal practice in New South Wales; and

c)      restraining the defendant from republishing his name and contact information on the website of Latham Chambers (at start="11">

The thirteenth charge is framed as a breach of the September Injunction made by Campbell J. The terms of that injunction are as follows:

The Court orders:

1. Pursuant to s 447(3) of the Legal Profession Uniform Law 2014 (NSW), an injunction to operate during the period in which the defendant does not hold a current practising certificate, restraining the defendant from:

a.   engaging in legal practice in New South Wales by:

i.     communicating with any legal practitioner in relation to the matter of Vinja Holdings Pty Ltd v Style Investments Pty Ltd;

ii.     communicating with any employee or officer of the Local Court of New South Wales in relation to the matter of Vinja Holdings Pty Ltd v Style Investments Pty Ltd;

b.     doing the following things that state or imply that he is entitled to engage in legal practice in New South Wales:

i.      appearing before, or communicating with, any judicial officer of the Local Court of New South Wales in relation to the matter of Vinja Holdings Pty Ltd v Style Investments Pty Ltd;

ii.      describing himself as a “barrister” or as “counsel”;

iii.      using the email address [email protected].

2. Pursuant to s 447(3) of the Legal Profession Uniform Law 2014 (NSW), an injunction requiring the defendant to take all necessary steps within 5 days to ensure that the email address [email protected] is deactivated, or otherwise rendered inoperative and to not take steps to re-activate or render that email address operative unless authorised by a further order of the Court.

3. Pursuant to s 447(3) of the Legal Profession Uniform Law 2014 (NSW), an injunction requiring the defendant to provide to the Council of the New South Wales Bar Association within 5 days details of an email address at which he can be contacted for the purposes of receiving communications in relation to these proceedings.

12. In the agreed facts tendered before me, Mr Rollinson agreed that he knew both injunctions had been made and understood their effect.

The 12 charges concerning the August Injunction

13. The Bar Council brought the following 12 charges of contempt for breach of the August Injunction. For each charge, the Council alleged that the relevant conduct:

1. constituted engaging in legal practice in New South Wales in breach of order 1(a) of the August Injunction;

2. constituted conduct that represented or implied that he was entitled to engage in legal practice in New South Wales in breach of order 1(b) of the August Injunction; and

3. was done in wilful disobedience and contravention of the August Injunction.

14. Mr Rollinson pleaded guilty to each of these charges. The essential features of each charge may be summarised as follows.

Charge 1: Letter to lawyers in S163/2021 (17 June 2022)

15. On 17 June 2022, Mr Rollinson sent an email attaching a letter addressed to the three respondents to Mr Stanizzo’s application to reopen the special leave application. In the letter, Mr Rollinson

1. wrote “I am writing on behalf of the Applicant”;

2. included an opinion about the High Court’s determination of the special leave application and application to reopen; and

3. stated that “Mr Stanizzo intends to make an application to the Full Court, on the grounds that on both occasions (17 February 2022 and 16 June 2022) his Application for Special Leave has been dismissed without reasons and without reference to the documents that were filed in support of the Application”.

Charge 2: Concerns notice sent to Lawyers Weekly (5 July 2022)

16. On 5 July 2022, Mr Rollinson sent a letter addressed to the editor of Lawyers Weekly. In the letter, Mr Rollinson wrote “I have been requested to send this letter as a duly appointed Attorney of the above named”, the “above named” being Mr Stanizzo.

17. Mr Rollinson described the letter as a “Concerns Notice for the purposes of Part 3 of the Defamation Act 2005 (NSW)”. He referred to a media article and the judgment in Fregnan v Stanizzo [2020] NSWSC 402, before claiming that: “The article contains numerous misrepresentations and inaccuracies in regard to the proceedings and the judgment”. Mr Rollinson wrote:

Accordingly you are required: 1. To remove the article from the above website and from any other places on the internet or otherwise in which it has been published. 2. To make an offer of appropriate financial compensation for the harm caused and the expenses incurred or to be incurred by Mr Stanizzo

Charge 3: Submissions in Vinja proceedings (9 July 2022)

18. On 9 July 2022, Mr Rollinson sent an email to the Wollongong Local Court, with the subject line “No. 2010/129885 - VINJA HOLDINGS v STYLE INVESTMENTS - LISTED ON 12 JULY 2022”.

19. Attached to the email was a document entitled “SUBMISSIONS IN REPLY TO APPLICANT’S AMENDED SUBMISSIONS FILED ON 17 JUNE 2022”.

20. In the covering email, Mr Rollinson wrote:

Dear Registrar,

Attached is Reply Submission by Respondents to the Motion. The delay in filing this is regretted.

Regards,

Michael Rollinson

Agent for the Respondents / Judgment Creditors

21. Mr Rollinson sent a copy of this email and attached submissions to the other legal practitioner in the matter, Mr Andrew Stewart of Stewart Law.

Charge 4: Emails to Mr Lo Pilato (13 July 2022)

22. On 13 July 2022 at 3:36pm the contemnor sent an email to Frank Lo Pilato of RSM Australia, Mr Stanizzo’s trustee in bankruptcy. The email had the subject line “V F STANIZZO - BANKRUPTCY”. There were three attachments:

1. a letter addressed to Mr Lo Pilato dated 13 July 2022;

2. an affidavit of Mr Stanizzo dated 21 April 2022; and

3. a file named “Letter to Mr Lo Pilato -Items 2-4.pdf”.

23. The letter to Mr Lo Pilato had the letterhead “Michael Rollinson” and the subject line “RE: MR VINCENT STANIZZO - Bankruptcy”. In it, Mr Rollinson wrote:

1. “I acted as Mr Stanizzo’s counsel in the prolonged litigation that has culminated in his bankruptcy, and in so doing have become well acquainted with the facts of the matter, including the criminal case out of which the civil litigation arose”;

2. “the allegations made by Ms Fregnan against Mr Stanizzo were false, and the judgments given in her favour against Mr Stanizzo in the civil Courts were wrong and unjust”;

3. “[t]he same applies to the allegations made in collaboration with Ms Fregnan by Mr Muhammad Badame and the judgment in his favour”; and

4. “the allegations of sexual assault against Mr Stanizzo were a complete and malicious fabrication”.

24. The letter then enclosed material purporting to demonstrate that the allegations of sexual assault were untrue.

Charge 5: Further email to Mr Lo Pilato (14 July 2022)

25. On 14 July 2022 at 10:48am, Mr Rollinson sent a further email to Mr Lo Pilato. The email had the subject line “VF STANIZZO- Your ref. 828/22/6”.

26. The covering email read:

Dear Mr Lo Pilato,

Attached for your information is a letter sent by me on Vince’s behalf to the State Crown Solicitor in December 2018.

You will see from page 2 that the State was put on notice of Vince’s lack of assets and of the Family Trust established under the Deed entered into in May 2008

27. The attached letter was dated 9 December 2018 and was addressed to a solicitor acting for the State of New South Wales. In the letter head was the following:

MICHAEL ROLLINSON

Barrister

Latham Chambers

Level 8, 67 Castlereagh Street

SYDNEY NSW 2000

28. The letter referred to the proceedings “STANIZZO v STATE OF NEW SOUTH WALES No. 2016 / 296293”, “FREGNAN v STANIZZO No. 2012 / 129649” and “STANIZZO v BADARNE No. 2014 / 92425”.

29. The substance of the letter included several assertions about the estimated duration of the proceedings, the assets of Ms Fregnan, Mr Badame and Mr Stanizzo and the estimated legal costs of the proceedings.

30. The letter also said “there should be serious and immediate discussions between my client and the State to settle the proceedings”.

Charge 6: Further email to Mr Pilato (20 July 2022)

31. On 20 July 2022 at 5:04pm, Mr Rollinson sent another email to Mr Lo Pilato with the subject “MR VF STANIZZO”.

31. A letter was attached to the covering email. It included:

1. the letterhead “Michael Rollinson” and the subject line “Re: Vincent Francis Stanizzo - Declaration of Trust”;

2. various assertions about the effectiveness or legal validity of a document described in the letter as a “Declaration of Trust” or “Deed”; and

3. Mr Rollinson’s own opinion that the Deed “is fully valid and effective in its terms as from the date it was signed”.

33. The letter then stated: “I trust the above clears any doubts you may have had, but should you have any query, feel free to ring me or Mr. Waterstreet”. Mr Charles Waterstreet previously acted as a barrister for Mr Stanizzo.

Charge 7: Email to Bruce McClintock (8 August 2022)

34. On 8 August 2022 at 1:16pm, Mr Rollinson sent an email to Mr Bruce McClintock SC, with the subject line “Defamation advice”. The email read:

Dear Bruce,

I hope you are well.

If you are available / interested, my former client Mr Stanizzo is considering a defamation case against Lawyers Weekly [online news website], and would like an informal second opinion on its prospects. If so I can send you matter in question etc.

35. On 10 August 2022 at 5:59pm, Mr McClintock sent a reply in which he declined to give advice.

36. On 11 August 2022 at 10:30am, Mr McClintock sent a further reply to the contemnor:

Dear Michael

I have read and re-read your email several times since I replied to it yesterday. I am aware that you no longer hold a practicing certificate, and I am concerned that some aspects of your email suggest that you may, nevertheless, be practicing as a barrister. I note you refer to Mr Stanizzo as a “former client” but the content of your letter seems to suggest that you are acting for him in some capacity.

I hope, for your sake, that you are not doing so but I feel compelled to pass this correspondence to the Bar Association so the matter may be investigated.

Yours faithfully Bruce McClintock

Charge 8: Email to editor of Lawyers Weekly (6 July 2022)

37. On 5 July 2022 (1:34pm), Mr Rollinson received an email from Jerome Doraisamy, the editor of Lawyers Weekly. The email was in reply to the “concerns notice” sent by Mr Rollinson earlier that day (the subject of charge 2 above). Mr Doraisamy’s email read:

Dear Mr Rollinson,

Thanks for your email. In accordance with your request, Lawyers Weekly has removed the article in question, and it no longer appears on our site. Our digital team will also ensure that it is no longer searchable on Google.

38. On 5 July 2022 (2:03pm), Mr Rollinson forwarded Mr Doraisamy’s email to Mr Stanizzo, and wrote in a covering note:

Dear Vince, Their quick reply. We still want reply to letter - shall I reply to that effect?

39. On 6 July 2022, the contemnor sent a letter to Mr Doraisamy with the subject line “Re: Vincent Francis Stanizzo - Article in Lawyers Weekly”. The letter:

1. sought an explanation for the “many issues” apparently raised by the Lawyer’s Weekly article, including the “source of your information”, whether “enquiries” were undertaken to “justify what you stated”, why the publication “failed to contact Mr Stanizzo to ensure that the article was factually accurate”;

2. alleged that, in the article, “parts of the judgment are either misquoted, stated out of context, or totally and factually incorrect and as such grossly misrepresented to be irreparably damaging to Mr. Stanizzo’s reputation”;

3. stated that the “article conveys many imputations which are defamatory, yet you have failed to address the same and make an offer of appropriate financial compensation”; and

4. stated that Mr Stanizzo “reserves the right to seek a formal retraction”.

Charge 9: Draft statement of claim against Lawyers Weekly (18 July 2022)

40. On 18 July 2022 (2:38pm), Mr Rollinson sent another email to Mr Doraisamy, with a letter attached bearing the subject “Re: Vincent Francis Stanizzo - Article in Lawyers Weekly”. This letter read:

I refer to my letter of 6 July 2022, copy attached, to which I have received no reply.

As stated in that letter, Mr Stanizzo requires publication of a retraction of the defamatory article on your website, in a form to be approved by him, and an offer of appropriate compensation for the harm caused by its publication.

Should this not be received within 7 days, attached is a draft of a Statement of Claim which Mr Stanizzo intends to file.

Your organisation will be required to produce this letter in Court if and when necessary.

41. The letter attached a draft statement of claim for proposed proceedings by Mr Stanizzo against the owner of Lawyers Weekly in the Supreme Court of New South Wales.

Charge 10: Correspondence with High Court registry (7 July 2022)

42. On 7 July 2022 (12:09pm), Mr Rollinson received an email from Leonie Young, a Deputy Registrar at the High Court of Australia. The email’s subject line was “Stanizzo v Fregnan - further documents”. The email referred to documents lodged in the High Court registry on 6 July 2022 seeking leave to re-open Mr Stanizzo’s special leave application. These documents would not be considered, Ms Young wrote, because the relevant file had been finalised by the High Court’s decision on 16 June 2022 to refuse leave to re-open the matter.

43. On 7 July 2022 (1:59pm), Mr Rollinson forwarded the above email to Mr Stanizzo. On 7 July 2022 (2:22pm), Mr Stanizzo replied to Mr Rollinson, instructing him to send an attached email to the High Court registry. The substance of the attached email was that Mr Stanizzo’s most recent application to reopen should be considered by the High Court because it raised a constitutional issue. It also alleged that the Court’s refusal of special leave on 17 February 2022 was unaccompanied by “proper judicial reasons” and should be “classified as arbitrary”.

44. On 7 July 2022 (2:31pm), the contemnor sent an email to the Canberra and Sydney registries of the High Court, with the subject line “FW: Stanizzo v Fregnan - further documents”.

45. The email read “Dear Registrar, See email below” and then forwarded the email Mr Stanizzo had sent to the contemnor earlier that day, including the submission that the application could only be dealt with by the Court itself.

Charge 11: Further correspondence with High Court registry (7 July 2022)

46. On 7 July 2022 (10:51am), Mr Waterstreet sent an email to Mr Stanizzo with the subject line “Supplement to High Court Application”.

47. The email was apparently a draft submission to be sent to the High Court, concerning its refusal of the application to reopen Mr Stanizzo’s special leave application. In the submission, Mr Waterstreet proposed to “add a Constitutional matter”, on the basis that the failure to provide reasons for refusing special leave is contrary to Chapter 3 of the Constitution. He requested that this “late submission” be read with submissions earlier made in the matter.

48. On 7 July 2022 (2:35pm), Mr Rollinson sent a further email to the Canberra and Sydney registries of the High Court, with the subject line “FW: Supplement to High Court Application - STANIZZO v FREGNAN & OTHERS”. In that email, Mr Rollinson forwarded the email that Mr Waterstreet had sent to Mr Stanizzo earlier that day.

Charge 12: Conduct on 20 July 2022 (1:39pm)

49. On 20 July 2022 (1:15pm), Mr Stanizzo sent an email to the Sydney registry of the High Court, with the subject line “V F STANIZZO - Complaint to Ms A BYRNES FEDERAL MP for REFERRAL to FEDERAL ATTORNEY GENERAL”. In the email, Mr Stanizzo said that there had been no reply to his earlier correspondence, attached a complaint he had made to his local federal MP, and reiterated his view that the High Court had not dealt with his matter in a “judicial and non arbitrary way”.

50. On 20 July 2022 (1:39pm), Mr Rollinson sent an email to the Canberra and Sydney registries of the High Court, with the subject line “FW: VF STANIZZO - Complaint to Ms A BYRNES FEDERAL MP for REFERRAL to FEDERAL ATTORNEY GENERAL”. The email read:

Dear Registrar,

I am forwarding the email below and attachment on behalf of Mr Stanizzo, as his attempts to send the email directly have not gone through.

Regards,

Michael Rollinson   T 0436 000 050

51. The email then forwarded Mr Stanizzo’s email referred to above.

The charge concerning the September Injunction

52. The Bar Council brought one further charge, which alleged that Mr Rollinson committed a wilfully disobedient breach of the September Injunction. That injunction concerned, it will be recalled, the Vinja Holdings v Styles Investments Local Court proceedings. Mr Rollinson is said to have breached it by sending submissions to the Local Court registry (the same conduct that underlies charge 3 concerning the August Injunction). That conduct was as follows.

Charge: Submissions in Vinja proceedings (9 July 2022)

53. On 9 July 2022, Mr Rollinson sent an email to the Wollongong Local Court, with the subject line “No. 2010/129885 - VINJA HOLDINGS v STYLE INVESTMENTS - LISTED ON 12 JULY 2022”.

54. Attached to the email was a document entitled “SUBMISSIONS IN REPLY TO APPLICANT’S AMENDED SUBMISSIONS FILED ON 17 JUNE 2022”.

55. In the covering email, Mr Rollinson wrote:

Dear Registrar,

Attached is Reply Submission by Respondents to the Motion. The delay in filing this is regretted.

Regards,

Michael Rollinson

Agent for the Respondents / Judgment Creditors

56. Mr Rollinson, as I have said, sent a copy of this email and attached submissions to the other legal practitioner in the matter, Mr Andrew Stewart of Stewart Law.

57. Mr Rollinson pleaded guilty to each of the 13 charges of contempt.

58. The Bar Council submits, and Mr Game SC appearing for Mr Rollinson agrees, that Mr Rollinson’s contempts were “criminal”. The distinction between “civil” and “criminal” contempt, while much criticised, persists: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36. Ordinarily, breaches of court orders, like those Mr Rollinson has committed, are treated as “civil” contempt: Witham v Holloway (1995) 183 CLR 525 at 530. However, if a breach of order can be characterised as “contumacious” or “defiant”, then that breach amounts to a criminal contempt: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 489 per Barwick CJ; Witham v Holloway at 530 per Brennan, Deane, Toohey and Gaudron JJ, at 538-39 per McHugh J.

59. None of the 13 present charges accused Mr Rollinson, in terms, of “defiant” or “contumacious” conduct. All 13 did, however, accuse him of a “wilfully disobedient” breach of the relevant injunction. The case law establishes that “wilful disobedience”, in the law of contempt, means conduct that was not accidental, casual or unintentional: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113. Wilful disobedience, in that sense, is the mental state a contemnor must, at minimum, display if they are to be convicted of a civil contempt: Doyle v Commonwealth of Australia (1985) 156 CLR 510 at 516; Witham v Holloway at 542 per McHugh J. But “wilful disobedience” does not, without more, mean “contumacious” or “defiant”. There is authority for the proposition that the Court may make a finding of contumacy, even when contumacy was not charged: Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527; [2014] VSCA 261 at [299]. As I have said, the parties each urge me to treat the 13 charges as criminal contempts, and I do.

Penalty for the charges of contempt

Principles of punishment

60. This Court’s power to punish contemnors is inherent to its function as a superior court of record. That power is not subject to criminal law sentencing statutes, including the Crimes (Sentencing Procedure) Act 1999 (NSW): Dowling v Prothonotary of the Supreme Court (2018) 99 NSWLR 229; [2018] NSWCA 340.

61. Instead, the purpose of imposing punishment for contempt emerges from the nature of the contempt jurisdiction. The power to deal with contempt exists to safeguard the administration of justice, by vindicating the court’s authority and ensuring the integrity of its processes: Lewis v Ogden (1984) 153 CLR 682 at 693; Mudginberri Station at 108. That purpose governs the exercise of the contempt power whether the Court is dealing with a civil or a criminal contempt: Mudginberri Station at 107; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [10].

62. An order or penalty dealing with a contemnor must be calibrated so as to be effective in safeguarding the administration of justice, as the joint judgment in Mudginberri Station held at 115:

It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result.

63. What order or penalty will be effective in a given case of contempt depends on the nature of the contempt charged. If the contempt arises from a breach of orders, then an important purpose of punishment is to demonstrate that those orders will be enforced and to reiterate that they must be obeyed.

64. This principle was distilled by Kirby J in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 as follows (at [149], footnotes omitted):

[149] Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, “serious and lasting damage to the fabric of the law may result”. Obviously, the culpability of the contemnor is relevant to the order which must be made. The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner.

65. It should, however, be understood that ensuring obedience is not the overriding objective of punishment: the objective is always the protection of the due administration of justice. Other considerations may be important to that end.

66. In Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 at [26]-[27], Barrett J set out a list of factors relevant when fashioning a penalty for contempt:

1. the seriousness of the contempt proved;

2. the contemnor’s culpability;

3. the reason or motive for the contempt;

4. whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

5. whether there has been any expression of genuine contrition by the contemnor;

6. the character and antecedents of the contemnor;

7. the contemnor’s personal circumstances;

8. the need for deterrence of the contemnor and others of like mind; and

9. the need for denunciation of contemptuous conduct.

67. These observations were referred to with approval by the Court of Appeal in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 and by the Full Court of the Federal Court in Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 at [102] per Besanko, Wigney and Bromwich JJ. See also He v Sun at [10] and [55] per Bell P (Gleeson and McCallum JJA agreeing) and NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 at [31]-[32] per Bell P. To Barrett J’s list in Matthews should be added the likely effect that punishment will have on the contemnor, including any hardship it might cause.

68. An effective penalty is one that takes careful account of interrelated considerations like those set out in Matthews. If the penalty imposed is harsher than those considerations as a whole seem to demand, then the effect may be that confidence in the fairness of court processes and respect for the court’s authority may be impaired, with the result that the administration of justice is harmed rather than protected.

69. Finally, it is important to note that sentencing a contemnor to a term of imprisonment is a penalty of last resort.

Available penalties

70. As I have said, the Crimes (Sentencing Procedure) Act does not apply. Instead, the range of penalties derives from the Supreme Court Rules 1970 (NSW), read in light of the common law. Part 55 r 13(1) of the Supreme Court Rules allows the Court to punish contemnors by a fine or by committal to a correctional facility, or both. Rule 13(3) allows the Court to impose punishment on terms:

The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

71. In the first contempt proceedings, Beech-Jones CJ at CL made two important observations about the correct interpretation of r 55.13. First, r 55.13(3) does not limit the Court in the conditions it can attach to a suspended punishment:

[87] I do not take the requirement to give security for good behaviour as limiting the conditions attaching to a suspension of any such penalty. In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 (“Maniam No 2”) the Court of Appeal held that it had power to impose a condition that the contemnor perform community service as a condition of suspending a fine (at 319 per Kirby P; 320 per Mahoney JA and 321 per Hope AJA). Bell P, as his Honour then was, adopted that course in NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 (at [96]; “NHB”; see also Mirus Australia Pty Ltd v Gage [2018] NSWSC 35; “Mirus”) ….

72. Second, the terms of r 55.13(1) do not prevent the Court from declining to fine a contemnor or commit them:

[87] … Further, just because SCR, r 55.13 empowers the Court to impose a fine or commit a contemnor to a correctional centre does not preclude a Court from determining that neither sanction should be imposed and, say, the making of a declaration or an order as to costs will serve the purposes of punishment.

73. The second observation has particular force in light of the principle that imprisonment is a punishment of last resort. That principle applies in contempt proceedings, notwithstanding that contempt is not part of the ordinary criminal law. As McCallum JA explained in He v Sun:

[68] … imprisonment is a punishment of last resort: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [115] (Spigelman CJ, Wood CJ at CL and Simpson J). While that is a proposition that arises most commonly in the discourse of the criminal law, there is no reason in principle why the same restraint should not apply to punishment of contempt and every reason why it should. That is a necessary incident of the common law’s acceptance that the right to personal liberty is a fundamental common law right which “cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes”: Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 at 292 (Mason and Brennan JJ). In my view, it is appropriate to proceed on the basis that, where a person is being dealt with for contempt in civil proceedings, as where a person is being sentenced for a criminal offence, the course of committing the contemnor to a correctional centre or sentencing the offender to a term of imprisonment should not be taken before considering whether there is any alternative course that is appropriate in the circumstances, having regard to the nature and object of the function in question.

74. Bell P cited these remarks with approval in NHB Enterprises (No 8) at [30].

My findings on the evidence

Mr Rollinson’s mental health

Psychiatric evidence

75. Mr Rollinson was first examined by Dr Ellis, whose First Report was dated 18 February 2022 and was in evidence before Beech-Jones CJ at CL. According to that report, Mr Rollinson displayed characteristics of a schizoid personality disorder and signs of cognitive impairments. The report also found that he appreciated the wrongfulness of his conduct comprising the earlier contempts.

76. Since then, there have been several further expert reports, none of which was available to Beech-Jones CJ at CL in April 2022. Those reports show that Mr Rollinson suffers from a much more serious mental condition than was understood at the time of the earlier proceedings. The reports also conclude that this condition has been ongoing for a number of years, pre-dating Mr Rollinson’s offending conduct. It is also apparent that Mr Rollinson’s deteriorating mental state was a substantial reason for his failure to pay his NSW Bar Association registration fees and for his declining capacity to work as a barrister.

75. The background to these further reports can be shortly stated. Dr Ellis’ initial findings were that Mr Rollinson’s incipient cognitive impairment required further investigation. In line with this finding, Mr Rollinson underwent a magnetic resonance imaging (“MRI”) examination on 28 February 2022. The results of this MRI were not in evidence before Beech-Jones CJ at CL in April 2022.

76. At the request of Mr Rollinson’s new legal team, which only took over earlier this year, the results of the MRI were considered by Dr Ellis and a geriatrician, Adjunct Professor Tuly Rosenfeld. These experts each produced the following reports:

1. Adjunct Professor Rosenfeld’s Report, dated 7 March 2023;

2. Dr Ellis’ Second Report, dated 6 April 2023;

3. Dr Ellis’ Third Report, dated 14 April 2023;

4. Dr Ellis’ Fourth Report, dated 4 June 2023; and

5. Adjunct Professor Rosenfeld’s Supplementary Report, dated 8 June 2023.

Adjunct Professor Rosenfeld’s Report

79. In summary, Adjunct Professor Rosenfeld’s Report gives the following opinions:

1. “Mr Rollinson has a number of clinical features indicative of mild cognitive impairments evident on screening tests”;

2. “Mr Rollinson suffers with early but likely progressive vascular brain disease. This has resulted in mild cognitive impairments and an early dementing illness”;

3. “It is more likely than not that the neurodegenerative process has been present for years (at least the last 10 years and likely longer) however the threshold whereby the impact of those changes on function and performance was reached are likely more recent 2 – 3 years”;

4. Mr Rollinson’s condition:

1. “impacted on his ability to make, and capacity to resolve, the relatively complex issues about his financial and work situation”;

2. “impacted on his decision making abilities and his ability to recognise and resolve the impact on those multiple conflicting issues”;

3. “led to his reduced ability to make complex decisions and understand and resolve the conflicting issues and implications of those decisions”;

5. nonetheless, Mr Rollinson’s “residual knowledge and understanding of the substance of sentencing proceedings would likely be preserved”; and

6. “Mr Rollinson’s premorbid (prior to the worsening in his cognitive function) training and knowledge is likely to be retained to a level that he is able to provide instruction and participate in the Supreme Court proceedings”.

Dr Ellis’ Second Report

80. In summary, Dr Ellis’ Second Report gives the following opinions:

1. “[w]ith the results of the MRI brain scan it is now clear that [Mr Rollinson] suffers from a mild neurocognitive disorder”;

2. “[i]t is likely [Mr Rollinson] would be considered to suffer from mild cognitive impairment”;

3. Mr Rollinson’s condition:

1. “would serve to explain the deterioration in performance at work, declining finances and the inability to pay previous legal fees. This would also then serve to explain his poor decision making in preferring his perceived need to maintain legal involvement with his current cases over maintaining a valid practising certificate, or then following orders made against him”;

2. “likely impacted upon his legal decision making at the time of his initial trial, sentencing and then later compliance with orders made against him”;

3. “impacted on his decision to engage in work that did not “scrupulously” follow the conditions of the orders against him, despite him being able to understand that he had to follow orders”; and

4. however, “[d]espite his neurocognitive disorder he has a background legal knowledge and background intelligence, and the memory and executive function deficits are not to a point where he is likely to be considered unfit to be tried”.

Further evidence of Mr Rollinson’s psychiatric condition

Mr Rollinson’s association with Mr Oliveri

81. After the penalty hearing before Beech-Jones CJ at CL, the contemnor began spending time at the law practice of Mr Oliveri, solicitor. Mr Oliveri’s statement is in evidence. Mr Oliveri said he had felt sorry for the defendant and had suggested he use a spare office to give him some routine. He had once asked the defendant to do some work consistent with that of a paralegal, but it was of a poor quality. He gave the defendant some money for Christmas.

82. Dr Ellis was asked to comment on Mr Oliveri’s statement in his Third Report, dated 14 April 2023:

This information confirms the medical findings of cognitive impairment (unable to perform simple tasks related to his previous work), and his withdrawn personality style. It confirms Mr Rollinson struggles with his identity and change of role, misperceiving the charity of Mr Oliveri as something more akin to an advisory role in the office. It is likely that Mr Rollinson wishes to see himself, and have others see him as more competent than he currently is, rather than him performing legal work in contravention of orders, regarding him telling me he was a “consultant”.

83. I accept Dr Ellis’ evidence.

Mr Rollinson’s association with Mr Stanizzo

84. A substantial amount of the legal work the contemnor performed in recent years, and all the legal work after the April 2022 penalty hearing, was for Mr Stanizzo. Michelle Dennis, the contemnor’s solicitor, in an affidavit of 3 October 2023 detailed the history of this relationship. Annexure G to Ms Dennis’ affidavit is a table of 28 cases available online where Mr Rollinson appeared for Mr Stanizzo.

85. Evidence suggests that Mr Rollinson was vulnerable to manipulation and pressure from Mr Stanizzo. The affidavit of Ms Janice Robson, the clerk at the defendant’s chambers between 2001 and 2021 states:

Mr Stanizzo was based in Wollongong; however he would come to Sydney often, demanding more and more of Michael’s time. …

Mr Stanizzo would ring Michael many times a day, every day. If he was in Sydney, I could hear him abuse Michael in the conference room repeatedly. The conference room was close to my desk.

Eventually Mr Stanizzo was taking up all of Michael’s time. I often worried that Michael was not being paid. No one could understand why Michael continued to represent him. I was very concerned about the relationship and for Michael’s safety.

Mr Stanizzo would telephone Michael every Friday night, just as Michael was beginning to relax a little over a glass of wine. This would be at 6:30 PM or 7 PM, when Michael should have been entitled to a break. I was always wanting to say Michael was unavailable, but Michael always took his calls.

After I left Latham Chambers I heard from Fiona Foote, the current Clerk, that Mr Stanizzo continued to call Michael every Friday night.

86. Brian Ralston, a former barrister who shared chambers with the defendant for many years and whose affidavit dated 6 June 2023 is before me, observed:

Prior to my leaving the floor I was aware that Michael was being briefed by a solicitor by the name of Vince Stanizzo. I do not personally know Stanizzo but saw him from time to time at Latham Chambers where he spoke to Michael. Our clerk, Janice, spoke to me on a number of occasions about her concerns that Michael was dealing with Stanizzo, who appeared from my limited observations to possess a bumptious and aggressive demeanour.

The floor’s Friday drinks took place at the floor’s reception, and either Janice or the receptionist would answer calls that came while we were having our get together. The general approach of the members when advised that there was a call for them at such time was, unless for example they had a matter on the Monday and were waiting for a call, to say that they would get back to the caller. On many occasions Janice would say to Michael “It’s Vince” following which Michael rushed to his room to take the call. I note that almost all of Michael’s inappropriate behaviour has related to Stanizzo’s personal court matters.

87. Both Dr Ellis and Adjunct Professor Rosenfeld were asked to consider the impact of Mr Stanizzo upon the defendant’s capacity to make sensible judgments.

88. In answer to this question, Dr Ellis wrote in his Third Report:

In summary his mental conditions would render him vulnerable to influence and impair judgement around decisions. This change in capacity would have been present for some time before 2021 and continue to be present. The effect of the COVID pandemic would have left him more socially isolated, and less able to reflect with others on the appropriateness of decisions. (Emphasis added.)

89. Similarly, in his Supplementary Report dated 8 June 2023, Adjunct Professor Rosenfeld wrote:

It is in my experience often the case that individuals suffering with mental and personality issues, particularly when worsened by brain disease and cognitive impairment, are adversely affected and likely to compensate poorly when additional stresses, anxiety, and adverse influences, are superimposed. In my view Mr Rollinson is particularly so vulnerable.

The nature of the behaviours that Mr Rollinson has experienced and dealt with, as indicated in the history provided by Ms Robson, would in my view have adversely influenced, directed and affected Mr Rollinson’s actions, judgement and decision making, and his ability to properly judge and respond to situations in the period from 1 July 2021.

90. I accept Adjunct Professor Rosenfeld’s evidence.

Relevance of psychiatric evidence to penalty

91. The principles applied to sentencing mentally ill offenders are applicable to the imposition of punishments for contempt. The relevant principles were summarised by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; 205 A Crim R 1; [2010] NSWCCA 194 at [177] as follows:

● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced …

● It may reduce or eliminate the significance of specific deterrence …

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ... (case citations omitted)

Moral culpability and objective gravity of the offending

92. The defendant’s mental condition and the impact of Mr Stanizzo’s conduct towards him are both relevant to an assessment of the defendant’s moral culpability for the offending and thus to an assessment of the seriousness of the offending: Veen [No 2] v The Queen (1988) 164 CLR 465; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [58]; De La Rosa at [177]. I find that the defendant’s mental condition is causally related to the offending.

93. On Mr Rollinson’s behalf, it was submitted that his moral culpability for the offending and an assessment of the seriousness of the offending is substantially reduced by reason of his deteriorating mental condition and the impact of Mr Stanizzo on his ability to comply with the orders of the Supreme Court and then the terms of the suspended sentence. I agree. The offending conduct was strikingly misguided, involving as it did completely misconceived assertions to Court officials, a trustee in bankruptcy and a legal publisher. I find that the conduct is explained by Mr Rollinson’s deteriorating mental condition and the impact of Mr Stanizzo’s taking advantage of Mr Rollinson’s vulnerability.

94. Mr Rollinson worked as a barrister without incident from 1995 until 2021. The decline in the defendant’s capacity to carry out the work of a barrister is the root cause of his inability to be able to pay his annual practising certificate fee and is highly relevant to all the events that followed. I accept the opinion of both experts that the defendant’s cognitive decline must also be viewed together with his pre-morbid personality traits.

Relevance to general and specific deterrence

95. I find that the defendant’s mental condition makes him an inappropriate medium for general or specific deterrence. Muldrock at [49], [53]-[55], [58]; De La Rosa at [177].

96. This is an especially significant factor given the underlying rationale of the contempt power is the necessity to “uphold and protect the effective administration of justice”: Mudginberri Station at 107; He v Sun at [10]. The imprisonment of a former barrister, with significant pre-morbid conditions who has been diagnosed with early onset dementia, who prior to his mental deterioration was a person of good standing over many decades, does not advance the effective administration of justice.

Consideration

97. Mr Rollinson committed his further 13 contempts while already under the suspended order of committal imposed by Beech-Jones CJ at CL. His breach of the terms of that suspension bears on the appropriate penalty for the present 13 charges.

98. Ordinarily, I would have no hesitation in imposing a sentence of full-time imprisonment in relation to a barrister who re-offended during the period that an earlier sentence of imprisonment had been suspended. I have concluded here, however, that exceptional circumstances have been shown, and that this is not a case where the suspension should be lifted such that Mr Rollinson serve a sentence of full-time imprisonment. My reasons are as follows.

99. All 13 instances of contempt since 8 April 2022 involve the defendant communicating either by email or letter on behalf of Vincent Stanizzo or his private company Vinja Holdings. On the evidence Mr Stanizzo was a bully who took advantage of Mr Rollinson’s vulnerability. I find that but for Mr Stanizzo taking advantage of Mr Rollinson’s mental deterioration the conduct the subject of these proceedings would not have occurred.

100. The offending spanned the period between 17 June and 8 August 2022. The principal feature of the conduct is the breach of the orders of the Supreme Court and the terms of the suspended sentence imposed on 8 April 2022. There is no evidence the defendant benefitted financially from this conduct and every reason to think he did not. Whilst I accept that the letter styled as a “concerns notice” led to Lawyers Weekly taking down an article from the internet, there is no evidence that Mr Rollinson’s conduct had a negative impact on the administration of justice generally. At the time of this offending, Mr Rollinson was the subject of demanding and abusive conduct from Mr Stanizzo and was also impacted by his progressively deteriorating mental state.

101. Prior to July 2021 the defendant was a person of good character. At that point he was 61 years of age. These further offences are a continuation of his early misconduct, dealt with in April 2022 by Beech-Jones CJ at CL.

102. The defendant’s deteriorating mental condition, his pre-existing personality traits and the oppressive impact of Mr Stanizzo’s conduct are the principal causative factors regarding all of his conduct since July 2021 in breach of orders of the Supreme Court. In the circumstances, the defendant is entitled to a considerable measure of leniency.

103. Mr Rollinson has pleaded guilty to each of the 13 present charges. The guilty pleas were entered at the first opportunity. The entry of the pleas and the agreement with the facts alleged by the Bar Council indicates a willingness on his part to facilitate the course of justice.

104. The 13 offences that are the subject of the further proceedings occurred between 17 June 2022 and 8 August 2022. As noted, on each occasion the defendant acted at the behest of Mr Stanizzo. There have been no further instances of this conduct for the last 15 months. I conclude that the oppressive influence exerted upon the defendant by Mr Stanizzo during 2021 and 2022 is no longer occurring, and that further offending is unlikely.

105. I am fortified in that conclusion by the steps Mr Rollinson has latterly taken to seek treatment and improve his circumstances. As detailed in the affidavit of Ms Dennis, Mr Rollinson applied at Centrelink for the JobSeeker allowance in September 2023.

106. Ms Dennis also records that the defendant has now applied for a Medicare card and obtained a referral from Dr Charles Geale, a general practitioner, to Professor Rebekah Ahmed at the Memory and Cognition Clinic run at the Royal Prince Alfred Hospital.

The appropriate penalty

107. Mr Rollinson is now in his early 60s and increasingly frail and impacted by his mental conditions. He would be acutely vulnerable in custody. I find that any term of actual imprisonment imposed on the defendant would be much more onerous for him than it would be for a person of ordinary fortitude.

108. I do not propose, at present, to lift the suspension of the order of imprisonment imposed by Beech-Jones CJ at CL. I accept that the discretion not to lift the suspension “should be exercised sparingly, and only in cases where proper grounds have clearly been made out”: Lawrie v The Queen (1992) 59 SASR 400 at 403 (Perry J). This is such a case, given the type and extent of the defendant’s mental condition was unknown at the time of the imposition of the suspended sentence.

109. I have the option of adjourning the proceedings for an extended period. This would be consistent with the common law power detailed in Griffiths v The Queen (1977) 137 CLR 293. I will, as a condition of that adjournment, direct that Mr Rollinson attend the Memory and Cognition Clinic at the Prince Alfred Hospital at the first available opportunity and accept the treatment and assistance made available to him, both by staff of that Centre and by his general practitioner Dr Charles Geale of the East Sydney Doctors medical practice.

110. I find that should the defendant’s access to appropriate treatment, social and financial support be increased, any risk of future offending would be reduced. The matter will be listed for a further hearing in 2024.

111. Whilst costs are available in contempt applications (Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15 at 89), I will also adjourn the plaintiff’s application for costs.

Orders

112. I emphasise to Mr Rollinson that the orders I will shortly pronounce afford him considerable leniency. If there is a breach of the orders, I will have no choice but to impose a term of full-time imprisonment.

113. For the foregoing reasons I make the following orders:

1. Remand the proceedings for sentence to 13 November 2024 at 10am on the condition that Mr Rollinson enter an agreement to comply with the following conditions:

1. To be of good behaviour (which includes, for the avoidance of doubt, compliance with the orders of the Court made by Wilson J on 16 August 2021 and Campbell J on 16 September 2021).

2. To accept no contact from and initiate no contact with Vincent Stanizzo.

3. To attend the medical practice East Sydney Doctors at 102 Burton Street, East Sydney, at least once every three months and to accept all reasonable advice, treatment and referral.

4. Upon the receipt of his Medicare Card, to make an appointment within 7 days to attend the Memory and Cognition Clinic at the Prince Alfred Hospital and thereafter accept the treatment, assistance and supervision made available to him by the staff of the Centre.

5. To appear before the Supreme Court as directed.

6. A written report about compliance with orders (a) to (e) is to be provided by email to the plaintiff’s representatives and to the Associate to Payne JA by 9 February 2024 at 4pm.

7. A further report about compliance with orders (a) to (e) is to be provided by email to the plaintiff’s representatives and to the Associate to Payne JA by 6 November 2024 at 4pm.

1. Liberty to apply to the Court for a variation of the conditions on 3 days notice.

2. Adjourn the plaintiff’s application for costs on the amended notice of motion filed on 23 September 2022 and the notice of motion filed 11 August 2022 until 13 November 2024.

114. Mr Rollinson’s agreement to these conditions may be effected by signing a copy of these orders. A signed copy of the orders should be provided by Mr Rollinson’s representatives to the plaintiff’s representatives and to my associate by 5pm on Friday 17 November 2023.

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Decision last updated: 16 November 2023