Legal Services Board v Forster (No 3)

[2012] VSC 640

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 6947

LEGAL SERVICES BOARD	Plaintiff
v
DAVID BRIAN FORSTER	Defendant

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 December 2012
DATE OF JUDGMENT:	21 December 2012
CASE MAY BE CITED AS:	Legal Services Board v Forster (No 3)
MEDIUM NEUTRAL CITATION:	[2012] VSC 640

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CONTEMPT OF COURT – Breach of court order – Interference with the due administration of justice – Duty of a legal practitioner to uphold the rule of law – Whether a term of imprisonment can be imposed if the court order was not indorsed as required by r 66.10(3) of the Supreme Court (General Civil Procedure) Rules 2005 - Whether a fine would satisfy the principles of denunciation and deterrence - Supreme Court (General Civil Procedure) Rules 2005 O 77, O 66.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S R Senathirajah	Corrs Chambers Westgarth
For the Defendant	In person

HER HONOUR:

1. David Brian Forster, on 19 December 2012, I found that the contempt of court alleged against you had been proven.

1. The contempt arose out of an email that you sent on 13 October 2012 to Dr Kristine Hanscombe SC, who is senior counsel for the Legal Services Board in these proceedings and in other proceedings between you and the Board.  You sent the email in breach of an order made by the Court on 17 February 2011 that you not contact, communicate or otherwise approach any counsel retained by the Board in the proceeding (which I will refer to as the Order).

1. The circumstances of the contempt are set out in full in the judgment in which I found the contempt proven.[1]  I will not repeat them.

   [1]Legal Services Board v Forster (No 2) [2012] VSC 633.

1. The contempt involved (a) a breach of the Order made in February 2011, which I found was not deliberately defiant or contumacious; and (b) an interference in the course of justice, in that the email was intimidatory and had the effect of making the discharge of Dr Hanscombe’s duties as counsel for the Board more onerous.

1. I note that the offending email was not, on its face, overtly threatening and it was not abusive.

1. You have apologised for the breach of the Order on two occasions in writing to the Board, and you apologised again to the Court.  You maintain that the breach was a product of forgetfulness brought on by the stresses and strains that you are under.  I did not find, on the criminal standard, that you did not temporarily forget about the Order as you said you did.  I found your mental state to have been brittle and that you appeared confused at the time of the hearing.  However, I also found that there was no good reason for sending the offending email and that it was sent to Dr Hanscombe with a view to antagonising and annoying her.  It was your way of letting Dr Hanscombe know that you did not feel inhibited in commenting on the way in which she discharged her duties to the Board and in expressing the view that she should cease to act.  Sending the offending email therefore had a tendency to interfere in the course of justice.  It was a serious matter constituting criminal contempt.

1. The Court must now impose a penalty for your conduct.

1. Section 5 of the Sentencing Act 1991 (Vic) sets out the purposes for which sentences may be imposed, including, most relevantly, to punish the offender to an extent and in a manner which is just in all the circumstances, to manifest the denunciation by the Court of the type of conduct in which the offender engaged and to deter the offender or other persons from committing offences of the same or similar character.

1. In DPP v Johnson,[2] Osborn J identified the following matters of potential relevance in sentencing in contempt cases:

   [2][2002] VSC 583.

(a)the context of the proceedings, including whether the contempt was committed in the course of a trial for serious criminal offences;

(b)the objective seriousness of the contempt, including the actual consequences to the trial and the implications of such contempt for the general administration of justice;

(c)the state of mind and intention of the contemnor, including the reason (if any) for the contempt and the contemnor’s intention as to the consequences for the trial;

(d)whether and if so when there has been an apology or public expression of contrition and the acceptance of the Court’s authority;

(e)the character and antecedents of the contemnor;

(f)general and personal deterrence;

(g)denunciation of contempt;  and

(h)the passage of time since the occurrence of the contempt.[3]

[3]Ibid [59].

1. You have urged the Court to consider carefully the context in which the contempt was committed and the objective seriousness of the contempt.  You have submitted that the contempt occurred in the context of very acrimonious litigation and in circumstances where you were highly stressed and forgetful.  You have also submitted that the vehicle for the contempt, namely, the offending email, was not threatening or abusive and that the objective seriousness of the contempt should therefore not be found to be high, particularly compared to the nature and circumstances of the contempts found in the cases referred to by the Board, namely, the cases of Rich v Attorney-General for Victoria[4] and R v Vasiliou.[5]

   [4](1999) 103 A Crim R 261 (‘Rich’).

   [5][2012] VSC 216.

1. It is true that the contempt did not occur in the context of a very serious criminal trial (as in Rich), and that the content of the offending email was innocuous when compared to the emails sent by Mr Vasiliou.  Nonetheless, the contempt occurred as the result of the breach of the Order, the very purpose of which was to prevent any further interference in the course of justice as a result of you threatening or harassing counsel for the Board.  There had already been a serious interference in the course of justice arising from the letter that you hand delivered to Dr Hanscombe in February 2011.

1. This is not a case where your contempt can be classified as being merely technical.  There are facts and circumstances that make the contempt a serious one, including the following:

(a)the Order was made in the first place because you engaged in intimidatory conduct;

(b)you are a very experienced litigation solicitor who owes duties to the Court and who is aware of the importance of compliance with court orders;

(c)you were aware at all material times that if you breached the Order, you could be imprisoned;  and

(d)there was no good reason for you to have contacted Dr Hanscombe.

1. Furthermore, you said in the evidence that you gave to the Court that while your primary focus in sending the offending email was your concern about costs, in relation to Dr Hanscombe, you were hoping that it would prompt her to start asking herself whether she should continue to be involved in the proceeding.  You said that this would reduce an enormous amount of further work for you involving formal applications to the Court of Appeal and so on.  You therefore sent the offending email, at least in part, to deter Dr Hanscombe from continuing to act for the Board.

1. As to your apologies and public expressions of contrition, I consider these to be somewhat equivocal.  Although I do not accept the Board’s submission that I should infer that the apologies to the Board were only given because proceedings against you had been initiated, in your evidence to the Court you suggested at one point that you did not really think there had been a breach of the Order because the Order only applied in respect of this proceeding and not in respect of proceedings in the Court of Appeal.  Although at other times you conceded that the Order had been breached and that you had made a serious mistake, I do not consider that you have insight into the seriousness of the nature of your offending.

1. You are a member of the legal profession of long standing.  You well knew the importance of complying with the Order and the seriousness of breaching it.  You must also be taken to have appreciated the seriousness of seeking to interfere with the ability of the Board to retain counsel of its choosing.  In my view, legal practitioners should be held to a higher standard when it comes to compliance with Court orders and the preservation of the due administration of justice than ordinary members of the public.  Legal practitioners are bound to uphold the rule of law, which is an essential element in any civilised and properly functioning community.

1. In the present case, therefore, I consider that denunciation of the contempt is very important.  As Harper J said in R v Garde-Wilson,[6] the community must be able to look to legal practitioners to shoulder responsibility for the maintenance of the rule of law to a greater extent than persons who do not make their livelihood from the law.[7]

   [6][2005] VSC 452.

   [7]Ibid [8].

1. The question of specific deterrence is also important.  You have submitted that it is clear that you will not breach the Order again and you have made reference to the costs that you will have to pay and the damage to your reputation that has occurred as a result of newspaper coverage of this proceeding.

1. Given the conduct that led to the making of the Order, your breach of the Order, and the fact that the protection sought to be provided by the Order was rendered illusory as a result of your conduct in sending the offending email, I cannot be satisfied that you would be deterred from repeating this misconduct simply by the imposition of a costs order and by the anxiety and inconvenience that this particular application has caused you.

1. Order 75.11 of the Supreme Court(General Civil Procedure) Rules 2005 (the ‘Rules’) provides:

(i)Where the respondent is an actual person, the court may punish for contempt by committal to prison or fine or both.

(ii)Where the respondent is a corporation, the court may punish for contempt by sequestration or fine or both.

(iii)Where the court imposes a fine, it may commit, or further commit, the respondent to prison until the fine is paid.

(iv)The court may make an order for punishment on terms, including a suspension of punishment.

1. There is no maximum penalty prescribed for contempt of court.  Little assistance is to be gained by detailed comparisons with other penalties imposed in other cases.[8]

   [8]Wood v Galea (1996) 84 A Crim R 274, 277.

1. There was some argument as to whether, in this case, the Court could impose a term of imprisonment because the Order was not indorsed with the notice that you were liable to imprisonment if you disobeyed it as required by r 66.10(3) of the Rules.

1. In my view, the Court can impose a term of imprisonment notwithstanding the absence of the indorsement on the Order. I have reached this conclusion for two reasons:

(a)First, the Court has found there was a contempt not only by reason of the breach of the Order, but also by reason of the fact that sending the offending email had a tendency to interfere with the course of justice.  The second of these reasons stands alone and does not engage rr 66.05 or 66.10.

(b)Secondly, r 66.10(3) applies to a judgment ‘served under this Rule’. Rule 66.10(5) permits the enforcement of the Order without service of the Order because you were present in Court when the Order was made. If there was no requirement to serve the Order, there was no requirement to indorse it pursuant to the terms of r 66.10(3).

1. In any event, were it necessary, I would dispense with service under r 66.10(6) on the basis that I am entirely satisfied that you were aware of the terms of the Order and that you were liable to imprisonment if you breached it.

1. Having regard to the particular factors of denunciation, general deterrence and specific deterrence that apply in this case, I must consider whether you should be fined or whether a term of imprisonment should be imposed.

1. I consider the contempt to be sufficiently serious to warrant a term of imprisonment.  Moreover, I do not consider that a fine would be appropriate, particularly having regard to the fact that the receiver was appointed in this proceeding in order to recover moneys payable to your former clients as a result of the trust account irregularities that were identified.  Imposing a fine on you would simply reduce the moneys available to repay those persons.

1. Most importantly, however, I have formed the view that nothing less than the certainty that you will be imprisoned if you again contact the Board’s counsel will deter you from doing so.

1. In reaching this conclusion, I have taken into account that you have no previous convictions, that you have some history of community service, that you wish to engage in community service in the future and that a conviction may place limitations on your ability to travel to some destinations.  It may also affect your ability to obtain or renew a practising certificate and therefore affect your livelihood.  I have also taken into account your age, your obvious emotional fragility and the character references that were handed up in Court given by Mr Burk, Mr Jimmy Lardner and Mr Paul Bravender-Coyle.  These people speak eloquently of your desire to represent needy members of society and they express the view that you are of good fame and character (I note that one of these references is undated, one dates from August 2011 and the third from September 2010).  I have also taken into account that you are receiving treatment for anxiety and depression.

1. However, none of this causes me to change my view about the appropriate penalty because I do not consider that simply making a costs order, or making a costs order and imposing a fine, would deter you from engaging in the same conduct again or that it appropriately express the denunciation that your conduct warrants.

1. I have formed the view that you have limited insight into the seriousness of your conduct in sending the offending email.  I believe that you regard it as a fairly trivial mistake and as something that might happen, as you said, ‘in the heat of the kitchen’ given the perils of email and the ease with which they may be unthinkingly sent.

1. I fear that if you were to be given a fine, it would make little or no impression on you.  As you constantly reminded the Court in your oral submissions, you are already liable to pay a great deal of money in costs both to the receivers of your former law practice and to the Board.  A fine would be unremarkable.  Importantly, it would not reflect the seriousness of your conduct, as a lawyer, in breaching an order of the Court directed specifically to protecting counsel and the integrity of the Court’s processes, and would not act as a real deterrent.  You must – finally – be made to take some responsibility for your actions.

1. I propose to order that you be convicted and committed to prison for one month.  However, the order of imprisonment will be suspended for a period of 12 months from this date.  No warrant for imprisonment will issue without the matter coming back before me.

1. The Board has submitted that it should have its costs of this application on an indemnity basis.  I propose also to make an order to that effect.

1. The orders I will make are as follows:

1.David Brian Forster is adjudged:

(a)in contempt of the Court in that contrary to the Order of the Honourable Justice Emerton made 17 February 2011, David Brian Forster did contact, communicate or otherwise approach counsel retained by the Plaintiff by sending an email at approximately 11:51am on 13 October 2012 to Dr Kristine Hanscombe SC, senior counsel engaged by the Plaintiff; and

(b)in contempt of the Court in that on 13 October 2012, David Brian Forster sent an email addressed to Dr Kristine Hanscombe SC, senior counsel engaged by the Plaintiff, which had a tendency to interfere with the due administration of justice because it was intimidating and would have the effect of making the discharge of Dr Hanscombe’s duties as counsel for the Plaintiff more onerous and difficult,

and is convicted and committed to prison for 1 month.

2.Upon giving the following undertaking to the Court and signing the form of undertaking which is to be annexed to this Order:

I, DAVID BRIAN FORSTER of 1591 Mornington-Flinders Road, Flinders in the State of Victoria, UNDERTAKE to the Court that I will obey and comply in every respect with the Order of the Honourable Justice Emerton made 17 February 2011, during the period until 20 December 2015, or until the Order of the Honourable Justice Emerton made on 17 February 2011 ceases to operate, whichever occurs first,

the order of imprisonment will be suspended for a period of 12 months from this date or until the Order of the Honourable Justice Emerton made on 17 February 2011 ceases to operate, whichever occurs first.

3.A warrant of committal to prison shall not issue until further order of the Court.

4.The Defendant pay the Plaintiff’s costs of and incidental to the proceeding, including any reserved costs, on an indemnity basis.