Legal Services Board v Telfer - [2017] VSC 248

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2004 8407

VICTORIAN LEGAL SERVICES BOARD	Plaintiff
v
CAMERON TELFER	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2017
DATE OF JUDGMENT:	19 May 2017
CASE MAY BE CITED AS:	Legal Services Board v Telfer
MEDIUM NEUTRAL CITATION:	[2017] VSC 248

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CONTEMPT – Breach of order restraining a former solicitor from engaging in legal practice – Plea of guilty– Prior conviction for the same conduct – Specific and general deterrence – Whether imprisonment warranted – Personal circumstances of defendant - Defendant sentenced to nine months’ imprisonment with eight months suspended for two years.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Carr	Legal Services Board Victoria
For the Defendant	Mr Telfer appeared in person

HIS HONOUR:

Introduction

Cameron Telfer is a 68-year-old ex-solicitor. In October 2004, a Judge of this Court (Harper J) ordered that Mr Telfer be restrained from engaging in legal practice or from representing or advertising that he was qualified to engage in legal practice in this State.

In 2007, Mr Telfer was found guilty of contempt of court by Harper J on the basis that he engaged in practice as a solicitor contrary to his Honour’s earlier order. A suspended sentence of four months’ imprisonment was imposed.

This case involves a further admitted contempt of court by Mr Telfer, between 2014 and 2016, when he again engaged in legal practice and represented that he was a qualified solicitor. The only question to be determined is that of penalty – and particularly whether on this occasion a period of imprisonment should be imposed.

Ultimately, and with some reluctance, I have concluded that Mr Telfer must serve a period of imprisonment, with the bulk of that sentence being suspended.

The Charge

Attached to these reasons is a Schedule containing particulars of the charge laid against (and admitted by) Mr Telfer. The charge encompasses a ‘rolled up’ charge of contempt relating to the conduct of and representations made by Mr Telfer between March 2014 and March 2016 – which can be summarised as follows.

During the course of Mr Telfer’s employment as a probate clerk with Garden and Green he:

(a) engaged in legal practice by acting as a lawyer on behalf of three clients; and

(b) represented that he was qualified to engage in legal practice in Victoria by accepting instructions to act for those clients, by forwarding correspondence which implied he was a qualified lawyer, and by referring to himself as counsel’s ‘instructor’ or ‘instructing solicitor’.

The orders of Harper J

On 27 October 2004, Harper J ordered that Mr Telfer ‘be restrained from engaging in legal practice in Victoria or from representing or advertising that he is qualified to engage in legal practice in Victoria’. That order remains in place.

In December 2007, Mr Telfer pleaded guilty to separate counts of contempt relating to three instances of acting as a legal representative for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 248
Decision Date: 19 May 2017

CaseChat Overview and Summary

The Legal Services Board brought proceedings against Telfer, a former solicitor, for breaching an order restraining him from engaging in legal practice. Telfer had pleaded guilty to the charge, having previously been convicted for the same conduct. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether Telfer should be imprisoned for breaching the restraining order, considering his prior conviction, the need for specific and general deterrence, and his personal circumstances.

The court considered the principles of sentencing in contempt cases, focusing on the need to maintain the authority of the court and deter both the individual and the broader community from similar breaches. Given Telfer’s prior conviction for the same offence, the court acknowledged the importance of specific deterrence to prevent reoffending and general deterrence to uphold the integrity of legal practice. The personal circumstances of Telfer, including his age, health, and family responsibilities, were also evaluated to determine the appropriate sentence.

After weighing these factors, the court concluded that imprisonment was warranted to achieve the goals of deterrence and uphold the authority of the court. However, the court recognised Telfer's personal circumstances and decided on a sentence of nine months' imprisonment, with eight months suspended for two years, allowing for some flexibility in enforcement while maintaining the deterrent effect. This decision balanced the need for punishment with consideration of Telfer’s ability to contribute to society outside of prison.

Orders